900 KAR 6:040.
RELATES TO: KRS
AUTHORITY: KRS 13A.350, 216B.040, 1996 Ky. Acts ch. 371, EO 96-862
FUNCTION, AND CONFORMITY: KRS 216B.040 and 216B.105 authorize the Cabinet for
Health Services to provide a due process hearing and issue a final
determination on all actions by the Cabinet for Health Services to deny,
revoke, modify or suspend a license. Executive Order 96-862 reorganizes the
Cabinet for Human Resources and creates the Office of Certificate of Need under
the Cabinet for Health Services. This administrative regulation sets forth the
hearing procedure for licensure actions.
Notice of Action and Request for Hearing. Any applicant or licensee who has
been notified of the cabinet's decision to deny, revoke, modify or suspend a
license to operate a health facility or health service may request an
evidentiary hearing for the purpose of appealing the cabinet's decision. The
request must be filed with the cabinet within thirty (30) days of the date of
mailing of notice of the cabinet's decision.
Notice of Hearing. The cabinet shall provide the appellant with notice of date,
time and location of the hearing by certified mail at least thirty (30) days
before the date of the hearing.
Disqualification of Hearing Officer. No hearing officer shall participate in
any hearing in which the hearing officer has had within the past twelve (12)
months preceding the hearing, any ownership, employment, staff, fiduciary,
contractual, creditor, personal, consultative relationship that would preclude
the hearing officer from conducting a fair and impartial hearing with the applicant
Hearing Procedure. (1) Each party shall have the opportunity to present its case,
make opening statements, call and examine witnesses, offer documentary evidence
into the record and make closing statements. Every party shall also have the
opportunity to cross-examine opposing witnesses on matters covered in direct
examination and, at the discretion of the hearing officer, upon other matters
relevant to the issues. A party that is a corporation shall be represented by
an attorney licensed to practice in the Commonwealth of Kentucky.
(a) The hearing
officer may allow testimony or other evidence on issues that may arise during
the course of the hearing, including any additional petitions for intervention
which may be filed. The hearing officer may act to exclude irrelevant,
immaterial or unduly repetitious evidence, and may question any party or
(b) The hearing
officer is not bound by the Kentucky rules of evidence and may allow hearsay
evidence in his discretion if it is relevant to the issue.
applicant or licensee may be allowed to open and close the presentation of
evidence and arguments. The hearing officer shall designate the order of
presentations, in the preliminary order.
may appear through deposition or in person. Witnesses shall be examined under
oath or affirmation. If the hearing officer determines that the hearing will be
expedited and the interests of the parties will not be prejudiced, any part or
all of the evidence may be received in written form. Written testimony of a
witness in the form of questions and answers or a narrative statement may be
received in lieu of direct examination, provided that the witness authenticates
the document under oath. The witness shall then be subject to
(e) A written
statement from any party, or a statement or resolution of a political subdivision,
trade association, civic organization or other organization may be received
without cross examination, but will be considered only as argument, and not as
proof of any matter addressed in these documents unless the party against whom
the document is being offered is allowed to cross-examine the proponent of the
(f) The hearing
officer may accept documentary evidence in the form of copies of excerpts if
the original is not readily available, provided that upon request parties shall
be given an opportunity to compare the copy with the original. Documents to be
considered for acceptance shall be filed with the hearing officer and other
parties at least seven (7) days before the hearing.
(g) A document
may not be incorporated into the record by reference without the permission of
the hearing officer. Any reference document shall be precisely identified.
(h) The hearing
officer may permit a party to offer or request a party to produce additional
evidence or briefs of issues as part of the record within a designated time,
not to exceed the ten (10) days after the conclusion of the hearing. During
this period, the hearing record shall remain open, and the conclusion of the
hearing shall occur when the additional information is filed.
(2) In lieu of
an evidentiary hearing, the parties to a proceeding, with the consent of the
designated hearing officer, may file written stipulations of relevant facts.
The hearing officer may decide the appeal on the basis of such stipulation or
may schedule a hearing and take such further evidence as he deems necessary.
designated hearing officer may, at his discretion, grant a continuance of a
hearing in order to secure necessary evidence.
Findings and Recommendations. (1) After the hearing, the hearing officer shall
prepare written findings of fact and recommendations with a synopsis of the
evidence contained in the record on the issues involved. If the applicant or
licensee fails to appear and prosecute the appeal, the hearing officer may
dismiss or recommend dismissal of the appeal.
(2) The hearing
officer shall, within thirty (30) days of the close of the hearing send
findings and recommendations by certified mail to the applicant or licensee, to
the licensing agency, and to the Secretary of the Cabinet for Health Services.
Written exceptions to the recommended decision may be submitted within fifteen
(15) days of receipt.
Secretary of the Cabinet for Health Services shall make a final decision
pursuant to subsection (2) of this section within ninety (90) days from the
date of the recommended order of the hearing officer.
(4) The decision
of the secretary shall be final for purposes of judicial appeal, as set forth
in KRS 216B.115. (23 Ky.R. 2382; Am. 2746; eff. 12-18-96.)