781 KAR 1:010. Department of Vocational Rehabilitation appeal procedures

Link to law: http://www.lrc.ky.gov/kar/781/001/010.htm
Published: 2015

      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.)
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