RELATES TO: KRS Chapter 13B, 23A.010, 194A.005, 194A.030(1),
45
C.F.R. Part 98, 205.10,
42
U.S.C. 601-619,
9857-9858q
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
194A.010(2) designates the
Cabinet for Health and Family Services as the primary state agency responsible
for leadership in protecting and promoting the well-being of Kentuckians
through the delivery of quality human services.
KRS
194A.050(1) requires the
Secretary of the Cabinet for Health and Family Services to promulgate
administrative regulations necessary to implement programs mandated by federal
law or to qualify for the receipt of federal funds. Under
42 U.S.C.
9858c, the cabinet is the agency designated
to administer the Child Care and Development Fund block grant.
KRS
13B.170 permits an agency to promulgate
administrative regulations to carry out provisions of KRS Chapter 13B
pertaining to administrative hearings. This administrative regulation
establishes cabinet procedures related to appeals and complaints for child care
benefits and services under 922 KAR Chapter 2 effective October 1, 2017.
Section 1. Definitions.
(1) "Child care assistance" means the subsidy
benefits as described by 922 KAR
2:160, Child Care Assistance
Program.
(2) "Commissioner" means
the Commissioner of the Department for Community Based Services or
designee.
(3) "Contract agency"
means a business or organization that offers child care benefits or services to
the public through a contract or agreement with the cabinet.
(4) "Good cause" means justification for
failure to carry forward with a legal obligation related to an appeal in
accordance with Section 5(8) of this administrative regulation.
(5) "Parent" is defined by
45
C.F.R.
98.2.
(6) "Provider" means the entity providing
child care services.
(7)
"Registered child care provider" means a caregiver registered under 922 KAR
2:180, Requirements for registered child care providers in the Child Care
Assistance Program.
Section
2. Right to Appeal.
(1) A CCAP
applicant or recipient may request an administrative hearing regarding
eligibility determination, recalculation, or recertification in accordance with
922 KAR
2:160, Section 17(1).
(2) A
provider may request an administrative hearing regarding certification,
licensure, or civil monetary penalty through the Office of Inspector General,
Division of Regulated Child Care in accordance with:
(a)922 KAR
2:090, Child-care center
licensure;
(b)922 KAR
2:100,
Certification of family child-care homes; or
(c)922 KAR
2:190, Civil penalties.
(3) An administrative hearing
pertaining to a matter not specified in subsection (1) or (2) of this section
may be requested in accordance with:
(a) This
administrative regulation; or
(b)922 KAR
2:020, Child Care Assistance
Program (CCAP) improper payments, claims, and penalties.
(4) With the exception of subsections (1),
(2), and (3)(b) of this section, an individual or provider aggrieved by an
action of the cabinet may request an administrative hearing in accordance with
this administrative regulation for a matter by which a Kentucky Revised Statute
or 922 KAR Chapter 2 expressly permits the appeal of a cabinet action or
alleged act.
(5) With the exception
of subsections (1), (2), and (3)(b) of this section, a parent or provider
aggrieved by an action of the cabinet may request review of the following
through an administrative hearing in accordance with this administrative
regulation:
(a) A cabinet denial, reduction,
suspension, or termination of services or federally-funded benefit, payments,
or financial assistance to which an individual may be entitled under 922 KAR
Chapter 2; or
(b) A cabinet failure
to act within program timeframes to a request for a federally-funded benefit,
payment, or financial assistance to which an individual may be entitled under
922 KAR Chapter 2.
Section
3. Matters Not Appealable through an Administrative Hearing.
(1) The following shall not be subject to
review through an administrative hearing in accordance with this administrative
regulation:
(a) A matter in which a court:
1. Has previously made a judicial
determination or issued an order on the same issue being appealed; or
2. Is currently engaged in legal proceedings
regarding the same issue being appealed;
(b) A final administrative decision made by
the cabinet or cabinet's designee as a result of a previous appeal on the same
issue;
(c) An appeal that has been
abandoned by an appellant who failed to demonstrate good cause for failure to
go forward;
(d) Failure to submit a
written request for appeal within the time frame established by Section 5(5)(b)
of this administrative regulation; or
(e) A situation where state or federal law
requires adjustment of a payment or grant, except if a payment or grant
computation is incorrect.
(2) A complaint of discrimination may be
filed with the cabinet's Office of Human Resource Management in accordance with
920 KAR
1:090.
Section 4. Service Complaints.
(1) If a matter is not subject to review
through an administrative hearing, a parent, a provider, or an early care and
education professional may:
(a) Attempt to
resolve the issue by submitting a written complaint to the department's
Division of Child Care within thirty (30) calendar days after the date of the
cabinet action or alleged act; or
(b) Contact the cabinet's Office of the
Ombudsman if the matter was not previously reviewed:
1. By that office; or
2. Pursuant to paragraph (a) of this
subsection.
(2)
(a) The
director of the department's Division of Child Care, director's designee, or
the cabinet's Office of the Ombudsman shall provide a written response to the
complainant within thirty (30) calendar days of receipt of a written complaint
not subject to review through an administrative hearing.
(b) The director of the department's Division
of Child Care or the ombudsman may grant an extension to the response timeframe
given in paragraph (a) of this subsection if:
1. Extenuating circumstances prolong the
review of the complaint; and
2.
Notice of the extension is provided to the complainant.
(3)
(a) A parent, provider, or an early care and
education professional dissatisfied with a written response rendered by the
director of the department's Division of Child Care, director's de-signee, or
the Office of the Ombudsman may request that the commissioner review the
complaint and the written response.
(b) A request for review shall be submitted
in writing to the commissioner within ten (10) calendar days of receipt of the
written response provided in accordance with subsection (2) of this
section.
(c) Upon completion of the
review, the commissioner shall render a written determination regarding the
complaint within thirty (30) calendar days unless:
1. Extenuating circumstances prolong the
review of the complaint; and
2. The
commissioner notifies the complainant of the need for an extension to the
timeframe specified in this paragraph.
(d) The department shall abide by the
commissioner's written determination.
(4) The department may compile data regarding service
complaints to:
(a) Fulfill federal and state
reporting requirements; or
(b) Use
for program development and evaluation.
Section 5. Request for Appeal.
(1) The cabinet shall provide:
(a) Information regarding appeals to a child
care assistance applicant or recipient pursuant to
921 KAR
2:046; or
(b) A DCC-88, Child Care Service Appeal
Request, to a provider:
1. In accordance with
922 KAR
2:180, Requirements for registered child care providers in the Child
Care Assistance Program, for a:
a. Withdrawal
or denial of child care registration application, not at the request of the
applicant; or
b. Revocation or
closure of a registered child care provider, not at the request of the
provider;
2. Upon a
reduction or revocation of a child care provider's STARS level in accordance
with:
a.922 KAR
2:170, STARS for KIDS NOW
Program Type I licensed child-care centers;
b.922 KAR
2:210, STARS for KIDS NOW Program
for Type II licensed and certified family child-care homes; or
c.922 KAR
2:270, Kentucky All STARS
quality-based graduated early childhood rating system for licensed child-care
centers and certified family child-care homes, upon its adoption; or
3. Upon a revocation of a
trainer's credential in accordance with 922 KAR
2:240, Kentucky Early Care and
Education Trainer's Credential and training approval.
(2) At least ten (10) calendar
days prior to the denial, reduction, modification, suspension, or termination
of a benefit or services, the cabinet shall hand-deliver or mail:
(a) A DCC-108, Notice of Adverse Action for
Child Care Providers and Early Care and Education Professionals; or
(b) Notice in accordance with 922 KAR
2:160,
Section 11.
(3) Unless
the matter is appealable in accordance with Section 2(1), 2(2), or 2(3)(b) of
this administrative regulation, the cabinet shall send a notice of adverse
action at least ten (10) calendar days prior to the denial, reduction,
modification, suspension, or termination of a benefit or services.
(4) The cabinet may take emergency action
under
KRS
13B.125.
(5) A request for appeal shall:
(a) Be written by the appellant, with the
assistance of the cabinet or contract agency if the appellant is unable to
comply without assistance;
(b) Be
submitted to the cabinet no later than thirty (30) calendar days from the date:
1. That the notice provided in accordance
with subsection (3) of this section was issued; or
2. Of the occurrence of the disputed
action;
(c) Describe
the:
1. Cabinet action in dispute;
or
2. Alleged act;
(d) Specify:
1. The reason the appellant disputes the
cabinet's action;
2. Name of each
cabinet staff person involved with the disputed action, if known; and
3. Date of the cabinet action or alleged act
in dispute; and
(e)
Include the notice provided in accordance with subsection (3) of this section,
if available.
(6)
(a) Upon receipt of a written request for
appeal, the cabinet shall determine whether the matter is subject to review
through an administrative hearing.
(b) If the matter is not subject to review,
the cabinet shall inform the individual in writing that the:
1. Matter is not appealable; and
2. Resolution of the matter may be pursued
through the service complaint process described in Section 4 or 9 of this
administrative regulation.
(7) If the cabinet receives a written request
for appeal within ten (10) calendar days from the date the notice provided in
accordance with subsection (3) of this section was issued or date of the
disputed action and the matter is appealable, the cabinet shall continue to
provide federally-funded assistance in accordance with
45
C.F.R.
205.10(a)(6) pending
the outcome of the appeal.
(8) The
cabinet shall not dismiss a request for appeal if an appellant demonstrates
good cause. Justification may include:
(a) An
appellant's inability to comprehend the cabinet's written statement describing
appeal rights; or
(b) A
cabinet-sanctioned determination that the appellant or the appellant's legal
representative is not at fault for failure to:
1. Submit a written request for appeal;
or
2. Participate in a proceeding
related to an administrative hearing.
Section 6. Administrative Hearing.
Each administrative hearing conducted by the cabinet or designee shall comply
with KRS Chapter 13B.
Section 7.
Recommended Order.
(1) A copy of the
recommended order shall be sent simultaneously to:
(a) Each party to the administrative
hearing;
(b) The commissioner of
the Department for Community Based Services; and
(c) The secretary of the Cabinet for Health
and Family Services or designee.
(2) If a party to a hearing disagrees with
the recommended order, the party may file a written exception as provided in
KRS
13B.110(4) with the
secretary, which shall:
(a) Be filed within
fifteen (15) calendar days of the date the recommended 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 8. Final Order.
(1) The secretary of the Cabinet for Health
and Family Services or designee shall issue a final order in accordance with
KRS
13B.120.
(2) An aggrieved party may petition for
judicial review in accordance with:
(a)
KRS
13B.140 to
13B.160;
or
(b)
KRS
23A.010.
Section 9. Contract Agencies.
(1) A contract agency shall offer a complaint
process consistent with:
(a) Section 4 of
this administrative regulation; or
(b) Provisions of the contract or agreement
between the contract agency and the cabinet, if the provisions are different
from Section 4 of this administrative regulation.
(2)
(a) An
individual dissatisfied with a final written response rendered by a contract
agency regarding a complaint may request that the commissioner review the
complaint and the contract agency's written response.
(b) A request for review shall be submitted
to the commissioner within ten (10) calendar days of the contract agency's
written response.
(c) Upon
completion of the review, the commissioner shall render a written determination
regarding the complaint within thirty (30) calendar days unless:
1. Extenuating circumstances prolong the
review of the complaint; and
2. The
commissioner notifies the client of the need for an extension to the timeframe
specified in this paragraph.
(d) The contract agency shall abide by the
commissioner's written determination.
Section 10. Incorporation by Reference.
(1) The following material is incorporated by
reference:
(a) "DCC-88, Child Care Service
Appeal Request", 4/2019; and
(b)
"DCC-108, Notice of Adverse Action for Child Care Providers and Early Care and
Education Professionals", 4/2019.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Cabinet for Health and
Family Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday
through Friday, 8 a.m. to 4:30 p.m.