RELATES TO: KRS Chapter 13B, 205.201, 205.204, 205.460-205.465,
42 U.S.C.
3021-3030s-2, 45 C.F.R. 74 App A,
1321.35
NECESSITY, FUNCTION, AND CONFORMITY:
42
U.S.C. 3027(a)(5) requires
that the department afford an opportunity for a hearing upon request to
providers and applicants who provide services under
42 U.S.C.
3021-3030s-2, Title III of the Older
Americans Act of 1965, as amended in 2006 (
Public
Law 109-365 ).
KRS
13B.170 authorizes the cabinet to promulgate
administrative regulations necessary to carry out the provisions of KRS Chapter
13B. This administrative regulation establishes the department's appeals
procedures.
Section 1. Definitions.
(1) "Area Agency on Aging and Independent
Living" or "AAAIL" means an area agency on aging as defined by
42
U.S.C.
3002(6).
(2) "Area plan" means a plan submitted by an
AAAIL to the department that releases funds under contract for the delivery of
service within a planning and service area.
(3) "Assistant secretary" means the Assistant
Secretary for Administration on Community Living as defined by
42
U.S.C.
3002(7).
(4) "Cabinet" is defined by
KRS
194A.005(1).
(5) "Department" means the Department for
Aging and Independent Living.
(6)
"Department contracting agency" means an agency contracting directly with the
department to administer department programs and services not affiliated with
42 U.S.C.
3021-
3030s-
2, Title III of the Older
Americans Act.
(7) "District" is
defined by
KRS
205.455(4).
(8) "Local administrative review" means the
process for consultation and review of a protest or complaint as defined in
subsection (10) of this section.
(9) "Planning and service area" or "PSA"
means the multicounty geographical entity in which a given AAAIL is responsible
for the delivery of aging services.
(10) "Protest" or "complaint" means a written
objection by:
(a) An applicant or provider to
a proposed award or award of contract denied by an AAAIL;
(b) A provider to an AAAIL's decision to
terminate or not renew its contract to provide services;
(c) An AAAIL to the adverse actions specified
in Section 3(1) of this administrative regulation;
(d) A client of a provider or AAAIL in
receipt of or non-receipt of services; or
(e) A client in receipt of or non-receipt of
services administered directly by the department.
(11) "Provider" means a person or entity that
is awarded a contract from an AAAIL to provide services under an approved area
plan.
(12) "Receipt of notice"
means the date notice is received.
(13) "RFP file" means those documents that
are maintained regarding a particular procurement including:
(a) Request for proposal;
(b) Newspaper advertisement;
(c) Proposal received in response to the
RFP;
(d) Correspondence pertaining
to the RFP;
(e) Review by the
AAAIL;
(f) Rating or scoring and
selection documents;
(g) Notice of
award; and
(h) Contract.
(14) "Secretary" is defined by
KRS
194A.005(2).
Section 2. Local Administrative
and State Hearing Procedures for AAAIL Contractor Selection.
(1)
(a) An
AAAIL shall send written notice to an applicant or provider for contractor
selection by registered or certified mail within seven (7) calendar days of the
AAAIL's decision which:
1. Denies the
applicant or provider its request to a proposed award or award of contract;
or
2. Terminates or does not renew
the provider's contract to provide a service.
(b) The notice shall specify:
1. The reason for the adverse
action;
2. That the provider or
applicant may file with the AAAIL a written protest or complaint within ten
(10) calendar days from receipt of notice; and
3. That failure to file the protest or
complaint within the ten (10) calendar days shall constitute a waiver of
opportunity for a state administrative hearing.
(2)
(a) An
AAAIL shall develop and submit written local administrative review procedures
for contractor selection to the department for approval.
(b) The procedures shall provide that:
1. The district shall not proceed further
with the solicitation, award, or termination during the pendency of a local
administrative review for contractor selection, except under a contingency plan
approved by the department;
2. A
request for a state administrative hearing shall not be accepted until all
administrative remedies have been exhausted at the local level;
3. The applicant or provider shall have an
opportunity to review pertinent evidence upon which the adverse action was
based including competing proposals and scoring sheets;
4. A request for reconsideration of an award
shall state in writing why the protest is filed and the factual circumstances
and issues to be considered during the review;
5. A local administrative review for the
applicant or provider shall include the following:
a. An opportunity for the applicant or
provider to appear in person before an individual or a group of three (3)
persons who can render an impartial decision;
b. An opportunity to present witnesses and
documentary evidence;
c. An
opportunity to be represented by counsel;
d. An opportunity to cross-examine witnesses;
and
e. A written impartial decision
describing:
(i) The reasons for the
decision;
(ii) The evidence on
which the decision is based; and
(iii) A statement explaining the right to
request a state administrative hearing if the protest or complaint is not
resolved at the local administrative review;
6. An AAAIL shall:
a. Complete a local administrative review for
the applicant or provider no later than twenty (20) calendar days after receipt
of the applicant's or provider's written protest or complaint; and
b. Within seven (7) calendar days of receipt
of the protest or complaint, send a written notice to the applicant or provider
by certified mail return receipt requested that specifies:
(i) The date, time, and place for the review;
and
(ii) A statement that failure
to attend the review shall constitute a waiver of opportunity for a state
administrative hearing;
7. If the protest or complaint is not
resolved and all administrative remedies have been exhausted, the AAAIL shall
send a written response by certified mail return receipt requested to the
applicant or provider within seven (7) calendar days of finalizing the local
administrative review that includes:
a. The
AAAIL's findings and determinations on the issues raised in the protest or
complaint; and
b. A statement of
the right to request a state administrative hearing with the cabinet;
and
8. An AAAIL shall,
within ten (10) calendar days of finalizing the review, forward a complete copy
of the local administrative review and RFP file relating to a particular
procurement to the department.
(3) An applicant or provider may request a
state administrative hearing in writing to the department on one (1) or more of
the following grounds:
(a) The award does not
comply with the applicable request for proposal;
(b) The local administrative review does not
comply with the approved procedures of the AAAIL; or
(c) Denial by the AAAIL in whole or in a
substantial part of an application to provide services or the AAAIL decision to
terminate or not renew the contract to provide services is:
1. Arbitrary or capricious;
2. An abuse of discretion;
3. Biased;
4. The result of a conflict of
interest;
5. Not based upon
substantial evidence; or
6. Not in
compliance with the terms of the contract.
(4) The written request for a state
administrative hearing by an applicant or provider shall:
(a) Set forth the grounds and their alleged
factual basis;
(b) Be mailed to the
Department for Aging and Independent Living, 275 East Main Street, Frankfort,
Kentucky 40621;
(c) Be postmarked
not later than thirty (30) calendar days from receipt of the AAAIL's local
administrative review findings and determinations; and
(d) Be copied and mailed to the AAAIL that
provided the local administrative review.
(5) Failure of the applicant or provider to
comply with procedures provided in subsection (4) of this section shall
constitute a forfeiture of the opportunity for a state administrative hearing,
and the request shall be returned to the applicant or provider with a written
explanation.
(6) The department may
waive its timeliness requirements provided in subsection (4)(c) of this section
and shall notify the parties of the reason for the waiver upon:
(a) Receipt of a written request from a party
to waive the timeliness requirements and a determination that good cause or
exigent circumstances exist; or
(b)
Determination that a waiver is in the best interest of the
department.
(7) The
department may expedite scheduling and notify the parties in writing of the
reason upon determination that:
(a) A
reduction in the time frame is in the best interest of the department;
or
(b) The rights of the parties at
the state administrative hearing are not prejudiced by the reduction.
(8)
(a) Upon receipt of the applicant's or
provider's request for a state administrative hearing, the department shall
determine whether the matter is subject to review on the grounds specified in
subsection (3) of this section.
(b)
If the matter is not specific to subsection (3) of this section, the department
shall inform the applicant or provider in writing by certified mail return
receipt requested, with a copy to the AAAIL, within ten (10) calendar days of
receipt of the request.
(c) If the
matter is specific to subsection (3) of this section, the department shall
submit the applicant's or provider's request to the cabinet's Administrative
Hearings Branch within three (3) calendar days of its decision.
(9) The procedures for a state
administrative hearing shall be in accordance with KRS Chapter 13B.
(10) The final decision of the secretary
shall be based on the record of the hearing and may direct that appropriate
action be taken including:
(a) Affirming the
action of the AAAIL;
(b) Directing
that the award be made to the next most advantageous proposal, taking into
consideration price and the evaluation factors set forth in the RFP;
(c) Requiring the AAAIL to re-advertise its
RFP; or
(d) Reversing the decision
and awarding the contract to the appellant.
(11) The department may approve a contingency
plan for delivery of services while the AAAIL takes action to conform to the
decision.
(12) If the applicant or
provider, AAAIL, department, and other interested parties negotiate a written
agreement that resolves the issue which led to the request for a hearing, the
department may terminate a formal hearing.
(13) Pursuant to
KRS
13B.140(1), an applicant or
provider may appeal a final decision to the circuit court within thirty (30)
days after the final order of the secretary is mailed or delivered by personal
service to the applicant or provider.
Section 3. Hearing Procedures for an AAAIL.
(1) The department shall provide an
opportunity for a state administrative hearing to an AAAIL if the department
proposes the following adverse actions:
(a)
Disapproves the AAAIL's area plan or plan amendment as specified in
45 C.F.R.
1321.35(a)(2), except as set
forth in 45 C.F.R.
74, App A;
(b)
Withdraws the AAAIL's designation as provided in
45 C.F.R.
1321.35(a) or initiates an
action outlined in
42 U.S.C.
3025(b)(5)(C)(i);
(c) Denies an application for designation as
a planning and service area under
45 C.F.R.
1321.29(b); or
(d) Denies or reduces the AAAIL's payment
pursuant to
42
U.S.C.
3026(f)(2)(B).
(2)
(a) The department shall send a written
notice to the AAAIL by registered or certified mail within seven (7) calendar
days of determination of the adverse action.
(b) The notice shall specify:
1. The reasons for the adverse
action;
2. A statement of the right
to request a state administrative hearing with the cabinet within ten (10)
calendar days from receipt of notice; and
3. That failure to file the request within
the ten (10) calendar days constitutes a waiver of opportunity for a state
administrative hearing.
(3) An AAAIL's written request for a state
administrative hearing shall:
(a) Specify the
reasons for disputing the department action; and
(b) Be mailed to the Department for Aging and
Independent Living, 275 East Main Street, Frankfort, Kentucky 40621.
(4)
(a) Upon receipt of the AAAIL's written
request, the department shall determine if the AAAIL's request is subject to
review according to the adverse actions outlined in subsection (1) of this
section.
(b) If the matter is not
applicable to subsection (1) of this section, the department shall inform the
AAAIL in writing within ten (10) calendar days of receipt of the
request.
(c) If the matter is
specific to subsection (1) of this section, the department shall submit the
AAAIL's request to the cabinet's administrative hearings branch within three
(3) calendar days of its decision.
(5) The procedures for a state administrative
hearing shall be in accordance with KRS Chapter 13B.
(6) Final decision shall be rendered by the
secretary.
(7) An AAAIL may appeal
a final decision to the circuit court within thirty (30) days after the final
order of the cabinet is mailed or delivered by personal service to the AAAIL
pursuant to
KRS
13B.140(1).
(8) If the applicant or provider, AAAIL,
department, and other interested parties negotiate a written agreement that
resolves the issue which led to the request for a hearing, the department may
terminate a formal hearing.
(9)
After due process is provided, an AAAIL may bring an appeal to the Assistant
Secretary of the Administration for Community Living pursuant to
42 U.S.C.
3025(b)(5)(C)(iii).
Section 4. Hearing Procedures for
a Department Contracting Agency. An opportunity for a state administrative
hearing for a department contracting agency shall be in accordance with KRS
Chapter 13B.
Section 5. Hearing
Procedures for a Provider's Client or Applicant Services.
(1) A provider shall:
(a) Have written procedures for filing a
grievance approved by the AAAIL for a provider's client or applicant;
and
(b) Ensure the client or
applicant is notified of the provider's policies.
(2) A client or applicant for services may
request an administrative review with the AAAIL to resolve the
complaint.
(3) The AAAIL shall:
(a) Conduct and complete a local
administrative review with the client or applicant no later than twenty (20)
calendar days after receipt of the client's or applicant's written protest or
complaint; and
(b) Notify the
client or applicant within three (3) calendar days of receipt of the client's
or applicant's protest or complaint that specifies:
1. The date, time, and place for a local
administrative review; and
2.
Failure to participate in the review shall constitute a waiver of opportunity
for a state administrative hearing.
(4) Within three (3) calendar days of its
findings and determinations of the written protest or complaint, the AAAIL
shall:
(a) Submit a copy of the results of the
local grievance to the DAIL; and
(b) Send a written response of the review to
the client:
1. By certified mail return
receipt requested;
2. Specifying
its findings and determinations of the issues raised in the protest or
complaint; and
3. With a statement
of the right to a CHFS administrative hearing if the protest or complaint is
not resolved.
(5) A written request for a state
administrative hearing shall:
(a) Set forth
the grounds for the protest or complaint;
(b) Be mailed to the Department for Aging and
Independent Living, 275 East Main Street, Frankfort, Kentucky 40621;
and
(c) Be postmarked no later than
thirty (30) calendar days from receipt of the local administrative review
findings and determinations.
(6) Upon receipt of the client's or
applicant's request for a state administrative hearing, the department shall
submit the client's or applicant's request to the cabinet's administrative
hearings branch within three (3) calendar days.
(7) The procedures for a state administrative
hearing shall be in accordance with KRS Chapter 13B.
(8) Final decision shall be rendered by the
secretary.
(9) If the applicant or
provider, AAAIL, department, and other interested parties negotiate a written
agreement that resolves the issue which led to the request for a hearing, the
department may terminate a formal hearing.
(10) A client or applicant may appeal a final
decision to the circuit court within thirty (30) days after the final order of
the cabinet is mailed or delivered by personal service to the client pursuant
to
KRS
13B.140(1).
Section 6. Hearing Procedures for
a Department Contracting Agency's Applicant or Client.
(1) A department contracting agency shall:
(a) Have written grievance procedures for a
client or applicant; and
(b) Ensure
the client or applicant is notified of the contracting agency's grievance
policies.
(2) A
contracting agency's client or applicant for services may request a state
administrative hearing with the cabinet if the protest or complaint is not
resolved at the contracting agency's level.
(3) The department contracting agency shall:
(a) Submit a copy of the results of the
administrative review with the client or applicant to the department;
and
(b) Send a written response of
the review to the client:
1. By certified mail
return receipt requested;
2.
Specifying its findings and determinations of the issues raised in the protest
or complaint; and
3. With a
statement of the right to a state administrative hearing if the protest or
complaint is not resolved.
(4) A department contracting agency's client
or applicant shall be subject to the hearing procedures outlined in Section
5(7) through (10) of this administrative regulation.
(5) If the applicant or provider, AAAIL,
department, and other interested parties negotiate a written agreement that
resolves the issue which led to the request for a hearing, the department may
terminate a formal hearing.
(6) A
contracting agency's client or applicant may appeal a final decision to the
circuit court within thirty (30) days after the final order of the cabinet is
mailed or delivered by personal service to the client pursuant to
KRS
13B.140(1).