STATEMENT OF EMERGENCY

922 KAR 2:260E

 

††††† This emergency administrative regulation is necessary in accordance with KRS 13A.190(1)(a) 2 and 3 to ensure timely compliance and alignment with the Pub. L. 113-186, Child Care and Development Grant Act of 2014, the associated federal rule, and related programmatic initiatives in effort to avoid costly federal corrective action or federal financial penalty. Additionally, in accordance with KRS 13A.190(1)(a)1, the emergency administrative regulation preserves the health and welfare of children, including children receiving protective and preventive services, children with special needs, homeless children, children of teen parents, children whose parents are transitioning from cash assistance or welfare, and children from low-income households, through its establishment of due process and complaint procedures for child care programming. An ordinary administrative regulation would not allow the agency sufficient time to align policy meeting federal timeframes. This emergency administrative regulation will be replaced by an ordinary administrative regulation. The ordinary administrative regulation is identical to this emergency administrative regulation.

 

MATTHEW G. BEVIN, Governor

VICKIE YATES BROWN GLISSON, Secretary

 

CABINET FOR HEALTH AND FAMILY SERVICES

Department for Community Based Services

Division of Child Care

(Emergency Amendment)

 

††††† 922 KAR 2:260E. Child care service appeals.

 

††††† 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

††††† STATUTORY AUTHORITY: KRS 13B.170, 194A.010(2), 194A.050(1)

††††† EFFECTIVE: September 29, 2017

††††† 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[April] 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)[5(7)] 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 cabinetís 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)[5(4)(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 cabinetís 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 departmentís 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 departmentís Division of Child Care, directorís 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 departmentís 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 departmentís Division of Child Care, directorís designee, 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 commissionerís 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[922 KAR 3:030]; 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; [or]

††††† 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)[(3)] The cabinet may take emergency action under KRS 13B.125.

††††† (5)[(4)] 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)[(2)] 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 cabinetís 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)[(2)] of this section, if available.

††††† (6)[(5)](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)[(6)] 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)[(2)] 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)[(7)] 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 agencyís written response.

††††† (b) A request for review shall be submitted to the commissioner within ten (10) calendar days of the contract agencyís 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 commissionerís written determination.

 

††††† Section 10. Incorporation by Reference. (1) The following material is incorporated by reference:

††††† (a)[form] "DCC-88, Child Care Service Appeal Request", 04/17; and

††††† (b) "DCC-108, Notice of Adverse Action for Child Care Providers and Early Care and Education Professionals", 10/17[, 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.

 

ADRIA JOHNSON, Commissioner

VICKIE YATES BROWN GLISSON, Secretary

††††† APPROVED BY AGENCY: September 18, 2017

††††† FILED WITH LRC: September 29, 2017 at 11 a.m.

††††† CONTACT PERSON: Laura Begin, Legislative and Regulatory Analyst, Office of Legislative and Regulatory Affairs, 275 East Main Street 5 W-B, Frankfort, Kentucky 40621, phone 502-564-6746, fax 502-564-2767, email Laura.Begin@ky.gov.

 

††††† Pursuant to KRS 13A.280(8), copies of the statement of consideration and, if applicable, the amended after comments version of the administrative regulation shall be made available upon request.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Persons: Elizabeth Caywood, phone (502) 564-3703, email Elizabeth.Caywood@ky.gov.; and Laura Begin

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This administrative regulation establishes cabinet procedures related to appeals and complaints for benefits and services under 922 KAR Chapter 2.

††††† (b) The necessity of this administrative regulation: This administrative regulation is necessary for the establishment of cabinet appeal and complaint procedures for benefits and services under 922 KAR Chapter 2.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation conforms to the content of the authorizing statutes through its establishment of cabinet appeal and complaint procedures for benefits and services under 922 KAR Chapter 2.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will assist in the effective administration of the statutes through its establishment of cabinet procedures related to appeals and service complaints for benefits and services under 922 KAR Chapter 2.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

†(a) How the amendment will change this existing administrative regulation: The amendment to this administrative regulation will change the existing administrative regulation by aligning its content with the new Kentucky All STARS tiered quality-rating improvement system for early care and education and the deployment of the child care assistance program on the benefind eligibility and enrollment system. The amendment to this administrative regulation also makes technical corrections in accordance with KRS Chapter 13A.

††††† (b) The necessity of the amendment to this administrative regulation: The amendment is necessary to support the deployment of CCAP on the benefind system and the forthcoming transition to the new child care quality-rating system, All STARS. The changes to this administrative regulation support federal compliance and help the state avoid federally imposed corrective action and financial penalty.

††††† (c) How the amendment conforms to the content of the authorizing statutes: The amendment to this administrative regulation conforms to the content of the authorizing statutes through its provision of due process and complaint reviews congruent new business processes and programmatic developments.

††††† (d) How the amendment will assist in the effective administration of the statutes: The amendment to this administrative regulation will assist in the effective administration of the statutes by preserving due process and complaint procedures for child care benefits and services as governed by 922 KAR Chapter 2.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: Less than 200 service appeals for child care programming, including the Child Care Assistance Program, were processed in 2016.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: The amendment to this administrative regulation is largely technical and conforming in nature and does not propose a new impact on regulated entities.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): Regulated entities will experience no new or additional cost as a result of the amendment to this administrative regulation.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): This administrative regulation supports the deployment of the Child Care Assistance Program on benefind and the transition to the new quality-rating system for early care and education, All STARS. Both initiatives improve qualified householdsí access to the full array of work supports and to quality child care programming. The initiatives also support the stateís continued federal compliance reducing threat to the stateís federal award sustaining programming.

††††† (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

††††† (a) Initially: The amendment to this administrative regulation will not result in any new initial costs to the administrative body.

††††† (b) On a continuing basis: The amendment to this administrative regulation will not result in any new continuing costs for the administrative body.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Funding sources for this administrative regulation include the federal Child Care and Development Fund block grant, state matching and maintenance of effort funds for the block grant, and tobacco settlement dollars.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: The administrative regulation requires no increase in fees or funding.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation does not establish any fees or directly or indirectly increase any fees.

††††† (9) TIERING: Is tiering applied? Tiering is not applied. This administrative regulation will be applied in a like manner statewide.

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

††††† 1. Federal statute or regulation constituting the federal mandate.

45 C.F.R. 98, 205.10, 42 U.S.C. 601-619, 9857-9858q

††††† 2. State compliance standards. KRS 13B.170, 194A.010(2), 194A.050(1)

††††† 3. Minimum or uniform standards contained in the federal mandate. 45 C.F.R. 98, 205.10, 42 U.S.C. 601-619, 9857-9858q

††††† 4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? This administrative regulation does not impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate.

††††† 5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. This administrative regulation does not impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† (1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Cabinet for Health and Family Services will be impacted by this administrative regulation.

††††† (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 13B.170, 194A.010(2), 194A.050(1), 45 C.F.R. 98, 205.10, 42 U.S.C. 601-619, 9857-9858q

††††† (3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

††††† (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation will generate no new revenues for the first year.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation will generate no new revenues for the subsequent years.

††††† (c) How much will it cost to administer this program for the first year? This administrative regulation will impose no new or additional costs in the first year.

††††† (d) How much will it cost to administer this program for subsequent years? This administrative regulation will impose no new or additional costs in subsequent years.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-):

††††† Expenditures (+/-):

††††† Other Explanation: