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Title 040 | Chapter 005 | Regulation 010REG

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OFFICE OF ATTORNEY GENERAL
Department of Law
Office of Administrative Hearings
(Amended at ARRS Committee)

40 KAR 5:010.Hearing officer required training.

RELATES TO:

KRS 13B.030(4), 15.111

STATUTORY AUTHORITY:

KRS 13B.030(4)

NECESSITY, FUNCTION, AND CONFORMITY:

This administrative regulation is necessary to comply with KRS 13B.030(4) which requires the officedivision to establish by administrative regulation,regulations minimum standards concerning length of training, course content, and instructor qualifications for initial training and continuing education of hearing officers. The function of This administrative regulation establishesis to establish education requirements for hearing officers.

Section 1.

Definitions.

(1)

"Agency" is defined by KRS 13B.010(1).

(2)

"Approved training" means initial instruction or continuing education that has been approved by the office in accordance with this administrative regulation.

(3)

"Credit" means a unit equal to one (1) instructional hour used for measuring initial training requirements and continuing education requirements.

(4)

"Educational year" means the reporting period for mandatory continuing education requirements beginning on July 1 of each year and ending on June 30 of the successive year for which satisfaction of the continuing education training requirements is being calculated.

(1)

"Classroom hour" means fifty (50) minutes of actual classroom instruction.

(5)(2)

"Hearing officer" is defined by KRS 13B.010(5)KRS 13B.010(7).

(6)

"Instructional hour" means fifty (50) minutes of instruction. The instruction can be presented in person or by other technological transmission methods including video recording, DVD, audio recording, CD-ROM, computer online services, internet live-stream, internet video-on-demand service, or other appropriate technology. The instruction can be live or pre-recorded.

(7)

"Office" is defined by KRS 13B.010(6).

(8)

"Sponsor" means the person or entity presenting the training course. The sponsor and the instructor can be one in the same.

(9)

"Training course" means initial hearing officer instruction or a continuing education that is in accordance with this administrative regulation.

Section 2.

Training Requirements. In addition to any agency-specific training or requirements, an individual shall complete the initial training requirements and satisfy the continuing training requirements of this administrative regulation in order to serve as a hearing officer.

Section 2.

A person shall not serve as a hearing officer unless he has completed eighteen (18) classroom hours, including agency specific training, of initial hearing officer instruction, and six (6) classroom hours of continuing education instruction as provided by Sections 3 and 5 of this administrative regulation.

Section 3.

Initial Training Requirements. The initial hearing officer training requirement shall be at least eighteen (18) instructional hours of approved training approved as established in Sections 5 and 6 of this administrative regulation.

Section 4.

Continuing Education Training Requirements.

(1)

A hearing officer shall earn a minimum of six (6) credits of approved training, approved as established in Sections 5 and 6 of this administrative regulation, each educational year.

(2)

A hearing officer who earns more than six (6) credits for an educational year may carry forward up to twelve (12) credits to satisfy the continuing education requirements for the next two (2) educational years.

(3)

Any excess credits earned in an educational year greater than twelve (12) credits shall not be carried forward.

(4)

Credits shall not be carried forward more than two (2) years.

Section 5.

Qualifying Standards for Training Courses. Training courses shall consist of a topic or topics that contribute to the skills necessary to serve as a competent hearing officer such as:

(1)

Adequate notice;

(2)

Administrative law and procedure;

(3)

Application of KRS Chapter 13B;

(4)

Case management;

(5)

Conduct and control of hearings;

(6)

Credibility of witnesses;

(7)

Decision writing;

(8)

Due process;

(9)

Ethics;

(10)

Evidence;

(11)

Findings and evidence;

(12)

Intervention;

(13)

Mediation; and

(14)

Prehearing conferences and discovery.

Section 6.

Approvals and Instructor Qualifications.

(1)

A training course shall only qualify for credit if the courseit is approved by the office as established inmeeting the standard of Section 5 of this administrative regulation.

(2)

Any person, entity, or sponsor of a training course seeking to qualify the courseit for credit shall provide to the office for evaluation:

(a)

An outline of the course in sufficient detail to disclose the pertinent material that is to be taught;

(b)

The work experience, credentials, and educational background of the training course instructor; and

(c)

Any other information requested by the office to determine the appropriateness of the course.

(3)

A hearing officer training course shall be conducted substantially as submitted for approval by the office.

(4)

Training course instructor. The instructor shall have:

(a)

The instructor shall have Substantial, recent experience and demonstrated ability in offering the training for which credit is sought; and

(b)

The instructor shall have the education, training, or experience to provide training in the subject matter of the presentation. For example, appropriate education, training, or experience relevant to administrative hearings or the practice of administrative law may be demonstrated by having:

1.

Taught or conducted an approved training course within the past two (2) years;,

2.

Academic credentials or qualifications;,

3.

Writings or publications authored by the individual;, or

4.

Public speaking or panel presentations involving subject matters relevant to administrative hearings or the practice of administrative law.

(5)

It shall be the responsibility of the individual seeking credit for the satisfaction of training requirement to verifyensure that the course has been approved by the office. The individual seeking credit shall bear the risk of seeking approval for courses already taken without pre-approval.

Section 7.

Compliance.

(1)

An individual shall not serve as a hearing officer in an administrative hearing unless compliant with the training requirements of this administrative regulation.

(2)

If the agency utilizes a hearing officer not provided by the office, the agency shall ensure that the hearing officer is at a minimum compliant with the training requirements of this administrative regulation, at a minimum.

Section 3.

Approved Instruction. Approved instruction for hearing officers shall be the administrative hearings subjects established by this section.

(1)

Instruction in the conduct of administrative hearings in each of the following areas:

(a)

Administrative law and procedure. The course shall cover the:

1.

History, origin, source, and limitations of agency authority to act;

2.

Role of hearing officials;

3.

Adjudicatory function as opposed to and differentiated from the regulatory and enforcement functions of an agency; and

4.

Regulatory and enforcement processes of agencies.

(b)

Due process. The course shall cover the fundamentals of constitutional due process concepts of adequate notice and a reasonable opportunity to be heard, and shall emphasize constitutional restrictions on notice and a hearing.

(c)

Conduct and control of hearings. The course shall cover the following items and include applicable documentary samples:

1.

The role of prehearing conferences and discovery;

2.

Opening a hearing;

3.

The conduct of a hearing;

4.

The order of proof;

5.

Marking and handling exhibits;

6.

Ruling on objections;

7.

Swearing in of witnesses;

8.

Proper demeanor, dress, formality, and decorum;

9.

Making the hearing accessible to handicapped persons; and

10.

Closing a hearing.

(d)

Credibility. The course shall cover:

1.

Judging demeanor and forthrightness of witnesses, appearance and body language;

2.

Sexual, racial and cultural bias, and prejudice; and

3.

Judging common sense of answers, consistency, context and flow.

(e)

Ethics. The course shall include:

1.

The principles of:

a.

Conflict of interest;

b.

Ex parte contact;

2.

Ethical standards to which hearing officers, judges and lawyers are held; and

3.

A review of the ethical code applicable to hearing officers, judges and lawyers.

(f)

Case file and docket management. The course shall cover the principles of:

1.

Case file composition, handling, docketing and tracking;

2.

Keeping exhibit and witness lists;

3.

Motion practice;

4.

Setting discovery deadlines;

5.

Continuances;

6.

Reviewing the record, hearing decision time limitations and extensions thereof.

(g)

Evidence in administrative proceedings. The course shall include a review of the following items, and applicable samples of documentary and testimonial evidence:

1.

Competency;

2.

Documentary evidence;

3.

Demonstrative evidence;

4.

Hearsay;

5.

Privileges;

6.

Work product rule;

7.

Oaths and swearing;

8.

Establishing a foundation;

9.

Cumulative, proffered, and confidential evidence;

10.

Official notice;

11.

Handling evidence; and

12.

Standards and burdens of proof applicable in administrative proceedings.

(h)

Decision writing. The course shall cover the following items and include written samples:

1.

The function and purpose of the written decision;

2.

The basic administrative decision format;

3.

How to differentiate between factual findings and legal conclusions;

4.

How to identify and establish jurisdiction over subject matter and parties;

5.

How to establish the procedural history;

6.

How to use an appropriate format; and

7.

A review of writing style, tone and organization.

(2)

The course shall include training in the application of KRS Chapter 13B, and shall consist of instruction in each of the following areas:

(a)

Conflict of interest. The course shall cover conflicts of interest as addressed in KRS 13B.040 including:

1.

Who is governed;

2.

What kind of contact is prohibited;

3.

Prohibited actions or conduct, including serving as, or assisting or advising a hearing officer;

4.

The mechanics of withdrawal;

5.

Determination of who is an investigator or prosecutor who acted in the same proceeding, or the preadjudicative stage of an administrative hearing; and

6.

The standard to be applied.

(b)

Ex parte contact. The course shall cover improper ex parte contact as defined in KRS 13B.100 including:

1.

The concept of "substantive" as opposed to "procedural" inquiries and a determination of the "merits" of an administrative action;

2.

Who is prohibited from making ex parte inquiries;

3.

Under what circumstances hearing officials and assistants may talk ex parte with "parties" and other "interested persons";

4.

Specific instruction on how to handle ex parte contact, how to train support staff and the method required to document ex parte contact in the record;

5.

Contacts by agency and outside counsel, contacts by the hearing officer and contacts with the agency head or other agency personnel;

6.

Case studies and written materials, including ethical opinions from the Bar, relevant case decisions, and the relevant judicial canons and rules of professional conduct applicable to judges and attorneys.

(c)

Adequate notice. The course shall cover the contents and effect of the notice of hearing required by KRS 13B.050, including:

1.

Scheduling and time limits;

2.

Improper mailing;

3.

Incomplete or improper notice content; and

4.

The effect of violation of KRS 13B.050 and remedies therefore.

(d)

Intervention. The course shall cover intervention under KRS 13B.060 and include sample petitions and orders:

1.

Mandatory and permissive intervention;

2.

Statutory rights to intervention;

3.

The standard for permissive intervention;

4.

The procedure for petitioning to intervene;

5.

Structuring the intervention; and

6.

Writing the order permitting or denying intervention.

(e)

Prehearing conferences and discovery. The course shall cover the nature, scope and purpose of a prehearing conference under KRS 13B.070 including:

1.

Its relation to settlement, alternative dispute resolution, discovery and the hearing process;

2.

Methods of managing and scheduling prehearing conferences that will promote the orderly and prompt conduct of a hearing, including the filing of motions, prehearing memorandums, witness and exhibit lists, briefs, proposed findings, conclusions, and recommended orders;

3.

Discovery available under KRS 13B.050, 13B.080 and 13B.090;

4.

Discovery orders and problems;

5.

Issuance, quashing and enforcement of subpoenas and the standards therefore;

6.

The obligation to reveal documentary or tangible evidence and exculpatory evidence in the agency's possession, and the consequences of the failure to do so; and

7.

Written samples of prehearing conference orders, motions and subpoenas.

(f)

Hearing procedures and compiling the record. The course shall cover and include material relating to the following items:

1.

Methods to ensure the orderly and prompt conduct of the hearing under KRS 13B.080;

2.

The obligation to have testimony given under oath, and the swearing of witnesses;

3.

Briefs;

4.

Argument;

5.

Testimony;

6.

Marking and admission of evidence;

7.

Granting defaults, and the procedures and standards for rendering defaults;

8.

The meaning and composition of the record under KRS 13B.130; and

9.

The method of compiling the record for review, including submission in writing, and proffers of evidence.

(g)

Findings and evidence. The admissibility of hearsay and standards therefor. The course shall:

1.

Cover the basic evidentiary standard for all types of evidence;

2.

Constitutional, statutory grounds for exclusion and privileges recognized in Kentucky law;

3.

Ruling on and memorializing objections; and

4.

Taking "official notice" of facts.

(h)

The recommended order and writing for judicial review. The course shall cover the following items and include samples of written findings, conclusions and recommended orders:

1.

The nature, scope, and function of findings and conclusions under KRS 13B.110;

2.

The interrelation with evidentiary rulings under KRS 13B.050 and 13B.090;

3.

Compilation of the record under KRS 13B.130;

4.

The standards for judicial review under KRS 13B.150;

5.

The obligation to base findings only upon the evidence in the record, under KRS 13B.090(1); and

6.

Time limits, extensions, and the consequences of the failure to file a recommended order within statutory time periods.

(3)

Agency specific training. Instruction shall include agency specific training that:

(a)

Covers the specific federal and state authorizing statutes and regulations under which a hearing officer will conduct hearings; and

(b)

Has been approved by the agency head and the division.

Section 4.

(1)

An initial hearing officer instruction or continuing education course shall:

(a)

Comply with the provisions of Sections 3 and 5 of this administrative regulation;

(b)

Consist of topics that will enable a hearing officer to:

1.

Acquire, maintain, and improve his skills as a hearing officer; and

2.

Serve the public; and

(c)

Consist of a minimum of two (2) hours.

(2)

(a)

Credit shall be granted for completion of an initial hearing officer instruction or continuing education course that has been approved by the division.

(b)

A sponsor of an education course shall submit for approval by the division:

1.

An outline of the course in sufficient detail to disclose the pertinent material that is to be taught; and

2.

The work experience, credentials, and education background of the instructor of the course.

Section 5.

Continuing Education.

(1)

An education year shall begin on July 1, and end on June 30 of the next calendar year.

(2)

Credit shall be given for continuing education courses that have been completed on or before June 30.

(3)

For each education year, a person certified as a qualified hearing officer pursuant to KRS Chapter 13B shall complete a minimum of six (6) credit hours of continuing education courses that have been approved by the division.

(4)

A hearing officer who earns more than six (6) credits of continuing education may carry forward a total twelve (12) credits.

(5)

A total of six (6) of the continuing education credits earned in an education year may be credited toward satisfaction of the continuing education requirement for each of the two (2) continuing education years following the education year in which they were earned.

(6)

Continuing education credits earned in an education year in excess of twelve (12) credits shall:

(a)

Not be carried forward; and

(b)

Remain on the hearing officer's record.

(7)

On or before July 1 of each year, a person certified as a qualified hearing officer under KRS Chapter 13B in this Commonwealth, shall certify to the director the number of credit hours of continuing education hours completed.

(8)

(a)

Certification may be submitted to the director upon completion of the continuing education activity at any time during the education year.

(b)

Certification shall not be submitted later than the July 15th immediately following the education year in which the activities were completed.

(9)

(a)

If a hearing officer fails to comply with the provisions of this section, the division director shall notify him as soon as practicable on or after August 1 of the same year calendar year.

(b)

The authority to hear administrative actions under KRS Chapter 13B shall be suspended until such time as the continuing education requirements are met.
FILED WITH LRC: February 10, 2025
CONTACT PERSON: J. Christopher Bowlin, Executive Director, Office of Administrative Hearings within the Department of Law, Office of Attorney General, 700 Capital Avenue, Suite 118, Frankfort, Kentucky 40601, phone (502) 696-5300, fax (502) 564-2894, email christopher.bowlin@ky.gov.

7-Year Expiration: 8/23/2026

Last Updated: 2/13/2025

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