Title 781 | Chapter 001 | Regulation 010E
This emergency administrative regulation is being promulgated pursuant to KRS 13A.190(1)(a) and is necessary to address an imminent threat to public welfare, ensure continued compliance with federal vocational rehabilitation requirements, and implement the mandates of SB 103 RS 25. The Office of Vocational Rehabilitation (OVR) is currently operating under an Order of Selection (OOS) because available resources are insufficient to serve all eligible individuals with disabilities. Under the existing regulatory framework, OVR cannot correctly assign priority categories or administer OOS in a manner consistent with 34 C.F.R. §§ 361.36, 361.41, and 361.42. As a result, individuals with the most significant disabilities are being placed on waitlists under outdated and noncompliant criteria. Immediate regulatory correction is required to avoid continued improper prioritization and further delay in service delivery. Immediate action is also required to prevent jeopardizing federal funding for the OVR program. Continued administration of an unlawful OOS constitutes federal noncompliance and poses a direct risk to Kentucky’s ability to draw federal vocational rehabilitation funds. This creates an imminent threat to public welfare, as OVR is currently unable to serve new eligible individuals and cannot release any of the approximately 3,000 individuals now waiting for services until the regulations are corrected. In addition, SB 103 RS 25 amended KRS 151B.195 to require OVR to promulgate administrative regulations that established a preference for in-state services and set forth its policy and procedure used to establish service fees. Ordinary administrative regulation procedures are inadequate to prevent this harm, because the delay inherent in the ordinary process would prolong improper administration of the OOS and extend service denials for individuals with the most significant disabilities. Therefore, this emergency regulation is necessary to establish the legally required framework for OVR to comply with federal and state law and to protect public welfare.
This emergency regulation will be replaced by an ordinary administrative regulation because it is necessary for agency operations and to ensure the agency’s policies are more transparent. The companion ordinary administrative regulation is identical to this emergency regulation.
781 KAR 1:010E.Office of Vocational Rehabilitation appeal procedures.
Section 1.
Right to Appeal.(1)
The office shall notify every individual in writing:(a)
That they have 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;(b)
That they have the right to pursue mediation, which shall be conducted by a qualified mediator selected in accordance with 34 C.F.R. 361.57(d);(c)
The names and addresses of individuals with whom requests for mediation or hearings may be filed;(d)
That an impartial hearing officer shall be selected in accordance with 34 C.F.R. 361.57(e); and(e)
The availability of the client assistance program.(2)
This notice shall be provided:(a)
At the time an individual applies for vocational rehabilitation services;(b)
At the time the individual is assigned to a priority category in order of selection;(c)
At the time the individualized plan of employment is developed or amended; and(d)
Whenever vocations rehabilitation services for an individual are reduced, suspended, or terminated.(3)
A request for appeal shall be submitted to the office within fourteen (14) days of receipt of written notice of an office decision. A timely request for appeal may be submitted via US Mail, email or telephonically.(4)
As required by 34 C.F.R. 370.3, an individual shall have the right to be represented by an advocate or attorney at all appellate proceedings, and the individual shall bear all cost for representation.(5)
Upon receipt of an appeal, the office shall:(a)
Conduct an informal administrative review of the decision on appeal:(b)
Offer the individual an opportunity to participate in mediation if the individual disagrees with the findings of the informal administrative review; and(c)
If the matter is not resolved through the administrative review or mediation, convene an administrative hearing within sixty (60) days, except that anextension, 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; or4.
Criminal conduct; or(b)
The individual requests the action.Section 2.
Informal Administrative Review.(1)
Upon receipt of an appeal a branch manager not involved in the decision in question shall conduct the administrative review of the decision within ten (10) days.(2)
The administrative review shall be conducted either in person or by teleconference, and the individual shall be invited to participate.(3)
A written determination shall be sent to the individual within five (5) business days via electronic mail or U.S. Mail.Section 3.
Mediation.(1)
The individual shall have the right to participate in mediation before an administrative hearing is convened.(2)
If mediation is requested, the office shall:(a)
Schedule the mediation for a date prior to an administrative hearing;(b)
Convene the mediation in a location convenient to the office and the individual, if in person, or virtually, 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.(3)
The individual shall attend the mediation.(4)
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.(5)
An agreement reached by the parties through mediation shall be documented in writing and signed by both parties.(6)
Mediation is voluntary and shall not be used to delay the scheduling of an impartial hearing.Section 4.
Administrative Hearing. If the individual is not satisfied with the outcome of the informal administrative review process, did not choose to participate in mediation or if the mediation was unsuccessful, the office shall conduct an administrative hearing in accordance with KRS Chapter 13B.This emergency administrative regulation is being promulgated pursuant to KRS 13A.190(1)(a) and is necessary to address an imminent threat to public welfare, ensure continued compliance with federal vocational rehabilitation requirements, and implement the mandates of SB 103 RS 25. The Office of Vocational Rehabilitation (OVR) is currently operating under an Order of Selection (OOS) because available resources are insufficient to serve all eligible individuals with disabilities. Under the existing regulatory framework, OVR cannot correctly assign priority categories or administer OOS in a manner consistent with 34 C.F.R. §§ 361.36, 361.41, and 361.42. As a result, individuals with the most significant disabilities are being placed on waitlists under outdated and noncompliant criteria. Immediate regulatory correction is required to avoid continued improper prioritization and further delay in service delivery. Immediate action is also required to prevent jeopardizing federal funding for the OVR program. Continued administration of an unlawful OOS constitutes federal noncompliance and poses a direct risk to Kentucky’s ability to draw federal vocational rehabilitation funds. This creates an imminent threat to public welfare, as OVR is currently unable to serve new eligible individuals and cannot release any of the approximately 3,000 individuals now waiting for services until the regulations are corrected. In addition, SB 103 RS 25 amended KRS 151B.195 to require OVR to promulgate administrative regulations that established a preference for in-state services and set forth its policy and procedure used to establish service fees. Ordinary administrative regulation procedures are inadequate to prevent this harm, because the delay inherent in the ordinary process would prolong improper administration of the OOS and extend service denials for individuals with the most significant disabilities. Therefore, this emergency regulation is necessary to establish the legally required framework for OVR to comply with federal and state law and to protect public welfare.
This emergency regulation will be replaced by an ordinary administrative regulation because it is necessary for agency operations and to ensure the agency’s policies are more transparent. The companion ordinary administrative regulation is identical to this emergency regulation.