782 Kar 1:040. Appeal Procedures

Link to law: http://www.lrc.ky.gov/kar/782/001/040.htm
Published: 2015

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
      782 KAR 1:040. Appeal procedures.

 

      RELATES

TO: KRS 13B, 151B.225, 163.450-163.470, 29 U.S.C. 722, 34 C.F.R. Part 361

      STATUTORY

AUTHORITY: KRS 13B.170, 163.470(5), 29 U.S.C. 722(c)

      NECESSITY,

FUNCTION, AND CONFORMITY: KRS 13B.170 authorizes an agency to promulgate

administrative regulations that are necessary to carry out the provisions of

KRS Chapter 13B concerning administrative hearings. KRS 163.470(5) requires the

Office for the Blind to implement policies and procedures for carrying out

programs of services for persons of the Commonwealth who are blind or visually

impaired. 29 U.S.C. 722(c) requires the office to establish procedures so that

a person seeking vocational rehabilitation services who is dissatisfied with

determinations made by staff of the office concerning the furnishing, denial,

reduction, suspension, or cessation of services may request a timely review of

those determinations. This administrative regulation establishes those procedures.

 

      Section

1. Hearing Officer. (1) To conduct a hearing under this administrative

regulation, a hearing officer shall:

      (a)

Be trained with respect to the performance of official duties; and

      (b)

Have knowledge of:

      1.

The delivery of vocational rehabilitation services;

      2.

Federal and state laws; and

      3.

Administrative regulations governing the provision of vocational rehabilitation

services.

      (2)

To conduct a hearing under this administrative regulation, a hearing officer

shall not:

      (a)

Be an employee of a public agency other than an:

      1.

Administrative law judge;

      2.

Hearing examiner; or

      3.

Employee of an institution of higher education;

      (b)

Be a member of the Office for the Blind State Rehabilitation Council;

      (c)

Have been involved in a previous decision regarding the vocational

rehabilitation of the applicant or eligible individual; or

      (d)

Have a personal or financial interest that conflicts with the objectivity of

the individual.

 

      Section

2. Mediation. (1) The office and the applicant or eligible individual may agree

voluntarily to submit a request concerning the provision or denial of benefits

to mediation.

      (2)

The office shall maintain a list of qualified mediators.

      (3)

The director of consumer services or a designee shall choose a mediator from

the list and schedule a mediation meeting within five (5) days from the receipt

of the request for mediation.

      (4)

A representative of the office who is authorized to bind the office to an

agreement shall attend the mediation.

      (5)

The applicant or eligible individual shall attend the mediation and may be

represented by an advocate or counsel.

      (6)

Discussions or agreements arising from the mediation process shall not be used

as evidence in any subsequent hearing or civil proceeding.

 

      Section

3. Right of Appeal and Information. (1) An applicant or eligible individual may

appeal to the director of consumer services determinations made by the office affecting:

      (a)

Furnishing of vocational rehabilitation benefits; or

      (b)

Denial, reduction, suspension, or cessation of vocational rehabilitation

services.

      (2)

An applicant or eligible individual shall:

      (a)

Be informed of the:

      1.

Entitlements available under this administrative regulation;

      2.

Right to appeal;

      3.

Right to be represented by an advocate or counsel; and

      4.

Names and addresses of office individuals with whom an appeal shall be filed.

      (b)

Request an appeal:

      1.

In writing;

      2.

By telephone through direct contact with the director of consumer services or a

designee; or

      3.

On tape, except that a voice mail message shall not constitute a request for a

hearing.

      (3)

The director of consumer services or a designee shall convene a hearing within

sixty (60) days of the request. Reasonable time extensions, not to exceed one

(1) year, may be granted for good cause with the agreement of both parties. The

hearing shall be conducted pursuant to:

      (a)

KRS Chapter 13B; and

      (b)

This administrative regulation.

      (4)

Pending a final determination of a hearing or other final resolution, the

office shall not suspend, reduce, or terminate a service provided under the

individualized plan for employment unless:

      (a)

It has evidence that the service was obtained by an applicant or eligible

individual through:

      1.

Misrepresentation;

      2.

Fraud;

      3.

Collusion; or

      4.

Criminal conduct; or

      (b)

This action is requested by an:

      1.

Applicant;

      2.

Eligible individual; or

      3.

Authorized representative of an applicant or eligible individual.

 

      Section

4. Client Assistance Program. The office shall advise an applicant or eligible

individual of:

      (1)

The existence of the Client Assistance Program, created by KRS 151B.225;

      (2)

The services provided by the program; and

      (3)

How to contact a program representative.

 

      Section

5. Appeal Time and Hearing Procedures. (1) An applicant or eligible individual

may appeal within sixty (60) days of becoming aware, through the exercise of

due diligence, of a office determination affecting the provision or denial of

vocational rehabilitation services. The applicant or eligible person may

appeal, pursuant to the requirements of Section 3 of this administrative

regulation.

      (2)

An applicant or eligible individual shall, when requesting a hearing:

      (a)

Identify accommodations required; and

      (b)

Submit an issue statement for the hearing.

      (3)

A hearing officer shall be selected on a random basis from a pool of trained

hearing officers in the Administrative Hearings Division of the Office of the

Attorney General approved by the office and the State Rehabilitation Council.

      (4)

The applicant or eligible individual may disqualify for cause up to three (3) hearing

officers randomly assigned by the Administrative Hearings Division of the

Office of the Attorney General.

 

      Section

6. Findings and Decision. (1) The hearing officer shall complete and submit to

both parties and the Secretary of the Education and Workforce Development Cabinet

the written recommended order within thirty (30) days of receipt of the

transcript of the hearing, unless both parties agree to a time extension.

      (2)

Either party shall have twenty (20) days from the date the recommended order is

mailed within which to file exceptions to the recommendations with the

Secretary of the Education and Workforce Development Cabinet.

      (3)

The Secretary of the Education and Workforce Development Cabinet shall consider

the record including the recommended order and any timely exceptions filed to

the recommended order.

      (4) The Secretary of the Education and

Workforce Development Cabinet shall issue the final order within thirty (30)

days from expiration of the time period for filing exceptions. (Recodified from 720 KAR 1:040, 7-5-90; Am. 21

Ky.R. 1957; 2706; eff. 5-4-95; 23 Ky.R. 3113; 3771; eff. 5-12-97; 26 Ky.R.

2035; eff. 7-17-2000; 28 Ky.R. 1212; 1635; eff. 1-14-2002; 38 Ky.R. 834; 1133;

eff. 12-12-11.)