Current through Register Vol. 51, No. 3, September 1, 2024
RELATES TO: KRS Chapter 13B, 13B.010(2), (7), 23A.010,
194A.005(1), 600.020(1), (7), 620.050(5),
45
C.F.R. 205.10,
42
U.S.C. 1320d-1320d-9,
1397-1397e,
5106a
NECESSITY, FUNCTION, AND CONFORMITY:
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.
42
U.S.C. 5106a requires the Secretary of Health
and Human Services to make grants for the purpose of assisting states in
improving the delivery of child protective services, including procedures for
appealing and responding to appeals of substantiated reports of abuse and
neglect. In order to maintain continued eligibility after the initial grant
application,
42
U.S.C. 5106a requires states to submit a plan
every five (5) years thereafter assuring operation of a statewide program
related to child abuse and neglect that includes provisions, procedures, and
mechanisms by which a perpetrator who disagrees with an official finding of
child abuse or neglect may appeal the finding. This administrative regulation
establishes the cabinet's procedures for responding to appeals of child abuse
and neglect investigative findings.
Section
1. Definitions.
(1) "Abused or
neglected child" is defined by
KRS
600.020(1).
(2) "Administrative hearing" is defined by
KRS
13B.010(2).
(3) "Appellant" means a perpetrator who
requests an administrative hearing or on whose behalf an administrative hearing
is requested by the perpetrator's legal representative.
(4) "Cabinet" is defined by
KRS
194A.005(1) and
600.020(7).
(5) "Compelling need" means a hearing officer
determines that a probability exists by which a child would be unable to
reasonably communicate because of emotional distress produced by the
perpetrator's presence.
(6) "Good
cause" means justification for failure to carry forward with a legal obligation
related to an appeal, including:
(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
repre-sentative 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.
(7) "Hearing officer" is defined by
KRS
13B.010(7).
(8) "Perpetrator" means a person who, as a
result of an investigation, has been determined by the cabinet to have abused
or neglected a child.
Section
2. Right to Appeal. A person who has been found by the cabinet to
have abused or neglected a child may appeal the cabinet's investigative finding
through an administrative hearing.
Section
3. Notification and Request for Appeal.
(1) The cabinet shall provide to a
perpetrator:
(a) Notice of a substantiated
finding of child abuse or neglect in accordance with 922 KAR 1:330, Section 10;
and
(b) A copy of the DPP-155,
Request for Appeal of Child Abuse or Neglect Investigative Finding.
(2) The cabinet shall disclose
confidential information in accordance with
42
U.S.C. 5106a(b)(2)(B)
(viii), (ix) to any federal, state, or local government entity, or an agent of
a government entity, that has a need for the information in order to carry out
its responsibility under the law to protect children from abuse and
neglect.
(3) A request for appeal
shall:
(a) Be submitted:
1. In writing by the appellant, with the
assistance of the cabinet if the appellant is unable to comply without
assistance; and
2. To the cabinet
no later than thirty (30) calendar days from the date the notice of a
substantiated finding of child abuse or neglect is postmarked;
(b) Describe the nature of the
investigative finding;
(c) Specify
the reason the appellant disputes the cabinet's substantiated finding of child
abuse or neglect;
(d) Specify the
name of each known cabinet staff person involved with the investigation;
and
(e) Include a copy of the
notice of a substantiated finding of child abuse or neglect if
available.
(4)
(a) Upon receipt of a written request for
appeal, the cabinet shall confirm 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 matter:
1. Is not appealable; and
2. May be pursued through the service
complaint process established by 922 KAR 1:320, Section 4 or 10.
(5) The cabinet shall
not dismiss a request for appeal as untimely if an appellant demonstrates good
cause.
Section 4.
Matters Not Appealable Through an Administrative Hearing.
(1) The following shall not be subject to
review through an administrative hearing:
(a)
A matter in which a civil court having competent jurisdiction:
1. Has heard evidence and made a final
judicial determination that abuse or neglect of a child did or did not occur;
or
2. Is currently engaged in legal
proceedings regarding the same issue being appealed;
(b) A matter in which an appellant has been
criminally charged and convicted of an action that is the basis of the
cabinet's finding of abuse or neglect of a child;
(c) A final administrative decision made by
the cabinet or cabinet's designee as a result of a previous appeal on the same
issue;
(d) An appeal that has been
abandoned by an appellant who failed to demonstrate good cause for failure to
go forward;
(e) Failure to submit a
written request for appeal within the time frame established by Section 3(3)(a)
of this administrative regulation, unless an appellant demonstrates good cause;
or
(f) An investigation that
results in an unsubstantiated finding of abuse or neglect of a child.
(2) If an appellant is denied an
administrative hearing in accordance with subsection (1)(a) of this section,
the cabinet shall change its investigative finding:
(a) In accordance with a civil court's
finding regarding abuse or neglect; or
(b) To a services needed finding in
accordance with 922 KAR 1:330 and
42
U.S.C.
5106a(b)(2)(B)(v).
Section 5. Investigative
Findings.
(1) The cabinet shall reserve the
right, in its sole discretion, to amend, modify, or reverse its investigative
finding of child abuse or neglect at any time based upon:
(a) A review of the cabinet's records;
or
(b) Subsequent discovery of
additional information.
(2) If amendment, modification, or reversal
of an investigative finding results in a substantiated finding of abuse or
neglect of a child, the cabinet shall act in accordance with:
(a) Section 3(1) and (2) of this
administrative regulation; and
(b)922 KAR 1:330, Section 10(8).
Section 6.
Administrative Hearing.
(1) Each
administrative hearing conducted by the cabinet or its designee shall be held
in accordance with KRS Chapter 13B.
(2) The proceedings of an administrative
hearing shall be disclosed only in accordance with
KRS
194A.060,
620.050,
42 U.S.C. 1320d-1320d-9,
42 U.S.C.
1397-1397e,
42
U.S.C. 5106a, 920 KAR 1:060, 922 KAR 1:470,
and 922 KAR 1:510.
(3)
(a) A hearing officer may, upon a
determination of compelling need, permit a child to provide testimony in a
manner in which the child is not able to hear or see the appellant.
(b) At the discretion of the child, the
child's parent, or the child's legal guardian, a child required to testify in
an administrative hearing may be accompanied by an adult who serves in a
therapeutic or supportive capacity to the child.
(4) If a hearing officer orders the testimony
of a child to be taken in accordance with subsection (3) of this section, the
hearing officer shall permit the appellant to hear the testimony of the
child.
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)
(a)
Final administrative action shall be taken, unless waived by an appellant,
within ninety (90) calendar days from the date of the request for an
administrative hearing as required by
45
C.F.R. 205.10.
(b) If the appellant waives the ninety (90)
calendar day requirement specified in paragraph (a) of this subsection, the
hearing officer shall notify all parties to the hearing when final
administrative action will be taken.
(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 9. Incorporation by Reference.
(1) "DPP-155, Request for Appeal of Child
Abuse or Neglect Investigative Finding", 6/2019, 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),
42
U.S.C. 5106a
