781 KAR 1:010.
Department of Vocational Rehabilitation appeal procedures.
RELATES TO: KRS
151B.190, 151B.200, 34 C.F.R. Part 361, 29 U.S.C. 722
STATUTORY
AUTHORITY: KRS 13B.170, 151B.195(1), 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. 29 USC 722(c) requires
state procedures for the review of determinations made by rehabilitation
personnel for basic rehabilitation services. Pursuant to KRS 151B.200, the Commonwealth of Kentucky, agreed to comply with all provisions relating to Federal Vocational
Rehabilitation Acts. KRS 151B.195(1) authorizes the commissioner to promulgate
administrative regulations for the department. This administrative regulation
establishes hearing and appeal procedures for a person seeking vocational
rehabilitation benefits.
Section 1.
Definitions. (1) "Applicant" means an individual who submits an application
for vocational rehabilitation services.
(2) "Eligible
individual" means an applicant for vocational rehabilitation services who
the office determines is an individual with a disability who requires
vocational rehabilitation services to prepare for, secure, retain or regain
employment.
(3) “Executive
director” means the Executive Director of the Office of Vocational Rehabilitation.
(4) “Office”
means the Office of Vocational Rehabilitation and its appropriate staff members
who are authorized under state law to perform the functions of the state
regarding the state plan and its supplement.
Section 2. Hearing Officer. (1) To
conduct a hearing under this administrative regulation, a hearing officer shall
not:
(a) Be an employee of a public agency,
other than an administrative law judge, hearing examiner, or employee of an
institution of higher education;
(b) Be a member of the Vocational
Rehabilitation Council;
(c) Have been involved in previous
decisions regarding the vocational rehabilitation of the applicant or eligible
individual; or
(d) Have personal or financial interest
that would be in conflict with the objectivity of the individual.
(2) To conduct a hearing under this
administrative regulation, a hearing officer shall:
(a) Have knowledge of the delivery of
vocational rehabilitation services, the federal and state laws and the
administrative regulations governing the provision of vocational rehabilitation
services; and
(b) Have training with respect to the
performance of official duties.
Section 3. Administrative
Review. (1) An applicant or eligible individual may request an informal
administrative review conducted by an office staff member from the director of
program services or a designee.
(2) The director or designee shall
select an administrator from a district not involved in the action in question
who shall conduct the administrative review within ten (10) days.
(3) The administrator shall conduct
the administrative review either in person or by teleconference.
(4) The administrator shall make a
determination and forward a copy to the individual and the office within five
(5) days of the administrative review.
(5) The applicant or eligible
individual shall attend the administrative review and may be represented by an
advocate or counsel.
Section 4. 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 Program 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 5. Right of Appeal and Information. (1) An applicant or eligible individual
may appeal to the Director of Program 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 Program 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 program services or a designee shall convene a hearing within sixty (60)
days of a request made pursuant to subsection (1) of this section. 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 services 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) The
applicant or eligible individual, or an authorized representative, requests
this action.
Section 6. 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 7.
Appeal Time and Hearing Procedures. (1) An applicant or eligible individual
shall file an appeal:
(a) Within sixty
(60) days of becoming aware, through the exercise of due diligence, of an
office determination affecting the provision or denial of vocational
rehabilitation services.
(b) By
contacting the Director of Program Services.
(2) An applicant
or eligible individual shall, at the time of 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 Statewide Council for Vocational Rehabilitation.
Section 8.
Findings and Decision. (1) The hearing officer shall complete and submit to
both parties and the Secretary of the Education 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 Secretary of the Education Cabinet.
(3) The
Secretary of the Education Cabinet shall consider the record, including the
recommended order and any timely exceptions filed to the recommended order.
(4) The
Secretary of the Education Cabinet shall issue the final order within thirty
(30) days from expiration of the time period for filing exceptions. (17 Ky.R.
779; Am. 1491; eff. 12-7-90; 21 Ky.R. 1953; 2702; eff. 5-4-95; 23 Ky.R. 3110;
3768; eff. 5-12-97; 26 Ky.R. 2030; 27 Ky.R. 114; eff. 7-17-2000; 28 Ky.R. 1210;
1634; eff. 1-14-2002.)
