CABINET FOR HEALTH AND FAMILY SERVICES

Department for Community Based Services

Division of Protection and Permanency

(Amended After Comments)

 

††††† 922 KAR 1:480. Appeal of child abuse and neglect investigative findings.

 

††††† RELATES TO: KRS Chapter 13B, 13B.010(2), (7), 23A.010, 194A.005(1)[13B.090(1)], 600.020(1), (6), 620.050(5), 45 C.F.R. 205.10, 42 U.S.C. 5106a(b)(2)(B)(viii), (ix)[5106a(b)(2)(A)(viii), (ix), EO 2004-726]

††††† STATUTORY AUTHORITY: KRS 194A.050(1), 42 U.S.C. 5106a

††††† 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. 42 U.S.C. 5106a requires the Secretary of Health and Human Services to make grants for the purpose of assisting states in improving the delivery of child protective services, including procedures for appealing and responding to appeals of substantiated reports of abuse and neglect. In order to maintain continued eligibility after the initial grant application, 42 U.S.C. 5106a requires states to submit a plan every five (5) years thereafter assuring operation of a statewide program related to child abuse and neglect that includes provisions, procedures, and mechanisms by which a perpetrator who disagrees with an official finding of child abuse or neglect may appeal the finding.[EO 2004-726 reorganizes the executive branch of government and establishes the Cabinet for Health and Family Services.] This administrative regulation establishes the cabinetís procedures for responding to appeals of child abuse and neglect investigative findings.

 

††††† Section 1. Definitions. (1) "Abused or neglected child" is defined by KRS 600.020(1).

††††† (2) "Administrative hearing" is defined by KRS 13B.010(2).

††††† (3) "Appellant" means a perpetrator who requests an administrative hearing or on whose behalf an administrative hearing is requested by the perpetratorís legal representative.

††††† (4) "Cabinet" is defined by KRS 194A.005(1) and 600.020(6).

††††† (5) "Compelling need" means a hearing officer determines that a probability exists by which a child would be unable to reasonably communicate because of emotional distress produced by the perpetrator's presence.

††††† (6)[(5)] "Good cause" means justification for failure to carry forward with a legal obligation related to an appeal, including:

††††† (a) An appellantís inability to comprehend the cabinetís written statement describing appeal rights; or

††††† (b) A cabinet-sanctioned determination that the appellant or the appellantís legal representative is not at fault for failure to:

††††† 1. Submit a written request for appeal; or

††††† 2. Participate in a proceeding related to an administrative hearing.

††††† (7)[(6)] "Hearing officer" is defined by KRS 13B.010(7).

††††† (8)[(7)] "Perpetrator" means a person who, as a result of an investigation, has been determined by the cabinet to have abused or neglected a child.

 

††††† Section 2. Right to Appeal. A person who has been found by the cabinet to have abused or neglected a child may appeal the cabinet's investigative finding through an administrative hearing.

 

††††† Section 3. Notification and Request for Appeal. (1) The cabinet shall provide to a perpetrator:

††††† (a) Notice of a substantiated finding of child abuse or neglect in accordance with 922 KAR 1:330, Section 8; and

††††† (b) A copy of the Request for Appeal of Child Abuse or Neglect Investigative Finding, form DPP-155, incorporated by reference.

††††† (2) The cabinet shall disclose confidential information in accordance with 42 U.S.C. 5106a(b)(2)(B)(viii)[5106a(b)(2)(A)(viii)], (ix) to any federal, state, or local government entity, or an agent of a government entity, that has a need for the information in order to carry out its responsibility under the law to protect children from abuse and neglect.

††††† (3) A request for appeal shall:

††††† (a) Be submitted:

††††† 1. In writing by the appellant, with the assistance of the cabinet if the appellant is unable to comply without assistance; and

††††† 2. To the cabinet no later than thirty (30) calendar days from the date:

††††† a. The notice of a substantiated finding of child abuse or neglect is mailed; or

††††† b. Of delivery of the notice if not mailed;

††††† (b) Describe the nature of the investigative finding;

††††† (c) Specify the reason the appellant disputes the cabinetís substantiated finding of child abuse or neglect;

††††† (d) Specify the name of each known cabinet staff person involved with the investigation; and

††††† (e) Include a copy of the notice of a substantiated finding of child abuse or neglect if available.

††††† (4)(a) Upon receipt of a written request for appeal, the cabinet shall confirm whether the matter is subject to review through an administrative hearing.

††††† (b) If the matter is not subject to review, the cabinet shall inform the individual in writing that the matter:

††††† 1. Is not appealable; and

††††† 2. May be pursued through the service complaint process described in 922 KAR 1:320, Section 4 or 10[8].

††††† (5) The cabinet shall not dismiss a request for appeal as untimely if an appellant demonstrates good cause.

 

††††† Section 4. 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 civil court having competent jurisdiction:

††††† 1. Has heard evidence and made a final judicial determination that abuse or neglect of a child did or did not occur; or

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

††††† (b) A matter in which an appellant has been criminally charged and convicted of an action that is the basis of the cabinetís finding of abuse or neglect of a child;

††††† (c) A final administrative decision made by the cabinet or cabinetís designee as a result of a previous appeal on the same issue;

††††† (d) An appeal that has been abandoned by an appellant who failed to demonstrate good cause for failure to go forward;

††††† (e) Failure to submit a written request for appeal within the time frame established by Section 3(3)(a) of this administrative regulation, unless an appellant demonstrates good cause; or

††††† (f) An investigation that results in an unsubstantiated finding of abuse or neglect of a child.

††††† (2) If an appellant is denied an administrative hearing in accordance with subsection (1)(a) of this section, the cabinet shall change its[an] investigative finding in accordance with a civil courtís finding regarding abuse or neglect.

 

††††† Section 5. Investigative Findings. (1) The cabinet shall reserve[reserves] the right, in its sole discretion, to amend, modify, or reverse its[an] investigative finding of child abuse or neglect at any time based upon:

††††† (a) A review of the cabinetís records; or

††††† (b) Subsequent discovery of additional information.

††††† (2) If amendment, modification, or reversal of an investigative finding results in a substantiated finding of abuse or neglect of a child, the cabinet shall act in accordance with Section 3(1) and (2) of this administrative regulation.

 

††††† Section 6. Administrative Hearing. (1) Each administrative hearing conducted by the cabinet or its designee shall be held in accordance with KRS Chapter 13B.

††††† (2)[Hearsay shall be admissible in accordance with KRS 13B.090(1). (3)] The proceedings of an administrative hearing shall be disclosed only by authority of state or federal law.

††††† (3)[(4)] A hearing officer may, upon a determination of compelling need, permit a child to provide testimony in a manner in which the child is not able to hear or see the appellant.

††††† (4)[(5)] If a hearing officer orders the testimony of a child to be taken in accordance with subsection (3)[(4)] of this section, the hearing officer shall permit the appellant to hear the testimony of the child.

 

††††† Section 7. Recommended Order. (1) A copy of the recommended order shall be sent simultaneously to:

††††† (a) Each party to the administrative hearing;

††††† (b) The commissioner of the Department for Community Based Services; and

††††† (c) The secretary of the Cabinet for Health and Family Services or designee.

††††† (2) If a party to a hearing disagrees with the recommended order, the party may file a written exception as provided in KRS 13B.110(4) with the secretary, which 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 8. Final Order. (1) The secretary of the Cabinet for Health and Family Services or designee shall issue a final order in accordance with KRS 13B.120.

††††† (2)(a)[(6)] Final administrative action shall be taken, unless waived by an appellant, within ninety (90) days from the date of the request for an administrative hearing as required by 45 C.F.R. 205.10.

††††† (b) If the appellant waives the ninety (90) day requirement specified in paragraph (a) of this subsection, the hearing officer shall notify all parties to the hearing when final administrative action will be taken.

††††† (3) An aggrieved party may petition for judicial review in accordance with:

††††† (a) KRS 13B.140 to 13B.160; or

††††† (b) KRS 23A.010.

 

††††† Section 9.[7.] Incorporation by Reference. (1) "DPP-155, Request for Appeal of Child Abuse or Neglect Investigative Finding",[edition] 6/04,["] 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, 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: June 11, 2014

††††† FILED WITH LRC: June 13, 2014 at 2 p.m.

††††† 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 cabinet procedures, congruent with grant eligibility requirements under 42 U.S.C. 5106a(b), for responding to appeals of child abuse and neglect investigative findings.

††††† (b) The necessity of this administrative regulation: This administrative regulation is necessary to establish procedures for appealing and responding to perpetrators who disagree with an investigative finding of child abuse and neglect.

††††† (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 the appeal process for child abuse and neglect investigative findings.

††††† (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 appeals of child protective services investigative findings.

††††† (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 to this administrative regulation inserts a definition of "cabinet" and removes language related to hearsay in administrative hearings to avoid duplication and misinterpretation of KRS Chapter 13B. Language was provided regarding the distribution of recommended orders and clarifies processes for exceptions of recommended orders as provided in KRS 13B.110. The amendment also makes 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 processes for various improvements, including timeliness, congruency with KRS Chapter 13B requirements, and objectivity. The amendment to this administrative regulation is necessary to align appeals of a child abuse and neglect investigative findings with the reassignment of final order responsibilities from the Commissioner of the Department for Community Based Services to the Secretary of the Cabinet for Health and Family Services and to assure congruency with another simultaneously filed administrative regulation, 922 KAR 1:320, governing other appeals available under Title 922 Kentucky Administrative Regulations. The amendment is also necessary in accordance with KRS Chapter 13Aís drafting and format requirements.

††††† (c) How the amendment conforms to the content of the authorizing statutes: The amendment conforms to the content of the authorizing statutes by aligning appeals of child abuse and neglect investigative findings with the forthcoming reassignment of final order responsibilities to enhance timeliness, objectivity, and congruency with KRS Chapter 13B and federal law requirements.

††††† (d) How the amendment will assist in the effective administration of the statutes: The amendment will assist in the effective administration of the statutes through its enhancement of due process for individuals against whom investigative findings of child abuse and neglect have been made.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: From July 1, 2012, through June 30, 2013, over 58,000 child protective service calls met acceptance criteria for an investigation or FINSA. Over 11,000 substantiations of child maltreatment were made the same year. During the same time period, there were slightly more than 1,700 requests to appeal investigative findings received, and nearly 900 of those were hearable matters.

††††† (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 concerning an investigative finding of child abuse and neglect 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 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 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 the administrative body to implement this administrative regulation:

††††† (a) Initially: The amendment is technical and conforming in nature. The administrative body does not anticipate any new or additional costs to implement the proposed regulatory amendment.

††††† (b) On a continuing basis: The administrative body does not anticipate any new or additional ongoing costs to implement this proposed regulatory amendment.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The Social Services Block Grant and Title IV-E (of the Social Security Act) funds are federal funds that 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: An increase in fees or funding is not necessary to implement the amendment to this administrative regulation.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased 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. 5106a, 45 C.F.R. 205.10

††††† 2. State compliance standards. KRS 194A.050(1)

††††† 3. Minimum or uniform standards contained in the federal mandate. 42 U.S.C. 5106a, 45 C.F.R. 205.10

††††† 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 not impose stricter requirements, or additional or different responsibilities or requirement, 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 a stricter standard, or 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 194A.050(1), 42 U.S.C. 5106a, 45 C.F.R. 205.10

††††† (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 generate no new revenues.

††††† (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 generate no new revenues.

††††† (c) How much will it cost to administer this program for the first year? The administrative body does not anticipate any additional costs to administer these appeals during the first year.

††††† (d) How much will it cost to administer this program for subsequent years? The administrative body does not anticipate any additional costs to administer these appeals 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: