RELATES TO: KRS Chapter 13B, 23A.010, 45.237, 205.231,
7
C.F.R. 273.15
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
194A.010(2) requires the
Cabinet for Health and Family Services to administer income-supplement programs
that protect, develop, preserve, and maintain families and children in the
Commonwealth.
KRS
194A.050(1) requires the
secretary to promulgate administrative regulations necessary to implement
programs mandated by federal law or to qualify for the receipt of federal funds
necessary to cooperate with other state and federal agencies for the proper
administration of the cabinet and its programs.
7 C.F.R.
271.4 requires each state to administer a
Supplemental Nutrition Assistance Program (SNAP).
7
C.F.R. 273.15 requires the agency
administering SNAP to provide a hearing system for any SNAP applicant or
recipient who is dissatisfied with an agency decision or action.
KRS
13B.170 authorizes the cabinet to promulgate
administrative regulations that are necessary to carry out the hearing process
to be followed in the Commonwealth. This administrative regulation establishes
the fair hearing procedures used by the cabinet in the administration of the
Supplemental Nutrition Assistance Program.
Section
1. Opportunity for Fair Hearing.
(1) An opportunity for a fair hearing shall
be provided to a household aggrieved by an action or inaction:
(a) On the part of the cabinet; and
(b) That affects the SNAP benefits of the
household.
(2) A fair
hearing shall be conducted:
(a) On a state
level;
(b) By a hearing officer
assigned by the Division of Administrative Hearings and
(c) At:
1.
The local office administering the benefits of the appellant; or
2. An alternate site, if the appellant:
a. Is unable to travel to the local office;
and
b. Requests an alternate
site.
(3) If consent is obtained from each party
required to testify under oath, a telephonic hearing may be
conducted.
(4) If a participant or
authorized representative speaks a language other than English, the cabinet
shall insure that the hearing procedures are translated and explained in
accordance with
7
C.F.R.
273.15(i).
(5) An administrative hearing shall be
conducted in accordance with KRS Chapter 13B, this administrative regulation,
the Correspondence from the Office of Attorney General dated June 4, 2014, and
the Correspondence from the Office of Attorney General dated April 5,
2012.
Section 2.
Notification of Hearing Rights.
(1) When a
participant applies, he or she shall receive written notification of the:
(a) Right to a hearing;
(b) Procedures for requesting a hearing, as
specified in Section 4 of this administrative regulation; and
(c) In accordance with
7
C.F.R.
273.15(f), option to
designate a representative for a hearing, such as:
1. Legal counsel;
2. A relative;
3. A friend; or
4. An individual to act on behalf of the
participant.
(2) Written notification shall be provided to
remind a participant of the right to request a fair hearing if:
(a) An action is taken that affects the
benefits of the participant; or
(b)
The participant disagrees with an action taken by the cabinet and expresses
this disagreement to the cabinet.
(3) The participant shall be informed in
writing of the availability of free representation from legal aid or other
organizations within the community.
Section 3. Timeframe for a Hearing Request.
(1) Within a certification period, an active
household may request a fair hearing to dispute current benefits.
(2) In accordance with the timeframes of
7
C.F.R.
273.15(g), a SNAP
household may request a hearing on any cabinet action.
(3) If a hearing officer determines an
appellant meets good cause criteria in accordance with Section 8 of this
administrative regulation, the appellant shall be granted an additional thirty
(30) days to submit a hearing request.
Section 4. Request for a Hearing.
(1) The request for a hearing shall clearly
state the reason for the request.
(2) If the reason for the request is unclear,
the cabinet may request additional clarification from the appellant.
(3) In accordance with
7
C.F.R.
273.15(h), a request
for a hearing shall not be interfered with or limited in any way.
(4) Upon request, and in accordance with
7
C.F.R.
273.15(i), the
cabinet shall:
(a) Help an appellant with a
hearing request; and
(b) Make
available, without charge, the materials necessary for an appellant to:
1. Determine whether a hearing may be
requested; or
2. Prepare for a
hearing.
(5)
As determined by the hearing officer, an appellant may have the hearing process
expedited in accordance with
7
C.F.R.
273.15(i)(2).
Section 5. Notice of Hearing.
(1) The Division of Administrative Hearings
shall acknowledge a hearing request by issuing a notice of hearing.
(2) The notice of the hearing shall:
(a) Comply with the requirements of
KRS
13B.050(3), subject to the
exemption granted by the attorney general in the Correspondence from the Office
of Attorney General dated June 4, 2014. The notice shall provide all parties
involved with ten (10) days advance written notice of an administrative
hearing, and the notice shall not be less than ten (10) days prior to the
hearing, unless requested by the appellant;
(b) Specify the name, address, and phone
number of the person to notify if an appellant is unable to attend the
scheduled hearing; and
(c) Specify
that the hearing request shall be dismissed if an appellant or representative
fails to appear for a hearing without good cause as specified in Section 8(2)
of this administrative regulation.
(3) In accordance with
7
C.F.R.
273.15(l), unless an
appellant's request for an expedited hearing is granted, written notice shall
be provided at least ten (10) days prior to the date of the hearing to permit
adequate preparation of the case.
(4) The appellant may:
(a) Waive the right to certified mail
delivery under
KRS
13B.050; and
(b) Select another method of delivery, such
as electronic or first class mail.
Section 6. Continuation of Benefits. Unless
the appellant requests a discontinuance of benefits, benefits shall be
continued, in accordance with
7
C.F.R.
273.15(k), pending
the final order.
Section 7. Timely
Action on Hearing Requests.
(1) In accordance
with
7
C.F.R.
273.15(c), within
sixty (60) days of a request for a fair hearing, the cabinet shall:
(a) Acknowledge the request in accordance
with Section 5 of this administrative regulation;
(b) Conduct a hearing; and
(c) Issue a final order.
(2) In accordance with
7
C.F.R.
273.15(c), benefits
shall be adjusted:
(a) Within ten (10) days of
the final order; or
(b) With the
next issuance following receipt of the final order.
(3) If an appellant requests a postponement
of a hearing, the:
(a) Hearing shall be
postponed;
(b) Postponement shall
not exceed thirty (30) days from the request for the postponement;
and
(c) Time limit for issuing a
final order may be extended for the same number of days as the hearing is
postponed.
Section
8. Denial or Dismissal of a Hearing Request.
(1) A hearing request shall be denied or
dismissed if the:
(a) Request does not meet
the criteria specified in Section 3 of this administrative
regulation;
(b) Appellant submits a
written request to withdraw the hearing request; or
(c) Appellant or representative fails to
appear for the scheduled hearing without:
1.
Notifying the cabinet prior to the hearing; or
2. Establishing good cause for failure to
appear as described in subsection (2) of this section, within ten (10)
days.
(2)
Good cause for the delay of a hearing request or failure to appear at a hearing
may be granted if the appellant:
(a) Was away
from home during the entire filing period;
(b) Is unable to read or comprehend the
notice;
(c) Moved, resulting in a
delay in receiving or failure to receive the notice;
(d) Or other household member had a serious
illness;
(e) Was not at fault for
the delay, as determined by the hearing officer; or
(f) Did not receive the notice.
(3) The cabinet shall notify an
appellant of the dismissal of a hearing request through the issuance of a Final
Order of Dismissal by the Hearing Officer.
Section 9. Consolidation of Hearings.
(1) A fair hearing and an administrative
disqualification hearing may be combined into a single hearing if the:
(a) Issues of the hearings are based on the
same or related circumstances; and
(b) Appellant receives prior notice of the
hearings being combined.
(2) If a fair hearing and an administrative
disqualification hearing are combined, the timeframe for conducting an
administrative disqualification hearing specified in
921
KAR 3:060, Section 4, shall be followed
(3) An appellant shall lose the right to a
subsequent fair hearing on the amount of a claim if a combined hearing is held
to determine:
(a) The amount of the claim;
and
(b) If an intentional program
violation occurred.
Section 10. Group Hearings.
(1) In accordance with
7
C.F.R.
273.15(e), the
cabinet may respond to a series of individual requests for a fair hearing by
conducting a single group hearing if:
(a)
Individual issues of fact are not disputed; and
(b) The issues relate to the same state or
federal:
1. Laws;
2. Administrative regulations; or
3. Policy.
(2) The same procedures specified in this
administrative regulation for an individual hearing shall apply to a group
hearing.
Section 11.
Agency Conference.
(1) In accordance with
7
C.F.R.
273.15(d), the
cabinet shall offer an agency conference to an appellant adversely affected by
an action of the cabinet.
(2) The
appellant shall be informed that an agency conference:
(a) Is optional; and
(b) Shall not delay or replace the fair
hearing process.
(3) A
fair hearing shall be dismissed if:
(a) An
agency conference leads to an informal resolution of the dispute; and
(b) The appellant makes a written withdrawal
of the request for a hearing.
(4) An agency conference shall be attended by
the:
(a) Appellant's caseworker;
(b) Local office supervisor; and
(c) Appellant or representative.
Section 12. Rights
During the Hearing.
(1) During the hearing
process, the appellant or representative shall be provided the opportunity to:
(a) Examine:
1. The contents of the case file;
and
2. All documents and records to
be used at the hearing;
(b) Present the case or have the case
presented by a representative or legal counsel;
(c) Bring witnesses, friends, or
relatives;
(d) Present arguments
without undue interference;
(e)
Submit evidence to establish the pertinent facts and circumstances of the case;
and
(f)
1. Question or refute testimony or evidence;
and
2. Cross-examine an adverse
witness.
(2)
Upon request, a copy of the portions of the case file that are relevant to the
hearing shall be provided to the appellant at no charge.
(3) Confidential information, such as the
following, shall be protected from release:
(a) Names of individuals who have disclosed
information about the appellant's household; and
(b) The nature or status of pending criminal
prosecutions.
(4) The
following information shall not be introduced at the hearing or affect the
recommendation of the hearing officer:
(a)
Confidential information as specified in subsection (3) of this
section;
(b) Documents, testimony,
or records irrelevant to the hearing; and
(c) Other information for which the appellant
is not provided an opportunity to contest or challenge.
Section 13. Hearing Officer.
(1) The cabinet shall designate a hearing
officer who:
(a) Is employed by the cabinet's
Division of Administrative Hearings; and
(b) Meets the criteria specified in
KRS
13B.040 and
7
C.F.R.
273.15(m).
(2) When conducting a hearing, a
hearing officer shall:
(a) Have the authority
set forth in
KRS
13B.080;
(b) In accordance with
7
C.F.R.
273.15(m), order an
independent medical assessment or professional evaluation:
1. From a source:
a. Not associated with the original action;
and
b. Agreeable to both the
appellant and the cabinet; and
2. If:
a.
The hearing involves medical issues; and
b. The hearing officer considers it
necessary;
(c) Maintain a hearing record in accordance
with
KRS
13B.130 and
921 KAR
3:050, Section 12;
(d) Issue an order:
1. In accordance with
KRS 13B.110;
and
2. As specified in Section 14
of this administrative regulation; and
(e) Issue a final order in accordance with
Section (7) of this administrative regulation.
Section 14. Hearing Officer's Order.
(1) After the hearing has concluded, the
hearing officer shall draft an order that:
(a) Summarizes the facts of the
case;
(b) Specifies the:
1. Reasons for the order; and
2. Address to which a party in the hearing
may send an exception to the order; and
(c) Identifies the:
1. Findings of fact;
2. Conclusions of law;
3. Supporting evidence; and
4. Applicable state and federal regulations;
and
(d) Addresses the
parties' arguments.
(2)
A copy of the order shall be sent simultaneously to the:
(a) Appellant or representative;
and
(b) Department for Community
Based Services, Division of Family Support.
(3) A hearing officer's order shall become a
final order for an administrative hearing in accordance with
KRS 13B.120,
205.231,
and 7 C.F.R.
273.15(c), (n), and
(q) sixteen (16) days from the issuance of
the order unless a written exception is filed pursuant to Section 15 of this
administrative regulation.
(4) If
necessary, benefits of the appellant shall be adjusted:
(a) Based on a hearing officer's order that
becomes a final order in accordance with subsection (3) of this section;
and
(b) Within ten (10) days of the
hearing officer's order becoming the final order.
Section 15. Written Exceptions and
Rebuttals.
(1) If a party to a hearing
disagrees with the hearing officer's order, the party may file a written
exception with the secretary or the secretary's designee.
(2) A written exception or rebuttal shall:
(a) Be filed within fifteen (15) days of the
date the hearing officer's order was mailed;
(b) Be based on facts and evidence presented
at the hearing;
(c) Not refer to
evidence that was not introduced at the hearing; and
(d) Be sent to each other party involved in
the hearing.
Section
16. Final Order.
(1) Unless
Section 14(3) of this administrative regulation applies, the secretary or the
secretary's designee shall issue a final order in accordance with
KRS 13B.120,
205.231,
and 7 C.F.R.
273.15(c), (n), and
(q).
(2) If necessary, benefits of the appellant
shall be adjusted:
(a) Based on the decision
of the secretary or the secretary's designee; and
(b) Within ten (10) days of the decision of
the secretary or the secretary's designee.
(3) An aggrieved party may petition for
judicial review in accordance with:
(a)
KRS
13B.140 to
13B.160;
or
(b)
KRS
23A.010.
Section 17. Incorporation by Reference.
(1) The following material is incorporated by
reference:
(a) The "Correspondence from the
Office of Attorney General dated April 5, 2012", April 5, 2012; and
(b) The "Correspondence from the Office of
Attorney General dated June 4, 2014", June 4, 2014.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Department for
Community Based Services, 275 East Main Street, Frankfort, Kentucky 40621,
Monday through Friday, 8 a.m. to 4:30 p.m.