Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
151B.190,
151B.200,
34 C.F.R. Part 361,
29 U.S.C.
722
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 U.S.C.
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) "Administrative hearing" is defined by
KRS
13B.010(2).
(2) "Administrative review" means an informal
process through which office personnel not involved in the initial decision
conduct a review of an office decision to ensure the decision complies with
office policy.
(3) "Appellant"
means an applicant, potentially eligible, or eligible individual who requests
an appeal of an office decision in accordance with this section.
(4) "Applicant" means an individual who
submits an application for vocational rehabilitation services.
(5) "Branch manager" means the office staff
who is responsible for the operations of an office branch.
(6) "Case record" means the official written
or electronic record of the vocational rehabilitation case of an applicant,
potentially eligible, or eligible individual.
(7) "Competitive integrated employment" is
defined by
34 C.F.R.
361.5(c)(9).
(8) "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.
(9) "Executive director" means the Executive
Director of the Office of Vocational Rehabilitation.
(10) "Hearing officer" is an individual who
meets the qualifications established in
KRS
13B.010(7) and who has
knowledge of the laws applicable to the office.
(11) "Office" means the Office of Vocational
Rehabilitation.
(12) "Office Appeal
Form" means the office form incorporated by referenced and used by an
applicant, potentially eligible, or eligible individual to request an appeal of
an office decision.
(13)
"Potentially eligible individual" means an individual who might be eligible for
vocational rehabilitation services, but whose eligibility has not yet been
determined.
(14) "Secretary" means
the Secretary of the Education and Workforce Development Cabinet.
Section 2. Right to Appeal.
(1) The office shall notify every applicant,
potentially eligible individual, or eligible individual that the individual has
the right to appeal any determination made by the office that affects the
provision, denial, reduction, suspension, or cessation of that individual's
vocational rehabilitation services.
(2) The office shall provide to every
applicant, potentially eligible individual, or eligible individual:
(a) As established in the Kentucky Office of
Vocational Rehabilitation Policies and Procedures Manual, the procedure for
requesting an appeal, including the name and address of office staff to whom a
request for appeal shall be submitted; and
(b) The Office Appeal Form.
(3) A request for appeal shall be
submitted using the Office Appeal Form and shall be submitted to the office
within fourteen (14) days of receipt of written notice of an office decision or
receipt of verbal notice of an office decision, as determined by the date in
the case record.
(4) An appellant
shall have the right to be represented by an advocate or attorney at all
appellate proceedings, and the appellant shall bear all cost for
representation.
(5) Upon receipt of
a request for an administrative hearing, the office shall:
(a) Conduct an administrative review of the
decision on appeal prior to the administrative hearing; and
(b) Convene an administrative hearing within
sixty (60) days, except that a time extension, not to exceed one (1) year,
shall be granted upon agreement by both parties.
(6) During an appeal, 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 through:
1.
Misrepresentation;
2.
Fraud;
3. Collusion; or
4. Criminal conduct; or
(b) The appellant requests the
action.
Section
3. Administrative Review.
(1)
Upon receipt of a notice of appeal, the office shall conduct an informal
administrative review of the decision.
(2) The director or designee shall select a
branch manager not involved in the action in question who shall conduct the
administrative review of the decision within ten (10) days.
(3) The administrative review shall be
conducted either in person or by teleconference, and the appellant shall be
invited to participate.
(4) The
branch manager shall issue a written a determination within five (5) business
days and notify the appellant via electronic mail or U.S. Mail.
Section 4. Mediation.
(1) The appellant shall have the right to
participate in mediation before an administrative hearing is
convened.
(2) The office shall
maintain a list of qualified mediators.
(3) If mediation is requested, the office
shall:
(a) Choose a mediator from the list and
schedule the mediation for a date prior to an administrative hearing;
(b) Convene the mediation in a location
convenient to the office and the appellant and provide reasonable
accommodations if requested;
(c)
Bear the cost of mediation; and
(d)
Send a representative of the office to the mediation who is authorized to bind
the office to an agreement.
(4) The appellant shall attend the
mediation.
(5) Discussions or
agreements arising from the mediation shall be confidential and shall not be
used as evidence in any subsequent administrative hearing or civil
proceeding.
(6) An agreement
reached by the parties through mediation shall be documented in writing, signed
by both parties prior to the conclusion of the mediation, and a copy shall be
issued to both parties.
Section
5. Administrative Hearing. The office shall conduct an
administrative hearing in accordance with KRS Chapter 13B and Section 2 of this
administrative regulation if the appellant elects not to participate in
mediation or if the mediation did not result in an agreement.
Section 6. Client Assistance Program. The
office shall advise an applicant, potentially eligible individual, or eligible
individual of:
(1) The existence of the Client
Assistance Program;
(2) The
services provided by the program; and
(3) How to contact a program
representative.
Section
7. Findings and Decision.
(1) The
hearing officer shall issue a recommended order in accordance with
KRS
13B.110.
(2) Either party shall have the right to
submit exceptions to the recommended order to the secretary as established in
KRS
13B.110.
(3) The secretary or designee shall issue the
final order in accordance with
KRS
13B.120.
Section 8. Incorporation by Reference.
(1) "Kentucky Office of Vocational
Rehabilitation Policies and Procedures Manual", June 2022, is incorporated by
reference.
(2) This material may be
inspected, copied, or obtained, subject to applicable copyright law, at the
Office of Vocational Rehabilitation, 500 Mero Street 4th Floor, Frankfort,
Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.
(3) This material is also available at
kcc.ky.gov/vocational-rehabilitation.
STATUTORY AUTHORITY:
KRS
13B.170,
151B.195(1),
29 U.S.C.
722(c)
