Current through Register Vol. 51, No. 6, December 1, 2024
RELATES TO: KRS 18A.095, 194A.005(1), 194A.030(10), 344.010(5),
344.015, 344.020, 7 C.F.R. 15, 15a, 15b, 15d, 15e, 16, 272.6, 28 C.F.R. 35, 36, 45 C.F.R. 80, 83, 84, 85, 86, 90, 91, 260.34, 260.35, 5 U.S.C. 552a, 7 U.S.C. 2011-2036, 20 U.S.C. 1681, 29 U.S.C. 794, 42 U.S.C. 290dd-1, 300w-7, 300x-57, 608(d), 708, 1996b, 8625, 9918, 10406, 12131-12213, 2000d-2000d-7, 6101-6107,
Pub.L. 109-171, 110-246, 110-325, EO 2009-541, Pres. EO 13166
NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires
the Secretary of the Cabinet for Health and Family Services to promulgate,
administer, and enforce those administrative regulations necessary to implement
programs mandated by federal law or to qualify for the receipt of federal funds
and necessary to cooperate with other state and federal agencies for the proper
administration of the cabinet and its programs. KRS 344.015 and the federal
grants to the cabinet, inclusive of those funds through the United States
Departments of Health and Human Services and Agriculture, require the Cabinet
for Health and Family Services to maintain a program atmosphere free from
discrimination and to respond to a complaint alleging discrimination. This
administrative regulation establishes the client Civil Rights complaint process
for programs administered directly by the cabinet or indirectly through a
contractual or other arrangement.
Section
1. Definitions.
(1) "Cabinet" is
defined by KRS 194A.005(1).
(2)
"Cabinet program" means a program of service, financial aid, or other benefit
administered by the cabinet and provided:
(a)
Directly by the cabinet; or
(b)
Indirectly by the cabinet through a contractual or other arrangement.
(3) "Client" means a person who:
(a) Applies in writing, electronically,
verbally, or through a designated representative for participation in a cabinet
program; or
(b) Receives a service,
financial aid, or other benefit from a cabinet program.
(4) "Complaint" means a verbal or written
allegation of discrimination in the delivery of a cabinet program.
(5) "Complainant" means a person or group of
people who alleges discrimination in the delivery of a service, financial aid,
or other benefit in a cabinet program.
(6) "Discrimination" is defined by KRS 344.010(5).
(7) "Nutrition program
or activity":
(a) Means a cabinet program
administered federally by the U.S. Department of Agriculture, Food and
Nutrition Services; and
(b)
Includes the Supplemental Nutrition Assistance Program (SNAP), formerly known
as the Food Stamp Program:
1. Defined by 7 U.S.C. 2012, as amended by Pub.L. 110-246; and
2. Governed by Title 921 KAR Chapter
3.
(8)
"Office of Human Resource Management" or "OHRM" means the major organizational
unit of the cabinet established in accordance with KRS 194A.030(10) and EO
2009-541.
(9) "Protected class"
means a group of people who qualifies for protection from discrimination under
law, policy, or similar authority.
(10) "Retaliation" means an action taken
against an individual because the individual participated in a protected
activity, such as:
(a) Opposing or reporting a
discriminatory practice; or
(b)
Participating in or cooperating with an investigation of
discrimination.
Section
2. Administrative Policy.
(1) The
cabinet shall comply with the following federal and state laws prohibiting
discrimination:
(a) In a cabinet program:
1.
KRS 344.015 and 344.020;
5.
42 U.S.C. 12131-12213, as amended by
Pub.L. 110-325;
6.42 U.S.C. 2000d-2000d-7;
7.
42 U.S.C. 6101-6107 or 45 C.F.R. 91;
8.
Presidential Executive Order 13166; or
9. Another federal, state, or local law
applicable to a cabinet program;
(b) In a nutrition program or activity:
1.7 C.F.R. 15, 15a, 15b, 15d, 15e, 16, or 272.6; or
2.
7 U.S.C. 2011-2036, as
amended by Pub.L. 110-246; or
(c) In a cabinet program funded through the
U.S. Department of Health and Human Services:
1.45 C.F.R. 80, 83, 84, 85, 86, 90, 260.34, or 260.35;
2.
42 U.S.C. 290dd-1, 300w-7, 300x-57, 708, 1996b, 8625, 9918, or 10406; or
3.
42 U.S.C. 608(d), as amended by Pub.L. 109-171.
(2)
If a federal or state law specifies or sets a restriction for a cabinet
program, such as eligibility for a service, financial aid, or other benefit,
the restriction shall take precedence over a protected class under subsection
(1) of this section.
Section
3. Complaint Submission.
(1) The
Office of Human Resource Management shall provide an internal complaint process
to investigate and stop an activity in a cabinet program in accordance with
Section 2(1) of this administrative regulation.
(2) An individual shall report a complaint
by:
(a) Submitting a completed and signed
CHFS-OHRM-EEO-1, CHFS Client Civil Rights Complaint Form;
(b) Submitting a written and signed statement
to OHRM; or
(c) Verbally reporting
a complaint to OHRM, if the individual refuses or declines to place allegations
of discrimination in writing.
(3) The cabinet shall accept an anonymous
complaint that provides sufficient information about alleged discrimination in
a cabinet program to enable an investigation by OHRM.
(4) Staff of OHRM shall attempt to elicit
from a complainant the following:
(a) The
name, address, and telephone number or other means of contacting the
complainant;
(b) The name of the
cabinet program involved in the alleged discrimination and specific location
delivering the cabinet program;
(c)
1. The nature of the incident or action that
led the complainant to believe that discrimination was a factor; or
2. An example of the method of administration
that is having a discriminatory effect on:
b. A potential eligible
person; or
(d) The basis on which
the complainant believes discrimination or harassment exists, for example:
11. Sexual harassment; or
12. Limited English proficiency;
(e) The name, telephone number,
title, and business or personal address of any other person who may have
knowledge of the alleged discrimination;
(f)
1. The
date or dates during which the alleged discrimination occurred; and
2. The duration of the alleged
discrimination, if it is continuing; and
(g) Recommendation of the complainant to
resolve the alleged discrimination.
(5) Staff of OHRM shall document verbal
information elicited in accordance with subsection (4) of this
section.
(6)
(a) No cabinet employee shall:
1. Retaliate against an individual who:
a. Submits a complaint in accordance with
this section; or
b. Assists in the
investigation of a complaint; or
2. Interfere with an investigation of a
complaint.
(b) An
employee who does not comply with paragraph (a) of this subsection shall be
subject to disciplinary action, up to and including dismissal in accordance
with KRS 18A.095.
Section
4. Complaint Acceptance.
(1)
Prior to taking action on a complaint, including an investigation, OHRM:
(a) Shall verify the complaint:
1. Indicates a violation of a law specified
in Section 2 of this administrative regulation; and
2. Meets minimum reporting requirements
established in Section 3 of this administrative regulation;
(b) Shall determine an action plan
to address the complaint, including investigative steps; and
(c) May request consultation on the complaint
from:
1. The head of the major organizational
unit within the cabinet administering the cabinet program involved in the
complaint or a designee;
2. The
cabinet's Office of Legal Services; or
3. An entity listed in Section 9(1) of this
administrative regulation.
(2) If an individual's allegation does not
involve discrimination in a cabinet program in accordance with Section 2 of
this administrative regulation, OHRM shall:
(a) Refer the individual to the:
1. Cabinet's Office of the
Ombudsman;
2. Head of the major
organizational unit within the cabinet administering the cabinet program
involved in the allegation or a designee; or
3. Another federal, state, or local agency if
the agency has jurisdiction over the program involved in the individual's
allegation; or
(b)
Provide written notice to the individual that no further action or
investigation by OHRM is warranted, if the individual provided contact
information.
Section
5. Complaint Processing.
(1)
(a) Except for a complaint that alleges
discrimination in a nutrition program or activity, OHRM shall provide notice of
a complaint's acceptance in accordance with Section 4(1) of this administrative
regulation, to the:
1. Complainant, if the
complaint includes information in accordance with Section 3(4)(a) of this
administrative regulation; and
2.
Head of the major organizational unit within the cabinet administering the
cabinet program involved in the complaint.
(b) The Office of Human Resource Management
shall process a complaint that alleges discrimination in a nutrition program or
activity pursuant to Section 6 of this administrative regulation.
(2) In accordance with the
complaint's action plan developed pursuant to Section 4(1)(b) of this
administrative regulation, OHRM shall:
(a)
Conduct an investigation, which may include:
1. Inspection of a cabinet program's records;
and
2. An interview with:
b. Staff of a cabinet program; or
c. An individual with knowledge of the
complaint who is either identified in the complaint or discovered during the
course of the investigation; and
(b) Send written notice of the
investigation's outcome to the:
1.
Complainant, if the complainant provided information in accordance with Section
3(4)(a) of this administrative regulation; and
2. Head of the major organizational unit
within the cabinet administering the cabinet program involved in the
complaint.
(3)
(a) The
Office of Human Resource Management shall process a complaint in a cabinet
program, subject to this section, within 180 days from the complaint's initial
report.
(b) The executive director
of OHRM or a designee may grant an extension to the timeframe specified in
paragraph (a) of this subsection if OHRM:
1.
Requires additional time to determine a complaint's outcome, including
investigation of the complaint; and
2. Notifies the complainant who provided
information in accordance with Section 3(4)(a) of this administrative
regulation of the extension.
Section 6. Processing Complaints in a
Nutrition Program or Activity.
(1) In
accordance with 7 C.F.R. 15 or 272.6, the cabinet shall maintain a separate
Civil Rights complaint process for clients under a nutrition program or
activity.
(2)
(a) If a complaint in a nutrition program or
activity is reported and accepted in accordance with Section 4(1) of this
administrative regulation, OHRM shall advise the complainant, if known, in
writing:
1. That the complaint has been
received;
2. Of confidentiality and
applications of 5 U.S.C. 552a;
3.
Of planned actions, including investigation of the complaint; and
4. If additional information is needed to
resolve the issue at the lowest possible level of the cabinet's organizational
structure.
(b) If OHRM
determines that further investigation of a complaint under a nutrition program
or activity is not warranted, OHRM shall provide written explanation to the
United States Department of Agriculture, Food and Nutrition Services, Southeast
Regional Office.
(3) The
Office of Human Resource Management shall refer a client complaint of
discrimination based on age in a nutrition program or activity to the United
States Department of Agriculture, Food Nutrition Service, Southeast Regional
Office, within five (5) days of the complaint's initial report.
(4) Unless the United States Department of
Agriculture grants an extension, OHRM shall process a complaint in a nutrition
program or activity, accepted in accordance with Section 4(1) of this
administrative regulation, within ninety (90) days of the complaint's initial
report.
(5) An investigation of a
complaint in a nutrition program or activity shall consist of:
(a) Contact with the client involved in the
alleged discrimination or an authorized representative;
(b) A review of the client's case
file;
(c) A review of a sample of
case files of similarly situated clients, if the client involved in the alleged
discrimination is a client in the Supplemental Nutrition Assistance Program;
and
(d) Contact with the major
organizational unit within the cabinet that administers the nutrition program
or activity for a response to the allegation established in the
complaint.
(6) Upon
conclusion of any planned action on a complaint under a nutrition program or
activity, OHRM shall provide written notice to the complainant, if known, that
contains:
(a) The name of the
complainant;
(b) A number
identifying the complaint;
(c) The
date the complaint was reported to OHRM;
(d) The cabinet's jurisdictional
authority;
(e) A statement of each
allegation and an applicable legal citation from Section 2(1) of this
administrative regulation;
(f) The
methodology for the investigation of the complaint;
(g) The outcome of the investigation;
and
(h) The complainant's right to
file a complaint with the Secretary of the United States Department of
Agriculture and contact information.
Section 7. Recommendation for Corrective
Action.
(1) If an investigation's outcome
indicates the need for a corrective action by the cabinet program, OHRM shall
recommend the corrective action to the major organizational unit within the
cabinet administering the cabinet program involved in the complaint.
(2) A recommendation for corrective action
may include:
(a) Referral to law enforcement,
if a criminal act is suspected;
(b)
Technical assistance from a federal or state agency, if the federal or state
agency has:
1. Expertise sought by OHRM or the
cabinet program; or
2. Jurisdiction
over the cabinet program involved in the complaint; or
(c) Disciplinary action against a cabinet
employee, up to and including dismissal in accordance with KRS 18A.095, if the
investigation's outcome indicates cause.
Section 8. Withdrawal of a Complaint.
(1) A complainant shall submit a written and
signed statement to OHRM to:
(a) Request a
withdrawal of a complaint; and
(b)
State the reason for the withdrawal.
(2) The Office of Human Resource Management
shall accept a request for a complaint's withdrawal from a complainant if:
(a) The request shows no sign of coercion,
harassment, or another act to compel the complainant to withdraw the complaint;
and
(b) The complaint's allegation
no longer merits continuing the investigation.
(3) The Office of Human Resource Management
shall send written notice to the complainant and the head of the major
organizational unit within the cabinet administering the cabinet program
involved in the complaint, if OHRM:
(a)
Accepts the request for withdrawal; or
(b) Rejects the withdrawal request and
proceeds with an investigation or another planned action.
Section 9. Alternative Complaint
Processes.
(1) In lieu of, or in addition to,
the Civil Rights complaint process established in this administrative
regulation, a client may elect to file a complaint directly with another
entity, such as the:
(a) U.S. Department of
Health and Human Services' Office for Civil Rights;
(b) U.S. Department of Agriculture's Office
of Assistant Secretary for Civil Rights or Food Nutrition Service Southeast
Regional Office;
(c) U.S.
Department of Education's Office of Civil Rights;
(d) U.S. Department of Labor's Civil Rights
Center;
(e) U.S. Department of
Justice's Civil Rights Division;
(f) Kentucky Commission on Human Rights;
or
(g) Another federal, state, or
local agency with jurisdiction over the cabinet program involved in the alleged
discrimination.
(2) Upon
request of a client, OHRM shall provide information on filing a complaint with
an entity listed in subsection (1)(a) through (g) of this section.
(3) This administrative regulation shall not
inhibit an individual's right to seek review through a court of appropriate
jurisdiction.
Section
10. Incorporation by Reference.
(1) The "CHFS-OHRM-EEO-1, CHFS Client Civil
Rights Complaint Form", edition 2010, is incorporated by reference.
(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.
STATUTORY AUTHORITY: KRS 194A.050(1),
344.015