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Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 1

SECTION II

FAIR HEARING PROCEDURES

INTRODUCTION

Under Titles III and VII of the Older Americans Act, Section 504 of the Rehabilitation Act of 1973, as amended, American Disabilities Act of 1990 and Title XX of the Social Security Act, as amended, the LCAAAIL responsible for the program is required by Federal Regulation (45 EFR 205.10) to provide a hearing to any applicant or recipient who is aggrieved by any agency action resulting in denial, suspension, reduction, discrimination, exclusion or termination of services.

DEFINITIONS AND TERMS

Administrative Agency means State Board, Cabinet, Commission or Department (for hearings at the State Level). At the local level, this means LCADD AAAIL.

Applicant for Services means a person or entity making application to the LCADD AAAIL to provide services under an approved area plan.

Burden of Proof means the duty of going forward, i.e., of producing evidence of a particular matter or fact in issue and the burden of persuasion that a particular matter or fact is true.

Client is synonymous with recipient and means a person who has been determined to be eligible to receive services from the LCADD AAAIL /contract agencies.

Complainant means the applicant for services, or client, who after submitting their written complaint, is entitled to a fair hearing.

Days mean calendar days, unless specified.

Department means Department for Aging and Independent Living, the State Unit on Aging.

Fair Hearing means an administrative hearing held pursuant to federal regulation, 45 CFR 205.10 and Kentucky Revised Statutes (KRS) 13B.00 -.170 or as applicable 910 KAR 1:140, and conducted following the procedures set forth in this section and the general procedures related to administrative hearings.

Hearing Officer means the person selected by LCADD’s Director of Aging and Independent Living to conduct a hearing and to submit a written report based on that hearing to the Executive Director.

Local Administrative Review means the procedure of an area agency for consultation and review with an applicant or provider.

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Local Resolution Conference is an informal process that gives the complainant the opportunity to discuss the complaint and an attempt is made to resolve the issues in the complaint.

Local Resolution Facilitator is a person who conducts the local resolution conference.

Parties mean the Area Agency on Aging and Independent Living, the client, the bidder, provider and any other individuals or organizations named in the complaint or grievance.

Protest or complaint means a written objection by an applicant or provider to a proposed award or the award of a contract, or a written objection by a provider to a decision to terminate or not renew its contract to provide services.

Provider means a person or entity that is awarded a contract from an Area Agency on Aging and Independent Living to provide services under an approved area plan.

RFP File means those documents that are maintained regarding a particular procurement. These documents shall include: a) The Request for Proposal; b)Advertisements published in the newspaper; c) Each proposal received in response to the RFP; d) All correspondence pertaining to the RFP; e) The review by the AAAIL; f) Rating or scoring and selection documents; g) Notice of Award; and h) the Contract.

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CLIENT FAIR HEARING (LEGAL BASIS)

LCADD AAAIL has assured the Department for Aging and Independent Living through contractual agreements, that it shall comply with the provisions of the Civil Rights Act of 1964, as amended, Section 504, Rehabilitation Act of 1973, as amended, American Disabilities Act of 1990 and with 45 CFR 205.10. The LCADD AAAIL hereby affirms its compliance and expects its staff and providers to act accordingly. The LCADD AAAIL shall not on the basis of race, color, national origin, sex, age, religion or handicap:

1. Deny any individual aid, care, services or other benefits of the LCADD AAAIL, either directly or through contractual or other agreements;

2. Provide any aid, care, services or other benefits to an individual who is different or is provided in a different manner from that provided to others;

3. Subject an individual to segregation or separate treatment in any matter related to his receipt of any aid, care, services or other benefits;

4. Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving aid, care, services or other benefits;

5. Treat an individual differently from others in determining whether s/he satisfies eligibility or other requirements or conditions which individuals shall meet in order to receive aid, care, services or other benefits; and

6. Deny an individual an opportunity to participate in the program through the provision of services or otherwise afford him an opportunity to do so which is different from that afforded others.

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STAFF RESPONSIBILITY TO INFORM CLIENT OF RIGHTS

Policy: Staff of LCADD AAAIL or contract agency shall be responsible for advising applicants, and clients of their right to a fair hearing.

Procedures:

1. Each new applicant or client shall be given a written notice of their right to a hearing during intake.

2. At the time of an action for which a client is entitled to a fair hearing, staff shall give clients a written notice of their right to a fair hearing under (3) three circumstances:

when a case is opened;

services changed;

or upon denial or discontinuation of services.

3. The right to a fair hearing and the method by which the client may obtain a hearing shall be restated in writing to the client during any action affecting services. If a request for a hearing is made within ten (10) days of the notice of an action affecting services, services shall be continued until a decision is rendered after a hearing, unless staff determines that continuation of the services or delay of the action endangers the health or well-being of the client or staff.

Policy: In cases of intended action to discontinue, terminate or suspend or reduce services, staff shall give the client timely and adequate notice thereof and an opportunity to object (see Quality Assurance Agreement form). Timely means that the notice is mailed at least ten (10) days before the date of the action, except that "adequate" written notice shall be given no later than the date of the action if staff determines that delaying the action endangers the health or well-being of the client, or that the health or well-being of staff may be endangered if prior notice is given.

Procedures:

1. The date of a notice given by mail is the date of mailing the notice.

2. Special emphasis shall be placed on the fact that the applicant/client shall not suffer retaliation or sanction as a result of a request for a fair hearing.

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NOTICE OF THE RIGHT TO A FAIR HEARING

Policy: A notice of the client's right to a hearing shall be displayed prominently in the LCADD AAAIL, service provider offices and congregate service sites in a location easily accessible to participants.

Procedures:

The notice of right to a hearing shall include the following language: "If you are dissatisfied with the action taken, you may request a fair hearing within thirty 30 days from the date of the action by filing a written request or completing a complaint form and mailing it to: LCADD AAAIL, PO Box 1570, Russell Springs, Kentucky 42642-1570. You may be represented by an attorney or other spokesperson."

A client shall be entitled to a hearing on the following actions:

a. A denial, reduction, material modification, suspension, discontinuance, exclusion from or termination of a service;

b. Dissatisfaction with a service received, inappropriate or inadequate treatment;

c. Failure of the LCADD AAAIL or service provider to act upon a request for service with reasonable promptness;

d. Failure of the LCADD AAAIL or service provider to take into account a client's choice of service or a determination that the individual shall participate in a service program against his wishes (except where required by law); or

e. Discrimination against a client by the LCADD AAAIL or service provider staff on account of age, sex, race, national origin, handicap or religion.

The following shall not be considered through the hearing procedure described herein:

a. Complaints related to legal issues such as actions involved in court cases, court orders or the interpretation of any statute or regulation;

b. A Complaint that has not been filed in writing with LCADD AAAIL within the timeframe specified in these policies;

c. A Complaint that has been abandoned by failure of the complainant to carry forward with their complaint, to furnish information requested by the Hearing Officer, or to appear at the hearing scheduled for him or her;

d. Discrimination practices and personnel issues in relation to LCADD AAAIL personnel policies and procedures. These grievances shall be handled per instructions in the Personnel Manual; or

e. A report of Abuse or Neglect which shall be directed to either Adult Protective Services or proper law enforcement officials.

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REQUEST FOR HEARING

Policy:

All requests for hearing shall be filed in writing using the LCADD AAAIL Request for a Fair Hearing Form within 30 days of a circumstance for which the client is entitled to a hearing and such request shall contain:

a. Specific allegations or complaints against the LCADD AAAIL or service provider;

b. Name of the LCADD AAAIL staff, service provider or other persons involved, if known;

c. Circumstances under which the alleged act occurred;

d. Date and place of alleged act; and

e. Name and address of complainant.

Procedures:

The complainant or legal guardian shall sign the request and submit it to the LCADD AAAIL within the time frame specified. Upon request, the LCADD AAAIL and/or service provider staff shall assist individuals in preparation and submission of a request for hearing. Staff shall not assume responsibility for mailing the request.

Policy:

Request shall be filed with the LCADD AAAIL within thirty (30) days after the alleged act or notice of a decision affecting services.

Procedures:

If the notice is mailed, the date of the notice shall be the date mailed; otherwise it shall be the date of delivery. In cases where the request is filed after the thirty (30) day period, a decision as to acceptance or denial of the complaint for action shall be made by the Executive Director of LCADD or a designee named by the Executive Director.

Policy:

Within five (5) working days of the receipt of the complaint, the LCADD AAAIL shall notify the complainant of the receipt of the request and the LCADD Area Agency on Aging and Independent Living’s policy of attempt at local resolution before a hearing is scheduled and conducted within 30 days of the request for a hearing.

Procedures:

The results of the LCADD AAAIL or service provider’s efforts to achieve local resolution of the complaint shall be mailed to the Executive Director not more than thirty (30) days after the filing of the request for hearing. The report shall contain:

a. Nature of the Complaint (with specific issues);

b. Date of Resolution Conference;

c. Persons present at the Conference; and,

d. The results of the Conference.

A copy of the local resolution report to include a specific statement of any issues not resolved shall be sent to the complainant and involved staff. If the complaint is resolved, the complainant shall sign an acknowledgment and attach to the report.

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HEARING BEFORE LCADD AAAIL

Policy:

In the event the complaint is not resolved within thirty (30) days of filing a request for a hearing, the complaint shall be referred to a hearing officer of LCADD AAAIL to conduct a hearing.

Procedures:

The hearing shall be held within thirty (30) days after referral to a hearing officer.

If the complainant agrees to an extension of time, the time for final administrative action shall be correspondingly extended.

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LOCATION OF THE HEARING

Policy:

The hearing shall be conducted at a reasonable location selected by the Hearing Officer.

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NOTICE OF HEARING

Policy:

The complainant and representatives, as appropriate, the LCADD AAAIL or service provider staff named in the complaint and their representatives, shall be given at least seven (7) working days written notice prior to the hearing.

Procedures:

The following information shall be contained in the hearing officer's notice to the complainant and his representative:

a. The specific complaint to be heard at the hearing. The complainant shall be asked to notify the Hearing Officer in writing within five (5) working days of the receipt of the notice if the complaint issues have not been correctly stated. The hearing officer shall then make a determination as to whether to modify the complaint issues;

b. Individuals to be present at the hearing;

c. The complainant's option of presenting his case himself or with the aid of an authorized representative, such as legal counsel, relative, friend or other spokesman;

d. That LCADD AAAIL shall not be responsible for any legal fees incurred by the complainant related to the hearing;

e. The nature and conduct of the hearing, e.g., orderly but informal manner, opportunity to present witnesses and to cross examine opposing witnesses, etc.; and

f. The complainant's right to examine the contents of his case file and all documents and records to be used by the agency at the hearing at a reasonable time before the date of the hearing and instructions on how to access such material.

Procedures:

The following information shall be contained in the hearing officer's notice to staff involved in the complaint:

a. The specific complaint to be heard at the hearing;

b. Individuals to be present at the hearing;

c. The nature and conduct of the hearing, e.g., orderly but informal manner, opportunity to present witnesses and to cross examine opposing witnesses, etc.; and

d. Staff's option of presenting the case themselves or with an authorized representative. Staff shall be responsible for making arrangements for representation at the hearing.

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ATTENDANCE AT THE HEARING

Policy: Attendance at the hearing shall be limited to the complainant and representatives, if any; staff named in the complaint and their representatives, if any: the LCADD attorney; a representative of the LCADD AAAIL; the Hearing Officer; and a person to operate the recording equipment and any witness called by either the complainant or LCADD AAAIL.

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CONDUCTING THE HEARING

Policy: The hearing shall be conducted in an orderly manner, following the rules of procedure applicable to administrative hearings generally. All facts relevant to the issue shall be received.

Procedures:

1. The hearing officer shall open the hearing by:

a. Describing the purpose of the hearing,

b. Explaining the role of the hearing officer, and

c. Introducing parties to the hearing.

d. The hearing officer may direct or grant a continuance for good cause shown.

e. The hearing officer shall clarify the issues to be heard. The issues shall be the same as those in the written notification of the hearing.

2. The hearing will be conducted in a manner consistent with Kentucky Administrative Regulations and LCADD AAAIL procedures as appropriate.

3. The hearing officer shall arrange for the separation of witnesses. Only the complainant and representatives, staff involved in the complaint and their representatives, if any; the LCADD attorney; a representative of the LCADD AAAIL; the hearing officer; and a person to operate the recording equipment is entitled to be in the hearing room throughout the entire hearing. The hearing officer may permit others to remain throughout the entire hearing if circumstances dictate.

4. The hearing officer shall swear each witness in prior to giving testimony. Each witness shall complete direct testimony and then shall answer questions on cross examination by the adverse party.

5. The complainant shall have the burden of proof and shall testify first and may present pertinent evidence, including testimony of witnesses and documents.

6. Upon completion of the case for the complainant, the respondents may testify and present other evidence including testimony of witnesses and documents.

7. Upon completion of the case for the respondents, the complainant may present additional evidence in strict rebuttal of the evidence presented by respondents. Additional evidence may be presented at the discretion of the hearing officer.

8. The hearing officer may, if necessary to secure full information on the issue, postpone the hearing; examine each party who appears, and his witnesses. The hearing officer may take any additional evidence that he deems necessary including excerpts from the case record.

9. After both parties to the hearing have been given ample opportunity to present all their testimony and evidence, the hearing officer shall give each party an opportunity to summarize the salient points of their cases.

10. Upon completion of the hearing, the hearing record shall be closed unless the hearing officer grants an exception under proper motion.

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11. The hearing officer shall advise the parties that a decision shall be rendered by the LCADD AAAIL within twenty (20) days of the close of the hearing.

12. Ex parte communication with the hearing officer is prohibited. Any ex parte communications shall be shared with all parties to the hearing and become a part of the official record.

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HEARING OFFICERS REPORT AND RECOMMENDED DECISION

Policy:

Within ten (10) days after the close of the hearing, the hearing officer shall file a written report with LCADD AAAIL.

Procedures:

The written report shall contain the following information:

1. Statement of the complaint;

2. Persons present at the hearing, including witnesses;

3. Findings of Fact based solely on the evidence introduced at the hearing;

4. Conclusions as to whether or not the Findings support the complaint, citing appropriate statutes, policies and procedures and practices, and a (recommended decision on issues); and

5. Recommendations stated here as to action to be taken, on the complaint.

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DECISION LETTER

Policy:

Within ten (10) days after receipt of the Hearing Officer's Report by LCADD AAAIL, the Executive Director or designee shall render a written decision on the complaint.

Procedures:

The written decision shall be sent to the complainant by certified mail, return receipt requested, and to the staff involved, and shall contain the following information:

1. Statement of the complaint issues;

2. Findings of Fact and Conclusion with applicable statutes, policies, procedures and practices in regard to complaint; and

3. Decision and action to be taken based on Finding of Fact.

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CORRECTIVE ACTION

Policy:

After reviewing the Findings of Fact and recommendations of the hearing officer, if the Executive Director or designee feels that corrective action is warranted, a memorandum shall be forwarded to the appropriate individuals requesting that corrective action be initiated. Corrective action deemed necessary shall be initiated within ten (10) days.

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HEARING RECORD

Policy:

The transcript or recording of testimony and exhibits, or an official report containing the substance of the testimony introduced at the hearing, together with all exhibits, papers and requests filed in the proceeding, ex parte communications and the report of the hearing officer shall constitute the exclusive record and shall be available at the Lake Cumberland AAAIL office at any reasonable time in accordance with the open records law.

Procedures:

The record of the fair hearing containing all information included in this policy shall be maintained in a locked file separate from the case record of the complainant.

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APPEAL PROCESS

Policy:

If the complainant is dissatisfied with the written decision rendered by LCADD AAAIL, the complainant has ten (10) days from the date of the agency's decision to appeal.

Procedures:

The agency, if requested, shall assist the complainant in filing an appeal of the decision. An appeal is mailed to the Commissioner, Department for Aging and Independent Living, 275 East Main St., 3 W-F, Frankfort, KY 40621.

Policy:

Upon receipt of a written appeal, the Department will implement procedures to respond to the request for appeal.

Procedures:

The Commissioner of the Department shall forward the appeal of the decision to the Quality Assurance Branch to be reviewed by a Hearing Officer. After reviewing the decision made by the LCADD AAAIL, the Hearing Officer shall file a written report with the Executive Director that shall contain:

a. Conclusions as to whether or not LCADD AAAIL's findings support the complaint, citing appropriate policy and procedure; and

b. Recommendations as to action to be taken, if any, on the complaint.

Policy:

After receipt of the Hearing Officer's report, the Commissioner of the Department or designee shall render a written decision on the complaint.

Procedures:

The written decision shall be sent to the complainant by certified mail, return receipt requested, and shall contain the following:

a. Statement of the appeal; and

b. Decision and action to be taken.

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IMPLEMENTATION OF DECISION

Policy:

Upon receipt of the written decision by the Commissioner of the Department regarding the appeal request, implementation of the decision must be followed.

Procedure:

LCADD AAAIL shall develop a plan to implement the decision of the Commissioner or the Commissioner’s designee.

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HEARING PROCEDURES RELATING TO LAKE CUMBERLAND AREA AGENCY ON AGING AND INDEPENDENT LIVING CONTRACTOR SELECTION ACTIONS UNDER TITLE III OF THE OLDER AMERICANS ACT

Pursuant to Section 307(A) (5) of the Older Americans Act of 1965, as amended, it is the Procedure of the Department for Aging and Independent Living to provide an opportunity for a hearing to any applicant to provide services under Title III whose application to provide services or not renewed, except as provided in 45 CFR Part 74; Subpart B 74.13. The purposes of these proceedings is to provide all Parties a full and fair opportunity to resolve any complaints or protests that may arise in contractor selection actions by Area Agencies on Aging and Independent Living under Title III and to create a complete, clear and accurate record for the formation of decisions regarding those selection actions.

Definitions

AAAIL means the Area Agency on Aging and Independent Living under each Area Development District.

Applicant means a person or entity making application to an Area Agency to provide services under an approved Area Plan.

Area Plan means a plan submitted by an Area Agency on Aging and Independent Living and approved by the Commissioner, Department for Aging and Independent Living, which enables the Area Agency to administer activities under Title III.

Burden of Proof means the duty of going forward-i.e., of producing evidence of a particular matter or fact in issue and the burden of persuasion that a particular matter or fact is true.

Commissioner means the Commissioner of the Department for Aging and Independent Living.

Complaint See "Protest" below.

Days mean calendar days, unless specified.

Department means the Department for Aging and Independent Living, Cabinet for Health and Family Services.

Director means the Director of the Department for Aging and Independent Living, Cabinet for Health and Family Services.

Hearing Officer means the person selected by the Commissioner of the Department for Aging and Independent Living, to conduct a hearing and to submit a written report based on that hearing to the Commissioner.

Local Administrative Review means an Area Agency's procedure for consultation and review with an Applicant or Provider.

Party means an Area Agency, an Applicant or Provider who has requested a hearing, the person or entity awarded the contract, the person or entity who submitted proposals in response

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to the RFP, and any other person or entity that is admitted into the proceedings and designated as a participant by the Hearing Officer.

Protest (Complaint) means a written objection by an Applicant or Provider to a proposed award or the award of a contract, or a written objection by a Provider to a decision to terminate or not renew its contract to provide services.

Provider means a person or entity that is awarded a contract from an Area Agency on Aging and Independent Living to provide services under an approved Area Plan.

RFP file means those documents that are maintained regarding a particular procurement. These documents shall include but not necessarily be limited to: the request for proposal (RFP), advertisements as published in the newspapers; each proposal received in response to the RFP; all correspondence pertaining to the RFP; the AAAIL's review, rating or scoring and selection documents; notice of award; and, the contract.

Title III means Title III of the Older Americans Act of 1965, as amended and implementing Federal regulations and directives.

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PROCEDURE FOR SUBCONTRACTOR

The procedure for complaints lodged by service providers or applicants to provide services who are subcontractors shall be as follows:

1. The service provider or unsuccessful applicant to provide services shall contact the contracting agency (Lake Cumberland ADD) to try to work out a satisfactory solution.

2. If a complaint is filed, the complainant shall comply with LCADD’s hearing procedures which shall include the following provisions:

a. A service provider or unsuccessful applicant to provide services (e.g., unsuccessful bidder) aggrieved by an adverse action of a contracting agency shall, within ten (10) working days from receipt of notice of the adverse action, file a written complaint with the agency (Lake Cumberland ADD);

b. The contracting agency shall notify all parties of interest that a complaint has been filed and determine a time and place for the hearing;

c. An opportunity to review any pertinent evidence on which the adverse action was based;

d. An opportunity to appear in person before a group which can render an impartial decision to refute the basis for the decision;

e. An opportunity to be represented by counsel;

f. An opportunity to present witnesses and documentary evidence;

g. An opportunity to cross-examine all witnesses; and

h. A written impartial decision within ten (10) days of receipt of complaint which sets forth the reasons for the decision, the evidence on which the decision is based, and a statement explaining the complainant’s rights to appeal.

If the complainant is not satisfied with the decision of the contracting agency, the complainant shall file a notice of appeal within five (5) working days of the adverse action to Lake Cumberland Area Development District and the Area Development District Board of Directors shall be responsible for the provision of a full evidentiary hearing within twenty (20) days of receipt of written notice of the complaint in order to render a final impartial decision. It shall be the responsibility of Lake Cumberland Area Development District to provide an official transcript of the hearing at the final local appeal level to include all testimony, a copy of Findings of Fact, Conclusions of Law and Final Order, along with any other evidence and exhibits submitted for the record. An impartial decision shall be made as soon as practicable or within ten (10) working days.

The hearing shall be limited to those issues included in the original complaint. Only those issues shall be addressed unless issues have been added, modified, or deleted through written agreement of the involved parties.

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The complainant may drop the complaint if satisfied with the response of Lake Cumberland Area Development District. If the complainant is not satisfied, the complainant may appeal to the Department for Aging and Independent Living for a State-level review within five (5) working days from the time the decision is received.

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PROCEDURE FOR Lake Cumberland AREA AGENCY ON AGING AND INDEPENDENT LIVING

All decisions made by LCAAAIL in the administration of Title III programs shall be in accordance with an approved Area Plan. Within seven (7) days of any decision which denies an Applicant its application to provide a service or which terminates or does not renew a Provider's contract to provide a service, LCAAAIL shall deliver written notice of the decision to the affected Applicant or Provider by registered or certified mail.

The notice of decision shall specify the reason for the adverse action and advise the Applicant or Provider that he or she has ten (10) days from receipt of the notice of decision to file a written complaint or protest with LCAAAIL. The notice shall also advise the Applicant or Provider that failure to file a complaint or protest in a timely manner shall constitute a waiver of his or her opportunity for a hearing at the State agency level.

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LOCAL ADMINISTRATIVE REVIEW

LCAAAIL shall conduct an administrative review promptly after receipt of a written complaint or protest from an Applicant or Provider. The Local Administrative Review shall be completed no later than twenty (20) days after LCAAAIL receives the written complaint or protest.

This review shall provide the complaining or protesting Applicant or Provider an opportunity to review any pertinent evidence upon which the adverse action was based, including any competing proposals and scoring sheets; request reconsideration of an award, if one has been made; and state in writing to LCAAAIL the reason why the complaint or protest is filed and the factual circumstances and issues to be considered during the review.

The purpose of a Local Administrative Review is to provide LCAAAIL and the Applicant or Provider an opportunity to resolve complaints and protests regarding administration of the Title III program at the local level. Accordingly, LCAAAIL shall make a good faith effort to review the facts and issues and achieve an amicable resolution. During the pendency of the Local Administrative Review, LCAAAIL shall not proceed further with the solicitation, award or termination involved, except under a contingency plan that has been approved by the Department. No request for a hearing at the State agency level shall be accepted until all administrative remedies have been exhausted at the local level.

The Local Administrative Review shall include but not be limited to the following:

1. An opportunity, to appear in person before an individual or a group of at least three (3) persons which can render an impartial decision;

2. An opportunity to present witnesses and documentary evidence;

3. An opportunity to be represented by counsel;

4. An opportunity to cross-examine all witnesses; and

5. A written impartial decision which sets forth the reasons for the decision, the evidence on which the decision is based, and a statement explaining the complainant's right to request a State-level hearing.

All LCAAAIL service providers shall assure that, regardless of contracting level, a local administrative review process is in place with the minimum requirements as described in (1) through (5) above, except that subcontractors have a right to a State-level review. Subcontractors of LCAAAIL and Applicants to be Subcontractors of LCAAAIL are afforded a de novo hearing by LCAAAIL with an opportunity for appeal to the State level for a review of the transcript. LCAAAIL provides a transcript of the hearing to the State Agency if the complaint is not resolved, and a State-level review of LCAAAIL hearing is requested.

A Contractor or "Provider" of LCAAAIL or an Applicant to be a Provider of LCAAAIL shall be afforded a de nova hearing at the State level when the request and grounds for hearing are in accordance with these procedures.

The AAAIL shall promptly complete the Local Administrative Review and shall respond with particularity in writing by Certified Mail Return Receipt Required to the Applicant or Provider its

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findings and determinations on all issues raised in the complaint or protest no later than twenty (20)·days after the AAAIL receives notice of the complaint or protest. A copy shall be forwarded to the Department. The AAAIL shall include in its response a written notice to the Applicant or Provider of the right to request a hearing with the Department as set forth below.

REQUEST AND GROUNDS FOR HEARING

If the complaint or protest is not resolved by the Local Administrative Review, or if LCAAAIL does not respond to the complaint or protest within twenty (20) days as provided above, the Applicant or Provider may request a hearing at the State level on one or more of the following grounds:

(1) Where there is reason to claim that an award has not been made in accordance with the applicable request for proposal (RFP).

(2) Where there is reason to claim that the Local Administrative Review was not made in accordance with LCAAAIL's approved procedures.

(3) Denial by Lake Cumberland Area Agency in whole or in substantial part of an application to provide services where there is reason to claim the denial is arbitrary, capricious, an abuse of discretion, biased, the result of a conflict of interest, not based upon substantial evidence, or otherwise not in accordance with applicable Federal or State law, statute, or regulation.

(4) Any action on the part of Lake Cumberland Area Agency concerning non-renewal of termination of a contract to provide services where there is reason to claim the action is arbitrary, capricious, an abuse of discretion, biased, the result of a conflict of interest, not based upon substantial evidence, not in accordance with terms of the contract, if appropriate, or otherwise not in accordance with applicable Federal or; State law, statute, or regulation.

A written request for hearing by an Applicant or Provider shall set forth the grounds and their alleged factual basis for a hearing. It shall be mailed to the Director, Department for Aging and Independent Living, 275 East Main Street, Frankfort, Kentucky 40621 with a postmark not later than ten (10) days from the Applicant or Provider's receipt of the Local Administrative Review findings and determination. The Applicant or Provider shall also send a copy of the request for a State level hearing to the applicable AAAIL.

Upon receipt of a copy of the request, LCAAAIL shall immediately forward to the Department a complete copy of the record of the Local Administrative Review, and a complete copy of the request for proposal (RFP) file relating to the particular procurement in question. These copies shall be provided to the Hearing Officer for inclusion in the record of the case.

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COMPLIANCE WITH PROCEDURES AND FORFEITURE OF OPPORTUNITY FOR STATE-LEVEL HEARING

Upon receipt of a written request for a hearing, the Commissioner shall cause an immediate determination to be made whether the request is in accordance with these procedures. If the request for a hearing complies with these procedures, Commissioner shall appoint a Hearing Officer.

Failure of the Applicant or Provider to comply with any of these procedures shall constitute a forfeiture of the opportunity for a State level hearing, except as provided below in "Waiver of Timeliness Requirements." Upon forfeiture, the Commissioner shall cause the request to be returned to the Applicant or Provider with a written explanation why it is not acceptable.

WAIVER OF TIMELINESS REQUIREMENTS

The Commissioner may waive the timeliness requirements for requesting a hearing upon the written request of a Party and determination by the Commissioner in writing that good cause or exigent circumstances exist, including but not limited to "acts of God" such as tornadoes, floods and fires, or that the waiver is in the best interest of the aging program. All affected Parties shall be promptly notified in writing by the Commissioner of the reason for the waiver.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 27

NOTICE OF HEARING AND TIME SCHEDULE

Each hearing shall be conducted and completed within 20 days of the date the Commissioner receives a request for a hearing unless an extension is granted. The Hearing Officer appointed by the Commissioner shall promptly notify by mail all Parties of the date, time and location of the hearing, and shall provide each Party with a copy of the request for a hearing.

Extension of Time

Upon written request by a Party, and for good cause shown, the Hearing Officer may reschedule the date and time for a hearing, or may grant a continuance, provided that extension or continuance does not delay service delivery. Any questions that the Hearing Officer has regarding service delivery shall be addressed to the Commissioner.

Expedited Scheduling

The Commissioner may expedite the scheduling of events under these procedures upon written determination that reduction of the timeframe is in the best interest of the aging program and that the rights of the Parties at the State-level hearing will not be prejudiced. All affected Parties shall be promptly notified in writing by the Director of expedited scheduling and the reason.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 28

DISQUALIFICATION

A Hearing Officer who has a personal bias or prejudice with respect to any Party, or who has a conflict of interest in the matter pending, shall not participate in the conduct of a hearing. When any bias or interest is present, the Hearing Officer shall disqualify himself.

Any Party may suggest to the Commissioner, in writing, grounds for disqualification; however, the suggestion shall be made prior to the date set for the hearing. The decision of the Commissioner regarding qualification of the Hearing Officer shall be final.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 29

RIGHTS OF PARTIES AT THE HEARING

The Parties shall have an opportunity to present their sides of the matter in a full and fair hearing. Each Party has the right to:

1. Appear with legal counselor other representative, at the Party's own expense;

2. Review any pertinent evidence on which the decision of the Area Agency was based;

3. Present evidence, both testimonial and documentary, at the Party's own expense and subject to the rulings of the Hearing Officer;

4. Rebut adverse evidence, through cross-examination and other appropriate means, including the presentation of evidence, at the Party's own expense and subject to the rulings of the Hearing officer;

5. submit a brief or memorandum setting forth the position of the Party and substantiation for it to the Hearing Officer at the hearing;

6. Present oral argument, subject to the rulings of the Hearing Officer;

7. Have the decision based only upon evidence introduced into the record of the hearing; and,

8. Have access to the complete record of the hearing which shall consist of the following: the request for a hearing; a copy of the Local Administrative Review; a copy of the RFP file, when applicable; a transcript of oral testimony and arguments, when a transcript is made; all documentary evidence and papers filed with the request for a hearing, and in the proceedings; and any pre- and post-hearing motions, including written exceptions.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 30

EVIDENCE

The Hearing Officer shall rule as to the admissibility of evidence, both testimonial and documentary. When ruling on admissibility, the Hearing Officer shall not be bound by courtroom rules of evidence; however, irrelevant, immaterial, and unduly repetitious or cumulative evidence shall be excluded. Substance rather than form shall prevail.

Notice shall be taken of judicially cognizable. Facts, decisions of courts and other tribunals, and generally recognized technical and scientific facts. Each Party shall be afforded an opportunity to contest the matters so noticed.

When the interests of the Parties will not be prejudiced substantially, any part of the evidence may be received in the form of deposition, affidavit, or stipulation.

The Hearing Officer shall arrange for the separation of witnesses, and may exclude any prospective witness or spectator from the bearing room when necessary or needed to ensure orderly and fair proceedings.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 31

ADDITIONAL INFORMATION

The Hearing Officer may seek a more definite and detailed statement of the issue involved. However, the Hearing Officer shall not communicate, directly or indirectly, with any person or Party regarding the issue, except upon notice to all Parties and opportunity for all Parties to participate.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 32

TRANSCRIPT OF THE PROCEEDINGS

All proceedings in a hearing shall be taped or recorded at a location provided by the Commissioner. The Commissioner shall ensure that a transcript of the proceedings is promptly made if one is requested by a Party, or when directed by the Commissioner.

A copy of the transcript shall be made available to any Party upon written request and payment of a reasonable fee in accordance with the Kentucky Open Records Law.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 33

DEFAULT

When a Party fails to appear at a hearing, the Hearing Officer shall notify said Party in writing that a default will be entered against the Party. The defaulting Party shall then have no more than five (5) days in which to seek a new hearing date. A new hearing date shall be granted only for good cause shown. If the Hearing Officer determines that good cause has not been shown, or five days expire without response, a default shall be entered as to the defaulting Party. Upon default, a decision may be rendered based on the evidence available, or the case may be dismissed with prejudice to the defaulting party.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 34

WITHDRAWAL

A Provider or Applicant may submit a written withdrawal of a request for a hearing at any time. The withdrawal shall constitute a waiver of an opportunity for a hearing at the State level on all of the matters and issues involved in the original request for a hearing.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 35

CONDUCT OF THE HEARING

The hearing shall be conducted in an orderly but informal manner. The Hearing Officer shall preside over all proceedings, and shall rule on any preliminary motions and determine the order of presentation of evidence and all other procedural matters. The Parties shall indicate in advance of the hearing the names of any witnesses expected to be called and the expected duration of their testimony. At conclusion of the hearing, the Parties may submit in writing to the Hearing Officer proposed findings of fact and written exceptions to proposed findings of fact. The Hearing Officer shall rule on each proposed finding, and on all motions and objections. The burden of proof shall be with the Applicant or Provider who requested the hearing. The standard of proof shall be by a preponderance of the evidence.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 36

RECORD OF THE HEARING

Within ten (10) days of the conclusion of the hearing, the Hearing Officer shall forward to the Commissioner the complete record of the hearing and a written report based on that record. The Commissioner may extend the time for filing the Hearing Officers Report upon request of the Hearing Officer and good cause shown.

The Hearing Officer's Report shall contain separate findings of fact, conclusions and recommendations. Each finding of fact shall be based exclusively on the record. Each conclusion shall be based solely on the finding of fact. Each recommendation shall be supported by the conclusion.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section II Fair Hearing Procedures Page 37

LCADD Contact Info

Lake Cumberland Area Development District
P.O. Box 1570
(mailing address)
2384 Lakeway Dr.
(street address)
Russell Springs, KY 42642
Phone: 270-866-4200
Toll Free: 800-264-7093
TDD: 800-648-6056
Fax: 270-866-2044
info@lcadd.org

LCADD Calendar

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