900 KAR | Title 900 KAR — Cabinet for Health and Family Services

Chapter 1 Administration

900 KAR 1:009 Employee Access to Federal Tax Information (FTI) {#sec-900-kar-1-009 omnilex-key=us-ky-regs-official--title-900--900 KAR 1:009}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 194A.005(1).

(2) "Disqualifying offense" means a conviction, plea of guilty, Alford plea, or plea of nolo contendere to any felony, misdemeanor during the preceding seven (7) years, or offense the nature of which indicates that the employee constitutes an unreasonable and immediate risk to the security of federal tax information, as determined by the cabinet.

(3) "Federal tax information" or "FTI" means federal tax returns and return information that may:

(a) Contain personally identifiable information; and

(b) Include information created by the recipient that is:

Derived from federal return or return information; and
Received directly from the Internal Revenue Service (IRS) or obtained through an authorized secondary source, which may include:

a. Social Security Administration (SSA);

b. Federal Office of Child Support Enforcement (OCSE);

c. Bureau of the Fiscal Service (BFS);

d. Centers for Medicare and Medicaid Services (CMS); or

e. Another entity acting on behalf of the IRS.

(4) "Rap back service" means a notification program in which the cabinet or responsible agency, upon approval to participate in the program, will be informed if an individual who has undergone a fingerprint-based criminal background check in accordance with the requirements of this administrative regulation, and whose fingerprints are retained by the Department of Kentucky State Police or the Federal Bureau of Investigation, is subsequently arrested.

(5) "Responsible agency" means an office or department within the cabinet, or an entity under contract with the cabinet, that employs or offers a job to an individual in a position for which the job duties include access to or use of FTI.

Section 2. Requirement for Criminal Background Checks.

(1) As a condition of initial application for employment or continued employment either directly or by contract in a position for which the job duties include access to or use of FTI, the cabinet or responsible agency shall require a prospective or current employee, including contract staff, to submit to a fingerprint-based state and national criminal background check:

(a) After the individual is offered a job but before he or she begins working; and

(b) At least one (1) time during each five (5) year period for a current employee or contract staff.

(2) The responsible agency that requests a fingerprint-based state and national criminal background check on behalf of a prospective or current employee shall incur all fees included in the actual cost of each background check requested, including the rap back service.

(3) The cabinet or responsible agency shall not employ directly or by contract an individual in a position for which the job duties include access to or use of FTI if the individual:

(a) Refuses to consent to a fingerprint-based state and national criminal background check; or

(b) Is found to have a disqualifying offense.

(4) The cabinet or responsible agency shall notify each prospective or current employee determined to have a disqualifying offense.

Section 3. Disqualification for Other Criminal Offenses or Factors. The cabinet or responsible agency shall not be obligated to employ or offer employment to an individual with a criminal offense not specifically listed in Section 1(2) of this administrative regulation or other factor that bears upon the fitness of the individual to work in a position for which the job duties include access to or use of FTI.

Section 4. Challenges to Criminal History Record Information. An individual subject to a criminal background check required by KRS 194A.062(1) and this administrative regulation shall have the right to request and inspect his or her criminal history record and to request correction of any inaccurate information.

Section 5. Rehabilitation Review.

(1) A prospective or current cabinet employee found to have a disqualifying offense upon completion of the criminal background check shall be eligible for consideration of rehabilitation under an independent review process.

(2) A prospective or current cabinet employee may submit a written request for a rehabilitation review to the Office of Human Resource Management no later than fourteen (14) calendar days from the date of notice of a disqualifying offense issued pursuant to Section 2(4) of this administrative regulation.

(3) A current cabinet employee who requests a rehabilitation review may be retained on staff if the employee is assigned duties that do not include access to or use of FTI.

(4) The request for a rehabilitation review shall include the following information:

(a) A written explanation of each disqualifying offense, including:

A description of the events related to the disqualifying offense;
The number of years since the occurrence of the disqualifying offense;
The age of the offender at the time of the disqualifying offense;
Evidence that the individual has pursued or achieved rehabilitation with regard to the disqualifying offense; and
Any other circumstances surrounding the offense;

(b) Official documentation showing that all fines, including court-imposed fines or restitution, have been paid or documentation showing adherence to a payment schedule, if applicable;

(d) Employment and character references, including any other evidence demonstrating the ability of the individual to perform the employment responsibilities and duties competently.

(5) A rehabilitation review shall be conducted by a committee of three (3) employees of the Office of Human Resource Management.

(6) The committee shall consider the information required under subsection (4) of this section, and shall also consider mitigating circumstances including:

(a) The amount of time that has elapsed since the disqualifying offense;

(b) The lack of a relationship between the disqualifying offense and the:

Position for which the prospective employee has applied; or
Cabinet employee's current position; and

(c) Evidence that the prospective or current cabinet employee has pursued or achieved rehabilitation with regard to the disqualifying offense.

(7) No later than thirty (30) calendar days from receipt of the written request for the rehabilitation review, the Office of Human Resource Management shall send the committee's determination on the rehabilitation waiver to the prospective or current employee.

(8) The prospective or current employee may appeal the results of a rehabilitation review to the Personnel Board in accordance with KRS 18A.095.

Section 6. Pardons and Expungement. An applicant or current employee who has received a pardon for a disqualifying offense or has had the record expunged may be employed in a position with job duties that include access to or use of FTI.

History

RELATES TO: KRS 18A.095, 194A.005, 194A.062, 335B.010, 335B.020, 26 C.F.R. 301.6103(p)(7)-1, 26 U.S.C. 6103
STATUTORY AUTHORITY: KRS 194A.062
NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.062(1) requires each employee of the cabinet, including contract staff, with access to or use of federal tax information (FTI) to submit to a criminal background investigation by means of a fingerprint check by the Department of Kentucky State Police and the Federal Bureau of Investigation. KRS 194A.062(5) requires the cabinet to promulgate an administrative regulation to implement that requirement. This administrative regulation establishes requirements for fingerprint-based state and national criminal background checks for prospective and current employees, including contract staff whose job duties include access to or use of FTI.
History: 44 Ky.R. 1779; eff. 3-15-2018; 51 Ky.R. 578; eff. 2-5-2025.

900 KAR 1:050 Child and adult protection employees subject to state and national criminal background checks {#sec-900-kar-1-050 omnilex-key=us-ky-regs-official--title-900--900 KAR 1:050}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 194A.005(1).

(2) "Disqualifying offense" means a conviction, plea of guilty, Alford plea, or plea of nolo contendere to any felony, misdemeanor during the preceding seven (7) years, or offense, the nature of which indicates that the employee constitutes an unreasonable and immediate risk to the health or safety of vulnerable children or adults, as determined by the cabinet.

(3) "Front-line staff" is defined by KRS 194A.065(1).

(5) "Responsible agency" means an office or department within the cabinet, or an entity under contract with the cabinet, that employs or offers a job to an individual for a front-line staff position.

Section 2. Requirement for Criminal Background Checks.

(1) As a condition of initial application for employment or continued employment either directly or by contract in a position that is equivalent to being front-line staff, the cabinet or responsible agency shall require a prospective or current front-line staff employee, including contract staff, to submit to a fingerprint-based state and national criminal background check:

(a) After the individual is offered a job but before he or she begins working; and

(b) At least one (1) time during each ten (10) year period for a current employee or contract staff.

(3) The cabinet or responsible agency shall not employ directly or by contract an individual for a front-line staff position if the individual:

(a) Refuses to consent to a fingerprint-based state and national criminal background check; or

(b) Is found to have a disqualifying offense.

(4) The cabinet or responsible agency shall notify each prospective or current employee determined to have a disqualifying offense.

Section 4. Challenges to Criminal History Record Information. An individual subject to a criminal background check required by KRS 194A.062(2) and this administrative regulation shall have the right to request and inspect his or her criminal history record and to request correction of any inaccurate information.

Section 5. Rehabilitation Review.

(3) A current cabinet employee who requests a rehabilitation review may be retained on staff if the employee is assigned duties that do not include unsupervised contact with a child or vulnerable adult.

(4) The request for a rehabilitation review shall include the following information:

(a) A written explanation of each disqualifying offense, including:

A description of the events related to the disqualifying offense;
The number of years since the occurrence of the disqualifying offense;
The age of the offender at the time of the disqualifying offense;
Evidence that the individual has pursued or achieved rehabilitation with regard to the disqualifying offense; and
Any other circumstances surrounding the offense;

(b) Official documentation showing that all fines, including court-imposed fines or restitution, have been paid or documentation showing adherence to a payment schedule, if applicable;

(d) Employment and character references, including any other evidence demonstrating the ability of the individual to perform the employment responsibilities and duties competently and safely.

(5) A rehabilitation review shall be conducted by a committee of three (3) employees of the Office of Human Resource Management.

(6) The committee shall consider the information required under subsection (4) of this section, and shall also consider mitigating circumstances including:

(a) The amount of time that has elapsed since the disqualifying offense;

(b) The lack of a relationship between the disqualifying offense and the:

Position for which the prospective employee has applied; or
Cabinet employee's current position; and

(c) Evidence that the prospective or current cabinet employee has pursued or achieved rehabilitation with regard to the disqualifying offense.

(8) The prospective or current employee may appeal the results of a rehabilitation review to the Personnel Board in accordance with KRS 18A.095.

Section 6. Pardons and Expungement. An applicant or current employee who has received a pardon for a disqualifying offense or has had the record expunged may be employed in a front-line staff position.

History

RELATES TO: KRS 18A.095, 194A.005(1), 194A.062, 194A.065(1)
STATUTORY AUTHORITY: KRS 194A.062(2), (5)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.062(2) requires front-line staff, as defined in KRS 194A.065(1), to submit to national and state fingerprint-supported criminal background checks performed by the Department of Kentucky State Police and the Federal Bureau of Investigation. KRS 194A.062(5) requires the cabinet to promulgate an administrative regulation to implement this requirement. This administrative regulation establishes requirements for fingerprint-based state and national criminal background checks for prospective and current front-line child and adult protection employees.
History: 48 Ky.R. 3139; eff. 2-16-2023.

Chapter 2 Long-term Care

900 KAR 2:010 Access and hours of visitation {#sec-900-kar-2-010 omnilex-key=us-ky-regs-official--title-900--900 KAR 2:010}

Section 1. Definitions.

(1) "Administrator" means the administrator of a long-term care facility subject to the provisions of the nursing home reform act, KRS 216.535 et seq.

(2) "Designated representative" means with respect to an administrator, a member of the long-term care facility's existing staff who has been authorized in writing by the administrator to act in the absence of the administrator. In the case of the long-term care ombudsman, "ombudsman's designee" means an individual, association or corporation authorized by contract to act as agent for certain specified purposes in behalf of the long-term care ombudsman.

Section 2. The administrator of a long-term care facility or his designated representative may request those groups or individuals assured access during visiting hours under the provisions of KRS 216.540(1)(a) through (c) and those groups or individuals assured access under KRS 216.540(5) to terminate visitation upon the occurrence of any one (1) of the following:

(1) A resident of the facility is physically or verbally abused by the individual or group;

(2) Any individual carries a firearm or other deadly weapon into the facility who is not a peace officer. For the purpose of this administrative regulation, "deadly weapon" is defined as including, but not limited to, any weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged, or a switchblade knife, gravity knife, billy, blackjack, or metal knuckles;

(3) Any individual or group commits a felony or misdemeanor while on the facility's premises; or

(4) Any individual or group is visibly under the influence of alcohol or controlled substances.

Section 3. Those individuals assured access during visiting hours under the provisions of KRS 216.540(1)(b) and (c) have assured access to only the residents' dining area, living area, recreation area, lounge and areas open to the general public. Access to other areas within the facility may be gained after having received the permission of the administrator or his designated representative to enter the area in question.

Section 4. Those groups or individuals assured access during visiting hours under the provisions of KRS 216.540(1)(a) through (c), except for family and legal guardians, including employees of agencies within the Cabinet duly appointed legal guardian by a court of law, and KRS 216.540(5) are:

(1) Upon entering the facility, to promptly advise the administrator or his designated representative of their presence; and

(2) Not to enter the living area of any resident without identifying themselves to the resident. Failure to comply with the requirements of this section may be grounds for requesting termination of visitation.

Section 5. In order to satisfy the requirements for licensure by the state, a long-term care facility shall establish daily visiting hours which, at a minimum, shall consist of six (6) hours between the hours of 8 a.m. and 5 p.m. local time, and two (2) hours between the hours of 5 p.m. and 8 p.m. local time. All visiting hours are to be posted in a conspicuous place in the lobby, in the entrance way, or at the front door of the long-term care facility.

Section 6. Administrators of long-term care facilities may establish visiting hours in addition to those required pursuant to KRS 216.537.

Section 7. Representatives or employees of the Cabinet for Human Resources, including the long-term care ombudsman or the long-term care ombudsman's designee, any representative or employee of any local government entity having responsibility regarding residents of long-term care facilities, and the family or legal guardian(s) of any individual resident shall have unrestricted access to and in all long-term care facilities.

Section 8. Nothing in this administrative regulation shall be deemed to prohibit or restrain the right of a resident of a long-term care facility to deny visitation or to terminate a visit by any individual or group.

Section 9. Each administrator of a long-term care facility shall appoint a member of the facility's existing staff to act as his designated representative present at the facility and authorized to act in the absence of the administrator.

Section 10. This administrative regulation shall become part of the statement required by KRS 216.545(1) to be posted in the long-term care facility.

History

RELATES TO: KRS 216.537, 216.540
STATUTORY AUTHORITY: KRS 194.050, 216.540, 216.545
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Human Resources must set forth criteria pertaining to the ability of the administrator of a long-term care facility to terminate visitation to that facility. This administrative regulation is designed to give guidance to administrators under the provisions of KRS 216.540(4) and to comply with the requirements of KRS 216.537 concerning hours of visitation.
History: 9 Ky.R. 299; eff. 12-1-1982; 975; 1085; 1302; eff. 8-3-1983; 10 Ky.R. 349; eff. 12-2-1983; 16 Ky.R. 915; eff. 1-12-1990; eff. 3-22-2019; Cert eff. 12-29-2025.

900 KAR 2:040 Citations and violations; criteria and specific acts {#sec-900-kar-2-040 omnilex-key=us-ky-regs-official--title-900--900 KAR 2:040}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216.510(3).

(2) "Citation" means written notification of a Type A or Type B violation.

(3) "Long-term care administrator" is defined by KRS 216A.010(3).

(4) "Long-term care facility" means the same as "long-term care facilities" defined by KRS 216.510(1).

(5) "Resident" is defined by KRS 216.510(2).

(6) "Type A violation" means a violation, as described by KRS 216.557(1), by a long-term care facility of the administrative regulations, standards, and requirements established by the cabinet pursuant to KRS 216.563 or the provisions of KRS 216.510 to 216.525, or applicable federal laws and regulations that present an imminent danger to any resident of a long-term care facility and creates substantial risk that death or serious mental or physical harm to a resident will occur.

(7) "Type B violation" means a violation, as described by KRS 216.557(2), by a long-term care facility of the administrative regulations, standards, and requirements established by the cabinet pursuant to KRS 216.563 or the provisions of KRS 216.510 to 216.525, or applicable federal laws and regulations that present a direct or immediate relationship to the health, safety, or security of any resident, but which does not create an imminent danger.

Section 2. Written Citations and Imposition of Penalties.

(1) The cabinet's finding of a Type A or Type B violation shall be:

(a) Communicated to the long-term care facility at the exit conference of an onsite survey; and

(b) Issued as a written citation in the statement of deficiencies, including:

The nature of the violation;
The statutory provision or administrative regulation alleged to have been violated pursuant to KRS 216.555; and
Notice of the right to appeal the:

a. Citation; and

b. Proposed assessment of the civil penalty.

(2) The cabinet shall issue the citation and statement of deficiencies as soon as practicable to the licensee, long-term care administrator, or designated representative by:

(a) Certified mail, return receipt requested;

(b) Personal service; or

(3) If the cabinet sends notice of a citation and statement of deficiencies to a long-term care facility electronically, the cabinet shall request that the facility reply immediately upon receipt to confirm that the facility received the citation.

(4) If a long-term care facility fails to reply to the cabinet within one (1) business day after the cabinet sends a citation and statement of deficiencies electronically, the cabinet:

(a) Shall contact the licensee, long-term care administrator, or administrator's designee by telephone to determine receipt; and

(b) May deliver the citation and statement of deficiencies by certified mail or personal service if a second attempt to send the citation electronically is not successful.

(5) The date of the exit conference shall be day one (1) of the time period specified for abatement of a Type A or Type B violation.

(6) The cabinet shall consider the factors established in KRS 216.565 in determining the amount of the initial penalty to be imposed for a Type A or Type B violation.

Section 3. Criteria for Finding a Type A Violation.

(1) The following specific acts or circumstances shall constitute a Type A violation:

(a) The cabinet determines that one (1) or more violations related to resident care or physical plant standards:

Resulted in actual harm to a resident; or
Represent an imminent danger and create a substantial risk that death or serious mental or physical harm to a resident will occur;

(b) The facility fails to implement a regular program to prevent pressure sores with emphasis on the following:

Procedures to maintain clean linens for each resident;
Procedures to assure that clothes and linens are cleaned each time the bed or clothing is soiled;
Procedures to assure adherence to nationally recognized clinical practice guidelines or recommendations that shall be in writing and available to direct care staff;
Documentation that direct care staff have received training on nationally recognized pressure ulcer guidelines;
Procedures to assist the resident in being up and out of bed as much as the resident's condition permits, unless medically contraindicated; and
If a resident is bedfast or unable to relieve pressure, procedures that require staff to assist the resident to change positions as often as necessary, but no less than every (2) hours to:

a. Stimulate circulation;

b. Prevent pressure areas, contractures, and decubitus; and

c. Promote the healing of any pressure sores;

(c) The facility fails to ensure that a resident who is admitted to the facility without pressure sores does not develop pressure sores, unless the individual's clinical condition demonstrates that they were unavoidable;

(d) If a resident has pressure sores, the facility fails to provide necessary treatment and services to:

Promote healing;
Prevent infection; and
Prevent new sores from developing;

(e) The facility knowingly admits or retains an individual whose needs exceed the facility's capability to care for the resident;

(f) The facility fails to disclose to a resident a serious preventable adverse event that affected the resident;

(g) The cabinet finds a violation of a resident's rights, pursuant to KRS 216.515 to 216.520 or 42 C.F.R. 483.10, that presents an imminent danger to any resident and creates substantial risk that death or serious mental or physical harm will occur;

(h) The facility fails to consult a physician if a resident experiences a serious accident or illness;

(i) The facility fails to follow the written instructions of an attending physician, or in case of emergency, verbal order given by the physician or licensed practitioner acting within the physician or practitioner's scope of practice during use of a physical restraint or pharmaceutical agent that restricts a resident's movement;

(j) The facility fails to advise the attending physician if an error in medication occurs, the error is not recorded in the resident's file, and correction is not made within one (1) day of the date of discovery;

(k) The facility fails to store all drugs and biologicals in locked compartments under proper temperature controls;

(l) The facility fails to comply with a resident's medically prescribed special diet or dietary restriction, except for special days or celebrations in which the restriction has been lifted and is medically approved;

(m) The facility fails to maintain no less than a three (3) day supply of food in the facility; or

(n) The facility fails to maintain a written fire control and evacuation plan in which staff present and responsible for supervision are familiar.

(2) A long-term care facility that fails to correct a Type A violation within the time specified for correction by the cabinet shall be subject to at least one (1) of the actions established in KRS 216.577.

Section 4. Criteria for Finding a Type B Violation. The following specific acts or circumstances shall constitute a Type B violation:

(1) The cabinet finds one (1) or more violations related to resident care or physical plant standards that:

(a) Present a direct or immediate relationship to the health, safety, or security of any resident;

(b) Do not create an imminent danger;

(d) Do not represent a pattern or widespread practice throughout the facility;

(2) The facility maintains or admits more residents to a long-term care facility than the maximum capacity permitted under the license, except in an emergency as documented by the facility in a contemporaneous notice to the cabinet;

(3) The facility fails to maintain an active program of pest control for all areas of its physical plant;

(4) The facility fails to serve at least three (3) meals per day with not more than fourteen (14) hours between the evening meal and breakfast, unless an exception is allowed pursuant to the applicable administrative regulations under 902 KAR Chapter 20;

(5) The facility fails to meet the nutritional needs of residents by not complying with the physician's orders;

(6) The facility fails to make between meal and bedtime snacks available, unless medically contraindicated;

(7) The facility fails to maintain a complete medical record for each resident with all entries current, dated, and signed;

(8) Except for a long-term care facility with an integrated heating, ventilation and air conditioning system (HVAC system), the facility fails to maintain screens on windows;

(9) The facility fails to offer a nutritional substitute to a resident who refuses food served;

(10) The facility fails to modify the texture or change the consistency of food served based upon a resident's need;

(11) The facility fails to maintain the confidentiality and security of medical records in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d-2 to 1320-8, and 45 C.F.R. Parts 160 and 164, as amended, including the security requirements mandated by subparts A and C of 45 C.F.R. Part 164, or as provided by applicable federal or state law;

(12) Except in family care homes, the facility fails to assure that cold water and hot water is available for resident use;

(13) The facility fails to assure that the maximum water temperature available for use by a resident does not exceed 110 degrees Fahrenheit;

(14) The facility fails to provide substitutions of equal nutritive value if changes in the menu are necessary; or

(15) The facility fails to have an administrator on staff who is responsible for the operation of the facility, or who fails to delegate responsibility if absent.

Section 5. Penalties.

(1) Civil penalties shall be trebled in accordance with the provisions of KRS 216.560(3).

(2) The amount of the initial penalty shall be determined with consideration given to the factors established in KRS 216.565.

Section 6. Appeals.

(1) Within twenty (20) days of the receipt of the citation and statement of deficiencies established in Section 2 of this administrative regulation, the licensee may file a written request for a hearing with the cabinet secretary.

(2) Upon receipt of the written request for a hearing, the secretary shall designate a hearing officer in accordance with KRS 216.567(2).

(3) A hearing shall be scheduled and commenced as soon as practicable after receipt of the request for hearing.

(4) Notice of the hearing shall:

(a) Be served on the party pursuant to KRS 13B.050(1) and (2); and

(b) Include the information required by KRS 13B.050(3).

(5) The hearing officer may hold a prehearing conference in accordance with KRS 13B.070.

(6) The hearing shall be conducted pursuant to KRS 13B.080 and 13B.090.

(7) Within sixty (60) days of the closing of the record or hearing, the hearing officer shall make written findings of fact, conclusions of law, and a final decision based upon the official record of the proceeding.

(8) In addition to the requirements of KRS 13B.130, the official record of the hearing shall include:

(a) The notice of citation within the statement of deficiencies or penalty assessed;

(b) Any staff reports, memoranda, or documents prepared by, or for the cabinet regarding the matter under review as introduced at the hearing;

(d) Any other evidence admitted during the hearing with respect to the matter under review; and

(e) Upon its completion, the prehearing orders, if any, and the report of the hearing officer containing the:

Findings of fact;
Conclusions of law; and
Final decision.

(9) Any party aggrieved by the final decision may appeal that decision to the Franklin Circuit Court in accordance with KRS 216.567(3).

(10) An appeal of a Type A or Type B violation shall not be construed to limit the authority of the cabinet to act pursuant to KRS 216.573 or KRS 216.577 for failure to correct the violation in a timely manner.

(11) In addition to the grounds for disqualification established by KRS 13B.040(2)(b), a hearing officer shall not participate in a hearing involving a long-term care facility if the hearing officer has, within the twelve (12) month period preceding the hearing, had any ownership interest, employment, staff, fiduciary, contractual, creditor, or consultative relationship with the facility.

History

RELATES TO: KRS 13B.040, 13B.050, 13B.080, 13B.090, 13B.110, 13B.130, 216.510 – 216.525, 216.555 – 216.567, 216.577, 216A.010(3), 42 C.F.R. 483.10, 45 C.F.R. Part 160, Part 164, 42 U.S.C. 1320d-2 - 1320-8
STATUTORY AUTHORITY: KRS 216.563, 216.567
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216.563 requires the Cabinet for Health and Family Services to promulgate administrative regulations setting forth the criteria and, where feasible, the specific acts that constitute Type A and B violations as specified by KRS 216.537 to 216.590. This administrative regulation establishes the criteria for Type A and B violations in long-term care facilities and the process for appeal of any decision on citations or penalties as required by KRS 216.567(1).
History: 9 Ky.R. 756; Am. 1018; 1281; eff. 5-4-1983; 16 Ky.R. 924; eff. 1-12-1990; 20 Ky.R. 2172; eff. 3-14-1994; 45 Ky.R. 1103, 2125; eff. 2-21-2019; TAm eff. 3-17-2020; Cert eff. 12-29-2025.

900 KAR 2:050 Transfer and discharge rights {#sec-900-kar-2-050 omnilex-key=us-ky-regs-official--title-900--900 KAR 2:050}

Section 1. Definitions.

(1) "Discharge" or "transfer" means:

(a) Relocation of a resident from a long-term care facility to a noninstitutional setting or another health facility as defined by KRS 216B.015(13); or

(b) Any intrafacility relocation of a resident, except between beds within the same distinct Medicare or Medicaid certified or noncertified part of the facility.

(2) "Facility" means a long-term care facility as defined by KRS 216.510(1), except for family care homes licensed pursuant to 902 KAR 20:041.

(3) "Resident" is defined by KRS 216.510(2).

(4) "Transfer or discharge rights" means those rights of notification and appeal guaranteed in KRS 216.515(4) and (26), and as outlined in this administrative regulation.

Section 2. Transfer and Discharge Rights.

(1) Transfer and discharge requirements. The facility shall permit each resident to remain in the facility, and shall not transfer or discharge the resident from the facility unless:

(a) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;

(b) The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;

(d) The health of individuals in the facility would otherwise be endangered;

(e) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare, Medicaid, or state supplementation) a stay at the facility; or

(f) The facility ceases to operate.

(2) Documentation. Before a facility transfers or discharges a resident under any of the circumstances specified in subsection (1)(a) through (f) of this section, the reasons for the transfer or discharge shall be documented in the resident's clinical record. The documentation shall be made by:

(a) The resident's physician if transfer or discharge is necessary under subsection (1)(a) or (b) of this section; and

(b) A physician if transfer or discharge is necessary under subsection (1)(c) or (d) of this section.

(3) Notice before transfer. Before a facility transfers or discharges a resident, the facility shall:

(a) Notify the resident and the responsible party, responsible family member, or guardian, in writing, of the transfer or discharge and the reasons for the relocation in a language and manner they understand;

(b) Record the reasons in the resident's clinical record; and

(4) Timing of the notice.

(a) Except as specified in paragraph (b) of this subsection, the notice of transfer or discharge required under subsection (3) of this section shall be made by the facility at least thirty (30) days before the resident is transferred or discharged.

(b) Notice may be made as soon as practicable before transfer or discharge if:

An immediate transfer or discharge is required by the resident's urgent medical needs, under subsection (1)(a) of this section;
The resident's health improves sufficiently to allow a more immediate transfer or discharge, under subsection (1)(b) of this section;
The safety of individuals in the facility would be endangered, under subsection (1)(c) of this section;
The health of individuals in the facility would be endangered, under subsection (1)(d) of this section; or
The resident has not resided in the facility for thirty (30) days.

(5) Contents of the notice. The written notice specified in subsection (3) of this section shall include the following:

(a) The reason for transfer or discharge;

(b) The effective date of transfer or discharge;

(d) A statement that the resident, responsible party, responsible family member, or guardian has the right to appeal the action to the cabinet;

(e) The name, address (mailing and email), and telephone number of the cabinet office responsible for receiving requests for appeal;

(f) Information on how to obtain assistance with submitting a request for appeal;

(g) The name, address (mailing and email), and telephone number of the state long-term care ombudsman; and

(h) For a nursing facility resident with a developmental disability or mental illness, the mailing and email address and telephone number of Kentucky Protection and Advocacy.

(6) Orientation for transfer or discharge. A facility shall provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

(7) Notice of bed-hold policy and readmission.

(a) Notice before transfer. Before a facility transfers a resident to a hospital or allows a resident to go on therapeutic leave, the facility shall provide written information to the resident, responsible party, responsible family member, or legal guardian that specifies the following:

The duration of the bed-hold policy, which shall be requested if available under the Medicaid state plan and provider agreement, during which a resident who receives Medicaid or has a pending application for Medicaid benefits is permitted to return and resume residence in the facility;
The facility's policies regarding bed-hold periods, which shall be consistent with paragraph (c) of this subsection, permitting a resident to return; and
For a resident who does not receive or does not have an application pending for Medicaid, the facility's established policy governing readmission.

(b) Notice upon transfer. Upon transfer of a resident to a hospital or for therapeutic leave, a long-term care facility shall provide written notice to the resident, responsible party, responsible family member, or legal guardian. The notice shall specify the duration of the bed-hold policy described in paragraph (a) of this subsection.

(c) Permitting resident to return to facility. A long-term care facility shall establish and follow a written policy under which a resident whose hospitalization or therapeutic leave exceeds the bed-hold period under the Medicaid state plan, is notified and readmitted to the facility immediately upon the first availability of a bed in a semiprivate room if the resident:

Chooses to be readmitted;
Requires the services provided by the facility; and
Is eligible for Medicaid nursing facility services and the facility is certified to participate in Title XVIII, 42 U.S.C. 1395, or Title XIX, 42 U.S.C. 1396, of the Social Security Act.

(8) Equal access to quality care. A facility shall establish and maintain identical policies and practices regarding transfer, discharge, and the provision of service under the Medicaid state plan for all individuals regardless of source of payment.

Section 3. Appeal Rights.

(1) A resident, responsible party, responsible family member, or guardian may appeal any discharge.

(2) A resident, responsible party, responsible family member, or guardian may appeal a transfer if the resident is transferred from:

(a) A certified bed into a noncertified bed; or

(b) A bed in a certified entity to a bed in an entity that is certified as a different provider.

(3) A resident, responsible party, responsible family member, or guardian has no appeal rights if the resident is moved from a certified bed into another certified bed of the same certification in the same facility.

(4) A resident, responsible party, responsible family member, or guardian may request that the cabinet review any proposed transfer or discharge. The cabinet shall investigate the proposed transfer or discharge to ascertain whether there has been a violation of the resident's transfer or discharge rights.

(5)

(a) A resident, responsible party, responsible family member, or guardian may appeal any discharge or appealable transfer to the cabinet.

(b) The resident, responsible party, responsible family member, or guardian shall inform the cabinet in writing of his or her intent to appeal within fifteen (15) days from receipt of notice of the facility's intent to transfer or discharge and include:

A copy of the notice of the facility's intent to transfer or discharge the resident; and
If not included on the notice, the name and address of the facility.

(6) Penalties. The cabinet shall enforce the provision of this administrative regulation pursuant to KRS 216.555, 216.557, and 216.560.

History

RELATES TO: KRS 216.510(2), 216.525, 216.555, 216.557, 216.560, 216B.015(13), 42 U.S.C. 1395, 1396, 42 C.F.R. 483.15, 483.204
STATUTORY AUTHORITY: KRS 216.515(4), 42 C.F.R. 483.204
NECESSITY, FUNCTION, AND CONFORMITY: 42 C.F.R. 483.204 requires that the state shall provide a process for appeals related to involuntary transfer and discharge. This administrative regulation establishes guidelines for this process for long-term care facilities, including long-term care facilities certified in accordance with 42 C.F.R. Part 483. This administrative regulation also establishes the requirements for reasonable notice of involuntary transfer or discharge pursuant to KRS 216.515(4) and appeal rights.
History: 18 Ky.R. 1729; Am. 2343; 2823; eff. 3-7-1992; TAm eff. 10-10-2010; 41 Ky.R. 2133; 2551; eff. 6-17-2015; 146 Ky.R. 1695, 2280; eff. 2-27-2020.

900 KAR 2:060 Hearings concerning transfer and discharge rights {#sec-900-kar-2-060 omnilex-key=us-ky-regs-official--title-900--900 KAR 2:060}

Section 1. Definitions.

(1) "Facility" means a long-term care facility as defined by KRS 216.510(1) excluding those facilities licensed as family care homes.

(2) "Hearing officer" means the person designated by the cabinet to conduct a hearing and make a decision regarding any appealed transfer or discharge.

(3) "Resident" means a resident of a facility or any legal representative or individual acting on behalf of the resident.

Section 2. Hearing Procedure.

(1) Upon receipt of notice of appeal in accordance with 900 KAR 2:050 or 900 KAR 2:020, Section 2(1) and (2), the secretary of the cabinet shall appoint a hearing officer and a hearing shall occur within thirty (30) days.

(2) Notice of hearing shall be mailed to the facility and resident not less than ten (10) days prior to the commencement of the hearing. The notice of hearing shall contain the reasons, time, and place of the hearing. The notice of hearing shall be mailed by certified mail, return receipt requested, to the facility and the resident.

(3) The facility and the resident may be represented by counsel and make oral or written argument, offer testimony, cross-examine witnesses, or take any combination of such actions. No depositions shall be permitted for the purpose of discovery, however, the hearing officer may authorize depositions of witnesses who, in his opinion, for good cause shown cannot be present at the hearing. A hearing officer shall preside at the hearing, shall keep order, administer oaths, may issue subpoenas and may admit relevant and probative evidence and shall conduct the hearing in accordance with reasonable administrative practice.

(4) All testimony at the hearing shall be recorded but need not be transcribed unless requested. The person or organization requesting a transcript shall bear the cost of such transcript.

(5) The hearing officer may place reasonable time limits upon the presentation of testimony, evidence and argument and may terminate or exclude irrelevant or redundant evidence, testimony or argument.

(6)

(a) The hearing officer shall review the:

Cabinet's determination that the resident's rights were violated; and
Fine imposed by the cabinet.

(b) The hearing officer shall base his review of the cabinet's determination and fines on the:

Facts of the case; and
Requirements of KRS 216.555, 216.557, 216.560, and this administrative regulation.

Sustain the cabinet's determination and fine; or
Determine that the rights of the resident were not violated, and that the imposition of a fine was not warranted; or
Make a different determination with regard to the severity or type of violation, and the fine required by KRS Chapter 216; or
Make any other decision warranted by the facts, KRS Chapter 216, and this administrative regulation.

(7) The hearing shall be the only hearing as it relates to cabinet findings regarding fines, citations and cited deficiencies concerning transfer and discharge rights under this or any licensure regulations.

(8) The hearing officer's decision shall be the final determination of the cabinet. The cabinet shall forward the decision to the resident and facility within ten (10) days of the receipt of the hearing officer's decision.

(9) no hearing officer shall participate in any hearing involving a facility with which he has had in the past twelve (12) months preceding the hearing, any ownership, in whole or in part, employment, fiduciary, contractual creditor or consultative relationship or any familial relation to the resident.

(10) A judicial review may be accorded the resident or facility as specified in KRS 216.570.

History

RELATES TO: KRS 194.030(12)(b)
STATUTORY AUTHORITY: KRS 216.515, 216.525, 216.557, 216.560, 216.567, 42 C.F.R. 483.12
NECESSITY, FUNCTION, AND CONFORMITY: 42 CFR 483.12 requires that the state shall have in place a fair and impartial decision-making process for appeals related to involuntary transfer and discharge. This administrative regulation sets forth guidelines for this process for long-term care facilities as licensed by 902 KAR 20:300 or those long-term care facilities certified in accordance with 42 CFR 483. This administrative regulation sets forth the hearing process for appeals related to residents' transfer and discharge rights under Kentucky's Nursing Home Reform statutes and administrative regulations.
History: 18 Ky.R. 1731; 2345; 2824; eff. 3-7-1992; eff. 3-22-2019; Crt eff. 12-29-2025.

Chapter 5 State Health Plan

900 KAR 5:020 State Health Plan for facilities and services {#sec-900-kar-5-020 omnilex-key=us-ky-regs-official--title-900--900 KAR 5:020}

Section 1. The State Health Plan shall be used to:

(1) Review a certificate of need application pursuant to KRS 216B.040; and

(2) Determine whether a substantial change to a health service has occurred pursuant to KRS 216B.015(29)(a) and 216B.061(1)(d).

Section 2. Incorporation by Reference.

(1) The "2025 Update to the State Health Plan", January 2026, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Office of Inspector General, Division of Certificate of Need, 275 East Main Street, 5E-A, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m. This material may also be viewed on the Office of Inspector General's Web site at: https://chfs.ky.gov/agencies/os/oig/dcn/Pages/cn.aspx.

History

RELATES TO: KRS 216B.010-216B.130, 216B.178
STATUTORY AUTHORITY: KRS 194A.030, 194A.050(1), 216B.010, 216B.015(28), 216B.040(2)(a)2.a
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)2.a requires the cabinet to promulgate an administrative regulation, updated annually, to establish the State Health Plan. The State Health Plan is a critical element of the certificate of need process for which the cabinet is given responsibility in KRS Chapter 216B. This administrative regulation establishes the State Health Plan for facilities and services.
History: 900 KAR 005:020. 24 Ky.R. 1433; 1714; eff. 4-13-1998; 26 Ky.R. 484; 1017; 1161; eff. 10-20-1999; 27 Ky.R. 606; 1319; 1492; eff. 12-21-2000; 29 Ky.R. 2377; eff. 6-16-2003; Recodified from 902 KAR 17:041, 5-26-2004; 31 Ky.R. 236; 782; eff. 11-17-2004; 32 Ky.R. 1785; 2295; eff. 7-24-2006; 34 Ky.R. 408; 1004; 1984; eff. 12-17-2007; 35 Ky.R. 1918; 2455; 36 Ky.R. 325; eff. 8-12-2009; 2255; 37 Ky.R. 403; 735; eff. 9-15-2010; 1571; 2222; 2400; eff. 5-6-2011; 37 Ky.R. 3005; eff. 10-19-2011; 39 Ky.R. 1322; 1895; 2174; eff. 5-31-2013; 40 Ky.R. 894; eff. 1-15-2014; 41 Ky.R. 2649; 42 Ky.R. 772; 1196; eff. 10-21-2015; 43 Ky.R. 800, 1420; eff. 3-31-2017; 44 Ky.R. 369, 1025, 1345; eff. 1-5-2018; 45 Ky.R. 472; 1238; 1622; eff. 12-12-2018; 46 Ky.R. 2841; 47 Ky.R. 550; eff. 10-28-2020; 48 Ky.R. 2524; 49 Ky.R. 69, 347; eff. 8-25-2022; 49 Ky.R. 2024; 50 Ky.R. 395, 1894, 2053; eff. 3-21-2024; 52 Ky.R. 119, 762, 969; eff. 1-22-2026.

Chapter 6 Certificate of Need

900 KAR 6:020 Certificate of need application fee schedule {#sec-900-kar-6-020 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:020}

Section 1.

(1) A certificate of need application that is submitted by an existing licensed healthcare facility or service that has met the emergency circumstances provision as provided in 900 KAR 6:080 and has received notice from the Office of Inspector General that an emergency exists shall be assessed an application fee of $100.

(2) A certificate of need application not proposing a capital expenditure or proposing a capital expenditure of up to $200,000 shall be assessed an application fee of $1,000.

(3) A certificate of need application that proposes a capital expenditure greater than $200,000 up to $5,000,000 shall be assessed an application fee of five-tenths (.5) percent of the capital expenditure, computed to the nearest dollar.

(4) A certificate of need application that proposes a capital expenditure greater than $5,000,000 shall be assessed an application fee of $25,000.

Section 2.

(1) The application fee shall be submitted with the application.

(2) An application shall not be deemed complete until the application fee has been paid.

(3) An application fee shall be refunded only if notice of withdrawal of the application is received by the cabinet within five (5) working days of the date the application is received by the Cabinet for Health and Family Services.

History

RELATES TO: KRS 216B.040(3)(c)
STATUTORY AUTHORITY: KRS 216B.040(3)(c)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(3)(c) authorizes the Cabinet for Health and Family Services to establish, by administrative regulation, reasonable application fees for certificates of need. This administrative regulation establishes the fee schedule for certificate of need applications.
History: 900 KAR 006:020. 23 Ky.R. 2380; eff. 12-18-1996; 29 Ky.R. 1894, 2290; eff. 3-19-2003; 32 Ky.R. 1786; eff. 6-2-2006; 36 Ky.R. 2256; 37 Ky.R. 736; eff. 9-15-2010; 45 Ky.R. 472, 1238, 1622; eff. 12-12-2018; Crt eff. 9-19-2025.

900 KAR 6:030 Certificate of Need expenditure minimums {#sec-900-kar-6-030 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:030}

Section 1. Price Index. The U.S. Department of Commerce, Bureau of Economic Analysis Price Indexes for Private Fixed Investment by Type shall be used in making annual adjustments to the expenditure minimums required by KRS 216B.130.

Section 2. Expenditure Minimums Based on 2013 Change in Price Indexes.

(1) The capital expenditure minimum established in KRS 216B.015(8) shall be $2,913,541.

(2) The major medical equipment minimum established in KRS 216B.015(17) shall be $2,913,541.

Section 3. Annual Adjustments of Expenditure Minimums.

(1) Beginning July 1, 2015, the cabinet shall annually adjust the capital expenditure minimum and the major medical equipment expenditure minimum on July 1 based on the change in the price index referenced in Section 1 of this administrative regulation for the previous twelve (12) month period ending December 31.

(2) The annual adjustments of the expenditure minimums shall be available by July 1 for the previous twelve (12) month period on the Office of Inspector General, Division of Certificate of Need Web site at https://chfs.ky.gov/agencies/os/oig/dcn.

History

RELATES TO: KRS 216B.015
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4, 216B.040(3)(a), 216B.130
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(3)(a) authorizes the Cabinet for Health and Family Services to promulgate administrative regulations. KRS 216B.130 requires the cabinet to promulgate an administrative regulation to annually adjust expenditure minimums provided in KRS Chapter 216B. This administrative regulation provides for the adjustment of expenditure minimums for capital expenditures and major medical equipment.
History: 37 Ky.R. 2762; 38 Ky.R. 21; 8-5-2011; 38 Ky.R. 21; 696; 922; eff. 11-16-2011; 39 Ky.R. 856; eff. 12-11-2012; 40 Ky.R. 175; eff. 9-18-2013; 41 Ky.R. 190; eff. 9-17-2014; TAm eff. 3-17-2020; 47 Ky.R. 1682, 2591; eff. 6-16-2021.

900 KAR 6:040 Licensure hearings {#sec-900-kar-6-040 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:040}

Section 1. Notice of Action and Request for Hearing. Any applicant or licensee who has been notified of the cabinet's decision to deny, revoke, modify or suspend a license to operate a health facility or health service may request an evidentiary hearing for the purpose of appealing the cabinet's decision. The request must be filed with the cabinet within thirty (30) days of the date of mailing of notice of the cabinet's decision.

Section 2. Notice of Hearing. The cabinet shall provide the appellant with notice of date, time and location of the hearing by certified mail at least thirty (30) days before the date of the hearing.

Section 3. Disqualification of Hearing Officer. No hearing officer shall participate in any hearing in which the hearing officer has had within the past twelve (12) months preceding the hearing, any ownership, employment, staff, fiduciary, contractual, creditor, personal, consultative relationship that would preclude the hearing officer from conducting a fair and impartial hearing with the applicant or licensee.

Section 4. Hearing Procedure.

(1) Each party shall have the opportunity to present its case, make opening statements, call and examine witnesses, offer documentary evidence into the record and make closing statements. Every party shall also have the opportunity to cross-examine opposing witnesses on matters covered in direct examination and, at the discretion of the hearing officer, upon other matters relevant to the issues. A party that is a corporation shall be represented by an attorney licensed to practice in the Commonwealth of Kentucky.

(a) The hearing officer may allow testimony or other evidence on issues that may arise during the course of the hearing, including any additional petitions for intervention which may be filed. The hearing officer may act to exclude irrelevant, immaterial or unduly repetitious evidence, and may question any party or witness.

(b) The hearing officer is not bound by the Kentucky rules of evidence and may allow hearsay evidence in his discretion if it is relevant to the issue.

(c) The applicant or licensee may be allowed to open and close the presentation of evidence and arguments. The hearing officer shall designate the order of presentations, in the preliminary order.

(d) Witnesses may appear through deposition or in person. Witnesses shall be examined under oath or affirmation. If the hearing officer determines that the hearing will be expedited and the interests of the parties will not be prejudiced, any part or all of the evidence may be received in written form. Written testimony of a witness in the form of questions and answers or a narrative statement may be received in lieu of direct examination, provided that the witness authenticates the document under oath. The witness shall then be subject to cross-examination.

(e) A written statement from any party, or a statement or resolution of a political subdivision, trade association, civic organization or other organization may be received without cross examination, but will be considered only as argument, and not as proof of any matter addressed in these documents unless the party against whom the document is being offered is allowed to cross-examine the proponent of the document.

(f) The hearing officer may accept documentary evidence in the form of copies of excerpts if the original is not readily available, provided that upon request parties shall be given an opportunity to compare the copy with the original. Documents to be considered for acceptance shall be filed with the hearing officer and other parties at least seven (7) days before the hearing.

(g) A document may not be incorporated into the record by reference without the permission of the hearing officer. Any reference document shall be precisely identified.

(h) The hearing officer may permit a party to offer or request a party to produce additional evidence or briefs of issues as part of the record within a designated time, not to exceed the ten (10) days after the conclusion of the hearing. During this period, the hearing record shall remain open, and the conclusion of the hearing shall occur when the additional information is filed.

(2) In lieu of an evidentiary hearing, the parties to a proceeding, with the consent of the designated hearing officer, may file written stipulations of relevant facts. The hearing officer may decide the appeal on the basis of such stipulation or may schedule a hearing and take such further evidence as he deems necessary.

(3) The designated hearing officer may, at his discretion, grant a continuance of a hearing in order to secure necessary evidence.

Section 5. Findings and Recommendations.

(1) After the hearing, the hearing officer shall prepare written findings of fact and recommendations with a synopsis of the evidence contained in the record on the issues involved. If the applicant or licensee fails to appear and prosecute the appeal, the hearing officer may dismiss or recommend dismissal of the appeal.

(2) The hearing officer shall, within thirty (30) days of the close of the hearing send findings and recommendations by certified mail to the applicant or licensee, to the licensing agency, and to the Secretary of the Cabinet for Health Services. Written exceptions to the recommended decision may be submitted within fifteen (15) days of receipt.

(3) The Secretary of the Cabinet for Health Services shall make a final decision pursuant to subsection (2) of this section within ninety (90) days from the date of the recommended order of the hearing officer.

(4) The decision of the secretary shall be final for purposes of judicial appeal, as set forth in KRS 216B.115.

History

RELATES TO: KRS 216B.105
STATUTORY AUTHORITY: KRS 13A.350, 216B.040, 1996 Ky. Acts ch. 371, EO 96-862
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040 and 216B.105 authorize the Cabinet for Health and Family Services to provide a due process hearing and issue a final determination on all actions by the Cabinet for Health and Family Services to deny, revoke, modify or suspend a license. Executive Order 96-862 reorganizes the Cabinet for Human Resources and creates the Office of Certificate of Need under the Cabinet for Health Services. This administrative regulation sets forth the hearing procedure for licensure actions.
History: 23 Ky.R. 2382; 2746; eff. 12-18-1996; Crt eff. 7-30-2018; TAm eff. 8-2-2018; Crt eff. 5-19-2025.

900 KAR 6:055 Certificate of need forms {#sec-900-kar-6-055 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:055}

Section 1. Definitions.

(1) "Administrative escalation" means an approval from the cabinet to increase the capital expenditure authorized for a certificate of need project.

(2) "Cabinet" is defined by KRS 216B.015(6).

Section 2. Forms.

(1) CON - Form 2A, Certificate of Need Application, shall be filed by an applicant for a certificate of need unless the application is for ground ambulance services, change of location, replacement, cost escalation, or acquisition.

(2) CON - Form 2B, Certificate of Need Application For Ground Ambulance Service, shall be filed by an applicant for a certificate of need for a ground ambulance service.

(3) CON - Form 2C, Certificate of Need Application For Change of Location, Replacement, Cost Escalation, or Acquisition, shall be filed by an applicant for a certificate of need for change of location, replacement, cost escalation, or acquisition.

(4) CON - Form 3, Notice of Appearance, shall be filed by a person who wishes to appear at a hearing.

(5) CON - Form 4, Witness List, shall be filed by a person who elects to call a witness at a hearing.

(6) CON - Form 5, Exhibit List, shall be filed by a person who elects to introduce evidence at a hearing.

(7) CON - Form 6, Cost Escalation Form, shall be filed by a facility that elects to request an administrative escalation.

(8) CON - Form 7, Request for Advisory Opinion, shall be filed by anyone electing to request an advisory opinion.

(9) CON - Form 8, Certificate of Need Six Month Progress Report, shall be filed by a holder of a certificate of need whose project is not fully implemented.

(10) CON - Form 9, Notice of Intent to Acquire a Health Facility or Health Service, shall be submitted by a person proposing to acquire an existing licensed health facility or service.

(11) CON - Form 10A, Notice of Addition of a Health Service or Equipment, shall be filed by any health facility that adds equipment or makes an addition to a health service for which there are review criteria in the State Health Plan but for which a certificate of need is not required.

(12) CON - Form 10B, Notice of Termination or Reduction of a Health Service or Reduction of Bed Capacity, shall be filed by a health facility that reduces or terminates a health service or reduces bed capacity.

(13) CON - Form 10C, Notice of Relocation of Acute Care Beds or Redistribution of Beds by Licensure Category, shall be filed by any hospital that relocates acute care beds to another acute care hospital under common ownership in the same area development district, including an outpatient health care center operated by the hospital and licensed pursuant to 902 KAR 20:074; or that redistributes beds among its existing licensure categories within the same hospital, including an outpatient health care center operated by the hospital and licensed pursuant to 902 KAR 20:074.

(14) CON - Form 11, Application for Certificate of Compliance for a Continuing Care Retirement Community (CCRC), shall be filed by a facility to obtain a certificate of compliance as a continuing care retirement community.

Section 3. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) CON - Form 2A, "Certificate of Need Application", 12/2020;

(b) CON - Form 2B, "Certificate of Need Application For Ground Ambulance Service", 12/2020;

(c) CON - Form 2C, "Certificate of Need Application For Change of Location, Replacement, Cost Escalation, or Acquisition", 12/2020;

(d) CON - Form 3, "Notice of Appearance", 12/2020;

(e) CON - Form 4, "Witness List", 12/2020;

(f) CON - Form 5, "Exhibit List", 12/2020;

(g) CON - Form 6, "Cost Escalation Form", 12/2020;

(h) CON - Form 7, "Request for Advisory Opinion", 12/2020;

(i) CON - Form 8, "Certificate of Need Six Month Progress Report", 12/2020;

(j) CON - Form 9, "Notice of Intent to Acquire a Health Facility or Health Service", 12/2020;

(k) CON - Form 10A, "Notice of Addition of a Health Service or Equipment", 12/2020;

(l) CON - Form 10B, "Notice of Termination or Reduction of a Health Service or Reduction of Bed Capacity", 12/2020;

(m) CON - Form 10C, "Notice of Relocation of Acute Care Beds or Redistribution of Beds By Licensure Category", 12/2020; and

(n) CON - Form 11, "Application for Certificate of Compliance for a Continuing Care Retirement Community (CCRC)", 12/2020.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Cabinet for Health and Family Services, Office of Inspector General, Division of Certificate of Need, 275 East Main Street 5E-A, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 216B.015
STATUTORY AUTHORITY: KRS 216B.040(2)(a)1
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. This administrative regulation establishes the forms necessary for the orderly administration of the Certificate of Need Program.
History: 36 Ky.R. 230; Am. 803; eff. 10-21-2009; 42 Ky.R. 542; 1574; 1781; eff. 12-16-2015; 43 Ky.R. 1302; eff. 3-31-2017; 47 Ky.R. 1683, 2417, 2591; eff. 6-16-2021.

900 KAR 6:060 Timetable for submission of certificate of need applications {#sec-900-kar-6-060 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:060}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(6).

(2) "Certificate of Need Newsletter" means the monthly newsletter that is published by the cabinet regarding certificate of need matters and is available on the Office of Inspector General, Division of Certificate of Need Web site at https://chfs.ky.gov/agencies/os/oig/dcn.

(3) "Formal review" means the review of an application for certificate of need that is reviewed within ninety (90) days from the commencement of the review as provided by KRS 216B.062(1) and that is reviewed for compliance with the review criteria set forth at KRS 216B.040 and 900 KAR 6:070.

(4) "Long-term care beds" means nursing home beds, intermediate care beds, nursing facility beds, and Alzheimer nursing home beds.

(5) "Nonsubstantive review" is defined by KRS 216B.015(18).

Section 2. Timetable for Submission of an Application for Formal Review.

(1) The cabinet's timetable for giving public notice for an application deemed complete for formal review shall be as established in this subsection.

(a) Public notice for an application for organ transplantation, magnetic resonance imaging, megavoltage radiation equipment, cardiac catheterization, open heart surgery, positron emission tomography equipment, a Level I psychiatric residential treatment facility (Level 1 PRTF), a Level II psychiatric residential treatment facility (Level II PRTF), or a new technological development shall be provided in the Certificate of Need Newsletter published on the third Thursday of the following months:

January;
April;
July; and
October.

(b) Public notice for an application for long-term care beds, intermediate care beds for individuals with an intellectual disability, a residential hospice facility, a hospice service, a private duty nursing service, or a home health agency shall be provided in the Certificate of Need Newsletter published on the third Thursday of the following months:

February;
May;
August; and
November.

(c) Public notice for an application for an acute care hospital including all other State Health Plan covered services to be provided within the proposed acute care hospital, acute care hospital beds, psychiatric hospital beds, special care neonatal beds, comprehensive physical rehabilitation beds, chemical dependency treatment beds, an ambulatory surgical center, or a Class I, II, III, or IV ground ambulance service shall be provided in the Certificate of Need Newsletter published on the third Thursday of the following months:

March;
June;
September; and
December.

(d) A proposal not included in paragraphs (a) through (c) of this subsection shall be placed in the cycle that the cabinet determines to be most appropriate by placing it in the cycle with similar services.

(2) An application for formal review shall be filed with the cabinet at least fifty (50) calendar days, but not more than eighty (80) calendar days, prior to the date of the desired public notice. An initial application filed more than eighty (80) days prior to the desired public notice shall be returned to the applicant along with the fee submitted pursuant to 900 KAR 6:020.

Section 3. Timetable for Submission of an Application for Nonsubstantive Review.

(1) The cabinet shall give public notice for an application deemed complete and granted nonsubstantive review status pursuant to KRS 216B.095(3)(a) through (f) in the Certificate of Need Newsletter published on the third Thursday of each month.

(2) An application for nonsubstantive review shall be filed with the cabinet at least fifty (50) calendar days prior to the date of the desired public notice.

History

RELATES TO: KRS 216B.015, 216B.040, 216B.062, 216B.095(3)(a)-(f)
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4., 216B.040(2)(a)1, 216B.062(1), (2)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. KRS 216B.062(1) and (2) require the cabinet to promulgate administrative regulations to establish timetables and batching groups for applications for certificates of need. This administrative regulation establishes the timetable for submission of application requirements necessary for the orderly administration of the Certificate of Need Program.
History: 36 Ky.R. 232; Am. 804; eff. 10-21-2009; 2258; 37 Ky.R. 380; eff. 8-18-2010; 37 Ky.R. 380; 1572; eff. 5-6-2011; 39 Ky.R. 327; 805; eff. 11-9-2012; TAm eff. 12-16-2013; 41 Ky.R. 631; 1379; eff. 2-5-2015; 43 Ky.R. 1304, 1566; eff. 3-31-2017; TAm eff. 3-17-2020; 47 Ky.R. 1685; eff. 6-16-2021.

900 KAR 6:065 Certificate of need application process {#sec-900-kar-6-065 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:065}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(6).

(3) "Days" means calendar days, unless otherwise specified.

(4) "Formal review" means the review of an application for certificate of need that is reviewed within ninety (90) days from the commencement of the review as provided by KRS 216B.062(1) and that is reviewed for compliance with the review criteria set forth at KRS 216B.040 and 900 KAR 6:070.

(5) "Nonsubstantive review" is defined by KRS 216B.015(18).

(6) "Owner" means a person as defined in KRS 216B.015(22) who is applying for the certificate of need and will become the licensee of the proposed health service or facility.

(7) "Person" is defined by KRS 216B.015(22).

(8) "Proposed service area" means the geographic area the applicant proposes to serve.

(9) "Secretary" is defined by KRS 216B.015(26).

(10) "Show cause hearing" means a hearing during which it is determined whether a person or entity has violated provisions of KRS Chapter 216B.

Section 2. Certificate of Need Application.

(1) An applicant for a certificate of need shall file an application with the cabinet on the appropriate certificate of need application form: CON - Form 2A, CON - Form 2B, or CON - Form 2C, incorporated by reference in 900 KAR 6:055.

(2) To file an application for certificate of need, the applicant shall file the appropriate certificate of need application form together with the prescribed fee set forth in 900 KAR 6:020 on or before the deadlines established by 900 KAR 6:060. The appropriate fee shall be received by the Division of Certificate of Need before an application may be deemed complete.

(3)

(a) For the purpose of completing the application, neither the geographic area the applicant proposes to serve nor the health service area in which the project is proposed to be located shall include any area that is located outside of the Commonwealth of Kentucky.

(b) A person located and residing solely outside of the Commonwealth of Kentucky shall not qualify as an affected person for the purpose of opposing an application.

(4) Formal or nonsubstantive review of an application for a certificate of need shall not begin until the application has been deemed complete by the cabinet.

(5) The cabinet shall deem an application complete if the applicant has:

(a) Provided the cabinet with all of the information necessary to complete the application; or

(b) Declined to submit the requested information and has requested that its application be reviewed as submitted.

(6) Once an application has been deemed complete, the applicant shall not submit additional information regarding the application unless the information is introduced at a public hearing.

(7) Once an application has been deemed complete, it shall not be amended to:

(a) Increase the scope of the project;

(b) Increase the amount of the capital expenditure;

(d) Change the location of the health facility or health service; or

(e) Change the owner, unless the application involves a licensed health facility and a change of ownership with appropriate notice has occurred after the application was submitted.

(8) An application that has been deemed complete may be amended at a public hearing to:

(a) Decrease the scope of the project;

(b) Decrease the amount of the capital expenditure; or

(9) An applicant that has had a certificate of need approved under the nonsubstantive review provisions of KRS 216B.095(3)(a) through (f) may request that the cabinet change the specific location to be designated on the certificate of need if:

(a) The facility has not yet been licensed;

(b) The location is within the county listed on the certificate of need application; and

(c) The applicant files a written request with the cabinet within 180 days of the date of issuance of the certificate of need. A request shall include the reason why the change is necessary.

(10) An application that is not deemed complete within one (1) year from the date that it is filed shall expire and shall not be placed on public notice or reviewed for approval.

Section 3. Certificate of Need Review.

(1) Prior to being reviewed for the approval or denial of a certificate of need, an application for certificate of need shall be reviewed for completeness pursuant to Section 4 of this administrative regulation.

(2) Unless granted nonsubstantive review status under the criteria in 900 KAR 6:075, an application for a certificate of need shall be reviewed for approval or denial according to the formal review criteria set forth in 900 KAR 6:070.

(3) If granted nonsubstantive review status under the criteria in 900 KAR 6:075, an application for a certificate of need shall be reviewed for approval or denial of the certificate of need according to the nonsubstantive review criteria set forth in 900 KAR 6:075.

Section 4. Completeness Review.

(1) Fifteen (15) days after the deadline for filing an application in the appropriate batching cycle, the cabinet shall conduct an initial review to determine if the application is complete for formal review or nonsubstantive review requested pursuant to KRS 216B.095(3)(a) through (f).

(2) If the cabinet finds that the application for formal review is complete, the cabinet shall:

(a) Notify the applicant in writing within one (1) day that the application has been deemed complete and that review of the application for the approval or denial of a certificate of need shall begin upon public notice being given; and

(b) Give public notice in the next appropriate Certificate of Need Newsletter, pursuant to the timetable set forth in 900 KAR 6:060, that review of the application for approval or denial of a certificate of need has begun.

(3) If the cabinet finds that the application for nonsubstantive review is complete, the cabinet shall notify the applicant in writing within ten (10) days that the application has been deemed complete and that review of the application for the approval or denial of a certificate of need shall begin upon public notice being given.

(4) A decision to grant or deny nonsubstantive review status shall be made within ten (10) days of the date the applicant is notified that the application has been deemed complete.

(5) The cabinet shall give public notice for applications granted nonsubstantive review status under the provisions of KRS 216B.095(3)(a) through (f) in the next appropriate Certificate of Need Newsletter, pursuant to the timetable set forth in 900 KAR 6:060, that status has been granted and that review of the application for approval or denial of a certificate of need has begun.

(6) If the cabinet finds that the application is incomplete, the cabinet shall:

(a) Provide the applicant with written notice of the information necessary to complete the application; and

(b) Notify the applicant that the cabinet shall not deem the application complete unless within fifteen (15) days of the date of the cabinet's request for additional information:

The applicant submits the information necessary to complete the application by the date specified in the request; or
The applicant requests in writing that the cabinet review its application as submitted.

(7) If, upon the receipt of the additional information requested, the cabinet finds that the application for formal review is complete, the cabinet shall:

(a) Notify the applicant in writing that:

The application for formal review has been deemed complete; and
Review of the application for the approval or denial of a certificate of need shall begin upon public notice being given; and

(8) If, upon the receipt of the additional information requested, the cabinet finds that an application for nonsubstantive review is complete, the cabinet shall:

(a) Notify the applicant in writing that:

The application has been deemed complete;
Review of the application for the approval or denial of a certificate of need shall begin upon public notice being given; and
A decision to grant or deny nonsubstantive review status shall be made within ten (10) days of the date that the application was deemed complete; and

(b) Give public notice in the next appropriate Certificate of Need Newsletter, pursuant to the timetable set forth in 900 KAR 6:060, for an application granted nonsubstantive review status under the provisions of KRS 216B.095(3)(a) through (f) that status has been granted and that review of the application for approval or denial of a certificate of need has begun.

(9) If the information submitted in response to the cabinet's request for additional information is insufficient to complete the application, the cabinet shall:

(a) Request the information necessary to complete the application; and

(b) Inform the applicant that the application shall not be deemed complete and shall not be placed on public notice until:

The applicant submits the information necessary to complete the application; or
The applicant requests in writing that its application be reviewed as submitted.

(10) Once an application has been deemed complete, an applicant shall not submit additional information to be made part of the public record unless:

(a) The information is introduced at a public hearing;

(b) For a deferred application for formal review, the additional information is submitted at least twenty (20) days prior to the date that the deferred application is placed on public notice; or

(c) For a deferred application for nonsubstantive review, the additional information is submitted at least ten (10) days prior to the date that the deferred application is placed on public notice.

(11) A determination that an application is complete shall:

(a) Indicate that the application is sufficiently complete to be reviewed for approval or disapproval;

(b) Not be determinative of the accuracy of, or weight to be given to, the information contained in the application; and

Section 5. Notice of Decision.

(1) The cabinet shall notify the applicant and any party to the proceeding of the final action on a certificate of need application within three (3) days.

(2) Notification of approval shall be in writing and shall include:

(a) Verification that the review criteria for approval have been met;

(b) Specification of any terms or conditions limiting a certificate of need approval, including limitations regarding certain services or patients. This specification shall be listed on the facility or service's certificate of need and license;

(d) The amount of capital expenditure authorized, if applicable.

(3) Written notification of disapproval shall include:

(a) The reason for the disapproval; and

(b) Notice of appeal rights.

(4) An identical application for certificate of need that is disapproved shall not be refiled for a period of twelve (12) months from the original date of filing, absent a change in circumstances.

Section 6. Deferral of an Application.

(1)

(a) Except as described in paragraph (b) of this subsection, an applicant may defer review of an application a maximum of two (2) times by notifying the cabinet in writing of its intent to defer review.

(b) An applicant shall not defer review of an application filed pursuant to 900 KAR 6:080 to alleviate an emergency circumstance.

(c)

If the application has been granted nonsubstantive review status under the provisions of KRS 216B.095(3)(a) through (f), the notice to defer shall be filed pursuant to 900 KAR 6:090 no later than five (5) days prior to the date that the decision is due on the application unless a hearing has been scheduled.
If a hearing has been scheduled, the notice to defer shall be filed pursuant to 900 KAR 6:090 no later than six (6) days prior to the date of the hearing.

(d)

If the application is being reviewed under formal review, the notice to defer shall be filed pursuant to 900 KAR 6:090 no later than ten (10) days prior to the date that the decision is due on the application unless a hearing has been scheduled.
If a hearing has been scheduled, the notice to defer shall be filed pursuant to 900 KAR 6:090 no later than eight (8) days prior to the date of the hearing.

(e) If a hearing has been scheduled, the applicant shall also notify all parties to the proceedings in writing of the applicant's intent to defer the application.

(2) If a notice to defer an application for formal review is filed, the application shall be deferred to the next regular batching cycle and shall be placed on public notice pursuant to the timetables set forth in 900 KAR 6:060.

(3) If an application for formal review is deferred, an applicant may update its application by providing additional information to the cabinet at least twenty (20) days prior to the date that the deferred application is placed on public notice.

(4) If a notice to defer an application that has been granted nonsubstantive review is filed, the application shall be deferred and shall be placed on public notice in the Certificate of Need Newsletter published the next calendar month following the date the request was received.

(5) If an application for nonsubstantive review is deferred, an applicant may update its application by providing additional information to the cabinet at least ten (10) days prior to the date that the deferred application is placed on public notice.

(6) In order for a hearing to be held on a deferred application, a hearing shall be requested by either the applicant or an affected person within:

(a) Ten (10) days of the deferred application being placed on public notice if the application has been granted nonsubstantive review status; or

(b) Fifteen (15) days of the deferred application being placed on public notice if the application is being reviewed under the provision of formal review.

Section 7. Withdrawal of an Application.

(1) An applicant may withdraw an application for certificate of need by notifying the cabinet in writing of the decision to withdraw the application prior to the entry of a decision to deny or approve the application.

(2) If a hearing has been scheduled or held on the application, the applicant shall also notify all parties to the proceedings in writing of the applicant's decision to withdraw the application.

Section 8. Location of New and Replacement Facilities. A certificate of need approved for the establishment of a new facility or the replacement of an existing facility shall be valid only for the location stated on the certificate.

Section 9. Requests for Reconsideration.

(1) A request for reconsideration shall be filed, pursuant to 900 KAR 6:090, within fifteen (15) days of the date of the notice of the cabinet's final decision relating to:

(a) Approval or disapproval of an application for a certificate of need;

(b) An advisory opinion entered after a public hearing;

(d) A show cause hearing conducted in accordance with 900 KAR 6:090.

(2) A copy of the request for reconsideration shall be served by the requester on all parties to the proceedings.

(3) A party to the proceedings shall have seven (7) days from the date of service of the request for reconsideration to file a response to the request with the cabinet.

(4) If a hearing was held pursuant to subsection (1)(a), (b), or (c) of this section, the hearing officer that presided over the hearing shall enter a decision to grant or deny a request for reconsideration within thirty (30) days of the request being filed.

(5) If a hearing was held pursuant to subsection (1)(d) of this section, the secretary shall enter a decision to grant or deny a request for reconsideration within thirty (30) days of the request being filed.

(6) If reconsideration is granted, the hearing shall be held by the cabinet in accordance with the applicable provisions of 900 KAR 6:090, Section 3 or 4, within thirty (30) days of the date of the decision to grant reconsideration, and a final decision shall be entered by the cabinet no later than thirty (30) days following the conclusion of the hearing.

(7) If reconsideration is granted on the grounds that a public hearing was not held pursuant to KRS 216B.085, the applicant shall have the right to waive the reconsideration hearing if the deficiencies in the application can be adequately corrected by submission of written documentation.

History

RELATES TO: KRS 216B.015, 216B.040, 216B.062(1), 216B.085, 216B.095
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4., 216B.040(2)(a)1
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. This administrative regulation establishes the requirements necessary for the orderly administration of the certificate of need application, review, decision, and reconsideration process.
History: 36 Ky.R. 233; 805; eff. 10-21-2009; 41 Ky.R. 633; 1381; 1557; eff. 2-5-2015; 43 Ky.R. 1306, 1567; eff. 3-31-2017; 47 Ky.R. 1687, 2592; eff. 6-16-2021.

900 KAR 6:070 Certificate of need considerations for formal review {#sec-900-kar-6-070 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:070}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(6).

(2) "Days" means calendar days, unless otherwise specified

(3) "Formal review" means the review of an application for certificate of need which is reviewed within ninety (90) days from the commencement of the review as provided by KRS 216B.062(1) and which is reviewed for compliance with the review criteria set forth at KRS 216B.040 and in this administrative regulation.

(4) "Public information channels" means the Office of Communication and Administrative Review in the Cabinet for Health and Family Services.

(5) "Public notice" means notice given through:

(a) Public information channels; or

(b) The cabinet's Certificate of Need Newsletter.

Section 2. Considerations for Formal Review. In determining whether to approve or deny a certificate of need, the cabinet's review of an application under formal review shall be limited to the considerations established in this section.

(1) Consistency with plans.

(a) To be approved, a proposal shall be consistent with the State Health Plan established in 900 KAR 5:020.

(b) In determining whether an application is consistent with the State Health Plan, the cabinet, in making a final decision on an application, shall apply the latest criteria, inventories, and need analysis figures maintained by the cabinet and the version of the State Health Plan in effect at the time of the public notice of the application.

(c) In determining whether an application is consistent with the State Health Plan following a reconsideration hearing pursuant to KRS 216B.090 or a reconsideration hearing which is held by virtue of a court ruling, the cabinet shall apply the latest criteria, inventories, and need analysis figures maintained by the cabinet and the version of the State Health Plan in effect at the time of the reconsideration decision.

(d) An application seeking to re-establish a licensed healthcare facility or service that was provided at the healthcare facility and which was voluntarily discontinued by the applicant shall be considered consistent with the State Health Plan under the following circumstances:

The termination or voluntary closure of the former healthcare service or facility:

a. Was not the result of an order or directive by the cabinet, governmental agency, judicial body, or other regulatory authority;

b. Did not occur during or after an investigation by the cabinet, governmental agency, or other regulatory authority;

c. Did occur while the facility was in substantial compliance with applicable administrative regulations and was otherwise eligible for relicensure;

d. Was not an express condition of any subsequent certificate of need approval; and

e. Did not occur less than twenty-four (24) months prior to the submission of the application to re-establish;

The proposed healthcare service shall be provided within the same geographic service area as the former healthcare service;
The proposed healthcare facility shall be located within the same county as the former healthcare facility and at a single location; and
The application shall not seek to re-establish any type of bed utilized in the care and treatment of patients for more than twenty-three (23) consecutive hours.

(2) Need. The cabinet shall determine:

(a) If the applicant has identified a need for the proposal in the geographic service area defined in the application; and

(b) If the applicant has demonstrated that it is able to meet the need identified in the geographic service area defined in the application.

(3) Accessibility. The cabinet shall determine if the health facility or health service proposed in the application will be accessible in terms of timeliness, amount, duration, and personnel sufficient to provide the services proposed.

(4) Interrelationships and linkages. The cabinet shall determine:

(a) If the proposal shall serve to accomplish appropriate and effective linkages with other services, facilities, and elements of the health care system in the region and state; and

(b) If the proposal is accompanied by assurance of effort to achieve comprehensive care, proper utilization of services, and efficient functioning of the health care system.

(5) Costs, economic feasibility, and resource availability. The cabinet shall determine:

(a) If it is economically feasible for the applicant to implement and operate the proposal; and

(b) If applicable, if the cost of alternative ways of meeting the need identified in the geographic area defined in the application would be a more effective and economical use of resources.

(6) Quality of services.

(a) The cabinet shall determine if the applicant:

Is prepared to, and capable of undertaking and carrying out, the responsibilities involved in the proposal in a manner consistent with appropriate standards and requirements established by the cabinet; and
Has the ability to comply with applicable licensure requirements.

(b) Absence of an applicable licensure category shall not constitute grounds for disapproving an application.

History

RELATES TO: KRS 216B.010, 216B.090, 216B.990
STATUTORY AUTHORITY: KRS 194A.030, 194A.050, 216B.040
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. KRS 216B.040(2)(a)2 requires the cabinet to promulgate an administrative regulation establishing the criteria for issuance and denial of certificates of need. This administrative regulation establishes the requirements necessary for the consideration for formal review of applications for the orderly administration of the Certificate of Need Program.
History: 36 Ky.R. 237; 807; eff. 10-21-2009; 40 Ky.R. 2860; 41 Ky.R. 500; 783; eff. 10-15-2014; Cert. eff. 7-6-2021.

900 KAR 6:075 Certificate of need nonsubstantive review {#sec-900-kar-6-075 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:075}

Section 1. Definitions.

(1) "Ambulatory surgical center" is defined by KRS 216B.015(4).

(2) "Cabinet" is defined by KRS 216B.015(6).

(3) "Certificate of Need Newsletter" means the monthly newsletter that is published by the cabinet regarding certificate of need matters and is available on the Certificate of Need Web site at https://chfs.ky.gov/agencies/os/oig/dcn/Pages/cn.aspx.

(4) "Days" means calendar days, unless otherwise specified.

(5) "Formal review" means the review of an application for certificate of need that is reviewed within ninety (90) days from the commencement of the review as provided by KRS 216B.062(1) and that is reviewed for compliance with the review criteria established in KRS 216B.040 and 900 KAR 6:070.

(6) "Nonsubstantive review" is defined by KRS 216B.015(18).

(7) "Public notice" means notice given through the cabinet's Certificate of Need Newsletter.

(8) "Psychiatric residential treatment facility" or "PRTF" is defined in KRS 216B.450(5) as a Level I facility or a Level II facility.

Section 2. Nonsubstantive Review.

(1) The cabinet shall grant nonsubstantive review status to an application to change the location of a proposed health facility or to relocate a licensed health facility only if:

(a) There is no substantial change in health services or bed capacity; and

(b)

The change of location or relocation is within the same county; or
The change of location or relocation is for a psychiatric residential treatment facility.

(2) The cabinet shall grant nonsubstantive review status to an application that proposes to establish an ambulatory surgical center pursuant to the conditions specified in KRS 216B.095(7).

(3) In addition to the projects specified in KRS 216B.095(3)(a) through (e), pursuant to KRS 216B.095(3), the Office of Inspector General shall grant nonsubstantive review status to an application for which a certificate of need is required if:

(a) The proposal involves the establishment or expansion of a health facility or health service for which there is not a component in the State Health Plan;

(b) The proposal involves an application to re-establish a licensed healthcare facility or service that was provided at a hospital and was voluntarily discontinued by the applicant under the following circumstances:

The termination or voluntary closure of the hospital:

a. Was not the result of an order or directive by the cabinet, governmental agency, judicial body, or other regulatory authority;

b. Did not occur during or after an investigation by the cabinet, governmental agency, or other regulatory authority;

c. Did occur while the facility was in substantial compliance with applicable administrative regulations and was otherwise eligible for re-licensure; and

d. Was not an express condition of any subsequent certificate of need approval;

The application to re-establish the healthcare facility or service that was voluntarily discontinued is filed no more than one (1) year from the date the hospital last provided the service that the applicant is seeking to re-establish;
A proposed healthcare facility shall be located within the same county as the former healthcare facility and at a single location; and
The application shall not seek to re-establish any type of bed utilized in the care and treatment of patients for more than twenty-three (23) consecutive hours;

(c)

The proposal involves an application to establish an ambulatory surgical center that does not charge its patients and does not seek or accept commercial insurance, Medicare, Medicaid, or other financial support from the federal government; and
The proposed ambulatory surgical center shall utilize the surgical facilities of an existing licensed ambulatory surgical center during times the host ambulatory surgical center is not in operation;

(d) The proposal involves an application to establish an industrial ambulance service;

(e) The proposal involves an application by:

An ambulance service that is owned by a city or county government seeking to provide ambulance transport services pursuant to KRS 216B.020(9)(a)1. or 2.; or
A licensed hospital seeking to provide transport from a location that is not a healthcare facility pursuant to KRS 216B.020(9)(a)3. and (b);

(f) The proposal involves an application to transfer acute care beds from one (1) or more existing Kentucky-licensed hospitals to establish a new hospital under the following circumstances:

The existing hospital and new facility shall be under common ownership and located in the same county;
No more than fifty (50) percent of the existing hospital's acute care beds shall be transferred to the new facility; and

a. If the existing hospital is a state university teaching hospital, the existing hospital exceeded, by at least one (1), the minimum number of quality measures required to receive supplemental university directed payments from Kentucky Medicaid for the state fiscal year preceding the date the application was filed; or

b. If the existing hospital is not a state university teaching hospital, the existing hospital's overall rating by the Centers for Medicare and Medicaid Services Hospital Compare was three (3) stars or higher on the most recent annual update to the overall star ratings preceding the date the application was filed;

(g)

The proposal involves an application from a Program of All-Inclusive Care for the Elderly (PACE) program that:

a. Has met the requirements of the State Readiness Review (SRR) according to a report submitted by the Department for Medicaid Services (DMS) to the Centers for Medicare and Medicaid Services (CMS);

b. Seeks to provide, directly to its members, a health service that is not exempt from certificate of need (CON) pursuant to KRS 216B.020(1); and

c. Ensures that all services authorized under the PACE agreement are provided exclusively to its members who reside within the service area. The service area shall be:

(i) Located within the Commonwealth of Kentucky; and

(ii) Approved by both CMS and DMS.

Only an approved PACE program operating within the applicant's service area shall qualify as an affected person for the purpose of opposing a PACE program application.
A PACE program shall not be required to obtain certificate of need (CON) approval if the program:

a. Provides direct patient health services that are exempt from CON under KRS 216B.020(1) and provides other services subject to CON approval through contracts with licensed providers; or

b. Has already obtained CON approval within the approved PACE service area to provide a health service that is not exempt from CON;

(h) The proposal involves an application to establish an inpatient psychiatric unit in an existing licensed acute care hospital under the following conditions:

The hospital is located in a county that has no existing, freestanding psychiatric hospital;
The occupancy of acute care beds in the applicant's facility is less than seventy (70) percent according to the most recent edition of the Kentucky Annual Hospital Utilization and Services Report;

a. All of the proposed psychiatric beds are being converted from licensed acute care beds; and

b. No more than twenty (20) percent of the facility's acute care beds up to a maximum of twenty-five (25) beds will be converted to psychiatric beds;

All of the psychiatric beds will be implemented onsite at the applicant's existing licensed facility; and
All of the psychiatric beds shall be dedicated exclusively to the treatment of adult patients, aged eighteen (18) to sixty-four (64);

(i) The proposal involves an application by a Kentucky-licensed acute care hospital, critical access hospital, or nursing facility proposing to expand a home health service to provide services exclusively to patients discharged from its facility who require home health services at the time of discharge and no existing, licensed home health agency is available and willing to accept the referral. The hospital or nursing facility shall document its efforts to find a Home Health Agency. A license issued under this subsection shall contain the limitation established herein;

(j) The proposal involves an application for a Level II PRTF;

(k) The proposal involves an application to establish a new pediatric teaching hospital under the following circumstances:

No less than one hundred fifty (150) pediatric acute care beds of the new pediatric teaching hospital are transferred from an existing pediatric teaching hospital that is a Kentucky-licensed hospital;
The existing pediatric teaching hospital is under common ownership with the new pediatric teaching hospital;
The existing pediatric teaching hospital is located within the same county as the new pediatric teaching hospital;
The new pediatric teaching hospital may include the same types of pediatric services and diagnostic equipment as currently provided at the existing pediatric teaching hospital, including pediatric acute care, Level II, III, and IV special care neonatal beds, pediatric open heart surgery and cardiac catheterization, pediatric organ and tissue transplant program, pediatric psychiatric beds, and pediatric megavoltage radiation, positron emission tomography, and magnetic resonance imaging equipment, with no additional certificate of need application required for establishing any of these specific pediatric services and diagnostic equipment at the new pediatric teaching hospital;
The total number of pediatric acute care beds at the new pediatric teaching hospital shall not exceed 140% of the total number of pediatric beds at the existing pediatric teaching hospital at the time of application, and the pediatric acute care beds remaining at the existing pediatric teaching hospital shall not be designated as adult beds; and
The applicant certifies that the new pediatric teaching hospital shall continuously operate as a pediatric teaching hospital, as that term is currently defined; or

(l) The proposal involves an application to establish a comprehensive (diagnostic and therapeutic) cardiac catheterization service, and the applicant is under common ownership with an existing provider of comprehensive (diagnostic and therapeutic) cardiac catheterization within the same county.

(4) A certificate of need approved for an application submitted under subsection (3)(c) of this section shall state the limitations specified under subsection (3)(c)1. and 2. of this section.

(5) If an application is denied nonsubstantive review status by the Office of Inspector General, the application shall automatically be placed in the formal review process.

(6) If an application is granted nonsubstantive review status by the Office of Inspector General, notice of the decision to grant nonsubstantive review status shall be given to the applicant and all known affected persons.

(7)

(a) If an application is granted nonsubstantive review status by the Office of Inspector General, any affected person who believes that the application is not entitled to nonsubstantive review status or who believes that the application should not be approved may request a hearing by filing a request for a hearing within ten (10) days of the notice of the decision to conduct nonsubstantive review.

(b) The provisions of 900 KAR 6:090 shall govern the conduct of all nonsubstantive review hearings.

(c)

Except as provided in subparagraph 2. of this paragraph, nonsubstantive review applications shall not be comparatively reviewed.
If the capital expenditure proposed involves the establishment or expansion of a health facility or health service for which there is a component in the State Health Plan, the nonsubstantive review applications shall be comparatively reviewed.

(d) Nonsubstantive review applications may be consolidated for hearing purposes.

(8) If an application for certificate of need is granted nonsubstantive review status by the Office of Inspector General, there shall be a presumption that the facility or service is needed and a presumption that the facility or service is consistent with the State Health Plan.

(9) If each applicable review criterion in the State Health Plan has been met, there shall be a presumption that the facility or service is needed unless the presumption of need has been rebutted by clear and convincing evidence by an affected party.

(10) Unless a hearing is requested pursuant to 900 KAR 6:090, the Office of Inspector General shall approve each application for a certificate of need that has been granted nonsubstantive review status if the exception established in subsection (11)(a) of this section does not apply.

(11) The cabinet shall disapprove an application for a certificate of need that has been granted nonsubstantive review if the cabinet finds that the:

(a) Application is not entitled to nonsubstantive review status; or

(b) Presumption of need or presumption that the facility or service is consistent with the State Health Plan provided for in subsection (8) of this section has been rebutted by clear and convincing evidence by an affected party.

(12) In determining whether an application is consistent with the State Health Plan, the cabinet, in making a final decision on an application, shall apply the latest criteria, inventories, and need analysis figures maintained by the cabinet and the version of the State Health Plan in effect at the time of the public notice of the application.

(13) In determining whether an application is consistent with the State Health Plan following a reconsideration hearing pursuant to KRS 216B.090 or a reconsideration hearing that is held by virtue of a court ruling, the cabinet shall apply the latest criteria, inventories, and need analysis figures maintained by the cabinet and the version of the State Health Plan in effect at the time of the reconsideration decision or decision following a court ruling.

(14) A decision to approve or disapprove an application that has been granted nonsubstantive review status shall be rendered within thirty-five (35) days of the date that nonsubstantive review status has been granted, as required by KRS 216B.095(1). A hearing officer shall prioritize rendering decisions regarding applications granted nonsubstantive review status pursuant to Section 2(3)(g) of this administrative regulation.

(15) If a certificate of need is disapproved following nonsubstantive review, the applicant may:

(a) Request that the cabinet reconsider its decision pursuant to KRS 216B.090 and 900 KAR 6:065;

(b) Request that the application be placed in the next cycle of the formal review process; or

Section 3. Exemption from Certificate of Need.

(1) A city or county government-owned ambulance service that meets the criteria established by KRS 216B.020(8) shall not be required to obtain a certificate of need to provide emergency ambulance transport services.

(2) A hospital-owned ambulance service shall not be required to obtain a certificate of need to provide non-emergency or emergency transport that originates from its hospital pursuant to KRS 216B.020(7).

(3)

(a) If a hospital-owned ambulance service has certificate of need approval prior to the most recent effective date of this administrative regulation to provide transport services from another health facility to its hospital, the service shall not be required to obtain authorization in accordance with paragraph (b) of this subsection.

(b) A hospital-owned ambulance service that is exempt from certificate of need under KRS 216B.020(7) may provide transport services from another health facility to its hospital if authorized as established in KRS 311A.025(4).

(c)

As used in paragraph (b) of this subsection, a hospital is authorized to provide inter-facility transport of a patient if:

a. The hospital contacts by phone at least one (1) ground ambulance provider with jurisdiction in the territory in which the other health facility is located, using contact information from the most recent edition of the agency directory maintained by the Kentucky Board of Emergency Medical Services at the following link (https://kbems.ky.gov/Legal/Pages/EMS-Directory.aspx); and

b. The ground ambulance provider:

(i) Declines the hospital's request for patient transport; or

(ii) Is not able to initiate the patient's transport within four (4) hours of receiving the hospital's request.

For purposes of this paragraph, a provider initiates transport when it arrives at the hospital to transport the patient.
The hospital shall document the ambulance service contacted and the reason for authorization to provide transport from another health facility to its hospital.

History

RELATES TO: KRS 216B.010, 216B.015, 216B.020, 216B.040, 216B.062, 216B.090, 216B.095, 216B.115, 216B.450(5), 216B.455, 216B.990, 311A.025(4)
STATUTORY AUTHORITY: KRS 216B.040(2)(a)1., 216B.095
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1. requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. KRS 216B.095 authorizes the review of certificate of need applications that are granted nonsubstantive status. This administrative regulation establishes the requirements necessary for consideration for nonsubstantive review of applications for the orderly administration of the Certificate of Need Program.
History: 900 KAR 006:075. 36 Ky.R. 239; Am. 626; 808; eff. 10-28-2009; 38 Ky.R. 339; 1007; 1140; eff. 12-7-2011; 39 Ky.R. 857; 1467; 1695; eff. 3-8-2013; 42 Ky.R. 546; 1781; eff. 12-16-2015; 45 Ky.R. 1427, 2395; eff. 5-31-2019; 46 Ky.R. 2332; eff. 7-29-2020; 48 Ky.R. 2524; 49 Ky.R. 69, 347; eff. 8-25-2022; 49 Ky.R. 2026; 50 Ky.R. 396, 1894; eff. 3-21-2024; 52 Ky.R.120, 763, 969; eff. 1-22-2026.

900 KAR 6:080 Certificate of Need emergency circumstances {#sec-900-kar-6-080 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:080}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(6).

(3) "Days" means calendar days, unless otherwise specified.

(4) "Emergency circumstance" means a situation that poses an imminent threat to the life, health, or safety of a citizen of the commonwealth, including a situation in which a ground ambulance provider ceases to provide continuous services in its geographic service area in accordance with 202 KAR 7:555, Section 4.

(5) "Office of Inspector General" means the office within the Cabinet for Health and Family Services that is responsible for licensing and regulatory functions of health facilities and services.

(6) "Public notice" means notice given through:

(a) The Web site of the Office of Inspector General, Division of Certificate of Need at https://chfs.ky.gov/agencies/os/oig/dcn; or

(b) The cabinet's Certificate of Need Newsletter.

(7) "Service area" means county unless otherwise specified in the state health plan.

(8) "State Health Plan" is defined by KRS 216B.015(28) and is incorporated by reference in 900 KAR 5:020.

Section 2. Emergency Circumstances.

(1) If an emergency circumstance arises, a person may proceed to alleviate the emergency without first obtaining a certificate of need if:

(a) The person is licensed by the Office of the Inspector General or the Kentucky Board of Emergency Medical Services to provide the same or similar services necessary to alleviate the emergency;

(b) The Office of Inspector General, Division of Certificate of Need, is notified in writing within five (5) days of the commencement of the provision of the service required to alleviate the emergency; and

(c) The Office of Inspector General, Division of Certificate of Need, acknowledges in writing that it recognizes that an emergency does exist.

(2) The notice to the Office of Inspector General, Division of Certificate of Need, shall be accompanied by an affidavit and other documentation from the person proposing to provide emergency services that shall contain the following information:

(a) A detailed description of the emergency that shall include at least the following information:

a. A description of health care services that will be provided to the person or persons to whom the services will be provided, including proof of eligibility for the service; or

b. An attestation from a county government that it intends to seek a temporary Class I hardship license from the Kentucky Board of Emergency Medical Services pursuant to 202 KAR 7:555, Section 5;

A list of the providers in the service area licensed to provide the services that will be provided during the emergency, unless the situation involves a previously licensed ground ambulance provider that ceases to provide continuous services in its geographic service area; and
Proof that:

a. Other providers licensed in the service area to provide the service are aware of the need for the service to be provided to the person and have refused or are unable to provide the service;

b. Circumstances exist under which the transfer of a patient to another provider licensed in the service area to provide the service would present an unacceptable risk to a patient's life, health, or safety; or

c. A previously licensed ground ambulance provider ceases to provide continuous services in its geographic service area;

(b) The steps taken to alleviate the emergency;

(d) The expected duration of the emergency.

(3) The Office of Inspector General, Division of Certificate of Need, may request additional information necessary to make its determination from the person proposing to provide emergency services before it acknowledges that an emergency circumstance does exist.

(4) Except for a temporary Class I hardship license issued under 202 KAR 7:555, Section 5, if the provision of service to meet the emergency circumstance is required to continue beyond sixty (60) days from the date that the notice is filed with the cabinet, the person providing the emergency service shall file the appropriate application for a certificate of need, which is incorporated by reference in 900 KAR 6:055, for the next appropriate public notice pursuant to 900 KAR 6:060. Failure to submit an application to the Office of Inspector General, Division of Certificate of Need, shall result in the rescission of the emergency acknowledgement and generate notification to the Office of Inspector General, Division of Health Care.

(5) The person providing the emergency service may continue to alleviate the emergency circumstances without a certificate of need until:

(a) The emergency circumstance ceases to exist;

(b) The cabinet issues a final decision to approve or disapprove the application for certificate of need; or

(6) The person providing the emergency service shall notify the Office of Inspector General, Division of Certificate of Need, within ten (10) days of the date the emergency circumstance ceases and emergency services are no longer required.

History

RELATES TO: KRS 216B.015, 216B.020, 216B.061, 216B.990
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4., 216B.040(2)(a)1
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. This administrative regulation establishes the guidelines for alleviating an emergency circumstance for the orderly administration of the Certificate of Need Program.
History: 36 Ky.R. 241; 810; eff. 10-21-2009; 38 Ky.R. 342; 923; eff. 11-16-2011; Crt eff. 5-7-2019; TAm eff. 3-17-2020; 47 Ky.R. 1691; eff. 6-16-2021; 50 Ky.R. 177; eff. 12-13-2023.

900 KAR 6:085 Implementation of outstanding Certificates of Need if ownership has changed {#sec-900-kar-6-085 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:085}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(5).

(2) "Outstanding" means a project has not been implemented and a license has not been issued by the Office of Inspector General.

(3) "Owner" means a person as defined in KRS 216B.015(21) who is applying for the Certificate of Need and will become the licensee of the proposed health service or facility.

Section 2. Implementation of outstanding Certificates of Need if ownership has changed.

(1) A Certificate of Need issued by the cabinet to an existing licensed facility for purposes other than replacement of the facility may be implemented by the new owner of the facility if the change of ownership occurs prior to implementation of the outstanding project for which the Certificate of Need was issued.

(2) The purchase of all capital stock or a controlling interest of capital stock of the holder of an approved Certificate of Need for the establishment of a new health facility shall not constitute the sale, trade, or transfer of a Certificate of Need for purposes of KRS 216B.061(1)(h) and 216B.0615.

History

RELATES TO: KRS 216B.010, 216B.061(1)(h), 216B.0615, 216B.990
STATUTORY AUTHORITY: KRS 194A.030, 194A.050, 216B.040(2)(a)1
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. This administrative regulation establishes the guidelines for the implementation of outstanding Certificates of Need if ownership has changed for an existing licensed facility.
History: 36 Ky.R. 243; 811; eff. 10-21-2009; 39 Ky.R. 329; 982; eff. 11-9-2012; Crt eff. 5-7-2019; Crt eff. 2-9-2026.

900 KAR 6:090 Certificate of need filing, hearing, and show cause hearing {#sec-900-kar-6-090 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:090}

Section 1. Definitions.

(1) "Affected person" is defined by KRS 216B.015(3).

(2) "Cabinet" is defined by KRS 216B.015(6).

(4) "Days" means calendar days, unless otherwise specified.

(5) "Nonsubstantive review" is defined by KRS 216B.015(18).

(6) "Notice" means notice given through the cabinet's Certificate of Need Newsletter.

(7) "Office of Inspector General" means the office within the Cabinet for Health and Family Services that is responsible for licensing and regulatory functions of health facilities and services.

(8) "Office or clinic" means the physical location at which health care services are provided.

(9) "Party to the proceedings" is defined by KRS 216B.015(20).

(10) "Person" is defined by KRS 216B.015(22).

(11) "Proposed findings" means the submission of a proposed final order by the applicant or an affected party for review and consideration by the hearing officer.

(12) "Secretary" is defined by KRS 216B.015(26).

(13) "Show cause hearing" means a hearing during which it is determined whether a person or entity has violated provisions of KRS Chapter 216B.

Section 2. Filing.

(1) The filing of documents required by this administrative regulation shall be made with the Office of Inspector General, Division of Certificate of Need, CHR Building, 5E-A, 275 East Main Street, Frankfort, Kentucky 40621 on or before 4:30 p.m. Eastern time on the due date.

(2) Filing of a document may be made by facsimile transmission or email if the document is received by the cabinet by facsimile transmission or email on or before 4:30 p.m. Eastern time on the due date.

(3) The Office of Inspector General, Division of Certificate of Need, shall endorse by file stamp the date that each filing is received and the endorsement shall constitute the filing of the document.

(4) In computing any period of time prescribed by this administrative regulation, the date of notice, decision, or order shall not be included.

(5)

(a) Except as provided in paragraph (b) of this subsection, the last day of the period so computed shall be included.

(b) If the last day is a Saturday, Sunday, or legal state holiday, the period shall run until 4:30 p.m. Eastern time of the first business day following the Saturday, Sunday, or legal state holiday.

Section 3. Hearing.

(1)

(a) A hearing on a certificate of need application or revocation of a certificate of need shall be held by a hearing officer from the Cabinet for Health and Family Services, Division of Administrative Hearings.

(b) A hearing officer shall not act on any matter in which the hearing officer has a conflict of interest as defined by KRS 45A.340.

(2) The hearing officer shall preside over the conduct of each hearing and shall regulate the course of the proceedings in a manner that shall promote the orderly and prompt conduct of the hearing.

(3) Notice of the time, date, place, and subject matter of each hearing shall be:

(a) Mailed to the applicant and each affected person who requested the hearing not less than ten (10) days prior to the date of the hearing; and

(b) Published in the Certificate of Need Newsletter, if applicable.

(4)

(a) By motion, pursuant to 900 KAR 6:065, Section 2(3), an applicant may challenge the standing of any person to request a hearing or participate in a public hearing.

(b) If a motion challenging the standing of a person is filed by an applicant, the hearing officer shall conduct an evidentiary hearing on the matter and obtain sworn testimony from the person. The applicant shall have the right to cross-examine the person.

(c) If the hearing officer determines that the person is located and residing solely outside of the Commonwealth of Kentucky, the hearing officer shall prohibit further participation by the person in the proceedings on the application at issue.

(d) If the hearing officer determines that the person is acting as a surrogate for another person who does not qualify as an affected person, the hearing officer shall prohibit further participation by the person in the proceedings on the application at issue.

(5) A public hearing shall be canceled if each person who has been determined to be acting as a surrogate for another person or who requested the hearing withdraws the request by giving written notification to the Office of Inspector General, Division of Certificate of Need, that the hearing is no longer required. The consent of each affected person who has not requested a hearing shall not be required in order for a hearing to be canceled.

(6) A dispositive motion made by a party to the proceedings shall be filed with the cabinet at least three (3) working days prior to the scheduled date of the hearing.

(7) The hearing officer may convene a preliminary conference.

(a) The purposes of the conference shall be to:

Formulate and simplify the issues;
Identify additional information and evidence needed for the hearing; and
Dispose of pending motions.

(b) A written summary of the preliminary conference and the orders thereby issued shall be made a part of the record.

Record the conference; or
If requested by a party to the proceedings, allow a court reporter to be present at the expense of the requesting party.

(d) During the preliminary conference, the hearing officer may:

Instruct the parties to:

a. Formulate and submit a list of genuine contested issues to be decided at the hearing;

b. Raise and address issues that can be decided before the hearing; or

c. Formulate and submit stipulations to facts, laws, and other matters;

Prescribe the manner and extent of the participation of the parties to the proceedings;
Rule on any pending motions for discovery or subpoenas; or
Schedule dates for the submission of prefiled testimony, further preliminary conferences, and submission of briefs and documents.

(8) At least five (5) days prior to the scheduled date of a nonsubstantive review hearing and at least seven (7) days prior to the scheduled date of any other certificate of need hearing, each affected person wishing to participate as a party to the proceeding shall file with the cabinet the following for each affected application and serve copies on all other known parties to the proceeding:

(a) CON - Form 3, Notice of Appearance, incorporated by reference in 900 KAR 6:055;

(b) CON - Form 4, Witness List, incorporated by reference in 900 KAR 6:055; and

(9)

(a) If a hearing is requested on an application that has been deferred from a previous cycle and for which a hearing had previously been scheduled, parties shall:

File a new CON - Form 3, Notice of Appearance; and
Either:

a. Incorporate previously-filed witness lists (CON - Form 4) and exhibit lists (CON- Form 5); or

b. File an amended CON - Form 4 and CON - Form 5.

(b) A new party to the proceedings shall file an original CON - Form 3, CON - Form 4, and CON - Form 5.

(10)

(a) If a party to the proceedings requests a court reporter to be present during the hearing, the party shall:

Arrange for and bear the cost for a court reporter to transcribe the hearing; and
File an original copy of the transcript with the cabinet.

(b) If all parties agree, the hearing may be recorded in lieu of a written transcript.

(11) The hearing officer shall convene the hearing and shall state the purpose and scope of the hearing or the issues upon which evidence shall be heard. Each party appearing at the hearing shall enter an appearance by stating the party's name and address.

(12) Each party shall have the opportunity to:

(a) Present its case;

(b) Make an opening statement;

(d) Offer documentary evidence into the record;

(e) Make a closing statement; and

(f) Cross-examine opposing witnesses on:

Matters covered in direct examination; and
At the discretion of the hearing officer, other matters relevant to the issues.

(13) A party that is a corporation shall be represented by an attorney licensed to practice in the Commonwealth of Kentucky.

(14) The hearing officer may:

(a) Allow testimony or other evidence on an issue not previously identified in the preliminary order that may arise during the course of the hearing, including a petition for intervention that may be filed;

(b) Act to exclude irrelevant, immaterial, or unduly repetitious evidence; and

(15) The hearing officer shall not be bound by the Kentucky Rules of Evidence. Relevant hearsay evidence may be allowed at the discretion of the hearing officer.

(16) The hearing officer shall have discretion to designate the order of presentation of evidence and the burden of proof as to persuasion.

(17) A witness shall be examined under oath or affirmation.

(18) A witness may, at the discretion of the hearing officer:

(a) Appear through deposition or in person; and

(b) Provide written testimony in accordance with the following:

The written testimony of a witness shall be in the form of questions and answers or a narrative statement;
The witness shall authenticate the document under oath; and
The witness shall be subject to cross-examination.

(19) The hearing officer may accept documentary evidence in the form of copies of excerpts if:

(a) The original is not readily available;

(b) Upon request, parties are given an opportunity to compare the copy with the original; and

(20) A document shall not be incorporated into the record by reference without the permission of the hearing officer. Each referenced document shall be precisely identified.

(21) The hearing officer may take official notice of facts that are not in dispute or of generally-recognized technical or scientific facts within the agency's special knowledge.

(22) The hearing officer may permit a party to offer, or request a party to produce, additional evidence or briefs of issues as part of the record within a designated time after the conclusion of the hearing. During this period, the hearing record shall remain open. The conclusion of the hearing shall occur when the additional information is timely filed or at the end of the designated time period, whichever occurs first.

(23) The hearing officer may, upon the agreement of the applicant, extend the review deadlines established by KRS 216B.062(1) and 216B.095(1).

(24) If all parties agree to waive the established decision date, the hearing officer shall render a decision within sixty (60) days of the filing of proposed findings.

(25) The cabinet shall forward a copy of the hearing officer's final decision by U.S. mail to each party to the proceedings. The original hearing decision shall be filed in the administrative record maintained by the cabinet.

Section 4. Show Cause Hearing.

(1) The cabinet may conduct a show cause hearing on its own initiative or at the request of an affected person, to include hearings requested pursuant to Humana of Kentucky v. NKC Hospitals, Ky., 751 S.W.2d 369 (1988), in order to determine if a person:

(a) Has established or is operating a health facility or health service in violation of:

The provisions of KRS Chapter 216B;
The provisions of 900 KAR Chapter 6; or
The terms or conditions that are a part of a certificate of need approval and license held by that person; or

(b) Is subject to the penalties provided by KRS 216B.990 for specific violations of the provisions of KRS Chapter 216B.

(2) The cabinet shall conduct a show cause hearing if a complaint investigation or licensure inspection by the Office of the Inspector General or the Kentucky Board of Emergency Medical Services reveals a possible violation of KRS Chapter 216B.

(3) Unless initiated by the cabinet, in order for a show cause hearing to be held, a request for a show cause hearing submitted by an affected person shall be accompanied and corroborated by credible, relevant, and substantial evidence, including an affidavit or other documentation that demonstrates probable cause to believe that a person:

(a) Has established, or is operating, a health facility or health service in violation of:

The provisions of KRS Chapter 216B;
The provisions of 900 KAR Chapter 6; or
The terms and conditions that were a part of a certificate of need approval and license held by that person; or

(b) Is subject to the penalties provided by KRS 216B.990 for specific violations of the provisions of KRS Chapter 216B.

(4) If a show cause hearing is requested by an affected person, the cabinet shall provide a copy of the request for show cause hearing to the person alleged to be in violation and the person shall have fourteen (14) days in which to file a response to the request and supporting documentation.

(5) Based upon the materials accompanying the request for a show cause hearing, and any subsequent response to the allegations, the cabinet shall determine if sufficient cause exists to conduct a hearing.

(6) Prior to convening a show cause hearing, the cabinet shall give the parties not less than twenty (20) days' notice of its intent to conduct a hearing and notice shall be published in the Certificate of Need Newsletter, if applicable.

(7) The notice shall include:

(a) The allegations against the person suspected or alleged to be in violation;

(b) Any facts determined to exist that support the existence of the allegation;

(d) The person's response to the allegations, if any; and

(e) Notice of the time, date, place, and subject matter of the hearing.

(8) At least seven (7) days prior to a show cause hearing required or requested pursuant to KRS Chapter 216B, all persons or entities wishing to participate as a party to the proceedings shall file the following with the cabinet and serve copies on all other known parties to the proceedings:

(a) CON - Form 3, Notice of Appearance;

(b) CON - Form 4, Witness List; and

(9) A show cause hearing shall be conducted in accordance with the provisions of Section 3 of this administrative regulation.

(10) If a show cause hearing is held, the person alleged to be in violation of KRS Chapter 216B shall have the burden of showing that the person:

(a) Has not established, or is not operating, a health facility or health service in violation of:

The provisions of KRS Chapter 216B;
The provisions of 900 KAR Chapter 6; or
The terms and conditions that are a part of a certificate of need approval and license held by that person; or

(b) Is not subject to the penalties provided by KRS 216B.990 for specific violations of the provisions of KRS Chapter 216B.

(11) If it is alleged that an office or clinic offering services or equipment covered by the State Health Plan was established or is operating in violation of KRS 216B.020(2)(a), the hearing officer shall base his or her recommended findings of fact, conclusions of law, and recommended decision on whether the clinic or office meets the physician exemption criteria established in 900 KAR 6:130.

(12) Within thirty (30) days of the conclusion of the hearing, the hearing officer shall tender findings of fact and a recommended decision to the Office of Inspector General, Division of Certificate of Need for submission to the secretary. A copy of the findings of fact and recommended decision shall be forwarded to each party and the party's legal representative by the Division of Certificate of Need.

(13) Each party shall have fifteen (15) days from the date the recommended decision is forwarded by the cabinet to file exceptions to the findings of fact and recommended decision with the Office of Inspector General, Division of Certificate of Need, for submission to the secretary and the hearing officer.

(14) Within thirty (30) days of the receipt of any exceptions, the secretary shall either accept the hearing officer's recommended decision or request changes. The hearing officer shall then prepare a final decision for the secretary's signature.

(15) The Office of Inspector General, Division of Certificate of Need shall mail a copy of the final decision to each party and his or her legal representative with the original hearing decision filed in the administrative record maintained by the cabinet.

(16) If a violation is found to have occurred as a result of a show cause hearing conducted pursuant to subsection (1) of this section, the cabinet shall take action as provided by KRS Chapter 216B.

(17) If the person is found to have violated any of the terms or conditions of any certificate of need approval and license as a result of a show cause hearing conducted pursuant to subsection (1) or (2) of this section, the cabinet shall take the action required by this subsection.

(a) If the person had not previously been found to be in violation of the terms and conditions that were made a part of the person's certificate of need approval and license, the person shall be given a period of time, not to exceed sixty (60) days after issuance of the cabinet's decision, in which to demonstrate that the violation has been corrected. At the conclusion of this period, the cabinet shall verify that the facility or service is operating in compliance with the terms or conditions of the certificate of need and license at issue.

(b) If the cabinet is unable to verify that the facility or service has corrected the violation in accordance with paragraph (a) of this subsection, or if a person who had previously been found to be in violation of the terms and conditions that were a part of the person's certificate of need approval and license is found in a subsequent show cause hearing conducted pursuant to this section to be in violation of the terms and conditions again, the matter shall be referred to the Office of Inspector General for appropriate action.

(18) The deadlines established with respect to hearings shall be modified if agreed to by all parties and the hearing officer.

History

RELATES TO: KRS 45A.340, 216B.015, 216B.020(2)(a), 216B.040, 216B.062(1), 216B.095(1), 216B.990
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4., 216B.040(2)(a)1., (b), 216B.085, 216B.086, 216B.090
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1. and (b) require the Cabinet for Health and Family Services to administer Kentucky's certificate of need program, to promulgate administrative regulations as necessary for the program, and to conduct public hearings in respect to certificate of need applications and revocations of certificates of need. KRS 216B.085, 216B.086, and 216B.090 establish requirements for certificate of need, revocation, and reconsideration hearings. This administrative regulation establishes the requirements for filing, hearing, and show cause hearings necessary for the orderly administration of the certificate of need program.
History: 36 Ky.R. 244; Am. 811; eff. 10-21-2009; 39 Ky.R. 331; 807; 982; eff. 11-9-2012; 42 Ky.R. 550; 1784; eff. 12-16-2015; 4 Ky.R. 140, 524; eff. 9-20-2017; 47 Ky.R. 1693, 2594; eff. 6-16-2021.

900 KAR 6:095 Certificate of need administrative escalations {#sec-900-kar-6-095 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:095}

Section 1. Definitions.

(1) "Administrative escalation" means an approval from the cabinet to increase the capital expenditure authorized for a certificate of need project.

(2) "Cabinet" is defined by KRS 216B.015(6).

(3) "Substantial change in a project" is defined by KRS 216B.015(31).

Section 2. Administrative Escalations.

(1) A person shall not obligate a capital expenditure in excess of the amount authorized by an existing certificate of need or a previously approved administrative escalation unless the person has received an administrative escalation or an additional certificate of need from the cabinet.

(2) A request for an administrative escalation shall be submitted to the cabinet on the CON - Form 6, Cost Escalation Form, incorporated by reference in 900 KAR 6:055.

(3) The cabinet shall authorize an administrative escalation for funds that have not been obligated and that do not exceed the following limits if there is not a substantial change in the project:

(a) $100,000, if the capital expenditure authorized by the certificate of need or a previously approved cost escalation is less than $500,000; and

(b) Twenty-five (25) percent of the capital expenditure if the capital expenditure authorized by the certificate of need or a previously approved cost escalation is $500,000 or more.

(4) If an administrative escalation is authorized, the certificate of need holder shall submit any additional certificate of need application fee required by the increased capital expenditure pursuant to 900 KAR 6:020.

(5) The escalation of a capital expenditure in excess of the limits set forth in subsection (3) of this section shall:

(a) Constitute a substantial change in a project; and

(b) Require a certificate of need pursuant to KRS 216B.061(1)(e).

(6) The unauthorized obligation of a capital expenditure in excess of the amount authorized for a certificate of need project shall be:

(a) Presumed to be a willful violation of KRS Chapter 216B; and

(b) Subject to the penalties set forth at KRS 216B.990(2).

History

RELATES TO: KRS 216B.015(6), (31), 216B.061(1)(e), 216B.990(2)
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4., 216B.040(2)(a)1, 216B.061(4)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. KRS 216B.061(4) requires the cabinet to establish the requirements for administrative escalations. This administrative regulation establishes the requirements for an administrative escalation.
History: 36 Ky.R. 248; Am. 814; eff. 10-21-2009; 43 Ky.R. 1310; eff. 3-31-2017; 47 Ky.R. 1695; eff. 6-16-2021.

900 KAR 6:100 Certificate of need standards for implementation and biennial review {#sec-900-kar-6-100 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:100}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(6).

(2) "Days" means calendar days, unless otherwise specified.

(3) "Long-term care beds" means nursing home beds, intermediate care beds, skilled nursing beds, nursing facility beds, and Alzheimer nursing home beds.

(4) "Office of Inspector General" means the office within the Cabinet for Health and Family Services that is responsible for licensing and regulatory functions of health facilities and services.

(5) "Show cause hearing" means a hearing during which it is determined whether a person or entity has violated provisions of KRS Chapter 216B.

Section 2. Standards for Implementation.

(1) As a condition for the issuance of a certificate of need, a holder of a certificate of need shall submit progress reports on the CON - Form 8, Certificate of Need Six Month Progress Report, incorporated by reference in 900 KAR 6:055, at the six (6) month intervals specified in this section.

(2) A notice specifying the date each progress report is due shall be sent to every holder of a certificate of need whose project is not fully implemented.

(3) The cabinet or its designee shall review a progress report and shall determine:

(a) If the required elements have been completed; and

(b) If the required elements have not been completed, whether sufficient reasons for failure to complete have been provided.

(4) A certificate of need shall be deemed complete if:

(a) The project has been approved for licensure or occupancy by the Office of Inspector General;

(b) A final cost breakdown has been submitted; and

(5) Until a project is deemed complete by the cabinet, the cabinet may require:

(a) The submission of additional reports as specified in subsections (16) through (18) of this section; or

(b) Progress reports in addition to those required at six (6) month intervals under the provisions of this section.

(6) Except for a long-term care bed proposal, a certificate of need shall not be revoked for failure to complete the items required during a six (6) month period if the holder of the certificate of need establishes that the failure was due to circumstances that:

(a) Could not reasonably be anticipated and avoided by the holder; or

(b) Were not the result of action or inaction of the holder.

(7) If the cabinet determines that required elements have not been completed for reasons other than those set forth in subsection (6) of this section, it shall notify the holder of the certificate of need, in writing, that it has determined to revoke the certificate of need.

(8) The revocation shall become final thirty (30) days from the date of notice of revocation unless the holder requests a hearing pursuant to KRS 216B.086.

(9) The first progress report for any project other than long-term care beds shall include:

(a) For a project for the addition of new services or expansion of existing services that does not involve construction, renovation, or the installation of equipment: plans for implementation of the project;

(b) For a project for the purchase of equipment only: a copy of the purchase order;

(d) For a construction or renovation project: evidence that schematic plans have been submitted to the Public Protection Cabinet, Department of Housing, Buildings, and Construction, and the Office of Inspector General, Division of Healthcare.

(10) For a project other than long-term care beds not deemed complete, a second progress report shall include:

(a) For a project converting beds: documentation that all beds are licensed;

(b) For a project for addition of new services or expansion of existing services that do not involve construction, renovation, or the installation of equipment: documentation of approval for licensure and occupancy by the Office of Inspector General, Division of Healthcare, or the Kentucky Board of Emergency Medical Services; or

(c) For a construction or renovation project: the schedule for project completion, evidence of preliminary negotiation with a financial agency, and evidence of preliminary negotiation with contractors.

(11) For a project other than long-term care beds not deemed complete, a third progress report shall include:

(a) For a construction or renovation project:

A copy of the deed or lease of land;
Documentation of the final enforceable financing agreement, if applicable;
Documentation that final plans have been submitted to the Public Protection Cabinet, Department of Housing, Buildings, and Construction, and the Office of Inspector General, Division of Healthcare; and
An enforceable contract with a construction contractor; or

(b) For a project for purchase of equipment only: evidence of approval for licensure and occupancy by the Office of Inspector General, Division of Healthcare.

(12) For a project other than long-term care beds not deemed complete, a fourth progress report shall include documentation of final plan approval by the Public Protection Cabinet, Department of Housing, Buildings, and Construction, and the Office of Inspector General, Division of Healthcare, and evidence that construction has begun.

(13) For a project other than long-term care beds not deemed complete, a fifth progress report shall include documentation that construction or renovation is progressing according to schedule.

(14) For a project other than long-term care beds not deemed complete, a sixth progress report shall include documentation that the project has been approved for licensure or occupancy by the Office of Inspector General, Division of Healthcare, and, if required, that the appropriate license has been approved for the health care service or facility.

(15) For a project other than long-term care beds not deemed complete after the sixth progress report, the certificate holder shall, upon request, provide the cabinet or its designee with a written statement showing cause why the certificate should not be revoked. The cabinet may defer revocation action upon a showing by the certificate holder that the project shall be completed on a revised schedule. The cabinet or its designee may require additional progress reports.

(16) For a project involving long-term care beds, the progress reports required by this subsection shall be submitted.

(a) The first progress report shall include:

A copy of the deed or lease of land for a project requiring acquisition of real property; and
Evidence that final plans have been submitted to the Public Protection Cabinet, Department of Housing, Buildings, and Construction, and the Office of Inspector General, Division of Healthcare.

(b) For a project involving long-term care beds not deemed complete, a second progress report shall include:

For a conversion of bed project: documentation that the beds in the project are licensed; or
For a construction project:

a. A schedule for project completion with projected dates;

b. Documentation of final financing;

c. Documentation of final plan approval by the Public Protection Cabinet, Department of Housing, Buildings, and Construction, and the Office of Inspector General, Division of Healthcare; and

d. An enforceable construction contract.

(17) For a project involving long-term care beds not deemed complete, a third progress report shall include documentation that construction or renovation is progressing according to the schedule for project completion.

(18) For a project involving long-term care beds not deemed complete, a fourth progress report shall include documentation that the project has been appropriately licensed and approved for occupancy by the Office of Inspector General, Division of Healthcare.

(19) The cabinet or its designee may grant no more than three (3) additional extensions of six (6) months for good cause shown if the certificate holder of long-term care beds has failed to comply with the relevant progress report requirements established in this section.

(20) If the project involves a capital expenditure, a final cost breakdown shall be included in the final progress report.

(21) If the Office of Inspector General, Division of Healthcare, discovers a violation of terms and conditions listed on a certificate of need and license while it is conducting its annual licensure inspection, it shall refer this violation for a show cause hearing in accordance with 900 KAR 6:090, Section 4.

Section 3. Progress Report Fee.

(1) A progress report fee in the amount of $100.00 or one (1) percent of the application fee assessed pursuant to 900 KAR 6:020, whichever amount is greater, shall be submitted by the certificate of need holder with each semi-annual progress report filed for each certificate of need that has been issued for more than three (3) years.

(2) A certificate of need shall be revoked for failure to submit the progress report fee.

Section 4. Voluntary Revocation of a Certificate of Need. If a certificate of need holder requests revocation of a certificate of need or a portion of a certificate of need and submits a new application for the same proposed health facility or service within five (5) years from the date of revocation, the cabinet shall apply the application fee that was submitted for the revoked certificate of need or portion of a certificate of need toward the fee assessed pursuant to 900 KAR 6:020 for the new application.

Section 5. Biennial Review.

(1) A certificate of need holder may be subject to biennial review to determine if the holder is in compliance with the terms as listed on the certificate of need.

(2) Biennial review may be conducted within sixty (60) days of the second anniversary of the final progress report and at twenty-four (24) month intervals thereafter.

(3) The cabinet or its designee shall provide sixty (60) days' advance written notification to the subject of any biennial review, including the following:

(a) When the biennial review will be initiated;

(b) Request for information necessary for the review to which the cabinet does not have ready access; and

(4) If the cabinet finds that any of the terms and conditions of a certificate of need approval and license have been violated, the review of, and any sanctions for, this violation shall be conducted in accordance with 900 KAR 6:090, Section 4.

History

RELATES TO: KRS 216B.015, 216B.086
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4., 216B.040(2)(a)1, 216B.086
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. KRS 216B.086 authorizes the revocation of certificate of need, or portion thereof, for failure to implement the project in accordance with timetables and standards established by administrative regulation. This administrative regulation establishes the required timetables and standards for implementation as well as requirements for biennial reviews for the orderly administration of the Certificate of Need Program.
History: 36 Ky.R. 250; Am. 815; eff. 10-21-2009 42 Ky.R. 1643; eff. 2-5-2016; 47 Ky.R. 1698, 2597; eff. 6-16-2021.

900 KAR 6:105 Certificate of Need advisory opinions {#sec-900-kar-6-105 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:105}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(6).

(3) "Days" means calendar days, unless otherwise specified.

(4) "Public notice" means notice given through:

(a) The Web site of the Office of Inspector General, Division of Certificate of Need at https://chfs.ky.gov/agencies/os/oig/dcn; or

(b) The cabinet's Certificate of Need Newsletter.

Section 2. Advisory Opinions.

(1) The cabinet shall issue advisory opinions regarding matters related to certificate of need on its own initiative or upon request from any person.

(2) A request for an advisory opinion shall be filed with the cabinet on CON – Form 7, Request for Advisory Opinion, as incorporated by reference in 900 KAR 6:055.

(3) The cabinet may require verification of information and request additional documentation at its discretion prior to issuing an advisory opinion.

(4) The cabinet shall issue a written advisory opinion within thirty (30) days of receipt of a completed request for an advisory opinion or of receipt of additional information, if applicable.

(5) Public notice of the advisory opinion shall be published in the monthly Certificate of Need Newsletter following the issuance of the advisory opinion.

(6) An affected person may request a public hearing regarding an advisory opinion in writing within thirty (30) days of the public notice of the advisory opinion.

(7) The public hearing shall be held within forty-five (45) days of the date of the filing of the request and shall be conducted in accordance with the provisions of 900 KAR 6:090.

(8) The cabinet shall enter a final decision regarding the advisory opinion within forty-five (45) days of the completion of the public hearing.

(9) If a public hearing is not requested, the advisory opinion shall be the final action of the cabinet.

History

RELATES TO: KRS 216B.015, 216B.020, 216B.061, 216B.990
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4., 216B.040(2)(a)1
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. This administrative regulation establishes the policies for issuance of advisory opinions necessary for the orderly administration of the Certificate of Need Program.
History: 36 Ky.R. 252; 816; eff. 10-21-2009; Crt eff. 5-7-2019; 47 Ky.R. 1701; eff. 6-16-2021.

900 KAR 6:110 Certificate of Need notification requirements {#sec-900-kar-6-110 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:110}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(6).

(2) "Days" means calendar days, unless otherwise specified.

Section 2. Notification of the Addition of a Health Service or Equipment.

(1) A health facility shall submit a completed CON - Form 10A, incorporated by reference in 900 KAR 6:055, to notify the cabinet that a service or equipment has been added.

(2) The notification shall be submitted within ten (10) days of the date the facility:

(a) Makes an addition to an existing health service (including adding respite beds in an intermediate care facility for individuals with an intellectual disability) for which there is review criteria in the State Health Plan, but for which a certificate of need is not required; or

(b) Adds equipment for which there is a review criteria in the State Health Plan, but for which a certificate of need is not required.

Section 3. Notification of the Reduction or Termination of a Health Service or Bed Capacity. A health facility shall submit a completed CON - Form 10B, incorporated by reference in 900 KAR 6:055, to notify the cabinet of the reduction or termination of a health service, or reduction of bed capacity within thirty (30) days prior to the reduction or termination.

Section 4. Notification of Relocation of Acute Care Beds. If a certificate of need is not otherwise required, a hospital shall submit a completed CON - Form 10C, incorporated by reference in 900 KAR 6:055, to notify the cabinet that the facility has relocated acute care beds to another hospital under common ownership in the same area development district, including an outpatient health care center operated by the hospital and licensed pursuant to 902 KAR 20:074, within ten (10) days of the relocation.

Section 5. Notification of Redistribution of Beds by Licensure Category. A hospital shall submit a completed CON - Form 10C, incorporated by reference in 900 KAR 6:055, to notify the cabinet that the facility has redistributed beds among its existing licensure categories, including an outpatient health care center operated by the hospital and licensed pursuant to 902 KAR 20:074, within ten (10) days of the redistribution.

Section 6. Notification of the Intent to Acquire a Health Facility or Health Service. A health facility shall submit a completed CON - Form 9, Notice of Intent to Acquire a Health Facility or Health Service, incorporated by reference in 900 KAR 6:055, to notify the cabinet of the acquisition of a health facility or health service at least thirty (30) days prior to the acquisition.

History

RELATES TO: KRS 216B.061, 216B.065, 216B.066, 216B.990
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4., 216B.040(2)(a)1.
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. This administrative regulation establishes the requirements for notification by facilities of the addition or establishment of a health service, the reduction or termination of a health service or bed capacity, the redistribution of beds by licensure category, and the intent to acquire a health facility for health service.
History: 36 Ky.R. 254; 817; eff. 10-21-2009; TAm eff. 12-16-2013; Crt eff. 5-7-2019; 47 Ky.R. 1702, 2419, 2599; eff. 6-16-2021.

900 KAR 6:115 Certificate of need requirement for critical access hospitals, swing beds, and continuing care retirement communities {#sec-900-kar-6-115 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:115}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(6).

(2) "Days" means calendar days, unless otherwise specified.

(3) "Office of Inspector General" means the office within the Cabinet for Health and Family Services that is responsible for licensing and regulatory functions of health facilities and services.

Section 2. Critical Access Hospitals. A certificate of need shall not be required for a critical access hospital to re-establish the number of acute care beds that the hospital operated prior to becoming a critical access hospital if the hospital decides to discontinue operating as a critical access hospital.

Section 3. Swing Beds.

(1) An acute care hospital or a critical access hospital that has been designated as a swing bed hospital by the Office of Inspector General, having met the requirements of 42 C.F.R. 482.58 or 485.645, shall not be required to obtain a certificate of need to utilize its licensed acute or critical access hospital beds as swing beds.

(2) For a designated swing bed hospital to add new acute or critical access hospital beds that may be utilized as swing beds, the hospital's proposal shall be consistent with the State Health Plan's review criteria for hospital acute care beds and certificate of need approval.

Section 4. Certification of Continuing Care Retirement Communities.

(1) In order to be certified as a continuing care retirement community, a certificate of compliance shall be obtained from the Office of Inspector General, Division of Certificate of Need.

(2) In order to obtain a certificate of compliance, a continuing care retirement community shall complete and file CON - Form 11, Application for Certificate of Compliance for a Continuing Care Retirement Community (CCRC), incorporated by reference in 900 KAR 6:055, thereby certifying that:

(a) All residents shall have a written agreement with the continuing care retirement community;

(b) The continuing care retirement community shall offer a continuum of residential living options and support services to its residents age sixty (60) and older and may offer these living options and services to persons below age sixty (60) on an as needed basis;

(c) None of the health facilities or health services established by the continuing care retirement community under this section shall apply for or become certified for participation in the Medicaid Program, and that this restriction shall be disclosed in writing to each of its residents;

(d) A claim for Medicaid reimbursement shall not be submitted for a person for a health service established by the continuing care retirement community under this section, and that this restriction shall be disclosed in writing to its residents;

(e) All residents in nursing home beds shall be assessed using the Health Care Financing Administration approved long-term care resident assessment instrument. The assessment shall be transmitted to the state data bank if the nursing home bed is certified for Medicare participation;

(f) Admissions to continuing care retirement community nursing home beds shall be exclusively limited to on-campus residents;

(g) A resident shall not be admitted to a continuing care retirement community nursing home bed prior to ninety (90) days of residency in the continuing care retirement community unless the resident experiences a significant change in health status documented by a physician;

(h) A resident shall not be involuntarily transferred or discharged without thirty (30) days prior written notice to the resident or the resident's guardian;

(i) The continuing care retirement community shall assist a resident upon move-out notice to find appropriate living arrangements;

(j) The continuing care retirement community shall share information on alternative living arrangements provided by the Department of Aging and Independent Living at the time a move-out notice is given to a resident; and

(k) Written agreements executed by the resident and the continuing care retirement community shall contain provisions for assisting any resident who has received a move-out notice to find appropriate living arrangements.

(3)

(a) The Office of Inspector General, Division of Certificate of Need, shall issue a certificate of compliance within thirty (30) days of receipt of a completed CON - Form 11 if all conditions are met.

(b) If all conditions are not met, the cabinet shall advise the applicant of any deficiencies.

(c) Upon correction of the deficiencies, the cabinet shall issue the certificate of compliance within thirty (30) days of correction.

(4) A continuing care retirement community's nursing home beds shall be considered to have been established for purposes of KRS Chapter 216B upon the issuance of an authority to occupy by the cabinet.

(5) If, after having obtained an initial certificate of compliance, a continuing care retirement community wishes to establish additional nursing home beds, an additional certificate of compliance shall be obtained from the cabinet.

(6) Upon request, the continuing care retirement community shall provide the Office of Inspector General, Division of Certificate of Need the:

(a) Payor source for each of its nursing home beds; and

(b) Number of each type of bed or living unit within the continuing care retirement community.

History

RELATES TO: KRS 216B.015, 216B.020, 216B.061, 216B.332, 216B.990, 42 C.F.R. 482.58, 485.645
STATUTORY AUTHORITY: KRS 194A.030(1)(c)4., 216B.040(2)(a)1, 216B.330
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. KRS 216B.330 requires the cabinet to promulgate administrative regulations to establish the procedures and requirements for obtaining a certificate of compliance for a continuing care retirement community. This administrative regulation establishes the certificate of need requirements for critical access hospitals, swing beds, and continuing care retirement communities.
History: 36 Ky.R. 255; 817; 10-21-2009; Crt eff. 5-7-2019; 47 Ky.R. 1704; eff. 6-16-2021.

900 KAR 6:125 Certificate of need annual surveys {#sec-900-kar-6-125 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:125}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216B.015(6).

(2) "Days" means calendar days, unless otherwise specified.

(3) "Long term care facility" means any entity with licensed long term care beds including nursing facility, nursing home, intermediate care, Alzheimer's, intermediate care facility for individuals with and intellectual disability, or personal care.

(4) "Office of Inspector General" means the office within the Cabinet for Health and Family Services that is responsible for licensing health facilities and services.

(5) "Owner" means a person as defined in KRS 216B.015(22) who is applying for the certificate of need and will become the licensee of the proposed health service or facility.

(6) "Year" means a calendar year from January 1 through December 31.

Section 2. Entities Completing Surveys. If requested by the cabinet, the following entities shall submit annual utilization surveys:

(1) Licensed ambulatory surgery center;

(2) Licensed hospital performing ambulatory surgery services;

(3) Licensed home health agency;

(4) Licensed hospice;

(5) Licensed hospital;

(6) Licensed private duty nursing agency;

(7) Licensed long term care facility;

(8) Licensed facility or service with MRI equipment;

(9) Licensed facility with megavoltage radiation equipment;

(10) Licensed psychiatric residential treatment facility;

(11) Licensed facility or service with positron emission tomography equipment; and

(12) Licensed chemical dependency treatment facility.

Section 3. Annual Survey Submission. An annual survey, if requested by the cabinet, shall be completed for the previous year and transmitted electronically by accessing the Office of Inspector General's Web site at https://www.chfs.ky.gov/agencies/os/oig/dcn/Pages/annualreports.aspx

Section 4. If requested by the cabinet, an annual survey shall be completed and submitted no later than March 15th of each year. If the 15th falls on a weekend or holiday, the submission due date shall be the next working day.

Section 5. Extensions for Survey Submission.

(1) A request for an extension for submission of data shall be made in writing or via email to the Office of Inspector General.

(2) The request for an extension shall state the facility name, survey log-in identification number, contact person, contact phone number, contact email address, and a detailed reason for the requested extension.

(3) One (1) extension per survey of up to ten (10) days shall be granted.

(4) An additional extension shall only be granted if circumstances beyond the entity's control prevents timely completion of a survey.

Section 6. Data Corrections to Draft Annual Reports Utilizing Data Submitted in the Annual Surveys.

(1)

(a) Prior to the release of a draft report to a facility for its review, the Office of Inspector General shall review data for completeness and accuracy.

(b) If an error is identified, the facility shall be contacted by the Office of Inspector General and allowed fourteen (14) days to make corrections.

(2)

(a) Prior to publication of the reports, the Office of Inspector General shall publish draft reports available only to the entities included in each individual report.

(b) Each facility shall be notified of a Web site and provided with a login identification and password required to access each applicable draft report and shall have fourteen (14) days to review the data for errors.

(c) Corrections shall be submitted in writing or via email to the Office of Inspector General before the expiration of the fourteen (14) day review period.

(3)

(a) After publication of the reports, reports shall not be revised as a result of data reported to the Office of Inspector General incorrectly by the facility.

(b) Corrections received after the fourteen (14) day review period shall not be reflected in the published report.

(c) A facility may provide a note in the comments section for the following year's report, referencing the mistake from the previous year.

Section 7. Annual Reports.

(1) Utilizing data submitted in the annual surveys, the Office of Inspector General shall publish reports annually.

(2) Electronic copies of annual reports may be obtained at no cost from the Office of Inspector General's Web site at https://www.chfs.ky.gov/agencies/os/oig/dcn/Pages/annualreports.aspx. A paper copy may be obtained for a fee of twenty (20) dollars at the Cabinet for Health and Family Services, Office of Inspector General275 East Main Street 5EA, Frankfort, Kentucky 40621.

Section 8. A facility that fails to complete a required annual survey shall be referred to the Office of Inspector General for further action which may impact the facility's license renewal as provided for in 902 KAR 20:008, Section 2(14)(b)4.

History

RELATES TO: KRS 216B.015
STATUTORY AUTHORITY: KRS 216B.040(3)(a)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(3)(a) authorizes the Cabinet for Health and Family Services to issue administrative regulations necessary for the proper administration of KRS Chapter 216B.This administrative regulation establishes the requirements for submission of annual survey data to the cabinet for publication of annual reports necessary for the orderly administration of the Certificate of Need Program.
History: 36 Ky.R. 232; 804; eff. 10-21-2009; 2258; 37 Ky.R. 380; eff. 8-18-2010; 37 Ky.R. 1605; 2223; 2400; eff. 5-6-2011; 38 Ky.R. 1395; 1736; eff. 5-4-2012; 39 Ky.R. 860; 1166; eff. 12-11-2012; 40 Ky.R. 179; 547; eff. 9-18-2013; TAm 12-16-2013; 41 Ky.R. 192; eff. 9-17-2014; 43 Ky.R. 2225; 44 Ky.R. 246; eff. 9-20-2017; TAm eff. 10-2-2019; TAm eff. 8-29-2023; Cert eff. 7-18-2024.

900 KAR 6:130 Certificate of Need criteria for physician exemption {#sec-900-kar-6-130 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:130}

Section 1. Definitions.

(1) "Ambulatory surgical center" is defined by KRS 216B.015(4).

(2) "Entity" means any legally recognized business entity in which an individual or group may practice its profession including a professional limited liability company, professional service corporation, partnership, or sole proprietor.

(3) "Evaluation and Management codes" means those codes recognized by the American Medical Association as procedures involving evaluation of patients and management of patient care in the Current Procedural Terminology© references.

(4) "Office" or "clinic" means the physical location at which health care services are provided by a physician, dentist, advanced practice registered nurse, licensed clinical social worker, speech-language pathologist, occupational therapist, physical therapist, psychologist, or other practitioner of the healing arts.

(5) "Owner" means a person as defined by KRS 216B.015(22) who is applying for the Certificate of Need and will become the licensee of the proposed health service or facility.

(6) "Practice" means the individual, entity, or group that proposes to provide health care services and shall include the owners and operators of an office or clinic.

(7) "Practitioner of the healing arts" means a person licensed by the appropriate state agency to practice a healing art as defined by KRS 311.271(2)(a).

(8) "Primarily" means a simple majority or something that occurs at least fifty-one (51) percent of the time.

Section 2. Physician non-exemption due to operation of an ambulatory surgical center. An office or clinic that is operating an ambulatory surgical center pursuant to KRS 216B.095(7) shall not be exempt from the Certificate of Need requirements.

Section 3. Physician Exemption from Certificate of Need.

(1)

(a) An office or clinic that would otherwise be required to obtain a Certificate of Need shall be exempt from Certificate of Need pursuant to KRS 216B.020(2) if:

The practice claiming the exemption is 100 percent owned in an organizational form recognized by the Commonwealth as one (1) in which the listed professions can be practiced by the individual physician, dentist, advanced practice registered nurse, licensed clinical social worker, speech-language pathologist, occupational therapist, physical therapist, psychologist, or other practitioner of the healing arts or group of physicians, dentists, advanced practice registered nurses, licensed clinical social workers, speech-language pathologists, occupational therapists, physical therapists, psychologists, or other practitioners of the healing arts (hereinafter collectively referred to as "physician") claiming the exemption;
The practice claiming the exemption primarily provides physician services (e.g., evaluation and management codes) rather than services or equipment covered by the State Health Plan;
Services or equipment covered by the State Health Plan that are offered or provided at the office or clinic shall be primarily provided to patients whose medical conditions are being treated or managed by the practice;
A physician or physicians licensed to practice and practicing in Kentucky within the practice and claiming the exemption have overall responsibility for directing and coordinating the care and management of services provided to patients;
Patients are treated on an outpatient basis and are not maintained overnight on the premises of the office or clinic;
Services or equipment covered by the State Health Plan that are offered or provided at the office or clinic are related to the professional services offered to patients of the practice claiming the exemption; and
Major medical equipment in excess of the limits set forth in 900 KAR 6:030 is not being utilized without a Certificate of Need or other statutory or regulatory exemption.

(b) This section shall not limit or prohibit the continued operation of an office or clinic that was established and in operation prior to January 31, 2006, and operating pursuant to and in accordance with the following:

Provisions of a Certificate of Need advisory opinion issued by the Office of Health Policy specifically with respect to that office or clinic;
Provisions of an Attorney General opinion issued specifically with respect to that office or clinic; or
An order issued with respect to that office or clinic by a court of competent jurisdiction in the Commonwealth of Kentucky.

(2) A practice owned entirely by a radiologist or group of radiologists shall demonstrate the following:

(a) Compliance with subsection (1)(a)1., 4., 5., and 6. of this section;

(b) The radiologists shall regularly perform physician services (e.g., test interpretations) at the location where the diagnostic tests are performed, including interpretations by or through teleradiology; and

(c) The billing patterns of the practice indicate that the practice is not primarily a testing facility and that it was organized to provide the professional services of radiology.

(3) A hospital-acquired private practice or an outpatient clinic under the same ownership and administrative and financial control as a Kentucky-licensed hospital shall demonstrate that:

(a) The practice or clinic does not:

Provide pain management services at an off-campus clinic in which the majority of patients of the practitioners at the facility are provided treatment for pain that includes the use of controlled substances;
Provide any services or equipment covered by the State Health Plan; or
Provide outpatient surgical services; and

(b) The physician or physicians and other practitioners of the healing arts providing care and treatment to patients of the office or clinic are:

Licensed to practice in Kentucky; and
Employed by the:

a. Hospital; or

b. Entity with ownership and control of both the hospital and office or clinic.

History

RELATES TO: KRS 216B.010, 216B.015, 216B.020, 216B.040, 216B.095, 216B.990, 311.271
STATUTORY AUTHORITY: KRS 194A.030, 194A.050, 216B.040(2)(a)1
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216B.040(2)(a)1 requires the Cabinet for Health and Family Services to administer Kentucky's Certificate of Need Program and to promulgate administrative regulations as necessary for the program. This administrative regulation establishes the requirements for physician exemption criteria necessary for the orderly administration of the Certificate of Need Program.
History: 39 Ky.R. 365; 811; 985; eff. 11-9-2012; 44 Ky.R. 1413; eff. 3-15-2018; Cert eff. 1-27-2025.

Chapter 7 Data Reporting and Public Use Data Sets

900 KAR 7:030 Data reporting by health care providers {#sec-900-kar-7-030 omnilex-key=us-ky-regs-official--title-900--900 KAR 7:030}

Section 1. Definitions.

(1) "Ambulatory facility" is defined by KRS 216.2920(1).

(2) "Cabinet" is defined by KRS 216.2920(2).

(3) "Coding and transmission specifications", "Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals", and "Kentucky Data Coordinator's Manual for Ambulatory Facilities" means the document created and updated by a contracted vendor selected by the Cabinet that contains the technical directives the cabinet issues concerning technical matters subject to frequent change, including codes and data for uniform provider entry into particular character positions and fields of the standard billing form and uniform provider formatting of fields and character positions for purposes of electronic data transmissions.

(4) "Hospital" is defined by KRS 216.2920(6).

(5) "Hospitalization" means the inpatient medical episode identified by a patient's admission date, length of stay, and discharge date, that is identified by a provider-assigned patient control number unique to that inpatient episode, except for hospice care.

(6) "National Provider Identifier" or "NPI" means the unique identifier assigned by the Centers for Medicare and Medicaid Services to an individual or entity that provides health care services and supplies.

(7) "Outpatient services" means services performed on an outpatient basis in a hospital with records requirements in accordance with Section 3(2) of this administrative regulation or services performed on an outpatient basis by an ambulatory facility with data requirements in accordance with Section 4 of this administrative regulation.

(8) "Provider" means a hospital, ambulatory facility, clinic, or other entity of any nature providing hospitalizations, mammograms, or outpatient services and is defined accordingly in the Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals or the Kentucky Data Coordinator's Manual for Ambulatory Facilities.

(9) "Record" means the documentation of a hospitalization or outpatient service in the Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals or the Kentucky Data Coordinator's Manual for Ambulatory Facilities on a computer readable electronic medium.

(10) "Standard Billing Form" means the uniform health insurance claim form pursuant to KRS 304.14-135, the Professional 837 (ASC X12N 837) format, the Institutional 837 (ASC X12N 837) format, or its successor as adopted by the Centers for Medicare and Medicaid Services, or the HCFA 1500 for use by hospitals and other providers in billing for hospitalizations and outpatient services.

Section 2. Medicare Provider-Based Entity. A licensed outpatient facility that is a Medicare provider-based entity of a hospital and reports under the hospital's provider number shall be separately identifiable through a facility-specific NPI.

Section 3. Data Collection for Hospitals.

(1) Inpatient hospitalization records. A hospital shall document every hospitalization it provides on a Standard Billing Form and shall, for every record, copy and provide to the cabinet the data established in Section 12 of this administrative regulation.

(2) Outpatient services records.

(a) A hospital shall document on a Standard Billing Form, the outpatient services the hospital provides and shall, for every record, copy and provide to the cabinet the data established in Section 12 of this administrative regulation.

(b) A hospital shall submit records that contain the required outpatient services procedure codes included in the Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals.

(3) Data collection on patients. A hospital shall submit required data on every patient as established in Section 12 of this administrative regulation, regardless of the patient's billing or payment status.

Section 4. Data Collection for Ambulatory Facilities.

(1) Outpatient services records.

(a) An ambulatory facility shall submit outpatient services records if the ambulatory facility provides one (1) or more of the following outpatient services:

Surgery;
Childbirth;
Urgent treatment of minor illness or injury;
Emergency;
Mammography;
X-ray;
Ultrasound;
Computed tomography;
Magnetic resonance imaging;
Cardiac catheterization;
Positron emission tomography; and
Megavoltage radiation therapy.

(b) An ambulatory facility shall document on a Standard Billing Form, the outpatient services the ambulatory facility provides and shall, for every record, copy and provide to the cabinet the data established in Section 13 of this administrative regulation.

(c) An ambulatory facility shall submit records that contain the required outpatient services procedure codes included in the Kentucky Data Coordinator's Manual for Ambulatory Facilities.

(2) Data collection on patients. An ambulatory facility shall submit required data on every patient as established in Section 13 of this administrative regulation, regardless of the patient's billing or payment status.

Section 5. Data Finalization and Submission by Providers.

(1) Submission of final data.

(a) Data shall be final for purposes of submission to the cabinet as soon as a record is sufficiently final that the provider could submit it to a payer for billing purposes, regardless of if the record has actually been submitted to a payer.

(b) Finalized data shall not be withheld from submission to the cabinet on grounds that the data could be adjudicated by a payer.

(c) Data on a hospitalization shall not be submitted to the cabinet before a patient is discharged and before the record is sufficiently final that it could be used for billing.

(2) Data submission responsibility.

(a) If a patient is served by a mobile health service, specialized medical technology service, or another situation by which one (1) provider provides services under contract or other arrangement with another provider, responsibility for providing the required data to the cabinet shall reside with the provider that bills for the service or would do so if a service is unbilled.

(b) Charges for physician services provided within a hospital shall be reported to the cabinet.

Responsibility for reporting the physician charge data shall rest with the hospital if the physician is an employee of the hospital.
A physician charge contained within a record generated by a hospital shall be clearly identified in a separate field within the record so that the cabinet may ensure comparability if aggregating data with other hospital records that do not contain physician charges.

(3) Transmission of records.

(a) Records submitted to the cabinet by a hospital shall be uniformly completed and formatted according to coding and transmission specifications included in the Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals.

(b) Records submitted to the cabinet by an ambulatory facility shall be uniformly completed and formatted according to coding and transmission specifications included in the Kentucky Data Coordinator's Manual for Ambulatory Facilities.

(c) Each provider shall submit data by electronic transmission as included in the Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals and the Kentucky Data Coordinator's Manual for Ambulatory Facilities.

(d) Each provider shall provide back-up security against accidental erasure or loss of the data until all incomplete or inaccurate records identified by the cabinet have been corrected and resubmitted.

(4) Verification and audit trail for electronic data submissions.

(a) Each provider shall maintain a date log of data submissions and the number of records contained in each submission, and shall make the log available for inspection upon request by the cabinet.

(b) The cabinet shall, within twenty-four (24) hours of submission, verify by electronic message to each provider, the receipt of the provider's data transmissions and the number of records in each transmission.

(c) A provider shall immediately notify the cabinet of a discrepancy between the provider's data log and a verification notice.

Section 6. Data Submission Timetable for Providers.

(1) Quarterly submissions. Each provider shall submit data at least once for each calendar quarter. A quarterly submission shall:

(a) Contain data that during that quarter became final as established in Section 5(1) of this administrative regulation; and

(b) Be submitted to the cabinet not later than forty-five (45) days after the last day of the quarter.

If the 45th day falls on a weekend or holiday, the submission due date shall be the next working day.
Calendar quarters shall be January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31.

(2) Submissions more frequent than quarterly. A provider may submit data after records become final as established in Section 5(1) of this administrative regulation and at a reasonable frequency convenient to a provider for accumulating and submitting batch data.

Section 7. Data Corrections for Providers.

(1) Editing. Data received by the cabinet shall, upon receipt, be edited to ensure completeness and validity of the data. Computer editing routines shall identify for correction every record in which the submitted contents of required fields are not consistent with the cabinet's coding and transmission specifications contained in the Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals and the Kentucky Data Coordinator's Manual for Ambulatory Facilities.

(2) Submission of corrections. The cabinet shall allow a provider thirty (30) days in which to submit corrected copies of initially submitted data the cabinet identifies as incomplete or invalid as a result of edits.

(a) The thirty (30) days shall begin on the date of the cabinet's notice informing the provider that corrections are required.

(b) A provider shall submit to the cabinet corrected data by electronic transmission within thirty (30) days.

(c) Corrected data submitted to the cabinet shall be uniformly completed and formatted according to the cabinet's coding and transmission specifications included in the Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals and the Kentucky Data Coordinator's Manual for Ambulatory Facilities.

(3) Percentage error rate.

(a) If editing data upon its initial submission, the cabinet shall identify and return to the provider for correction every record in which one (1) or more of the required data elements fails to pass the edit.

(b) If editing data that a provider has submitted, the cabinet shall check for an error rate per quarter of no more than one (1) percent of records or not more than ten (10) records, whichever is greater.

(c) The cabinet may return for further correction, any submission of allegedly corrected data in which the provider fails to achieve a corrected error rate per quarter of no more than one (1) percent of records or not more than ten (10) records, whichever is greater.

Section 8. Fines for Noncompliance for Providers.

(1) A provider failing to meet quarterly submission guidelines as established in Sections 6 and 7 of this administrative regulation shall be assessed a fine of $500 per violation.

(2) The cabinet shall notify a noncompliant provider by certified mail, return receipt requested, of the documentation of the reporting deficiency and the assessment of the fine.

(3) A provider shall have thirty (30) days from the date of receipt of the notification letter to pay the fine, which shall be made payable to the Kentucky State Treasurer and sent by certified mail to the Kentucky Cabinet for Health and Family Services, Office of Data Analytics, 275 East Main Street 4 W-E, Frankfort, Kentucky 40621.

(4) Fines during a calendar year shall not exceed $1,500 per provider.

Section 9. Extension or Waiver of Data Submission Timelines.

(1) A provider experiencing extenuating circumstances or a hardship may request from the cabinet, in writing, a data submission extension or waiver.

(a) A provider shall request an extension or waiver from the Office of Data Analytics on or before the last day of the data reporting period to receive an extension or waiver for that period.

(b) An extension or waiver shall not exceed a continuous period of greater than six (6) months.

(2) The cabinet shall consider the following criteria in determining whether or not to grant an extension or waiver:

(a) Whether or not the request was made due to an event beyond the provider's control, such as a natural disaster, catastrophic event, or theft of necessary equipment or information;

(b) The severity of the event prompting the request; and

(3) A provider shall not apply for more than three (3) extensions or waivers during a calendar year.

Section 10. Appeals for Providers.

(1) A provider notified of its noncompliance and assessed a fine pursuant to Section 8(1) of this administrative regulation shall have the right to appeal within thirty (30) days of the date of the notification letter.

(a) If the provider believes the action by the cabinet is unfair, without reason, or unwarranted, and the provider wishes to appeal, the provider shall appeal in writing to the Secretary of the Cabinet for Health and Family Services, 5th Floor, 275 East Main Street, Frankfort, Kentucky 40621.

(b) An appeal shall be filed in accordance with KRS Chapter 13B.

(2) Upon receipt of the appeal, the secretary cabinet or designee shall issue a notice of hearing no later than twenty (20) days before the date of the hearing. The notice of the hearing shall comply with KRS 13B.050. The secretary shall appoint a hearing officer to conduct the hearing in accordance with KRS Chapter 13B.

(3) The hearing officer shall issue a recommendation in accordance with KRS 13B.110. Upon receipt of the recommended order, following consideration of any exceptions filed pursuant to KRS 13B.110(4), the secretary shall enter a final decision pursuant to KRS 13B.120.

Section 11. Working Contacts for Providers.

(1) On or before the last day of the data reporting period, a provider shall report by electronic transmission to the cabinet the names and telephone numbers of a designated contact person and one (1) back-up person to facilitate technical follow-up in data reporting and submission.

(a) A provider's designated contact and back-up shall not be the chief executive officer unless no other person employed by the provider has the requisite technical expertise.

(b) The designated contact shall be the person responsible for review of the provider's data for accuracy prior to the publication by the cabinet.

(2) If the chief executive officer, designated contact person, or back-up person changes during the year, the name and telephone number of the replacing person shall be reported immediately to the cabinet.

Section 12. Required Data Elements for Hospitals. A hospital shall ensure that each record submitted to the cabinet contains the data elements included in the Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals.

Section 13. Required Data Elements for Ambulatory Facilities. An ambulatory facility shall ensure that each record submitted to the cabinet contains the data elements included in the Kentucky Data Coordinator's Manual for Ambulatory Facilities.

Section 14. Required Elements for Manuals. "Kentucky Inpatient and Outpatient Data Coordinator's Manual for Hospitals", or "Kentucky Data Coordinator's Manual for Ambulatory Facilities" shall be created and updated by a contracted vendor selected by the cabinet. The manual shall be found on the office's Web site at: https://www.chfs.ky.gov/agencies/ohda/Pages/hfsd.aspx.

History

RELATES TO: KRS 216.2920, 216.2925, 216.2927, 304.14-135
STATUTORY AUTHORITY: KRS 216.2923(3), 216.2925
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216.2925 requires that the Cabinet for Health and Family Services promulgate administrative regulations requiring specified health care providers to provide the cabinet with data on cost, quality, and outcomes of health care services provided in the commonwealth. KRS 216.2923(3) authorizes the cabinet to promulgate administrative regulations to impose fines for failure to report required data. This administrative regulation establishes the required data elements, forms, and timetables for submission of data to the cabinet and fines for noncompliance.
History: 35 Ky.R. 2838; Am. 36 Ky.R. 325; eff. 8-12-2009; 36 Ky.R. 325; 1356; eff. 3-5-2010; 37 Ky.R. 1097; eff. 12-15-2010; 37 Ky.R. 2763; 38 Ky.R. 22; eff. 8-5-2011; 38 Ky.R. 1236; eff. 3-21-2012; 38 Ky.R. 2102; eff. 8-31-2012; 39 Ky.R. 1785; eff. 5-3-2013; 40 Ky.R. 1929; eff. 5-2-2014; 2865; 41 Ky.R. 505; eff. 10-15-2014; 1891; eff. 6-5-2015; 42 Ky.R. 1646; 2126; eff. 2-5-2016; 43 Ky.R. 2228; 44 Ky.R. 527; eff. 9-20-2017; 45 Ky.R. 2482; eff. 5-31-2019; 50 Ky.R. 1379; eff. 6-18-2024.

900 KAR 7:040 Release of public data sets for health facility and services data {#sec-900-kar-7-040 omnilex-key=us-ky-regs-official--title-900--900 KAR 7:040}

Section 1. Definitions.

(1) "Cabinet" is defined by KRS 216.2920(2).

(2) "Data" means the information collected pursuant to 900 KAR 7:030.

(3) "Encounter-level" means the data record of a single instance of hospitalization, outpatient service, ambulatory surgery, emergency department, or observation stay billing record contained in a data file.

(4) "Health care provider" is defined by KRS 216.2920(5).

(5) "Public" means a person or group not directly responsible for the collection, maintenance, custody, or dissemination of data for purposes of this administrative regulation.

(6) "Report" means a summary or compilation of data disseminated to the public.

Section 2. Encounter-Level Data. Encounter-level data shall be released in an electronic text file and shall include the following data elements:

Section 3. Summary Data.

(1) The cabinet shall not release data if KRS 216.2927 prohibits its release.

(2) The cabinet may include the following data elements, in any combination thereof, for encounter-level, aggregate, and summary report formats:

(a) Diagnoses and procedures, primary, and any other level;

(b) Diagnosis and procedure groupings, including diagnostic related groups, major diagnostic categories, and agency for health care policy and research clinical classification system;

(d) Age or age grouping;

(e) Discharge status;

(f) Payor category, all levels;

(g) Charge information, total and ancillary;

(h) County of patient residence;

(i) County of provider;

(j) Ancillary department information;

(k) Length of stay, total, and average;

(l) External cause of injury;

(m) Race or ethnicity; or

(n) Mortality rate. Reports including mortality rates shall be adjusted by severity of illness by reputable grouping software, either on a contract basis or by the cabinet.

(3) Data shall not be withheld from the public or another interested party based solely on an unfavorable profile of a provider or group of providers, if the data is deemed reliable, accurate, and sufficiently free of error, as determined by the cabinet and pursuant to 900 KAR 7:030.

Section 4. Release of Data.

(1) A person or agency shall, as a condition for receiving data from the cabinet, sign an Agreement for Use of Kentucky Health Facility and Services Data. A person or agency receiving data shall agree to adhere to the confidentiality requirements established in subsection (2) of this section and KRS 216.2927.

(2) To protect patient confidentiality:

(a) A report or summary of data that contains cells with a record value of one (1) through ten (10) shall not be released or made public if the cell's original size can be determined by subtraction from the total;

(b) If the circumstances described in paragraph (a) of this subsection occur then:

Totals shall be removed from the table; or
The exact number of the next smallest cell shall be withheld;

(d) A person or agency receiving data shall not redistribute or sell a subset of the data or an aggregate product of the data;

(e) Distribution of data received by the cabinet shall be approved by the custodial agency prior to receipt of the data;

(f) The data collected pursuant to 900 KAR 7:030 shall be used only for the purpose of health statistical reporting and analysis or as specified in the user's written request for the data; and

(g) A user shall not attempt to link the public use data set with an individually identifiable record from another data set.

Section 5. Fees.

(1) The cabinet shall charge a fee not to exceed $1,500 for the purchase of a single copy of an annual, public-use data set.

(2) A public-use data set shall be available for purchase no later than sixty (60) days after the end of the facility reporting period as established in 900 KAR 7:030. Special requests for data shall be prioritized and completed at the discretion of the custodial agency.

Section 6. Incorporation by Reference.

(1) "Agreement for Use of Kentucky Health Facility and Services Data", May 2023, 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, Office of Data Analytics, 275 East Main Street 4WE, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available on the office's Web site at https://www.chfs.ky.gov/agencies/ohda/Pages/hfsd.aspx.

History

RELATES TO: KRS 61.870-61.884, 216.2920, 216.2927, 216.2929
STATUTORY AUTHORITY: KRS 194A.050(1), 216.2923(2)(b)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216.2923(2)(b) requires the Cabinet for Health and Family Services to promulgate administrative regulations for its transactions related to KRS 216.2920 to 216.2929. KRS 216.2927 mandates that personally identifying data collected by the Cabinet for Health and Family Services from health care providers not be released to the general public nor be allowed public inspection under KRS 61.870 to 61.884. This administrative regulation establishes the guidelines for distribution and publication of data collected by the cabinet pursuant to 900 KAR 7:030, while maintaining patient confidentiality and further protecting personally identifying information.
History: 27 Ky.R. 886; Am. 1263; eff. 11-17-2000; Recodified from 902 KAR 17:050, 6-7-2004; 35 Ky.R. 1319; 1802; eff. 2-6-2009; Recodified from 902 KAR 19:030, 4-2-2009; 38 Ky.R. 618; eff. 9-13-2011; 43 Ky.R. 2232; 44 Ky.R. 530; eff. 9-20-2017; 50 Ky.R. 1382; eff. 6-18-2024.

Chapter 9 Kentucky Health Information Exchange

900 KAR 9:010 Kentucky Health Information Exchange participation {#sec-900-kar-9-010 omnilex-key=us-ky-regs-official--title-900--900 KAR 9:010}

Section 1. Definitions.

(1) "CCD" means the Continuity of Care Document, which is:

(a) Defined by the Health Information Technology Standards Panel (HITSP); and

(b) Found in the HL7 Implementation Guide: CDA Release 2 - Continuity of Care Document (CCD).

(2) "Edge services" means hardware and software technology used in the storage and transmission of participant data.

(3) "Health care provider" is defined by KRS 311.621(10).

(4) "HL7 transaction" means the specifications for electronic data exchange by health care environments as defined by HITSP.

(5) "Interface" means the point of interaction or communication between the participant's health information system and the KHIE.

Section 2. Participation in the KHIE. In order to participate in the KHIE, the health care provider shall:

(1) Have entered into an agreement, using:

(a) DHI - Form 1A, Kentucky Office of Health Data and Analytics, Division of Health Information, Hospital Participation Agreement;

(b) DHI - Form 1B, Kentucky Office of Health Data and Analytics, Division of Health Information, Other Provider Participation Agreement; or

(c) DHI - Form 1C, Kentucky Office of Health Data and Analytics, Division of Health Information, Pharmacy Participation Agreement;

(2) Continue to operate under the agreement entered into under subsection (1) of this section without the agreement being terminated; and

(3) Be:

(a) A covered entity as defined by 45 C.F.R. 160.103;

(b) The Kentucky Department for Medicaid Services; or

Section 3. Kentucky Health Information Exchange services. KHIE shall provide information sharing and software for the following:

(1) A CCD interface using web services to support data exchange with participants;

(2) Support for a standard series of HL7 transactions sent from the health care provider's health information system via secure edge services for storage and retrieval; and

(3) Collaboration with participants to support development of the interfaces required for participants to connect to KHIE.

Section 4. Participant responsibilities. Participants shall be responsible for building interfaces to connect to the KHIE.

Section 5. Data exchanged by the Kentucky Health Information Exchange. KHIE may exchange data and make data available consisting of patient admission, discharge and transfer systems, laboratory systems, diagnostic imaging systems, medication histories, allergies, and technologically available patient information required to support data exchange.

Section 6. Access to data by participants. Participants may access data through the KHIE as well as provide data through the KHIE for access by other participants.

Section 7. Access to other health information exchanges. DHI may establish arrangements with other health information exchanges to allow participants access to data permitted by DHI - Form 1A, DHI - Form 1B, or DHI - Form 1C.

Section 8. Recipient of Kentucky Health Information Exchange Services. A health care provider that is participating in the KHIE shall qualify to become a recipient of KHIE services upon:

(1) Validation of any KHIE Go-Live transaction by the participant and DHI; and

(2) The sending of electronic notification of Go-Live approval by DHI to the participant.

Section 9. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) DHI - Form 1A, "Kentucky Office of Health Data and Analytics, Division of Health Information, Hospital Participation Agreement", January, 2019;

(b) DHI - Form 1B, "Kentucky Office of Health Data and Analytics, Division of Health Information, Other Provider Participation Agreement ", January, 2019;

(c) DHI - Form 1C, "Kentucky Office of Health Data and Analytics, Division of Health Information, Pharmacy Participation Agreement", January, 2019; and

(d) "HL7 Implementation Guide: CDA Release 2 - Continuity of Care Document (CCD)", April 01, 2007.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Cabinet for Health and Family Services, Office of Health Data and Analytics, 8 Mill Creek Park, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 194A.030(1)(d), 311.621(10), 42 C.F.R. Part 495, 45 C.F.R. 160.103, Part 164
STATUTORY AUTHORITY: KRS 194A.030, 194A.050(1), 205.520, EO 2018-325
NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.030(1)(d) requires the Governor's Office of Electronic Health Information (GOEHI) within the Cabinet for Health and Family Services to improve patient care, reduce medical errors, and make more efficient use of health care dollars by reducing redundant services. EO 2018-325 abolished GOEHI and transferred its functions to the Office of Health Data and Analytics (OHDA) within the Cabinet for Health and Family Services. To support the health care delivery system using electronic information technology as directed by KRS 194A.030(1)(d) and EO 2018-325, the Office of Health Data and Analytics, Division of Health Information (DHI) has implemented the Kentucky Health Information Exchange (KHIE). This administrative regulation establishes the procedures for participation by health care providers in the KHIE.
History: 38 Ky.R. 2121; 39 Ky.R. 770; eff. 10-17-2012; TAm eff. 9-15-2014; 45 Ky.R. 2210, 2683; eff. 3-13-2019; Crt eff. 1-26-2026.

Chapter 10 Kentucky Health Benefit Exchange

900 KAR 10:111 Definitions for 900 KAR Chapter 10 {#sec-900-kar-10-111 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:111}

Section 1. Definitions.

(1) "Actuarial value" means the percentage of the total allowed costs of benefits paid by a health plan.

(2) "Advance payments of the premium tax credit" or "APTC" means payment of the tax credits that are:

(a) Authorized by 26 U.S.C. 36B and its implementing regulations; and

(b) Provided on an advance basis to an eligible individual enrolled in a qualified health plan through an exchange in accordance with 42 U.S.C. 18082.

(3) "Adverse witness" means a person who gives unfavorable evidence against the party that called him or her as its witness.

(4) "Agent" is defined by KRS 304.9-020(1).

(5) "Annual open enrollment period" is defined by 45 C.F.R. 155.410(e).

(6) "Appeal record" means the official record of hearing as established by KRS 13B.130(1) through (10).

(7) "Appeal request" means a clear expression, either orally or in writing, by an applicant or enrollee to have an eligibility determination or redetermination contained in a notice issued in accordance with 45 C.F.R. 155.310(g) or 45 C.F.R. 155.330(e)(1)(ii).

(8) "Appellant" means the applicant or enrollee who is requesting an appeal.

(9) "Applicant" is defined by 45 C.F.R. 155.20.

(10) "Application filer" is defined by 45 C.F.R. 155.20.

(11) "Benefit year" means a calendar year for which a health plan provides coverage for health benefits.

(12) "Business entity" is defined by KRS 304.9-020(5).

(13) "Cabinet for Health and Family Services" or "CHFS" is defined by KRS 194A.005(1).

(14) "Cancellation" is defined by 45 C.F.R. 155.430(e)(2).

(15) "Catastrophic plan" means a health plan that meets the conditions of 45 C.F.R. 156.155.

(16) "Certificate of authority" is defined by KRS 304.1-110(1).

(17) "Certification" means a determination made on the KHBE by the division that a health plan or a stand-alone dental plan has met the requirements in 900 KAR 10:115.

(18) "Certified application counselor" or "CAC" means an individual employed by, or volunteer of, an entity designated by the division to perform the functions described in 45 C.F.R. 155.225.

(19) "Child-only plan" means an individual health policy that provides coverage to an individual under twenty-one (21) years of age and meets the requirements of 45 C.F.R. 156.200(c)(2).

(20) "Children's Health Insurance Program" or "CHIP" is defined by 42 C.F.R. 457.10.

(21) "COBRA" is defined by 26 C.F.R. 54.4980B-1.

(22) "Consultant" is defined by KRS 304.9-040.

(23) "Consumer operated and oriented plan" or "CO-OP" means a private, non-profit health insurance issuer that:

(a) Is established by 42 U.S.C. 18042; and

(b) Has a certificate of authority.

(24) "Cost sharing" is defined by 45 C.F.R. 155.20.

(25) "Cost sharing reduction" or "CSR" means a reduction in cost sharing for an eligible individual enrolled in a silver level plan in the KHBE or for an individual who is an Indian enrolled in a qualified health plan in the KHBE.

(26) "DAH" means the Division of Administrative Hearings of the Cabinet for Health and Family Services.

(27) "Date of notice" means the date on the notice plus five (5) calendar days.

(28) "Dental insurer" or "stand-alone dental plan issuer" means an insurer as defined by KRS 304.17C-010(4) that offers a limited health service benefit plan for dental services.

(29) "Department of Health and Human Services" or "HHS" means the U.S. Department of Health and Human Services.

(30) "Department of Insurance" or "DOI" means the department defined by KRS 304.1-050(2).

(31) "Dependent" is defined by 26 C.F.R. 54.9801-2.

(32) "Desk Review" means an administrative review of:

(a) Information submitted as part of the application process;

(b) Any supporting documentation used to determine or redetermine an appellant's eligibility; and

(33) "Division of Health Benefit Exchange" or "division" means the division created to administer the KHBE.

(34) "Employee" is defined by 42 U.S.C. 300gg-91(d)(5).

(35) "Employer" is defined by 42 U.S.C. 300gg-91(d)(6).

(36) "Enrollee" means an eligible individual enrolled in a qualified health plan or qualified stand-alone dental plan.

(37) "Essential community provider" means either a:

(a) Provider determined and approved by HHS as an essential community provider for the Commonwealth of Kentucky; or

(b) Regional community services program for mental health or individuals with an intellectual disability established pursuant to KRS 210.370 through KRS 210.480, operating in Kentucky, and licensed pursuant to 902 KAR 20:091.

(38) "Essential community provider category" means a provider as established in 45 C.F.R. 156.235(a)(2)(ii)(B).

(39) "Essential health benefits" means benefits as identified by 42 U.S.C. 18022 and approved by the Secretary of HHS for the Commonwealth of Kentucky.

(40) "Exemption" means an exemption from the shared responsibility payment.

(41) "Family size" means the number of individuals in a family for whom a taxpayer properly claims a deduction for a personal exemption under 26 U.S.C. 151 for the taxable year.

(42) "Federal poverty level" or "FPL" means the most recently published federal poverty level, updated periodically in the Federal Register by the Secretary of Health and Human Services under the authority of 42 U.S.C. 9902(2), as of the first day of the annual open enrollment period for coverage in a qualified health plan through the Kentucky Health Benefit Exchange.

(43) "Final order" is defined by KRS 13B.010(6).

(44) "Formal review request" means a clear expression, either orally or in writing, by a small business employer to have any eligibility determination or redetermination contained in a notice issued in accordance with 45 C.F.R. 155.310(g), 45 C.F.R. 155.330(e)(1)(ii), 45 C.F.R. 155.335(h)(1)(ii), or 45 C.F.R. 155.715(e) or (f).

(45) "Full-time employee" is defined by 45 C.F.R. 155.20.

(46) "Group participation rate" means the minimum percentage of all eligible individuals or employees of an employer that is required to be enrolled

(47) "Health plan" is defined by 42 U.S.C. 18021(b)(1).

(48) "Health plan form" or "form" means an application, policy, certificate, contract, rider, endorsement, provider agreement, or risk sharing arrangement filed in accordance with 806 KAR 14:007 and 806 KAR 17:300.

(49) "Health Reimbursement Arrangement" or "HRA" means a plan funded solely by employer contributions that reimburses employees for medical care and other qualified expenses, incurred by the employee, or his spouse, dependents, and any children who, as of the end of the taxable year, have not attained age 27, up to a maximum amount for a coverage period.

(50) "Hearing" is defined by KRS 13B.010(2).

(51) "Hearing officer" means a hearing officer employed by DAH.

(52) "Household income" is defined by 26 C.F.R. 1.36B-1(e).

(53) "Indian" is defined by 25 U.S.C. 1603(13).

(54) "Individual exchange" means the Kentucky Health Benefit Exchange that serves the individual health insurance market.

(55) "Individual market" is defined by KRS 304.17A-005(28).

(56) "Insurance affordability program" means one (1) of the following:

(a) A state Medicaid program under title XIX of the Social Security Act, 42 U.S.C. 301 et seq.;

(b) A state children's health insurance program (CHIP) under title XXI of the Social Security Act, 42 U.S.C. 301 et seq.;

(c) A program that makes coverage in a qualified health plan through the exchange with advance payments of the premium tax credit available to qualified individuals; or

(d) A program that makes coverage in a qualified health plan through the exchange with CSRs available to qualified individuals.

(57) "Issuer" is defined by 45 C.F.R. 144.103.

(58) "Issuer application assister" means an employee, contractor, or agent of a QHP issuer who is not licensed as an agent, broker, or producer under state law and who assists individuals in the individual market with applying for a determination or redetermination of eligibility for coverage through the KHBE or for insurance affordability programs.

(59) "Judicial review" means a court's review of factual or legal findings of an administrative body.

(60) "Kentucky Children's Health Insurance Program" or "KCHIP" means the separate child health program established by the commonwealth of Kentucky to administer CHIP.

(61) "Kentucky Health Benefit Exchange" or "KHBE" or "Exchange" means the Kentucky state-based exchange approved by HHS pursuant to 45 C.F.R. 155.105 to offer a QHP or SADP that utilizes the state provided information technology infrastructure known as kynect to provide for eligibility determinations and consumer enrollment in qualified health plans and stand-alone dental plans and that includes:

(a) An individual exchange; and

(b) SHOP.

(62) "Kentucky online gateway" or "KOG" means the system for identity authentication services used by the division to register a kynector or agent.

(63) "kynector" means a CAC or navigator.

(64) "Lawfully present" is defined by 45 C.F.R. 152.2.

(65) "MAGI-based income" is defined by 42 C.F.R. 435.603(e).

(66) "Managed care plan" is defined by KRS 304.17A-500(9).

(67) "Medicaid" means the program established pursuant to 42 C.F.R. parts 430 through 456.

(68) "Metal level of coverage" means health care coverage provided within the variation established in 45 C.F.R. 156.140(c) of the full actuarial value as follows:

(a) Bronze level with an actuarial value of sixty (60) percent;

(b) Silver level with an actuarial value of seventy (70) percent;

(d) Platinum level with an actuarial value of ninety (90) percent.

(69) "Minimum essential coverage" or "MEC" is defined by 26 U.S.C. 5000A(f).

(70) "Multi-state plan" means a health plan that is offered under a contract with the U.S. Office of Personnel Management in accordance with 42 U.S.C. 18054.

(71) "Navigator" means an entity that is selected by the division and shall comply with the requirements of 42 U.S.C. 18031(i), 45 C.F.R. 155.205(d)-(e), and 45 C.F.R. 155.210.

(72) "Non-citizen" means "alien" as defined by 8 U.S.C. 1101(a)(3).

(73) "Organization" means an entity as follows:

(a) Community health center;

(b) Hospital;

(d) Indian health service provider;

(e) Ryan White HIV/AIDS provider;

(f) Behavioral or mental health provider; or

(g) An agency with experience providing social services, nutrition assistance, energy assistance, legal services, or tax assistance that is a:

Non-federal government entity;
501(c) organization; or
Local government agency.

(74) "Participating agent" means an agent who has been registered with the division on KHBE through KOG.

(75) "Participation agreement" means an agreement between the division and the issuer to offer a QHP or stand-alone dental plan on the KHBE.

(76) "Pediatric dental essential health benefit" means the pediatric dental services required by 42 U.S.C. 18022(b)(1)(J) and provided to an individual under the age of twenty-one (21) years.

(77) "Personal exemption deduction" means an amount that can be deducted from taxable income based on the exemption given to any tax filer who cannot be claimed as a dependent by another tax filer.

(78) "Personally identifiable information" means any data about an individual that could potentially identify that individual.

(79) "Plan management data template" means the data collection templates that are:

(a) Used to facilitate data submission through SERFF for certification of qualified health plan issuers, qualified health plans, qualified stand-alone dental plan issuers, and qualified stand-alone dental plans as established in CMS Form Number CMS-10433, as amended; and

(b) Located at https://www.qhpcertification.cms.gov/s/QHP.

(80) "Plan year" means a consecutive twelve (12) month period during which a health plan provides coverage for health benefits.

(81) "Premium" is defined by KRS 304.14-030.

(82) "Provider network" is defined by KRS 304.17A-005(38).

(83) "Qualified employer" means an employer that elects to make, at a minimum, all full-time employees of the employer eligible for one (1) or more QHPs or SADPs in the small group market offered through the SHOP.

(84) "Qualified health plan" or "QHP" means a health plan that meets the standards established in 45 C.F.R. 156 Subpart C, 156.200-156.295, and that has in effect a certification issued by the division on the KHBE.

(85) "Qualified individual" means an individual who has been determined eligible to enroll through the KHBE in a QHP or SADP in the individual market.

(86) "Qualified small employer health reimbursement arrangement" or "QSEHRA" means an HRA for use by small employers.

(87) "Qualifying coverage in an eligible employer-sponsored plan" means coverage in an eligible employer-sponsored plan that meets the affordability and minimum value standards established by 26 U.S.C. 36B(c)(2)(C).

(88) "Qualifying event" means an event that triggers a SEP for an individual to enroll in health insurance coverage.

(89) "Recommended order" is defined by KRS 13B.010(5).

(90) "Service area" means a geographical area in which an issuer may offer a QHP.

(91) "Shared responsibility payment" means a penalty imposed for failing to meet the requirement to maintain minimum essential coverage in accordance with 26 U.S.C. 5000A.

(92) "SHOP" means a Small Business Health Options Program operated by the Kentucky Health Benefit Exchange through which small employers that meet the standards established in 45 C.F.R. 155.710 may obtain an eligibility determination from KHBE that allows the small employer to purchase one (1) or more QHPs or SADPs that have been certified by KHBE through either:

(a) A participating agent; or

(b) An issuer offering QHPs or SADPs on the KHBE.

(93) "Silver level" is defined by 42 U.S.C. 18022(d)(1)(B).

(94) "Small employer" is defined by KRS 304.17A-005(44).

(95) "Small group" is defined by KRS 304.17A-005(45).

(96) "Special enrollment period" or "SEP" means a period, as described in 45 C.F.R. 155.420, during which a qualified individual or enrollee who experiences certain qualifying events may enroll in, or change enrollment in, a QHP through the KHBE outside the annual open enrollment period.

(97) "Stand-alone dental plan" or "SADP" means a dental plan as established by 45 C.F.R. 155.1065 that has been certified by the division on the KHBE to provide dental benefits, including a pediatric dental essential health benefit.

(98) "Summary of Benefits and Coverage" or "SBC" means a standard format, created in accordance with 42 U.S.C. 300gg-15, for providing information to consumers about a health plan's coverage and benefits.

(99) "System for Electronic Rate and Form Filing" or "SERFF" means an online system established and maintained by the National Association of Insurance Commissioners (NAIC) that enables an issuer to send and a state to receive, comment on, and approve or reject rate and form filings.

(100) "Tax filer" is defined by 45 C.F.R. 155.300.

(101) "Termination" is defined by 45 C.F.R. 155.430(e)(1).

(102) "Training" means the training established by the division for agents and kynectors.

(103) "Vacate" means to set aside a previous action.

History

RELATES TO: KRS 13B.010, 13B.130, 194A.005(1), 210.370-210.480, 304.1-050(2), 304.1-110(1), 304.9-020(1), (5), 304.9-040, 304.14-030, 304.17A-005, 304.17A-500(9), 304.17C-010(4), 8 U.S.C. 1101(a)(3), 25 U.S.C. 1603(13), 36B, 151, 5000A, 42 U.S.C. 300gg-15, 300gg-91, 301, 9902(2), 18021, 18022, 18031, 18042, 18054, 18082, 26 C.F.R. 1.36B-1(e), 54.4980B-1, 54.9801-2, 42 C.F.R. Parts 430-456, 435.603(e), 457.10, 45 C.F.R. 144.103, 152.2, 155.20, 155.105, 155.205, 155.210, 155.225, 155.300, 155.310(g), 155.330, 155.335, 155.410, 155.420, 155.430, 155.710, 155.715, 155.1065, 156.140(c), 156.155, 156.200-156.295
STATUTORY AUTHORITY: KRS 194A.050(1)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Office of Health Data and Analytics, Division of Health Benefit Exchange has responsibility to administer the Kentucky Health Benefit Exchange. KRS 194A.050(1) requires the secretary of the cabinet to promulgate administrative regulations necessary to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the commonwealth; to operate the programs and fulfill the responsibilities vested in the cabinet; and to implement programs mandated by federal law. This administrative regulation establishes the definitions for 900 KAR Chapter 10.
History: 47 Ky.R. 2194; eff. 7-21-2021.

900 KAR 10:115 Exchange participation requirements and certification of qualified health plans and qualified stand-alone dental plans {#sec-900-kar-10-115 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:115}

Section 1. Participation Standards for Issuers Offering a Qualified Health Plan. In order to participate on KHBE, an issuer offering a QHP shall:

(1) Hold a certificate of authority that would permit the issuer to offer a health benefit plan and be in good standing with the Kentucky DOI;

(2) Be authorized by the division to participate on the KHBE;

(3) By February 1 of each year, submit Form KHBE-C1, Issuer Participation Intent Form, a nonbinding notice of intent to participate on KHBE during the next calendar year;

(4) Enter into a participation agreement with the division;

(5) Offer KHBE certified QHPs in the individual exchange or SHOP;

(6) Comply with benefit design standards as defined in 45 C.F.R. 156.20;

(7) Provide coverage of the:

(a) Essential health benefits; or

(b) Essential health benefits excluding pediatric dental essential health benefits, if a stand-alone pediatric dental essential health benefit is offered on the KHBE in accordance with 45 C.F.R. 155.1065;

(8) Comply with applicable standards established in 45 C.F.R. Part 153;

(9) Not discriminate, with respect to a QHP, on the basis of race, color, national origin, disability, age, sex, gender identity, or sexual orientation;

(10) Comply with the non-discrimination requirements in 42 U.S.C. 300gg-5;

(11) Submit verification of issuer compliance with the requirements of 45 C.F.R. 156.340, including compliance of a delegated and downstream entity;

(12) Submit via SERFF:

(a) A quality improvement strategy plan in compliance with 45 C.F.R. 156.200(b)(5) and 45 C.F.R. 156.1130; and

(b) An attestation that the issuer shall comply with the quality requirements identified in 45 C.F.R. 156.200(b)(5) including:

Collection, disclosure, and report of information related to health care quality and outcomes in year two (2) of offering QHPs on the KHBE and annually thereafter; and
Implementation of an enrollee satisfaction survey in year two (2) of offering QHPs on the KHBE and annually thereafter;

(13) Comply with the provisions of 45 C.F.R. 156.210;

(14) For the individual exchange, offer at least a:

(a) QHP with a silver metal level of coverage;

(b) QHP with a gold metal level of coverage; and

(15) For SHOP, offer at least a:

(a) QHP with a silver metal level of coverage; and

(b) QHP with a gold metal level of coverage;

(16) Make its provider directory for a QHP available:

(a) To a potential enrollee in hard copy upon request; and

(b) In accordance with 45 C.F.R. 156.230;

(17) If participating in the small group market, comply with KHBE processes, procedures, and requirements established in accordance with 45 C.F.R. 155.706 and 900 KAR 10:120 for the small group;

(18) Allow a registered participating agent to enroll qualified individuals on KHBE in accordance with the requirements of 900 KAR 10:125;

(19)

(a) Offer a QHP in a statewide service area; or

(b) Offer a QHP in a service area less than statewide if:

The issuer's service area includes one (1) or more counties;
The issuer's service area is approved by the DOI; and
The issuer's service area is established in a nondiscriminatory manner with regard to:

a. Race;

b. Ethnicity;

c. Language;

d. Health status of an individual in a service area; or

e. A factor that excludes a high utilizing, high cost, or medically-underserved population;

(20) Comply with the requirements of KRS 304.12-020, 304.14-120, 304.17-380, 304.17A-095, 304.17A-240-304.17A-245, 304.17A.515, 304.17A-590, and KRS Chapter 304;

(21) Have the option to offer QHPs to include benefits in excess of the essential health benefits if the issuer also offers at least one (1) QHP on the exchange at the same metal level of coverage that is limited to the essential health benefits; and

(22) Have the option to offer a catastrophic plan on the individual exchange.

Section 2. QHP Rate and Benefit Information.

(1) A QHP issuer shall:

(a) Comply with the provisions of 45 C.F.R. 156.210 and KRS 304.17A-095;

(b) Submit to DOI through the SERFF system:

Form filings in compliance with KRS 304.14-120;
Rate filings in compliance with KRS 304.17A-095; and
Plan management data templates; and

(c)

Receive approval from DOI for a rate filing prior to implementation of the approved rate; and
For a rate increase that meets the criteria in 45 C.F.R. 154.230, post the justification prominently on the QHP issuer's Web site.

(2) A CO-OP, multi-state plan, and a qualified SADP shall comply with the requirements established in subsection (1) of this section.

(3) A QHP issuer shall comply with the maintenance of records standards pursuant to 45 C.F.R. 156.705.

(4) To be certified as a QHP, a health plan shall provide coverage of the:

(a) Essential health benefits; or

(b) Essential health benefits excluding pediatric dental benefits if there is at least one (1) SADP offered in each county through the KHBE.

Section 3. QHP Certification Timeframes.

(1) The division shall take final action on a request for certification no later than twenty-five (25) calendar days prior to the start of the annual open enrollment period for the following plan year.

(2) A QHP not certified by twenty-five (25) calendar days prior to the start of the annual open enrollment period shall not be offered on the KHBE at any time during the following calendar year.

Section 4. Transparency in Coverage.

(1) A QHP issuer shall provide the following information to the KHBE in accordance with the standards established in subsection (2) of this section:

(a) Data as identified in 45 C.F.R. 155.1050(a), 156.220, and 156.230;

(b) An SBC written in English for each CSR level in a QHP with the exception of zero cost sharing level for an Indian;

(c) An SBC written in Spanish for each CSR level in a QHP with the exception of zero cost sharing level for an Indian, with verification that the Spanish language version is a certified translation of the English version;

(d) If the plan includes a health reimbursement account, flexible spending account, or health savings account, a spending account fact sheet written in English for each CSR level in a QHP consistent with the requirements in KRS 304.12-020 and 806 KAR 12:010;

(e) If the plan includes a health reimbursement account, flexible spending account, or health savings account, a spending account fact sheet written in Spanish for each CSR level in a QHP with verification that the Spanish language version is a certified translation of the English version; and

(f) Information on patient responsibility for out-of-network coverage.

(2) A QHP issuer shall:

(a) Submit in an accurate and timely manner, to be determined by HHS, the information established in subsection (1)(a) and (f) of this section to the KHBE;

(b) Provide public access to the information established in subsection (1) of this section;

(c) Provide the items established in subsection (1)(b) and (d) of this section to KHBE within five (5) calendar days of the date DOI has approved rate and form filings in SERFF; and

(d) Provide the items established in subsection (1)(c) and (e) of this section to KHBE within fourteen (14) calendar days of the date KHBE has approved the items established in paragraph (c) of this subsection.

(3) A QHP issuer shall ensure that the information submitted under subsection (1) of this section is provided in plain language as the term is defined by 45 C.F.R. 155.20.

(4)

(a) A QHP issuer shall make available, in a timely manner, information about the amount of enrollee cost sharing under the enrollee's plan or coverage relating to provision of a specific item or service by a participating provider upon the request of the enrollee.

(b) The information shall be made available to an enrollee through:

The internet; and
Other means if the enrollee does not have access to the internet.

(5) A QHP issuer may provide the following information to KHBE in accordance with the standards established by subsection (2) of this section:

(a) An SBC written in English for each zero cost sharing level for an Indian in a QHP; and

(b) An SBC written in Spanish for each zero cost sharing level for an Indian in a QHP, with verification that the Spanish language version is a certified translation of the English version.

Section 5. Marketing and Benefit Design of QHPs. A QHP issuer and its officials, employees, agents, and representatives shall:

(1) Comply with issuer marketing practices provided under KRS Chapter 304.17A and 806 KAR 12:010; and

(2) Not employ marketing practices or benefit designs that will have the effect of discouraging the enrollment of individuals with complex health care needs in QHPs.

Section 6. Network Adequacy Standards.

(1) A QHP issuer shall ensure that the provider network of a QHP:

(a) Is available to all enrollees within the QHP service area;

(b) Includes essential community providers in the QHP provider network in accordance with 45 C.F.R. 156.235 and meets the network adequacy standards for essential community providers as established in Section 7 of this administrative regulation;

(c) Maintains a network that is sufficient in number and types of providers, including providers that specialize in mental health and substance use disorder services, to assure that all services will be provided in a timely manner; and

(d)

If a managed care plan, meets the reasonable network adequacy provisions of 45 C.F.R. 156.230 and KRS 304.17A-515; or
If not a managed care plan, meets the reasonable network adequacy provisions of 45 C.F.R. 156.230 and KRS 304.17A-515.

(2) A QHP issuer shall make its provider directory for a QHP available:

(a) To the KHBE for online publication;

(b) To potential enrollees in hard copy upon request; and

(3) A QHP issuer shall identify in the QHP provider directory a provider that is not accepting new patients.

Section 7. Network Adequacy Standards for Essential Community Providers. A QHP issuer shall:

(1)

(a) Demonstrate a provider network, which includes at least the minimum percentage of available essential community providers in the QHP service area who participate in the issuer's provider network as required by 45 C.F.R. 156.235(a)(2)(i); and

(b) Offer a contract to:

At least one (1) essential community provider in each essential community provider category in each county in the service area where an essential community provider in that category is available; and
Available Indian health service providers in the service area; or

(2) If unable to comply with the requirements in subsection (1) of this section, submit a supplementary response via SERFF.

Section 8. Health Plan Notices. A QHP issuer shall provide notices to enrollees pursuant to standards established in 45 C.F.R. 155.230.

Section 9. Consistency of Premium Rates Inside and Outside the KHBE for the Same QHP. A QHP issuer shall charge the same premium rate without regard to whether the plan is offered:

(1) Through the KHBE;

(2) By an issuer outside the KHBE; or

(3) Through a participating agent.

Section 10. Enrollment Periods for Qualified Individuals.

(1) A QHP issuer participating in the individual market shall accept an enrollment during the open enrollment period or SEP for a qualified individual participating in the individual market with effective dates of coverage established by the division in accordance with 45 C.F.R. 155.410(f)(2) and 45 C.F.R. 155.420.

(2) A QHP issuer shall notify a qualified individual of the effective date of coverage.

(3) Except for renewal transactions prior to open enrollment, premium invoices shall be generated to a qualified individual within five (5) business days from receipt of KHBE enrollment transactions.

(4) A QHP issuer shall allow a qualified individual a minimum of thirty (30) days from the date of the initial invoice to submit premium payment before coverage can be cancelled.

(5) A QHP issuer shall allow a qualified individual a minimum of thirty (30) days from the date of a corrected invoice to submit premium payment before coverage can be terminated.

(6) Notwithstanding the requirements of this section, coverage shall not be effective until premium payment is received by the issuer.

(7) The issuer shall provide proof of coverage, including insurance identification cards, to enrollees within ten (10) calendar days of receipt of initial premium payment for ninety-nine (99) percent of enrollments.

Section 11. Enrollment Process for Qualified Individuals. A QHP issuer shall process enrollment of an individual in accordance with this section.

(1) A QHP issuer participating in the individual market shall enroll a qualified individual if the KHBE:

(a) Notifies the QHP issuer that the individual is a qualified individual; and

(b) Transmits information to the QHP issuer in accordance with 45 C.F.R. 155.400(a).

(2) If an applicant initiates enrollment directly with the QHP issuer for enrollment in a plan offered through the KHBE, the QHP issuer shall either:

(a) Direct the individual to file an application with the KHBE in accordance with 45 C.F.R. 155.310; or

(b) Ensure the applicant received an eligibility determination for coverage through the KHBE.

(3) A QHP issuer shall accept enrollment information in accordance with the privacy and security requirements pursuant to 45 C.F.R. 155.260 in an electronic format that meets the requirements pursuant to 45 C.F.R. 155.270.

(4) A QHP issuer shall follow the premium payment process in accordance with 45 C.F.R. 155.240.

(5) A QHP issuer shall provide new enrollees with an enrollment information package that complies with the accessibility and readability requirements established by 45 C.F.R. 155.230(b).

(6) A QHP issuer shall reconcile enrollment files with the KHBE no less than once a month in accordance with 45 C.F.R. 155.400(d).

(7) A QHP issuer shall acknowledge receipt of enrollment information transmitted from the KHBE in accordance with 45 C.F.R. 155.400(b)(2).

Section 12. Termination or Cancellation of Coverage for Qualified Individuals.

(1) A QHP issuer may terminate coverage of an enrollee in accordance with 45 C.F.R. 155.430(b)(2).

(2) If an enrollee's coverage in a QHP is terminated by the issuer, the QHP issuer shall:

(a) Provide the enrollee with a notice of termination of coverage that includes the reason for termination at least thirty (30) days prior to the final day of coverage, in accordance with the effective date established pursuant to 45 C.F.R. 155.430(d);

(b) If the termination is the result of death or termination by the issuer for non-payment of premium as established in subsections (3) through (8) of this section, provide the enrollee with a notice of termination of coverage within at least thirty (30) days of the action to terminate that includes the reason for termination, in accordance with the effective date established pursuant to 45 C.F.R. 155.430(d);

(d) Comply with the requirements of KRS 304.17A-240 to 304.17A-245.

(3) Termination of coverage of enrollees due to non-payment of premium in accordance with 45 C.F.R. 155.430(b)(2)(ii) shall:

(a) Include the grace period for enrollees receiving APTC as established in 45 C.F.R. 156.270(d); and

(b) Be applied uniformly to enrollees in similar circumstances.

(4) Prior to termination of coverage, a QHP issuer shall provide a grace period of three (3) consecutive months if an enrollee receiving APTC has previously paid at least one (1) full month's premium during the benefit year.

(5) During the grace period, the QHP issuer:

(a)

Shall pay claims for services provided to the enrollee in the first month of the grace period; and
May suspend payment of claims for services provided to the enrollee in the second and third months of the grace period;

(b) Shall notify the KHBE of the non-payment of the premium due; and

(c) Shall notify providers of the possibility for denied claims for services provided to an enrollee in the second and third months of the grace period.

(6) For the three (3) month grace period established in subsection (4) of this section, a QHP issuer shall:

(a) Continue to collect APTC on behalf of the enrollee from the U.S. Department of the Treasury; and

(b) Return APTC paid on behalf of the enrollee for the second and third months of the grace period if the enrollee exhausts the grace period as established in subsection (8) of this section.

(7) If an enrollee is delinquent on premium payment, the QHP issuer shall provide the enrollee with a notice of the payment delinquency.

(8) If an enrollee receiving APTC exhausts the three (3) month grace period in subsection (4) of this section without paying the outstanding premiums, the QHP issuer shall terminate the enrollee's coverage on the effective date of termination established in 45 C.F.R. 155.430(d)(4).

(9) A QHP issuer shall maintain records pursuant to 45 C.F.R. 155.430(c).

(10) A QHP issuer shall comply with the termination of coverage effective dates as established in 45 C.F.R. 155.430(d).

(11) A QHP issuer may cancel coverage of an enrollee in accordance with 45 C.F.R. 155.430(b)(2) and (e).

(12) If an enrollee's coverage in a QHP is cancelled by the issuer for any reason, the QHP issuer shall:

(a) Provide the enrollee with a notice of cancellation of coverage that includes the reason for cancellation within at least thirty (30) days of the action to cancel coverage, in accordance with the effective date established pursuant to 45 C.F.R. 155.430(d);

(b) Notify the KHBE of the cancellation effective date and reason for cancellation; and

(13) Cancellation of coverage of enrollees due to non-payment of premium in accordance with 45 C.F.R. 155.430(b)(2)(ii) shall be applied uniformly to enrollees in similar circumstances.

(14) A QHP issuer shall comply with the cancellation of coverage effective dates as established in 45 C.F.R. 155.430(d).

(15) If coverage of an enrollee is terminated or cancelled by the KHBE for any reason, the QHP issuer shall provide the enrollee a notice of the termination or cancellation within fifteen (15) days of processing the termination or cancellation transaction from the KHBE or upon the expiration of the grace period, whichever occurs first.

Section 13. Accreditation of QHP Issuers.

(1) A QHP issuer shall:

(a) Be accredited on the basis of local performance of a QHP by an accrediting entity recognized by HHS in categories identified by 45 C.F.R. 156.275(a)(1); and

(b) Pursuant to 45 C.F.R. 156.275(a)(2), authorize the accrediting entity that accredits the QHP issuer to release to the KHBE and HHS:

A copy of the most recent accreditation survey; and
Accreditation survey-related information that HHS may require, including corrective action plans and summaries of findings.

(2) A QHP issuer shall be accredited prior to the fourth year of QHP certification and in every subsequent year of certification thereafter in accordance with the requirements and timeline identified under 45 C.F.R. 155.1045.

(3) A QHP issuer that has not received accreditation shall submit an attestation to the division that the issuer shall obtain accreditation in accordance with subsection (1)(a) of this section.

(4) The QHP issuer shall maintain accreditation so long as the QHP issuer offers QHPs.

Section 14. Decertification of QHPs.

(1) If a QHP is decertified by the division pursuant to 45 C.F.R. 155.1080 or withdrawn by the issuer after certification, the QHP issuer shall terminate coverage of enrollees only after:

(a) The KHBE has provided notification as required by 45 C.F.R. 155.1080(e);

(b) Enrollees have an opportunity to enroll in other coverage; and

(2) If a QHP issuer fails to meet ongoing compliance requirements of Section 18 of this administrative regulation, the division may require the issuer to:

(a) Submit a corrective action plan to address deficiencies to ongoing compliance requirements within thirty (30) days of notification of the deficiency; and

(b) Submit evidence of compliance with the corrective action plan within the timeframes established in the division approved corrective plan.

(3) If the division finds that the QHP issuer failed to meet the requirements of subsection (2) of this section, the division may implement a prohibition against new enrollments on KHBE for the QHP issuer and market segment out of compliance or may decertify all plans offered by the QHP issuer within the market segment.

Section 15. General Requirements for a Stand-alone Dental Plan.

(1) In order for a dental insurer to participate in the KHBE and offer a stand-alone dental plan, the dental insurer shall:

(a) Hold a certificate of authority that would permit the issuer to offer dental plans and be in good standing with the DOI;

(b) Be authorized by the division to participate on the KHBE;

(c) By February 1 of each year, submit Form KHBE-C1, Issuer Participation Intent Form, a nonbinding notice of intent to participate on KHBE during the next calendar year;

(d) Enter into a participation agreement with the division;

(e) Offer a dental plan certified on the KHBE in accordance with this administrative regulation in the individual exchange or SHOP that shall comply with the requirements of KRS Chapter 304 Subtitle 17C;

(f) Submit to DOI through the SERFF system:

Form filings in compliance with KRS Chapter 304;
Rate filings in compliance with KRS 304.17-380; and
Dental plan management data templates;

(g) Offer a SADP that shall:

Provide the pediatric dental essential health benefits required by 42 U.S.C. 18022(b)(1)(J) for individuals up to twenty-one (21) years of age; and
Have an annual limitation on cost sharing for a SADP covering the pediatric dental essential health benefits at or below the limits permitted by 45 C.F.R. 156.150;

(h) Comply with the:

Provider network adequacy requirements identified by KRS 304.17C-040 and maintain a network that is sufficient in number and types of dental providers to assure that all dental services will be accessible without unreasonable delay in accordance with 45 C.F.R. 156.230;
Requirements for a SADP referenced in 45 C.F.R. 156 Subpart E; and
Essential community provider requirements in 45 C.F.R. 156.235;

(i) Not discriminate, with respect to a pediatric dental plan, on the basis of race, color, national origin, disability, age, sex, gender identity, or sexual orientation; and

(j) Make its provider directory for a SADP available:

To the KHBE for online publication;
To potential enrollees in hard copy upon request; and
In accordance with KRS 304.17A-590.

(2) A dental insurer offering a stand-alone dental plan participating in the KHBE shall provide the following information to the division on the KHBE:

(a) Statement of dental coverage that is:

Written in English consistent with the requirements in KRS 304.12-020 and 806 KAR 12:010; and
Submitted within five (5) calendar days of the date DOI has approved rate and form filings in SERFF; and

(b) Statement of dental coverage that is:

Written in Spanish with verification that the Spanish language version is a certified translation of the English version; and
Submitted within fourteen (14) calendar days of the date KHBE has approved the item described in paragraph (a) of this subsection.

Section 16. Enforcement by DOI. The DOI shall be responsible for enforcing the requirements of KRS Chapter 304 and any administrative regulations promulgated thereunder against any issuer.

Section 17. Timeframes for Transactions.

(1) A QHP issuer shall generate a required acknowledgement and process all KHBE initiated transactions within forty-eight (48) hours of receipt of a complete electronic transaction from the KHBE for ninety-five (95) percent of enrollments.

(2) A QHP issuer shall provide effectuation transactions to the KHBE within seventy-two (72) hours of receipt of the initial premium payment and issuer initiated cancellation and termination transactions within forty-eight (48) hours of the cancellation or termination of coverage for ninety-five (95) percent of cancellations and terminations.

Section 18. On-going Compliance. The division shall be responsible for enforcing the requirements referenced in 45 C.F.R. 155.1010(a)(2).

Section 19. Issuer Appeals.

(1) An issuer may appeal the division's decision to:

(a) Deny certification of a QHP;

(b) Implement a prohibition against new enrollments by a QHP issuer in a market segment; or

(2) An issuer appeal identified in subsection (1) of this section shall be made to the division in accordance with KRS Chapter 13B.

Section 20. Incorporation by Reference.

(1) Form KHBE-C1, "Issuer Participation Intent Form", Rev. March, 2021, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Health Benefit Exchange, 275 East Main Street 4WE, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m., or at www.khbe.ky.gov.

History

RELATES TO: KRS Chapter 13B, Chapter 304, 304.9-020(1), 304.12-020, 304.14-120, 304.17-380, 304.17A-095, 304.17A-240-304.17A-245, 304.17A.515, 304.17A-590, 304.17C, 20 U.S.C. 36B, 42 U.S.C. 300gg-5, 18022, 18031, 18042, 18054, 18082, 45 C.F.R. 155.706,45 C.F.R. Part 153, 154.230, Parts 155, 156
STATUTORY AUTHORITY: KRS 194A.050(1)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Office of Health Data and Analytics, Division of Health Benefit Exchange has responsibility to administer the Kentucky Health Benefit Exchange. KRS 194A.050(1) requires the secretary of the cabinet to promulgate administrative regulations necessary to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the commonwealth; to operate the programs and fulfill the responsibilities vested in the cabinet; and to implement programs mandated by federal law. This administrative regulation establishes the policies and procedures relating to the certification of a qualified health plan or a qualified stand-alone dental plan to be offered on the Kentucky Health Benefit Exchange, pursuant to and in accordance with 42 U.S.C. 18031 and 45 C.F.R. Parts 155 and 156.
History: 47 Ky.R. 2197; eff. 7-21-2021.

900 KAR 10:120 KHBE eligibility and enrollment in a qualified health plan, SHOP, and SHOP Formal Resolution Process {#sec-900-kar-10-120 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:120}

Section 1. Eligibility and Enrollment.

(1) An applicant shall be eligible to enroll in a Qualified Health Plan or QHP through the Kentucky Health Benefit Exchange or KHBE if the applicant:

(a)

Is a citizen or national of the United States;
Is a non-citizen who is lawfully present in the United States and is reasonably expected to become a citizen or national; or
Is a non-citizen who is lawfully present for the entire period for which enrollment is sought;

(b) Except for an incarceration pending a disposition of a charge, is not incarcerated; and

(2) An applicant:

(a) May apply for a determination of eligibility at any time during a year; and

(b) Shall only enroll during open enrollment or Special Enrollment Periods or SEPs.

(3) An applicant determined eligible for enrollment in a QHP as set forth in subsection (1) of this section shall be eligible to enroll in a QHP during:

(a) An open enrollment period as established in Section 5(2) of this administrative regulation; or

(b) A SEP as established in Sections 5(4) and 6 of this administrative regulation.

(4) An applicant shall attest to whether or not information affecting the applicant's eligibility has changed since the most recent eligibility determination if the applicant:

(a) Was determined eligible to enroll in a QHP, but:

Did not select a QHP within the applicable enrollment period as set forth in Section 5 or 6 of this administrative regulation; or
Was not eligible for an enrollment period; and

(b) Seeks a new enrollment period prior to the date on which the applicant's eligibility is redetermined as established in Section 8 of this administrative regulation.

(5) An applicant shall submit an application for enrollment in a QHP:

(a) Via the Web site at www.kynect.ky.gov;

(b) By telephone;

(d) In person.

(6)

(a) An applicant who has a Social Security number shall provide the number to the KHBE.

(b) An individual who is not seeking coverage for himself or herself shall not provide a Social Security number, except as established by Section 2(8) of this administrative regulation.

(7) In accordance with 45 C.F.R. 155.310(a)(2), an individual shall not provide information regarding citizenship, status as a national, or immigration status for an individual who is not seeking coverage for himself or herself.

(8)

(a) Except as established by paragraph (b) of this subsection, an applicant who requests an eligibility determination for an insurance affordability program shall have an eligibility determination for all insurance affordability programs.

(b) An applicant who requests an eligibility determination for a QHP only shall not have an eligibility determination for an insurance affordability program.

(9) An applicant shall not provide information beyond the minimum amount necessary to determine eligibility and enrollment through the KHBE.

Section 2. Eligibility Standards for Advanced Payments of the Premium Tax Credit.

(1) A tax filer shall be eligible for Advanced Payments of the Premium Tax Credit or APTC if:

(a) The tax filer is expected to have a household income as prescribed in 45 C.F.R. 155.305(f)(1)(i) for the benefit year for which coverage is requested; and

(b) One (1) or more applicants for whom the tax filer expects to claim a personal exemption deduction on the tax filer's tax return for the benefit year:

Meets the requirements for eligibility for enrollment in a QHP through the KHBE as established by Section 1 of this administrative regulation; and
Is not eligible for minimum essential coverage, with the exception of coverage in the individual market, in accordance with 26 C.F.R. 1.36B-2(a)(2) and (c).

(2) A tax filer who is a non-citizen and lawfully present and ineligible for Medicaid for reason of immigration status shall be eligible for APTC if:

(a) The tax filer meets the requirement in subsection (1)(b) of this section;

(b) The tax filer is expected to have a household income of less than 100 percent of the Federal Poverty Level or FPL for the benefit year for which coverage is requested; and

(c) One (1) or more applicants for whom the tax filer expects to claim a personal exemption deduction on the tax filer's tax return for the benefit year is:

A non-citizen who is lawfully present; and
Not eligible for Medicaid for reason of immigration status.

(3) A tax filer shall attest that one (1) or more applicants for whom the tax filer attests that a personal exemption deduction for the benefit year shall be claimed is enrolled in a QHP that is not a catastrophic plan.

(4) A tax filer shall not be eligible for APTC if the U.S. Department of Health and Human Services or HHS notifies the KHBE that APTCs were made on behalf of the tax filer or tax filer's spouse for a year in accordance with 45 C.F.R. 155.305(f)(4).

(5) An APTC amount shall be:

(a) Calculated in accordance with 26 C.F.R. 1.36B-3; and

(b) Allocated between QHPs and stand-alone dental policies in accordance with 45 C.F.R. 155.340(e).

(6) An applicant for APTC may accept less than the full amount of APTC for which the applicant is determined eligible.

(7) An APTC shall be authorized by the KHBE on behalf of a tax filer only if the KHBE obtains necessary attestations from the tax filer that:

(a) The tax filer shall file an income tax return for the benefit year in accordance with 26 U.S.C. 6011 and 6012;

(b) If the tax filer is married, a joint tax return shall be filed for the benefit year;

(d) The tax filer shall claim a personal exemption deduction on the tax filer's return for the applicants identified as members of the tax filer's family, including the tax filer and the spouse of the tax filer, in accordance with 45 C.F.R. 155.305(f)(4).

(8) An application filer who is not an applicant shall provide the Social Security number of a tax filer only if the applicant attests that the tax filer:

(a) Has a Social Security number; and

(b) Filed a tax return for the year for which tax data would be utilized for verification of household income and family size.

(9) The effective date for APTC shall be:

(a) For an initial eligibility determination, in accordance with the dates established by Section 5(1), (2), (3), and (4) of this administrative regulation, as applicable; and

(b) For a redetermination, in accordance with the dates established by 45 C.F.R. 155.330(f) and 155.335(i), as applicable.

(10) An employer may be notified of an employee's eligibility for APTC in accordance with 45 C.F.R. 155.310 (h).

Section 3. Eligibility Standards for Cost Sharing Reductions.

(1) An applicant shall be eligible for Cost Sharing Reductions or CSRs if the applicant:

(a) Meets the eligibility requirements for enrollment in a QHP as set forth in Section 1 of this administrative regulation;

(b) Meets the requirements for APTC as set forth in Section 2 of this administrative regulation;

(c) Is expected to have a household income that does not exceed the amount established by 45 C.F.R. 155.305(g)(1)(i)(C) for the benefit year for which coverage is requested; and

(d) Except for an enrollee who is an Indian, enrolls in a silver level QHP through the KHBE.

(2) An eligibility determination for CSRs shall be based on the categories as described in 45 C.F.R. 155.305(g)(2).

(3) If two (2) or more individuals enrolled in the individual market under a single policy would be eligible for different cost sharing amounts if enrolled in separate policies, the individuals under the single policy shall be found by the KHBE to be collectively eligible only for the last category listed in 45 C.F.R. 155.305(g)(3) for which all the individuals covered by the policy would be eligible.

(4) The effective date for CSRs shall be:

(a) For an initial eligibility determination, in accordance with the dates established by Section 5(1), (2), (3), and (4) of this administrative regulation, as applicable; and

(b) For a redetermination, in accordance with the dates established by 45 C.F.R. 155.330(f) and 45 C.F.R. 155.335(i), as applicable.

(5) An employer shall be notified of an employee's eligibility for CSRs in accordance with 45 C.F.R. 155.310(h).

Section 4. Verification Processes.

(1) Verification of eligibility for an applicant seeking enrollment in a QHP shall be performed in accordance with:

(a) 45 C.F.R. 155.315; and

(b) The Kentucky QHP/APTC Eligibility Verification Plan.

(2) Verification of eligibility for an applicant or tax filer who requests an eligibility determination for an insurance affordability program shall be in accordance with:

(a) 45 C.F.R. 155.320; and

(b) The Kentucky QHP/APTC Eligibility Verification Plan.

Section 5. QHP Enrollment Periods and Effective Dates of Coverage.

(1) A qualified individual shall enroll in a QHP or an enrollee may change from one (1) QHP to another QHP during an open enrollment period.

(2) The timeframe for an open enrollment period shall be established by the secretary of the Cabinet for Health and Family Services.

(3) A qualified individual or enrollee who selects a QHP during an open enrollment period shall have an effective date of coverage of:

(a) January 1, if a QHP selection is made on or before December 15 of the previous year;

(b) If after December 15, the first day of the following month, if a QHP selection is made between the first and the fifteenth of a month; or

(c) If after December 15, the first day of the second following month, if a QHP selection is made between the sixteenth and last day of a month.

(4)

(a) A qualified individual shall enroll in a QHP or an enrollee may change from one (1) QHP to another QHP during a SEP as established by Section 6 of this administrative regulation.

(b) A qualified individual or an enrollee who selects a QHP during a SEP shall have an effective date of coverage as set forth in Section 6 of this administrative regulation.

(5) An initial enrollment in a QHP shall not be effective until the first month's premium is received by the QHP issuer.

(6) A qualified individual may enroll in a Stand-Alone Dental Plan (SADP) outside the QHP Enrollment without an SEP. If the SADP is selected:

(a) On or before the 15th of the month, the effective date will be the first day of the following month.

(b) After the 15th of the month, the effective date will be the first day of the second following month.

Section 6. Special Enrollment Periods.

(1) Except as established by subsection (3) of this section, a qualified individual or enrollee shall have sixty (60) days from the date of a qualifying event as set forth in subsection (2) of this section to select a QHP.

(2) A qualified individual may enroll in a QHP or an enrollee or a dependent of an enrollee may change QHPs during a SEP if:

(a) The qualified individual or a dependent of the qualified individual:

Loses minimum essential coverage;
Is enrolled in any non-calendar year group health plan, individual health insurance coverage, or qualified small employer reimbursement arrangement even if the qualified individual or his or her dependent has the option to renew or reenroll in the coverage;
Loses pregnancy-related coverage described in 45 C.F.R. 155.420(d)(1)(iii);
Loses medically needy coverage as described under 42 C.F.R. 435.320 only once per calendar year; or
Is enrolled in coverage under 26 C.F.R. 54.9801–6(a)(3)(i) through (iii) for which an employer is paying all or part of the premiums and the employer ceases its contributions;

(b) The qualified individual gains a dependent or becomes a dependent through marriage, birth, adoption, placement for adoption, placement in foster care, a child support order, or other court order;

(c) The qualified individual, or a dependent of the qualified individual, who was not previously a citizen, national, or lawfully present gains status as a citizen, national, or lawfully present;

(d) The enrollee is determined newly eligible or newly ineligible for APTC;

(e) The enrollee or a dependent of the enrollee becomes newly eligible for CSRs and is not enrolled in a silver-level QHP;

(f) The enrollee or a dependent of the enrollee becomes newly ineligible for CSRs and is enrolled in a silver-level QHP;

(g) The qualified individual or a dependent of the qualified individual who is enrolled in qualifying coverage in an employer-sponsored plan is determined newly eligible for APTC in part on a finding that the individual shall no longer be eligible for qualifying coverage in the employer-sponsored plan in the next sixty (60) days and is allowed to terminate existing coverage;

(h) The qualified individual or enrollee or a dependent of the qualified individual or the enrollee:

Gains access to new QHPs as a result of a permanent move; and
Had minimum essential coverage or MEC for one (1) or more days during the sixty (60) days preceding the date of the permanent move;

(i) The qualified individual is an Indian who may enroll in a QHP or change from one (1) QHP to another QHP one (1) time per month;

(j) The qualified individual is or becomes a dependent of an Indian and is enrolled or is enrolling in a QHP on the same application as the Indian, and may change from one (1) QHP to another QHP one (1) time per month, at the same time as the Indian;

(k) The qualified individual or enrollee or a dependent of the qualified individual or enrollee is no longer incarcerated;

(l) The qualified individual or enrollee, or a dependent of the qualified individual or enrollee:

Gains access to an individual Health Reimbursement Arrangement or HRA; or
Is newly provided a Qualified Small Employer Health Reimbursement Arrangement or QSEHRA;

(m) The plan in which the enrollee or a dependent of the enrollee is enrolled is decertified by the division;

(n) The enrollee loses a dependent or is no longer considered a dependent through divorce or legal separation;

(o) The enrollee or a dependent of the enrollee dies;

(p) The qualified individual or enrollee:

Is a victim of domestic abuse or spousal abandonment as defined by 26 C.F.R. 1.36B-2, or a dependent of the qualified individual or enrollee, or an unmarried victim of domestic abuse or spousal abandonment residing within the same household as the qualified individual or enrollee;
Is enrolled in MEC; and
Sought to enroll in coverage separate from the perpetrator of abuse or abandonment;

(q) The qualified individual or enrollee:

Is a dependent of an individual described in paragraph (i) of this subsection;
Is on the same application as the individual described in paragraph (i) of this subsection; and
Enrolls at the same time as the individual described in paragraph (i) of this subsection;

(r) The qualified individual or enrollee:

Applies for coverage during:

a. An annual open enrollment period; or

b. If there is a qualifying event, a SEP; and

Is determined ineligible for Medicaid or the Kentucky Children's Health Insurance Program or KCHIP:

a. After open enrollment has ended; or

b. More than sixty (60) days after the qualifying event;

(s) The qualified individual or dependent of the qualified individual enrolls or fails to enroll in a QHP due to an error, misrepresentation, or inaction of an officer, employee, or representative of the KHBE;

(t) The enrollee or dependent of the enrollee demonstrates to the KHBE that the QHP in which the enrollee or the dependent of the enrollee is enrolled substantially violated a provision of its contract in relation to the enrollee or dependent;

(u) The qualified individual or enrollee, or a dependent of the qualified individual or enrollee, demonstrates to the KHBE that a material error related to a plan benefit, service area, or premium influenced the qualified individual's or enrollee's decision to purchase a QHP though KHBE. Material errors may include any incorrect premium, copay, co-insurance, or deductible amount, as well as services covered or providers included in network;

(v) The qualified individual:

a. Was previously ineligible for APTC because of a household income below 100 percent of the FPL; and

b. Was ineligible for Medicaid due to living in a non-Medicaid expansion state during the same timeframe; and

Either:

a. Experiences a change in household income; or

b. Makes a permanent move to the Commonwealth of Kentucky resulting in the individual becoming newly eligible for APTC;

(w) The qualified individual or a dependent of the qualified individual:

Experiences a decrease in household income;
Is newly determined eligible by the KHBE for APTC; and
Had MEC for one (1) or more days during the sixty (60) days preceding the date of the change in household income; or

(x) The qualified individual or a dependent of the qualified individual meets other exceptional circumstances as defined by 45 C.F.R. 155.420(d)(9).

(3) The date of the triggering event for the loss of MEC shall be:

(a) For a decertification of a QHP as set forth in 900 KAR 10:115, the date of the notice of decertification;

(b) For an event described in subsection (2)(a)2. of this section, the last day of the plan year;

(c) For an event described in subsection (2)(a)5. of this section, the last day of the period for which COBRA continuation coverage is paid for, in part or in full, by an employer; or

(d) For all other cases, the date the qualified individual or dependent of the qualified individual loses eligibility for minimum essential coverage.

(4) Loss of MEC shall include those circumstances described in 26 C.F.R. 54.9801–6(a)(3)(i) through (iii).

(5) Loss of MEC shall not include termination or loss due to:

(a) Failure to pay premiums on a timely basis; or

(b) A situation allowing for a rescission as established by 45 C.F.R. 147.128.

(6) Except as established by subsection (7), (8), or (9) of this section, a qualified individual or enrollee who selects a QHP during a SEP shall have an effective date of coverage of:

(a) The first day of the following month for a selection made between the first and the fifteenth day of any month; or

(b) The first day of the second following month for a selection made between the sixteenth and last day of any month.

(7) A qualified individual or enrollee who selects a QHP:

(a) For a birth, adoption, placement for an adoption, placement in foster care, or child support or other court order, shall have an effective date of coverage of either:

The date of the birth, adoption, placement for adoption, placement in foster care, or effective date of court order; or
If the qualified individual or enrollee elects:

a. The first of the month following plan selection; or

b. In accordance with subsection (6) of this section;

(b) For a marriage, shall have an effective date of coverage of the first day of the month following plan selection;

(c) For a loss of coverage as described in subsection (2)(a) of this section, for a gain of access to a new QHP as a result of a permanent move as described in subsection (2)(h) of this section, or for being newly eligible for enrollment in a QHP as described in subsection (2)(c) or (2)(k) of this section, if:

The plan selection is made on or before the day of the triggering event, shall have a coverage effective date of the first day of the month following the triggering event; or
The plan selection is made after the date of the triggering event, shall have a coverage effective date in accordance with this subsection; or

(d) For a death as described in subsection (2)(o) of this section, shall have a coverage effective date:

Of the first day of the month following a plan selection; or
In accordance with paragraph (c) of this subsection.

(8) A qualified individual, enrollee, or dependent of the qualified individual or enrollee who selects a QHP as described in subsection (2)(g) of this section shall have a coverage effective date:

(a) If the plan selection is made before the day of the triggering event:

On the first day of the month following the triggering event; or
If the triggering event is on the first day of a month, on the date of the triggering event; or

(b) If the plan selection is made on or after the day of the triggering event, on the first day of the month following plan selection.

(9) A qualified individual or enrollee who selects a QHP in accordance with subsection (2)(a)4.,(r), (s), (t), (u),or (v) of this section shall have a coverage effective date based on the circumstances of the SEP.

(10)

(a) An individual described in subsection (2)(g) of this section may access a SEP sixty (60) days prior to the end of the individual's qualifying coverage in the employer-sponsored plan.

(b) An individual who accesses a SEP as set forth in paragraph (a) of this subsection shall not be eligible for APTCs until the end of the individual's qualifying coverage through the eligible employer-sponsored plan.

(11) If an existing enrollee becomes newly eligible for CSRs and is not enrolled in a silver plan, the enrollee may choose a silver plan.

(12) If an enrollee and a dependent of an enrollee become newly ineligible for CSRs and are enrolled in a silver-level QHP, the enrollee may change to a QHP one (1) metal level higher or lower.

(13) If an enrollee gains a dependent due to marriage, birth, adoption, foster care, or court order, the enrollee shall:

(a) Not change plans; and

(b) Either:

Add the new dependent to the enrollee's current enrollment; or
Enroll the new dependent in a plan of any plan category.

(14) Except for the qualifying events established by subsection (2)(i), (l), (p), (u), and (v) of this section and the events described in subsections (11), (12), and (13) of this section:

(a) If an enrollee qualifies for a SEP, the enrollee may change to a QHP within the same level of coverage;

(b) If a dependent of an enrollee qualifies for a SEP and the enrollee does not also qualify for a SEP, the enrollee shall add the dependent to the enrollee's current QHP; or

(c) If a qualified individual who is not an enrollee qualifies for a SEP and has a dependent who is an enrollee who does not qualify for a SEP, the qualified individual shall be added to the dependent's current QHP.

(15) For a qualified individual, enrollee, or dependent described in subsection (2)(l) of this section, the triggering event shall be:

(a) The first day on which coverage for the qualified individual, enrollee, or dependent under the individual coverage HRA can take effect; or

(b) The first day on which coverage under the QSEHRA takes effect.

(16) A qualified individual, enrollee, or dependent described in subsection (2)(l) of this section shall:

(a) Qualify for a SEP regardless of whether they were previously offered or enrolled in an individual HRA or previously provided a QSEHRA, if:

The qualified individual, enrollee, or dependent is not enrolled in the individual coverage HRA; or
The qualified individual, enrollee, or dependent is not covered by the QSEHRA on the day immediately prior to the triggering event; and

(b)

Have sixty (60) days before the triggering event to select a QHP; or
Have sixty (60) days before or after the triggering event if the HRA or QSEHRA was not required to provide the notice described in 45 C.F.R. 146.123(c)(6), 26 C.F.R. 54.9802-4(c)(6), and 29 C.F.R. 2590.702-2(c)(6) or 26 U.S.C. 9831(d)(4).

(17) A qualified individual or enrollee, or the dependent of a qualified individual or enrollee, who is eligible for advance payments of the premium tax credit, and whose household income, as defined in 26 C.F.R. 1.36B-1(e), is expected to be no greater than 150 percent of the Federal poverty level, may enroll in a QHP or change from one QHP to another one (1) time per month during periods of time when the applicable taxpayer's applicable percentage for purposes of calculating the premium assistance amount, as defined in 26 U.S.C. 36B(b)(3)(A), is set at zero.

(18) If a qualified individual, enrollee, or dependent of a qualified individual or an enrollee did not receive timely notice of an event that triggers eligibility for a SEP under this section, and otherwise was reasonably unaware that a triggering event described in this section occurred, the qualified individual, enrollee, or his or her dependent shall have sixty (60) days from the date that he or she knew, or reasonably should have known, of the occurrence of the triggering event.

(19) A qualified individual, enrollee, or dependent of a qualified individual or enrollee, described in 45 C.F.R. 155.420 as being eligible for a SEP not specified in this section of this administrative regulation shall be eligible for a SEP.

(20) For purposes of this section, a qualified individual, enrollee, or dependent of a qualified individual or enrollee shall be:

(a) Eligible for APTC if eligibility is for an amount greater than zero dollars per month; or

(b) Ineligible for APTC if eligible for a maximum of zero dollars per month.

Section 7. Verifications for Special Enrollment Periods.

(1) KHBE shall conduct pre-enrollment verification of newly enrolling individuals as established by this section.

(2) A QHP enrollment for an individual subject to verification shall not be submitted to the issuer pending verification for a SEP.

(3) For an enrollment subject to verification as described in this section, a new enrollee shall have thirty (30) days from the date of plan selection to provide requested documentation.

(4) A qualifying individual described in Section 6(2)(h) of this administrative regulation shall provide proof of:

(a) A permanent move during the past sixty (60) days; and

(b) Either:

Having had MEC for one (1) or more days during the sixty (60) days preceding the date of the qualifying event; or
Having:

a. Lived in a foreign county or in a US territory for one (1) or more days during the sixty (60) days preceding the qualifying event;

b. Lived in a service area where no qualified health plan was available through KHBE for one (1) or more days during the sixty (60) days preceding the qualifying event or their most recent open enrollment or SEP; or

c. Status as an Indian.

(5) For a marriage, as described in Section 6(2)(b) of this administrative regulation, a qualified individual shall provide proof of marriage during the past sixty (60) days.

(6) Other than as described in subsections (4) and (5) of this section, a qualified individual described in Section 6(2)(b) of this administrative regulation shall provide proof of:

(a) The qualifying event during the past sixty (60) days; and

(b) Either:

Having MEC as described in Section 6(2)(a) of this administrative regulation for one (1) or more days during the sixty (60) days preceding the date of the qualifying event; or
Meeting the requirements in subsection (4)(b) of this section.

(7) For a loss of MEC as described in Section 6(2)(a) of this administrative regulation, a qualified individual shall provide proof of coverage for one (1) or more days during the past sixty (60) days.

(8) SEP verification shall not impact an enrollee's effective date of coverage except as provided in 45 C.F.R. 155.400(e)(1)(iii).

Section 8. Eligibility Redetermination During a Benefit Year.

(1) Eligibility shall be redetermined for an enrollee during a benefit year if the KHBE receives and verifies:

(a) New information reported by an enrollee; or

(b) Updated information obtained in accordance with 45 C.F.R. 155.330(d).

(2) Except as established by subsection (3) of this section, an enrollee or an application filer, on behalf of an enrollee, shall report within thirty (30) days:

(a) A change related to an eligibility standard in Section 1, 2, 3, 9, or 10 of this administrative regulation; and

(b) Via a method described in Section 1(5) of this administrative regulation.

(3) An enrollee who did not request an eligibility determination for an insurance affordability program shall not report a change related to income.

(4) If new information provided by an enrollee in accordance with subsection (1)(a) of this section is verified:

(a) Eligibility shall be redetermined in accordance with the standards in Section 1, 2, 3, 9, or 10 of this administrative regulation;

(b) The enrollee shall be notified of the redetermination in accordance with the requirements in 45 C.F.R. 155.310(g); and

(c) If applicable, the enrollee's employer shall be notified in accordance with the requirement established by 45 C.F.R. 155.310(h).

(5) If updated information obtained in accordance with subsection (1)(b) of this section regarding death or related to eligibility not regarding income, family size, or family composition is identified, an enrollee shall:

(a) Be notified by the KHBE of:

The updated information; and
The projected enrollees' eligibility determination after consideration of the information; and

(b) Have thirty (30) days from the date of the notice in paragraph (a) of this subsection to notify the KHBE if the information is inaccurate.

(6) If an enrollee responds to the notice in subsection (5)(a) of this section, contesting the updated information in the notice, the KHBE shall proceed in accordance with 45 C.F.R. 155.315(f).

(7) If an enrollee does not respond to the notice in subsection (5)(a) of this section within the thirty (30) day timeframe specified in subsection (5)(b) of this section, the KHBE shall:

(a) Redetermine eligibility in accordance with the standard in Section 1, 2, 3, 9, or 10 of this administrative regulation; and

(b) Notify the enrollee regarding the determination in accordance with the requirements established by 45 C.F.R. 155.310(g).

(8) With the exception of information regarding death, if updated information regarding income, family size, or family composition is identified, an enrollee shall:

(a) Be notified by the KHBE of:

The updated information regarding income, family size, and family composition obtained in accordance with subsection (1)(b) of this section; and
The projected eligibility determination after consideration of the information; and

(b) Have thirty (30) days from the date of the notice to:

Confirm the updated information; or
Provide additional information.

(9) If the enrollee responds to the notice in subsection (8)(a) of this section by confirming the updated information, the KHBE shall:

(a) Redetermine the enrollee's eligibility in accordance with Section 1, 2, 3, 9, or 10 of this administrative regulation; and

(b) Notify the enrollee regarding the determination in accordance with the requirements established by 45 C.F.R. 155.310(g).

(10) If the enrollee does not respond to the notice in subsection (8)(a) of this section within the thirty (30) day timeframe established by subsection (8)(b) of this section, the KHBE shall maintain the enrollee's existing eligibility determination without considering the updated information in subsection (8)(a) of this section.

(11) If the enrollee responds with more updated information, the KHBE shall verify the updated information in accordance with 45 C.F.R. 155.315 and 155.320.

(12) The effective date of a change resulting from a redetermination pursuant to this section shall be in accordance with 45 C.F.R. 155.330(f).

(13) The amount of an APTC or eligibility for a CSR as a result of an eligibility redetermination in accordance with this section shall be recalculated in accordance with 45 C.F.R. 155.330(g).

Section 9. Annual Eligibility Redetermination.

(1) A qualified individual shall:

(a) Have an annual redetermination of eligibility; and

(b) Be sent a notice of the annual redetermination that includes:

The data obtained under subsection (2) of this section;
The data used in the qualified individual's most recent eligibility determination; and
The projected eligibility determination for the following year, after considering the information in subparagraph 1. of this paragraph.

(2)

(a) A qualified individual requesting an eligibility determination for an insurance affordability program shall authorize the release of updated tax return information, data regarding Social Security benefits, and data regarding MAGI-based income, as defined by 42 C.F.R. 435.603(e) and as described in 45 C.F.R. 155.320(c)(1), for use in the qualified individual's eligibility redetermination.

(b) Eligibility shall not be redetermined for a qualified individual requesting an eligibility determination for an insurance affordability program who does not authorize the release of updated tax return information.

(3) A qualified individual may authorize the release of tax return information for a period of no more than five (5) years based on a single authorization, if the authorization permits the qualified individual to:

(a)

Decline to authorize the release of updated tax return information; or
Authorize the release of updated tax return information for fewer than five (5) years; and

(b) Discontinue, change, or renew the authorization at any time.

(4) A qualified individual, an application filer, or an authorized representative, on behalf of the enrollee, shall report any changes with respect to the information listed in the notice described in subsection (1)(b) of this section:

(a) Within thirty (30) days from the date of the notice; and

(b) Via a method listed in Section 1(5) of this administrative regulation.

(5) Any information reported by a qualified individual under subsection (4) of this section shall be verified as set forth in Section 4 of this administrative regulation.

(6) For a qualified individual who fails to act on the notice described in subsection (1)(b) of this section within the thirty (30) day period established by subsection (4) of this section, eligibility shall be redetermined as set forth in subsection (7)(a) of this section.

(7)

(a) After the thirty (30) day period established by subsection (4) of this section:

Eligibility of a qualified individual shall be redetermined in accordance with the standards in Section 1, 2, 3, 9, or 10 of this administrative regulation using the information provided in the notice, as supplemented with any information reported by the qualified individual verified in accordance with Section 4 of this administrative regulation;
The qualified individual shall be notified in accordance with the requirements in 45 C.F.R. 155.310(g); and
If applicable, the qualified individual's employer shall be notified in accordance with 45 C.F.R. 155.310(h).

(b) If a qualified individual reports a change with respect to the information provided in the notice established by subsection (1)(b) of this section that has not been verified by the KHBE as of the end of the thirty (30) day period established by subsection (4) of this section, eligibility shall be redetermined after verification in accordance with Section 4 of this administrative regulation.

(8) The effective date of a redetermination in accordance with this section shall be the later of:

(a) The first day of the coverage year following the year in which the notice in subsection (1)(b) of this section is issued to the qualified individual; or

(b) The date determined in accordance with 45 C.F.R. 155.330(f)(1).

(9) If an enrollee remains eligible for coverage in a QHP upon annual redetermination and has not terminated coverage from the QHP in accordance with Section 10 of this administrative regulation, the enrollee shall:

(a) Remain in the QHP selected the previous year that may include modifications that shall be approved by the Department of Insurance; or

(b) Be enrolled by KHBE in a QHP that is substantially similar that shall be approved by the Department of Insurance.

(10) Eligibility shall not be redetermined if a qualified individual was redetermined eligible in accordance with this section during the prior year, and the qualified individual was not enrolled in a QHP when the redetermination was made and has not enrolled in a QHP since the redetermination.

Section 10. Eligibility to Enroll in a QHP that is a Catastrophic Plan.

(1) In addition to the requirements in Section 1 of this administrative regulation, to enroll in a QHP that is a catastrophic plan, an applicant shall:

(a) Not have attained the age of thirty (30) before the beginning of the plan year; or

(b) Have a certificate of exemption from the shared responsibility payment issued by the KHBE or HHS for a plan year in accordance with:

26 U.S.C. 5000A(e)(1); or
26 U.S.C. 5000A(e)(5).

(2) Verification related to eligibility for enrollment in a QHP that is a catastrophic plan shall be in accordance with 45 C.F.R. 155.315(j).

Section 11. Special Eligibility Standards and Processes for Indians.

(1) An applicant who is an Indian, as defined by 25 U.S.C. 1603(13), shall be eligible for the special cost sharing described in 45 C.F.R. 155.350(b) if the applicant:

(a) Meets the requirements established by 45 C.F.R.155.305(a) and (f);

(b) Is expected to have a household income that does not exceed the amount established by 45 C.F.R. 305(g)(3)(vi) for the benefit year for which coverage is requested; and

(2) An applicant who is an Indian shall have an eligibility determination for the special cost sharing described in 45 C.F.R. 155.350(b) without requesting an eligibility determination for an insurance affordability program.

Section 12. Eligibility Determination and Notification Standards.

(1) Eligibility shall be determined in accordance with 45 C.F.R. 155.310(e).

(2) Notifications regarding eligibility determinations shall be made in accordance with 45 C.F.R. 155.310(g).

Section 13. Termination of Coverage.

(1) An enrollee, including an enrollee who has obtained other MEC, may terminate coverage in a QHP by submitting a request:

(a) Via the Web site at www.kynect.ky.gov;

(b) By telephone;

(d) By mail; or

(e) In person.

(2) An enrollee in a QHP may choose to remain in a QHP without financial assistance if the enrollee:

(a)

Has been identified as eligible for other MEC through the data matching described in 45 C.F.R. 155.330(d); or
Has been identified as eligible for Medicaid, KCHIP, or Medicare and has granted prior permission to KHBE; and

(b) Does not request termination in accordance with subsection (1) of this section.

(3) The last day of coverage of an enrollee who terminates coverage in accordance with subsection (1) of this section shall be:

(a) The termination date requested by the enrollee if the enrollee provides reasonable notice in accordance with subsection (7) of this section;

(b) Fourteen (14) days after the termination is requested by the enrollee, if the enrollee does not provide reasonable notice in accordance with subsection (7) of this section;

(c) A date determined by the issuer of an enrollee's QHP if the issuer is able to terminate coverage in fewer than fourteen (14) days and the enrollee requests an earlier termination effective date; or

(d) If the enrollee is newly eligible for Medicaid or KCHIP, the day before coverage in Medicaid or KCHIP begins.

(4) An enrollee's health coverage shall be terminated by an issuer if:

(a) The enrollee is no longer eligible for coverage in a QHP through the KHBE;

(b) The enrollee has failed to pay a premium and:

A three (3) month grace period required for an individual receiving an APTC has been exhausted as described in 45 C.F.R. 156.270(g); or
A thirty (30) day grace period required by KRS 304.17A-243 for an individual not receiving an APTC has been exhausted;

(d) The enrollee is enrolled in a QHP that:

Has been decertified pursuant to 900 KAR 10:115; or
Has withdrawn from participation in the KHBE; or

(e) The enrollee changes from one (1) QHP to another during an open enrollment period or SEP in accordance with Section 5 or 6 of this administrative regulation.

(5) The last day of coverage of an enrollee shall be:

(a) If terminated in accordance with subsection (4)(a) of this section, the last day of the month following the month in which the notice described in subsection (7) of this section is sent by KHBE, unless the enrollee requests an earlier termination date in accordance with subsection (3) of this section;

(b) If terminated in accordance with subsection (4)(b)1. of this section, the last day of the first month of the three (3) month grace period; or

(6) For an enrollee who is terminated in accordance with subsection (4)(e) of this section, the last day of coverage in an enrollee's prior QHP shall be the day before the effective date of coverage in the enrollee's new QHP.

(7) Reasonable notice shall be fourteen (14) calendar days from the requested date of termination of coverage.

Section 14. Authorized Representative.

(1) An individual may designate an authorized representative in accordance with 45 C.F.R. 155.227.

(2) An authorized representative shall comply with state and federal laws regarding:

(a) Conflict of interest; and

(b) Confidentiality of information.

(3) An applicant may authorize a representative to:

(a) Sign an application on behalf of the applicant;

(b) Submit an update or respond to a redetermination of eligibility for the applicant in accordance with Section 7 or 8 of this administrative regulation;

(d) Make an appeal request on behalf of an appellant; and

(e) Act on behalf of the individual in a matter with the KHBE.

(4) An authorization for an authorized representative shall be valid until:

(a) An applicant:

Changes the authorization; or
Notifies the KHBE and the authorized representative, through a method described in 45 C.F.R. 155.405(c), that the authorized representative is no longer authorized to act on behalf of the individual; or

(b) The authorized representative informs the KHBE and the individual that the authorized representative is no longer acting as the authorized representative.

Section 15. SHOP Employer Eligibility.

(1) An employer shall be a qualified employer and eligible to purchase coverage through SHOP if the employer meets the eligibility requirements established in 45 C.F.R. 155.710(b).

(2) An employer shall apply for an eligibility determination online to participate in SHOP at www.kynect.ky.gov.

(3) Upon application, an employer shall provide:

(a) Employer name;

(b) Address of employer location;

(d) A statement from the employer attesting that the employer is:

A small employer; and
Offering at a minimum, all full-time employees coverage in a QHP through SHOP.

(4) Except as provided in 45 C.F.R. 147.104(b)(1)(i)(B), a qualified employer shall meet a minimum group participation rate of fifty (50) percent, calculated as described in 45 C.F.R. 155.706 (b)(10)(i).

(5) A qualified employer may purchase coverage for its qualified employees at any time during the year.

(6) An employer's plan year shall be the twelve (12) month period beginning with the effective date of coverage.

(7) An employer shall enroll in a QHP or SADP certified by the division by contacting an issuer or a participating agent.

(8) A qualified employer who ceases to be a small employer by reason of an increase in the number of employees shall be eligible to participate in SHOP until the employer:

(a) Fails to otherwise meet the eligibility criteria of this section; or

(b) Chooses to no longer purchase health coverage.

(9) An employer that fails to meet the requirements in subsection (1) of this section, shall be denied eligibility to participate in SHOP.

Section 16. SHOP Right to Formal Review.

(1) An employer applicant may request a formal review of a:

(a) Denial of eligibility as set forth in Section 15(9) of this administrative regulation; or

(b) Failure of the KHBE to make an eligibility determination to participate in SHOP within fifteen (15) calendars days of receiving an application from an employer.

(2) Within ninety (90) days of receipt of a notice of denial of eligibility, an employer may submit a formal review request to the division by:

(a) Telephone;

(b) Mail; or

(3) A formal review request shall clearly state a reason for the formal review in accordance with subsection (1) of this section.

(4) If an employer is notified that a formal review request does not meet the requirements of this section, the employer may amend the request to satisfy the requirements.

Section 17. SHOP Dismissal of a Formal Review.

(1) A formal review by an employer shall be dismissed if the employer:

(a) Withdraws the formal review request in writing; or

(b) Fails to submit a formal review request that meets the requirements in Section 16 of this administrative regulation.

(2) If a formal review is dismissed in accordance with subsection (1) of this section, the division shall provide written notice to the employer:

(a) Within three (3) business days of the dismissal; and

(b) That includes the reason for dismissal.

(3) The division may reverse a dismissal under subsection (2) of this section if an employer makes a written request within thirty (30) days of the date of the notice of dismissal in subsection (2) of this section and provides new information supporting a reversal of the previous decision.

Section 18. SHOP Desk Review.

(1) An employer shall have the opportunity to submit evidence to the division for review of an eligibility determination.

(2) The division shall consider:

(a) The information used to determine the employer's eligibility; and

(b) Any additional evidence provided by the employer under subsection (1) of this section.

(3) An applicant's formal review request shall be desk reviewed by one (1) or more impartial division officials who have not been directly involved in the eligibility determination implicated in the formal review.

Section 19. SHOP Formal Review Decision.

(1) A desk review by an official of the division shall result in a final formal review decision.

(2) A final formal review decision shall:

(a) Be in writing;

(b) Be based on the eligibility requirements in Section 15 of this administrative regulation;

(d) Summarize the facts relevant to the formal review;

(e) Identify the legal and regulatory basis for the decision;

(f) State the effective date of the decision; and

(g) Be rendered within ninety (90) days of receipt by the division of an employer formal review request.

(3) The division shall issue written notice of the formal review decision to the employer within ninety (90) days of the date of receipt of a formal review request.

(4) If the formal review decision affects the employer's eligibility, the division shall implement the formal review decision.

Section 20. SHOP Formal Review Record. The formal review record shall be available and accessible to an employer:

(1) In a convenient format; and

(2) During regular business hours, which shall:

(a) Be Monday through Friday from 8:00 a.m. to 4:30 p.m.; and

(b) Exclude holidays.

Section 21. Incorporation by Reference.

(1) "Kentucky QHP/APTC Eligibility Verification Plan", Revised May 2022, is incorporated by reference.

History

RELATES TO: KRS Chapter 304, 304.14-110, 304.17A-243, 304.17A-245, 25 U.S.C.1603(13), 26 U.S.C. 36B(b)(3)(A), 26 U.S.C. 5000A, 6011, 6012, 9831, 42 U.S.C 18031, 26 C.F.R. 1.36B-2, 1.36B-3, 54.9801-6, 54.9802-4, 29 C.F.R. 2590.702-2, 42 C.F.R. 435.320, 435.603(e), 45 C.F.R. 146.123, 147.104, 147.128, Parts 155, 156
STATUTORY AUTHORITY: KRS 194A.050(1)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Office of Health Data and Analytics, Division of Health Benefit Exchange has responsibility to administer the Kentucky Health Benefit Exchange. KRS 194A.050(1) requires the secretary of the cabinet to promulgate administrative regulations necessary to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the commonwealth; to operate the programs and fulfill the responsibilities vested in the cabinet; and to implement programs mandated by federal law. This administrative regulation establishes the policies and procedures relating to eligibility and enrollment in a qualified health plan in the individual market, the operation of a Small Business Health Options Program, and the formal review process related to SHOP on the Kentucky Health Benefit Exchange pursuant to and in accordance with 42 U.S.C. 18031 and 45 C.F.R. Parts 155 and 156.
History: 47 Ky.R. 2203; 48 Ky.R. 48; eff. 7-21-2021; 49 Ky.R. 124, 1263, 1402; eff. 1-12-2023.

900 KAR 10:125 KHBE Consumer Assistance Program, kynector Certification, and Individual Agent Participation with the KHBE {#sec-900-kar-10-125 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:125}

Section 1. KHBE Consumer Assistance Programs.

(1) The kynector program, in accordance with the accessibility standards of 45 C.F.R. 155.205(c) and (d), shall include the following:

(a) The certified application counselor program described in Section 2 of this administrative regulation; and

(b) The navigator program described in Section 3 of this administrative regulation.

(2) A kynector shall:

(a) Receive training in accordance with 45 C.F.R. 155.215(b)(2) that shall be provided by the division or an approved vendor;

(b) Complete Medicaid, KCHIP, and other applicable training provided by CHFS;

(d) Enter into an agreement with the division to comply with the applicable standards of 45 C.F.R. 155.205, 155.210, 155.215, and 155.225 and this administrative regulation;

(e) Refer a consumer to other consumer assistance programs and community resources in Kentucky if available and appropriate;

(f) Be prepared to serve the individual exchange, Medicaid program, KCHIP, and other programs as designated by the secretary of CHFS; and

(g) Comply with the privacy and security standards consistent with 45 C.F.R. 155.260.

Section 2. Certified Application Counselor Program.

(1) The certified application counselor program shall comply with the provisions of 45 C.F.R. 155.225.

(2) An organization shall apply to the division to be designated as a certified application counselor.

(3) Upon designation by the division to participate in the certified application counselor program, an organization shall:

(a) Act in the best interest of an applicant;

(b) Provide information in a manner that is accessible to individuals with disabilities directly or through a referral to a kynector; and

(4) A staff or a volunteer of a certified application counselor organization shall act as a kynector to:

(a) Provide information about an insurance affordability program and a QHP or SADP coverage option;

(b) Assist an individual to apply through the KHBE for coverage in a QHP, SADP, or an insurance affordability program; and

(5) An individual operating as a certified application counselor shall:

(a) Be identified by a designated organization described in subsection (2) of this section as an employee or a volunteer of the designated organization;

(b) Agree to act in the best interest of an applicant;

(c) Provide information with reasonable accommodation for an individual with a disability, as defined by 42 U.S.C. 12101 through 12103, if providing in-person assistance; and

(d) Register with the division through the KOG.

(6) A certified application counselor shall not:

(a) Impose any charge or fee on an applicant for application assistance;

(b) Receive compensation or a referral fee from an agent; or

(7) In accordance with the procedures established in Section 4 of this administrative regulation, the division shall withdraw certification from a kynector or kynector entity if it finds noncompliance with the terms and conditions of the kynector or kynector entity agreement or this administrative regulation.

Section 3. Navigator Program.

(1) In accordance with 45 C.F.R. 155.205(d) and (e), 155.210, and 155.215, the division shall establish a navigator program to authorize an eligible public or private entity to carry out consumer assistance functions as described in 45 C.F.R. 155.205 and this section.

(2) An entity wishing to participate as a navigator shall:

(a) Be awarded a contract by the division pursuant to policies and procedures established by the Finance and Administration Cabinet and KRS Chapter 45A;

(b) Designate an individual as the participating entity representative who shall:

Register with the division through the KOG as the individual authorized by the agency;
Serve as a primary contact for the division;
Be responsible for ensuring that only an employee of the navigator agency is registered through KOG as a certified navigator;
Comply with 45 C.F.R. 155.210(b)(1) and (d) regarding a conflict of interest; and
As a navigator employee, comply with this subsection;

(c) Designate an individual employee who shall participate through the navigator entity and who shall register with the division through the KOG;

(d) Submit to the division a written plan to remain free of conflicts of interest while carrying out consumer assistance functions under 45 C.F.R. 155.205(d) and (e), and 155.210; and

(e) Provide a monthly report of activities to the division.

(3) An employee designated as a navigator by the kynector entity shall:

(a) Be eighteen (18) years of age or older;

(b) Provide an authorization to the navigator entity to conduct a state background check for evidence of good character; and

(4) A navigator entity and its employees shall:

(a) Inform an applicant of the functions and responsibilities of a navigator and a participating agent;

(b) Obtain authorization for the disclosure of applicant information prior to assisting an applicant with prescreening and completion of the application process; and

(5) Upon authorization by the division, a navigator may assist:

(a) A qualified individual with enrollment in any QHP or SADP offered though the KHBE in the individual market;

(b) A small employer with applying for an eligibility determination online to participate on SHOP; or

(c) An individual with applying for insurance affordability programs, including Medicaid or KCHIP, and other public assistance programs as designated by KHBE.

(6) A navigator entity and its employees shall:

(a) Maintain expertise in eligibility, enrollment, and program specifications and conduct public education activities to raise awareness about a QHP, SADP, or an insurance affordability program; and

(b) Provide information and services in a fair, accurate, and impartial manner.

(7) A navigator entity and its employees shall not:

(a) Impose any charge or fee on an applicant for their assistance;

(b) Receive compensation or a referral fee from an agent; or

(8) A navigator entity and its employees shall provide information in a manner that is culturally and linguistically appropriate to the needs of the population being served by the exchange, including individuals with limited English proficiency, and ensure accessibility and usability of navigator tools and functions for individuals with disabilities in accordance with the Americans with Disabilities Act, 42 U.S.C. 12101, Section 504 of the Rehabilitation Act, and 29 U.S.C. 794.

(9) A navigator entity or its employees shall provide a referral to the DOI for any enrollee or qualified individual with a grievance, complaint, or question regarding a health plan, coverage, or a determination under the plan or coverage.

(10) A navigator entity or its employees shall demonstrate to the division that the entity has existing relationships, or could readily establish relationships, with:

(a) Consumers, including uninsured and underinsured consumers; or

(b) Self-employed individuals eligible for a QHP, SADP, or another insurance affordability program.

(11)

(a) In accordance with Section 4 of this administrative regulation, the division shall withdraw certification if it finds noncompliance with the terms and conditions of the agreement from:

An individual navigator; or
A navigator entity.

(b) In addition to withdrawal of certification, the division may enforce any penalty as specified in the contract.

Section 4. Withdrawal of Certification of a kynector and Appeals.

(1) If the division finds noncompliance with the terms and conditions of an agreement or this administrative regulation, the division shall:

(a) Provide the kynector entity or kynector with notice that the applicable certification shall be withdrawn as of the date on the notice;

(b) Allow the kynector entity or kynector an opportunity to submit evidence of compliance or additional information within ten (10) business days;

(d) Based on a review of the information provided, issue a final decision to withdraw or reinstate the applicable certification of the kynector entity or kynector.

(2) A kynector entity or kynector may appeal a final decision to withdraw the applicable certification by submitting a written request to the division within ten (10) business days of the final decision.

(3) After one (1) year following a decision to withdraw certification of a kynector entity or kynector, the kynector or kynector entity may reapply in accordance with this administrative regulation.

Section 5. Requirements to be a Participating Individual Agent. An agent wishing to participate on KHBE in accordance with 42 U.S.C. 18031 and 45 C.F.R. 155.220 shall:

(1) Be licensed by DOI with a health line of authority;

(2) Complete the agent training provided by the division in accordance with 45 C.F.R. 155.220(d)(2) within three (3) attempts;

(3) Enter into an agreement with the division to comply with the applicable standards of 45 C.F.R. 155.205 and 155.220 and this administrative regulation;

(4) Comply with the privacy and security standards of 45 C.F.R. 155.260;

(5) Except for an employee of an issuer or an individual agent directly contracted with an issuer, maintain:

(a) An appointment with at least one (1) QHP or SADP issuer participating on the KHBE; or

(b) A designation with a business entity having an appointment with at least one (1) QHP or SADP issuer participating on the KHBE;

(6) Register with the KHBE through the KOG; and

(7) Not serve as a web broker or consultant while assisting individuals with the activities described in Section 6 of this administrative regulation.

Section 6. Permitted Activities of a Participating Individual Agent.

(1) Upon completion of the registration requirements as set forth in Section 5 of this administrative regulation, a participating individual agent may:

(a) Enroll a qualified individual in any QHP or SADP offered by an issuer with which the individual agent has the appropriate designation or appointment as required by Section 5(5) of this administrative regulation through the KHBE in the individual market;

(b) Assist a qualified employer in selecting a QHP or SADP offered by an issuer with which the individual agent has the appropriate designation or appointment as required by Section 5(5) of this administrative regulation; or

(2) A qualified individual may be enrolled in a QHP or SADP through the KHBE by a participating individual agent if the participating individual agent ensures the applicant's completion of an application as described in 45 C.F.R. 155.405.

(3) A participating individual agent shall:

(a) Disclose to a potential applicant any relationships the individual agent has with a QHP or SADP issuer, insurance affordability program, or other potential conflicts of interest identified by the division; and

(b) Not:

Impose any charge or fee on an applicant for assistance in completing an application for, or enrolling in, a QHP, a SADP, or an insurance affordability program;
Provide compensation or a referral fee to a kynector; and
Enter into an exclusive referral agreement with a kynector.

(4) If the division finds noncompliance with this administrative regulation, the division shall withdraw an agent's registration and participation with the KHBE after giving:

(a) Notice to the participating individual agent; and

(b) An opportunity to respond to the notice required by paragraph (a) of this subsection in accordance with Section 8 of this administrative regulation.

Section 7. Renewal of Participation and Registration with the Division. To maintain registration with the division, a participating individual agent shall:

(1) Comply with training provided by the division;

(2) Enter into an agreement with the division to comply with the applicable standards of 45 C.F.R. 155.205 and 155.220 and this administrative regulation;

(3) Maintain licensure, appointments, and designations as identified in Section 5 of this administrative regulation;

(4) Comply with the requirements of 45 C.F.R. 155.220; and

(5) Comply with 900 KAR Chapter 10.

Section 8. Withdrawal of Registration as an Individual Agent and Appeals.

(1)

(a) Except as established in subsection (2) of this section, if the division finds noncompliance with the terms and conditions of an individual agent agreement or 900 KAR Chapter 10, the division shall:

Provide the participating individual agent with notice that the applicable registration shall be withdrawn as of the date of notice;
Allow the participating individual agent an opportunity to submit evidence of compliance or additional information within ten (10) business days;
Review any information submitted by the participating individual agent; and
Based on a review of the information provided, issue a decision to uphold the withdrawal or reinstate the applicable registration of a participating individual agent.

(b) A participating individual agent shall have the right to appeal a decision to withdraw registration in accordance with paragraph (a) of this subsection through the division.

(2)

(a) If the health line of authority or licensure of an agent is suspended, revoked, or expired, the registration of the agent shall be withdrawn by the division based on DOI's administrative action.

(b) Any appeal or request of an action by DOI pursuant to paragraph (a) of this subsection shall be made to DOI in accordance with KRS 304.2-310(2)(b).

(3) After one (1) year following a decision to withdraw the registration of a participating individual agent, the individual agent may reapply in accordance with Section 5 of this administrative regulation.

History

RELATES TO: KRS Chapter 45A, Chapter 304, 304.2-310, 29 U.S.C. 794, 42 U.S.C. 12101-12103, 18022, 18031, 18042, 18054, 45 C.F.R. Part 155, 156
STATUTORY AUTHORITY: KRS 194A.050(1)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Office of Health Data and Analytics, Division of Health Benefit Exchange has responsibility to administer the Kentucky Health Benefit Exchange. KRS 194A.050(1) requires the secretary of the cabinet to promulgate administrative regulations necessary to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the Commonwealth; to operate the programs and fulfill the responsibilities vested in the cabinet; and to implement programs mandated by federal law. This administrative regulation establishes the policies and procedures relating to the registration of an individual agent and certification of a kynector, including a certified application counselor or navigator in accordance with 42 U.S.C. 18031 and 45 C.F.R. Part 155.
History: 47 Ky.R. 2211; 48 Ky.R. 54; eff. 7-21-2021.

900 KAR 10:130 Appeals of Eligibility for KHBE Participation and Insurance Affordability Programs {#sec-900-kar-10-130 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:130}

Section 1. Right to Appeal an Individual Eligibility Determination or Redetermination.

(1) An applicant or an enrollee may make an appeal request of:

(a) An eligibility determination made in accordance with 45 C.F.R. 155.300 to 155.355 and 900 KAR 10:120, including:

An initial determination of eligibility for enrollment in a QHP or SADP, including the amount of APTC and CSR, made in accordance with the standards specified in 45 C.F.R. 155.305(a) through (h); or
A redetermination of eligibility, including the amount of APTC and CSR, made in accordance with 45 C.F.R. 155.330 and 155.335;

(b) A determination of eligibility for an enrollment period;

(c) A failure by the KHBE to provide within twenty (20) days notice of an eligibility determination pursuant to 45 C.F.R. 155.310(g), 155.330(e)(1)(ii), 155.335(h)(1)(ii), or 155.610(i); or

(d) A denial of a request to vacate dismissal made by DAH in accordance with 45 C.F.R. 155.530(d)(2), made pursuant to Section 8(3) of this administrative regulation.

(2) An appeal request that fails to meet the criteria in subsection (1) of this section shall not be considered an acceptable appeal request, and the division shall send written notice to the appellant to:

(a) State the appeal request has not been accepted and explain the nature of the defect in the appeal request; and

(b) Explain that the applicant or enrollee may cure the defect and resubmit the appeal request within ninety (90) days of the notice of action.

(3) Upon exhaustion of the appeal process established in this administrative regulation, an appellant may:

(a) Appeal to HHS in accordance with 45 C.F.R. 155.520(c); and

(b) Seek a judicial review of an appeal decision pursuant to KRS 13B.140.

(4) The DAH shall conduct an appeal of an individual eligibility determination, except for an eligibility determination for an exemption made in accordance with 45 C.F.R. 155.605.

(5) An appeal of an eligibility determination of an exemption shall be conducted by HHS.

Section 2. Individual Appeal Designation of a Representative.

(1) An appellant may represent himself or herself or be represented during an appeal process by:

(a) Legal counsel;

(b) A relative;

(d) Another individual not listed in paragraph (a), (b), or (c) of this subsection.

(2) The division shall designate a representative to act on behalf of the division for the hearing.

Section 3. Individual Appeal Notice of Appeal Rights.

(1) An applicant or an enrollee shall be notified of the right to appeal, timeframe to file an appeal, and how to file an appeal when:

(a) The applicant submits an application; and

(b) A notice of eligibility determination is sent by KHBE under 45 C.F.R. 155.310(g) or 155.330(e)(1)(ii), or by HHS under 45 C.F.R. 155.610(i).

(2) A notice described in subsection (1) of this section shall include:

(a) An explanation of the applicant or enrollee's appeal rights in accordance with this administrative regulation;

(b) A description of the procedure and timeframe within which to request an appeal;

(c) Information on the applicant or enrollee's right to represent himself or herself or to be represented by legal counsel or other authorized person as identified in Section 2 of this administrative regulation;

(d) An explanation of the circumstances under which the appellant's or enrollee's eligibility may be maintained or reinstated pending an appeal decision in accordance with Section 7 of this administrative regulation; and

(e) An explanation that an appeal decision for one (1) household member may result in a:

Change in eligibility for another household member; or
Redetermination of eligibility in accordance with 900 KAR 10:120.

Section 4. Individual Appeal Requests.

(1) An applicant or an enrollee may submit an appeal request:

(a) By phone;

(b) By mail;

(d) Via the internet.

(2) Upon request, the division or the DAH shall assist an applicant or enrollee in filing an appeal.

(3) An applicant or enrollee's right to appeal shall not be limited or interfered with by an employee or representative of the division.

(4) An applicant or enrollee shall have thirty (30) days from the date of notice of an eligibility determination or redetermination to submit an appeal request.

Section 5. Individual Appeal Informal Resolution Completed by the Division.

(1) After receiving an appeal request, the division shall:

(a) Conduct a desk review of an appeal prior to sending the appeal to the DAH; and

(b)

Except established in subparagraph 2. of this paragraph, complete the review within fifteen (15) calendar days of receipt of the appeal request; or
For an expedited appeal request submitted in accordance with Section 10 of this administrative regulation, complete the review within three (3) business days.

(2) An appellant shall:

(a) Have the right to a hearing if the appellant is dissatisfied with the outcome of the informal resolution process; and

(b) Not have to provide duplicative information or documentation previously provided during the application process.

(3) The outcome of an informal resolution shall be final and binding and the appeal shall not advance to a hearing if the appellant:

(a) Is satisfied with the outcome of the informal resolution process: and

(b) Withdraws his or her appeal request in accordance with Section 11 of this administrative regulation.

(4) If an appellant is dissatisfied with the outcome of the information resolution process, KHBE shall send:

(a) The appeal request and all documents utilized by the division in the desk review to DAH no later than five (5) business days after the completion of the informal resolution process; and

(b) A written notice to the appellant that includes:

Notification that the appeal request has been sent to DAH for a hearing;
Information regarding the appellant's eligibility pending appeal in accordance with Section 7 of this administrative regulation; and
An explanation that any APTCs paid on behalf of a tax filer pending appeal are subject to reconciliation under 26 C.F.R. 1.36B-4.

Section 6. Individual Appeal Acknowledgement of Appeal Request and Eligibility Record by DAH.

(1) A request for an appeal sent by KHBE to the DAH shall be reviewed by DAH to ensure that the appeal request is valid.

(2) Upon receipt of a valid appeal request, the DAH shall:

(a) Send within thirty (30) days notice to the appellant of receipt of the valid appeal, to include the hearing requirements contained in Section 9 of this administrative regulation; and

(b) Confirm receipt of the records transferred by KHBE pursuant to Section 5(4)(a) of this administrative regulation.

(3) The DAH shall consider an appeal request valid if the request:

(a) Was incorrectly delivered or mailed to a department or division of the Cabinet for Health and Family Services; and

(b) Is otherwise valid.

(4) Upon receipt of an appeal request that is not valid, the DAH shall:

(a) Send written notice to the appellant and KHBE that the appeal request has not been accepted and of the nature of the defect in the appeal request; and

(b) Accept an amended appeal request as valid that meets the requirements of this administrative regulation.

Section 7. Individual Eligibility Pending Appeal.

(1) An appellant who has submitted an acceptable request as described in Section 1 of this administrative regulation of a redetermination of eligibility in accordance with Section 4 of this administrative regulation shall be considered eligible while the appeal is pending.

(2) If a tax filer or appellant accepts eligibility pending an appeal of an eligibility redetermination, the appellant's eligibility for an APTC or CSR or enrollment in a QHP or SADP as applicable shall be continued in accordance with the level of eligibility immediately before the redetermination being appealed.

(3) An appellant may waive receipt of APTCs pending the outcome of an appeal.

(4) The continued receipt of APTCs during an appeal may impact the amount owed or due by an appellant during the reconciliation process set forth in 26 C.F.R. 1.36B-4, depending upon the appeal decision.

(5) Eligibility pending appeal shall not be applicable to an appellant appealing an initial denial of eligibility for APTCs.

Section 8. Individual Dismissal of an Appeal.

(1) An appeal shall be dismissed by DAH if the appellant:

(a) Withdraws the appeal request in accordance with Section 11 of this administrative regulation;

(b) Fails to appear at a scheduled hearing without good cause;

(d) Dies while the appeal is pending.

(2) If an appeal is dismissed in accordance with subsection (1) of this section, DAH shall provide within thirty (30) days written notice to the appellant and the division that includes:

(a) The reason for the dismissal;

(b) An explanation of the effect of the dismissal on the appellant's eligibility;

(c) An explanation of how the appellant may show good cause why the dismissal should be vacated in accordance with subsection (3)(a) of this section;

(d) A statement of the eligibility determination to be implemented; and

(e) A statement discontinuing eligibility provided under Section 7 of this administrative regulation, if applicable.

(3) DAH shall:

(a) Vacate a dismissal under this section and proceed with the appeal if the appellant makes a written request within thirty (30) days of the date of the notice of the dismissal showing good cause why the dismissal should be vacated; and

(b) Provide within thirty (30) days written notice of the recommendation to the secretary of the Cabinet for Health and Family Services to deny the request to vacate a dismissal to the appellant, if the request is denied.

(4) Good cause for the purposes of this section shall include if the appellant:

(a) Was away from home during the entire filing period;

(b) Is unable to read or to comprehend the right to request a hearing on an adverse action notice;

(d) Had a household member who was seriously ill;

(e) Was not at fault for the delay of the request, as determined by the hearing officer; or

(f) Did not receive the notice.

Section 9. Individual Hearing Requirements.

(1) DAH shall provide written notice to the appellant and the division that:

(a) Acknowledges the appeal request as required by Section 6(2) of this administrative regulation; and

(b) Meets the notice requirements established by KRS 13B.050(3).

(2) An appellant may:

(a) Upon request, obtain from the division, copies of the appeal record, including all documents and records to be used at the hearing, prior to the date of the hearing, and during the hearing;

(b) Bring witnesses to testify;

(d) Present an argument without undue interference; and

(e) Question or refute any testimony or evidence, including the opportunity to confront and cross-examine an adverse witness.

(3) The DAH shall:

(a) Consider the information used to determine an appellant's eligibility;

(b) Consider additional relevant evidence presented during the course of the appeal, including at the hearing; and

(4) A hearing shall be conducted:

(a) In accordance with the requirements of KRS 13B.080 and KRS 13B.090;

(b) At a reasonable date, time, and location or format;

(d) Consistent with subsection (3) of this section; and

(e) By one (1) or more impartial hearing officers who have not been directly involved in the eligibility determination or any prior appeal decision in the same matter.

Section 10. Individual Expedited Appeals.

(1) An appellant may make an expedited appeal if:

(a) There is an immediate need for a health service; and

(b) The standard appeal process established in Section 9 of this administrative regulation may seriously endanger the appellant's life, health, or ability to attain, maintain, or regain maximum function.

(2) An expedited appeal shall be requested in the same manner as a standard appeal as set forth in Section 4 of this administrative regulation.

(3) If an expedited appeal is requested, an appellant shall submit evidence of the reason for the expedited appeal.

(4) If an expedited appeal request under this section is denied by the DAH, the DAH shall:

(a) Conduct the appeal under the standard appeal process as set forth in Section 9 of this administrative regulation;

(b) Inform the appellant through electronic or oral notification, if possible, of the denial within the timeframes established by the secretary of HHS; and

(5) A written notice pursuant to subsection (4)(c) of this section shall include:

(a) The reason for the denial;

(b) An explanation that the appeal request shall be transferred to the standard process described in Section 9 of this administrative regulation; and

Section 11. Individual Withdrawal of an Appeal. If an appellant wants to withdraw an appeal, the appellant shall withdraw a request for an appeal:

(1) In writing;

(2) Orally to KHBE staff during an informal resolution process described in Section 5 of this administrative regulation; or

(3) Orally to the hearing officer during an appeal proceeding.

Section 12. Individual Hearing Decision.

(1) After the hearing is concluded or a decision is made not to reverse a dismissal of an appeal, the hearing officer shall issue a recommended order in accordance with the requirements of KRS 13B.110.

(2) A recommended order rendered by the DAH shall be based only on the:

(a) Information and evidence specified in 45 C.F.R. 155.535(e);

(b) Eligibility requirements in 900 KAR 10:120;

(d) Record of the appeal and hearing.

(3) A recommended order shall:

(a) Be sent to the appellant and the appellant's authorized representative, if applicable, and the division;

(b) State the decision;

(d) Summarize the facts relevant to the appeal;

(e) Identify the legal basis, including an administrative regulation that supports the decision; and

(f) State the effective date of the decision.

(4) If either the appellant or the division is dissatisfied with the recommended order, either party shall have fifteen (15) days from the date the recommended order is mailed to file exceptions to the recommendations with the secretary of the Cabinet for Health and Family Services.

(5) The secretary of the Cabinet for Health and Family Services shall consider the appeal record, including the recommended order and any exceptions filed to a recommended order, in accordance with KRS 13B.120.

(6) The secretary of the Cabinet for Health and Family Services shall:

(a) Accept the recommended order of the hearing officer and adopt it as the agency's final order;

(b) Reject or modify, in whole or in part, the recommended order; or

(7) The secretary of the Cabinet for Health and Family Services shall:

(a) Issue written notice of the final order to the appellant and include in that notice the appellant rights to a judicial review afforded under KRS 13B.140 within ninety (90) days of the date an appeal request under Section 4 of this administrative regulation is received;

(b) If an appeal request is submitted under Section 10 of this administrative regulation that is determined to meet the criteria for an expedited appeal, issue the final order as expeditiously as:

The appellant's health condition requires; and
Reasonably possible, consistent with the timeframe established by the secretary of HHS; and

The appellant, if applicable; and
The division.

(8) Upon receipt of a notice described in subsection (7)(a) of this section, the division shall:

(a) Implement the appeal decision:

Retroactive to the date the incorrect eligibility determination was made; or
At a time determined under 45 C.F.R. 155.330(f); and

(b) Redetermine the eligibility of a household member who has not appealed an eligibility determination, but whose eligibility may be affected by the appeal decision, in accordance with the standards described in:

900 KAR 10:120; and
45 C.F.R. 155.305.

Section 13. Individual Right to Appeal to HHS.

(1) If an appellant disagrees with an appeal decision made in accordance with Section 12 of this administrative regulation or notice of denial of a request to vacate a dismissal under Section 8(3)(b) of this administrative regulation, the appellant may request an appeal from HHS within thirty (30) days of the date of the appeal notice.

(2) Upon receipt of a notice of an appeal under subsection (1) of this section, DAH shall transmit via secure electronic interface the appellant's appeal record, including the appellant's eligibility record received from KHBE, to HHS.

(3) An applicant or an enrollee denied a request for an exemption by HHS under 45 C.F.R. 155.625(b) may appeal the decision to HHS.

Section 14. Individual Appeal Release of Records.

(1) An appellant shall have access to the information used by the KHBE to determine his or her eligibility.

(2) An appellant shall have access to his or her appeal record:

(a) Upon written request;

(b) At a place and time convenient to the appellant; and

(c) Subject to all applicable federal and state laws regarding privacy, confidentiality, disclosure, and personally identifiable information.

(3) The public shall have access to an appeal decision, subject to all applicable federal and state laws regarding privacy, confidentiality, disclosure, and personally identifiable information.

History

RELATES TO: KRS 13B.050, 13B.080, 13B.090, 13B.110, 13B.120, 13B.140, 42 U.S.C. 18031, 26 C.F.R. 1.36B-4, 45 C.F.R. Parts 155, 156
STATUTORY AUTHORITY: KRS 194A.050(1)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Office of Health Data and Analytics, Division of Health Benefit Exchange has responsibility to administer the Kentucky Health Benefit Exchange. KRS 194A.050(1) requires the secretary of the cabinet to promulgate administrative regulations necessary to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the Commonwealth; to operate the programs and fulfill the responsibilities vested in the cabinet; and to implement programs mandated by federal law. This administrative regulation establishes the policies and procedures relating to appeals of eligibility determinations for KHBE participation and insurance affordability programs on the Kentucky Health Benefit Exchange pursuant to and in accordance with 42 U.S.C. 18031 and 45 C.F.R. Parts 155 and 156.
History: 47 Ky.R. 2214; 48 Ky.R. 56; eff. 7-21-2021.

Chapter 12 Telehealth

900 KAR 12:005 Telehealth terminology and requirements {#sec-900-kar-12-005 omnilex-key=us-ky-regs-official--title-900--900 KAR 12:005}

Section 1. Definitions.

(1) "Division" means Division of Telehealth Services.

(2) "Health care provider" is defined by KRS 304.17A-005(23), unless the provider or service is otherwise regulated by KRS 205.8451(7).

(3) "Health care service" is defined by KRS 211.332(2).

(4) "Professional licensure board" is defined by KRS 211.332(3).

(5) "State agency authorized or required to promulgate administrative regulations relating to telehealth" is defined by KRS 211.332(4).

(6) "Telehealth" or "digital health" is defined by KRS 211.332(5).

Section 2. Compliance. Health care providers performing a telehealth or digital health service shall:

(1) Maintain confidentiality of patient medical information in accordance with KRS 311.5975;

(2) Maintain patient privacy and security in accordance with the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d through 1320d-9, unless waived by the applicable federal authority;

(3) Obtain patient informed consent in accordance with KRS 311.5975 and 304.40-320;

(4) Secure credentialing if required by a third party or insurer or other payor;

(5)

(a) Utilize the appropriate current procedural terminology (CPT) or health care common procedure coding (HCPCS) code and place of service (POS) code to secure reimbursement for a professional telehealth service; or

(b) Utilize appropriate telehealth service code, if a CPT or HCPCS code is not available or not used for that service, according to customary practices for that health care profession, including the use of any telehealth modifiers or alternate codes;

(6) Utilize non-public facing technology products that are HIPAA compliant;

(7) As appropriate for the service, provider, and recipient, utilize the following modalities of communication delivered over a secure communications connection that complies with the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. secs. 1320d to 1320d-9:

(a) Live or real-time audio and video synchronous telehealth technology;

(b) Asynchronous store-and-forward telehealth technology;

(d) Audio-only telecommunications systems; or

(e) Clinical text chat technology if:

Utilized within a secure, HIPAA compliant application or electronic health record system; and
Meeting:

a. The scope of the provider's professional licensure; and

b. The scope of practice of the provider; and

(8) Comply with the following federal laws to prevent waste, fraud, and abuse relating to telehealth:

(a) False Claims Act, 31 U.S.C. § 3729-3733;

(b) Anti-Kickback Statute, 42 U.S.C. 1320a-7b(b); and

Section 3. Incorporation by Reference.

(1) "Telehealth Terminology Glossary", August 2022, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Telehealth Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m., or from its Web site at https://telehealth.ky.gov.

History

RELATES TO: KRS 205.510, 205.559, 205.5591, 211.332(2) - (5), 304.17A-005(23), 304.17A-138, 304.40-320, 311.5975, 31 U.S.C. 3729-3733, 42 U.S.C. 1320a-7b(b), 42 U.S.C. 1320d to 1320d-9, 42 U.S.C. 1395nn
STATUTORY AUTHORITY: KRS 194A.105, 211.334(1)(d), 211.335, 211.336(3)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 211.334 and 211.336 require the secretary of the Cabinet for Health and Family Services to promulgate administrative regulations necessary under applicable state laws to establish a telehealth terminology glossary to provide standard definitions for all health care providers who deliver health care services via telehealth, all state agencies authorized or required to promulgate administrative regulations relating to telehealth, and all payors; establish minimum requirements for the proper use and security of telehealth including requirements for confidentiality and data integrity, privacy, and security, informed consent, privileging and credentialing, reimbursement, and technology; and establish minimum requirements to prevent waste, fraud, and abuse related to telehealth. This administrative regulation establishes a telehealth terminology glossary and minimum requirements for the proper use and security of telehealth.
History: 48 Ky.R. 1079, 1782, 2095, 2225; eff. 2-10-2022; 49 Ky.R. 640; eff. 1-12-2023.

Chapter 13 Guaranteed Acceptance Program

900 KAR 13:010 Guaranteed Acceptance Program (GAP) reporting requirements {#sec-900-kar-13-010 omnilex-key=us-ky-regs-official--title-900--900 KAR 13:010}

Section 1. Definitions.

(1) "Earned premium" is defined by KRS 304.17B-001(8).

(2) "Guaranteed acceptance program" or "GAP" is defined by KRS 304.17B-001(11).

(3) "Guaranteed acceptance program participating insurer" is defined by KRS 304.17B-001(12).

(4) "Health benefit plan" is defined by KRS 304.17A-005(22).

(5) "Insurer" is defined by KRS 304.17A-005(29).

(6) "Office" is defined by KRS 304.17B-001(24).

(7) "Stop-loss carrier" is defined by KRS 304.17B-001(27).

(8) "Supporting insurer" is defined by KRS 304.17B-001(28).

Section 2. GAP Participating Insurer's Monthly Report. A GAP participating insurer shall submit a GAPERF-M-1 to the office within thirty (30) calendar days after the end of each calendar month.

Section 3. Supporting Insurer's and Stop-Loss Carrier's Quarterly Report. A supporting insurer and a stop-loss carrier shall submit a GAPQR-2 to the office within thirty (30) calendar days after the end of each calendar quarter.

Section 4. GAP Participating Insurer's Annual Report. A GAP participating insurer shall submit a GAPERF-A-1 to the office within forty-five (45) calendar days after the end of each calendar year.

Section 5. Certification. A GAP participating insurer shall complete and attach a GAPC-1 to the following reports at the time of the report's submission to the office:

(1) GAPERF-M-1; and

(2) GAPERF-A-1.

Section 6. Annual Earned Premium Verification.

(1) After the end of a calendar year, the office may request in writing that a supporting insurer verify the total earned premiums reported by the insurer for that calendar year.

(2) If an earned premium verification is requested pursuant to subsection (1) of this section, a supporting insurer shall submit the following documentation:

(a)

Confirmation that the reported health benefit plan or stop-loss earned premium amounts are correct; or
Corrections of reported health benefit plan or stop-loss earned premium amounts; and

(b) A GAPAFF-1.

Section 7. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Guaranteed Acceptance Program and Kentucky Access Affidavit", GAPAFF-1, 11/2021;

(b) "Guaranteed Acceptance Program (GAP) and Kentucky Access Data Certification Form", GAPC-1, 11/2021;

(d) "Monthly Report for GAP Participating Insurers", GAPERF-M-1, 11/2021; and

(e) "Supporting Insurer's and Stop-Loss Carrier's Quarterly Report", GAPQR-2, 11/2021.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Office of Health Data and Analytics, Division of Health Benefit Exchange, 275 East Main Street 4WE, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m., or may be accessed at khbe.ky.gov.

History

RELATES TO: KRS 304.17B-001, 304.17B-021(2), 304.17B-023
STATUTORY AUTHORITY: KRS 304.17B-031(1)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 304.17B-031(1) requires the Office of Health Data and Analytics to promulgate administrative regulations necessary to carry out the provisions of KRS 304.17B-001 to 304.17B-031. KRS 304.17B-023 establishes reporting requirements for the Guaranteed Acceptance Program for a participating insurer and KRS 304.17B-021(2) establishes requirements for a supporting insurer to provide information to the office. This administrative regulation prescribes the form and the time schedule for submitting reports to the office.
History: 49 Ky.R. 2348; eff. 7-20-2022.

Chapter 14 Essential Personal Care Visitor Program

900 KAR 14:010 Essential personal care visitor programs; visitation guidelines {#sec-900-kar-14-010 omnilex-key=us-ky-regs-official--title-900--900 KAR 14:010}

Section 1. Definitions.

(1) "Essential personal care visitor" means a family member, legal guardian, outside caregiver, friend, or volunteer who:

(a) Is eighteen (18) years of age or older;

(b) May have provided regular care and support to a resident prior to any restrictions on visitation;

(d) Meets an essential need of the resident, including companionship, assisting with personal care, or positively influencing the behavior of the resident.

(2) "Facility" means a:

(a) Health facility as defined by KRS 216.505(1)(a); or

(b) Psychiatric residential treatment facility as defined by KRS 216.505(1)(d).

(3) "Health service" is defined by KRS 216.505(1)(b).

(4) "Medicaid waiver service" is defined by KRS 216.505(1)(c).

(5) "Personal care" means assisting a resident with essential everyday activities, which may include grooming, dressing, and eating.

(6) "Resident" means an individual who:

(a) Resides in a health facility, including a psychiatric residential treatment facility; or

(b) Receives health services or Medicaid waiver services.

Section 2. Essential personal care visitation.

(1) A facility, health service, or Medicaid waiver service shall:

(a) Allow essential personal care visitation as an exception from any prohibition against general visitation;

(b) Establish policies and procedures for the designation of at least one (1) essential personal care visitor, including a process for changing the designated essential personal care visitor; and

(2) Designation of an essential personal care visitor shall be made in consultation with, and upon agreement by the:

(a) Resident; and

(b) Resident's representative, if applicable.

(3) A facility, health service, or Medicaid waiver service may require a written agreement with an essential personal care visitor.

(4) A facility, health service, or Medicaid waiver service may limit the total number of visitors permitted in the facility or service at any one (1) time.

(5) A facility, health service, or Medicaid waiver service may limit visitation by an essential personal care visitor to the resident or residents he or she is approved to visit.

(6) An essential personal care visitor who enters a facility, health service, or Medicaid waiver service during a period when general visitation is limited or prohibited shall:

(a) Assume the risk of contracting a communicable disease;

(b) Limit visitation to the resident's room or a facility-designated room within the building;

(d) Follow the facility's safety protocols; and

(e) Inform the facility if he or she develops symptoms of a communicable disease within fourteen (14) days of the visit.

(7) If the resident has a roommate, an essential personal care visitor shall:

(a) Not enter the resident's room if the roommate is there unless the roommate agrees in advance; and

(b) Be prohibited from staying in the room for more than fifteen (15) minutes unless otherwise approved by the roommate or roommate's representative.

(8) An essential personal care visitor shall follow the same safety protocols required for facility, health service, or Medicaid waiver service staff, which may include one (1) or more of the following:

(a) Testing for a communicable disease, which may be the responsibility of the essential personal care visitor. If testing is provided by the facility, health service, or Medicaid waiver service, essential personal care visitors shall be tested on the same schedule as staff;

(b) Health screens, including screening for signs and symptoms of a communicable disease and denial of entry of any individual with signs and symptoms;

(d) Washing or sanitizing hands regularly;

(e) Maintaining a distance of six (6) feet from staff and other residents at all times. Social distancing from the resident receiving an essential personal care visit may be relaxed for a short period of time under certain circumstances, e.g., providing assistance with a personal care activity; and

(f) Adhering to any other requirement the facility, health service, or Medicaid waiver service deems appropriate in accordance with guidance from the Centers for Disease Control and Prevention (CDC).

(9) During a period when general visitation is limited or prohibited, a facility, health service, or Medicaid waiver service shall:

(a) Be responsible for verifying and tracking the testing status of each essential personal care visitor if the facility or service requires testing as a safety protocol;

(b) Schedule essential personal care visits in advance or in accordance with a written agreement;

(c) Consider the number of other essential visitors who will be in the building at the same time when developing a visitation schedule;

(d) Establish limitations on the visitation frequency and length of the visits to keep staff and residents safe;

(e) Sanitize the area's high-frequency touched surfaces after the visit; and

(f) Continue to provide all required services and activities to a resident while an essential personal care visitor is with the resident.

Section 3. Training.

(1) If required by the facility's or service's written policies and procedures, each essential personal care visitor shall complete facility-designated training that includes basic information on infection prevention and control.

(2) A facility or service may post signage throughout the building that demonstrate key instructions to reinforce safe practices.

History

RELATES TO: KRS 194A.700(4), 216.510(1)
STATUTORY AUTHORITY: KRS 216.505
NECESSITY, FUNCTION, AND CONFORMITY: KRS 216.505 requires the cabinet to promulgate administrative regulations, subject to applicable federal requirements, to establish guidelines for any individual designated as an essential personal care visitor to have in-person visitation with a resident of a health facility, health service, Medicaid waiver service, or psychiatric residential treatment facility during a period when general visitation is limited or prohibited. This administrative regulation establishes guidelines for implementation of essential personal care visitor programs.
History: 36 Ky.R. 239; Am. 626; 808; eff. 10-28-2009; 38 Ky.R. 339; 1007; 1140; eff. 12-7-2011; 39 Ky.R. 857; 1467; 1695; eff. 3-8-2013; 42 Ky.R. 546; 1781; eff. 12-16-2015; 45 Ky.R. 1427, 2395; eff. 5-31-2019; 46 Ky.R. 2332; eff. 7-29-2020; 48 Ky.R. 2662; 49 Ky.R. 2662; eff. 8-25-2022; 49 Ky.R. 2164; eff. 9-27-2023.

Title 900 KAR — Cabinet for Health and Family Services

Chapter 1 Administration

900 KAR 1:009 Employee Access to Federal Tax Information (FTI) {#sec-900-kar-1-009 omnilex-key=us-ky-regs-official--title-900--900 KAR 1:009}

900 KAR 1:050 Child and adult protection employees subject to state and national criminal background checks {#sec-900-kar-1-050 omnilex-key=us-ky-regs-official--title-900--900 KAR 1:050}

Chapter 2 Long-term Care

900 KAR 2:010 Access and hours of visitation {#sec-900-kar-2-010 omnilex-key=us-ky-regs-official--title-900--900 KAR 2:010}

900 KAR 2:040 Citations and violations; criteria and specific acts {#sec-900-kar-2-040 omnilex-key=us-ky-regs-official--title-900--900 KAR 2:040}

900 KAR 2:050 Transfer and discharge rights {#sec-900-kar-2-050 omnilex-key=us-ky-regs-official--title-900--900 KAR 2:050}

900 KAR 2:060 Hearings concerning transfer and discharge rights {#sec-900-kar-2-060 omnilex-key=us-ky-regs-official--title-900--900 KAR 2:060}

Chapter 5 State Health Plan

900 KAR 5:020 State Health Plan for facilities and services {#sec-900-kar-5-020 omnilex-key=us-ky-regs-official--title-900--900 KAR 5:020}

Chapter 6 Certificate of Need

900 KAR 6:020 Certificate of need application fee schedule {#sec-900-kar-6-020 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:020}

900 KAR 6:030 Certificate of Need expenditure minimums {#sec-900-kar-6-030 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:030}

900 KAR 6:040 Licensure hearings {#sec-900-kar-6-040 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:040}

900 KAR 6:055 Certificate of need forms {#sec-900-kar-6-055 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:055}

900 KAR 6:060 Timetable for submission of certificate of need applications {#sec-900-kar-6-060 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:060}

900 KAR 6:065 Certificate of need application process {#sec-900-kar-6-065 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:065}

900 KAR 6:070 Certificate of need considerations for formal review {#sec-900-kar-6-070 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:070}

900 KAR 6:075 Certificate of need nonsubstantive review {#sec-900-kar-6-075 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:075}

900 KAR 6:080 Certificate of Need emergency circumstances {#sec-900-kar-6-080 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:080}

900 KAR 6:085 Implementation of outstanding Certificates of Need if ownership has changed {#sec-900-kar-6-085 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:085}

900 KAR 6:090 Certificate of need filing, hearing, and show cause hearing {#sec-900-kar-6-090 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:090}

900 KAR 6:095 Certificate of need administrative escalations {#sec-900-kar-6-095 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:095}

900 KAR 6:100 Certificate of need standards for implementation and biennial review {#sec-900-kar-6-100 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:100}

900 KAR 6:105 Certificate of Need advisory opinions {#sec-900-kar-6-105 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:105}

900 KAR 6:110 Certificate of Need notification requirements {#sec-900-kar-6-110 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:110}

900 KAR 6:115 Certificate of need requirement for critical access hospitals, swing beds, and continuing care retirement communities {#sec-900-kar-6-115 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:115}

900 KAR 6:125 Certificate of need annual surveys {#sec-900-kar-6-125 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:125}

900 KAR 6:130 Certificate of Need criteria for physician exemption {#sec-900-kar-6-130 omnilex-key=us-ky-regs-official--title-900--900 KAR 6:130}

Chapter 7 Data Reporting and Public Use Data Sets

900 KAR 7:030 Data reporting by health care providers {#sec-900-kar-7-030 omnilex-key=us-ky-regs-official--title-900--900 KAR 7:030}

900 KAR 7:040 Release of public data sets for health facility and services data {#sec-900-kar-7-040 omnilex-key=us-ky-regs-official--title-900--900 KAR 7:040}

Chapter 9 Kentucky Health Information Exchange

900 KAR 9:010 Kentucky Health Information Exchange participation {#sec-900-kar-9-010 omnilex-key=us-ky-regs-official--title-900--900 KAR 9:010}

Chapter 10 Kentucky Health Benefit Exchange

900 KAR 10:111 Definitions for 900 KAR Chapter 10 {#sec-900-kar-10-111 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:111}

900 KAR 10:115 Exchange participation requirements and certification of qualified health plans and qualified stand-alone dental plans {#sec-900-kar-10-115 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:115}

900 KAR 10:120 KHBE eligibility and enrollment in a qualified health plan, SHOP, and SHOP Formal Resolution Process {#sec-900-kar-10-120 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:120}

900 KAR 10:125 KHBE Consumer Assistance Program, kynector Certification, and Individual Agent Participation with the KHBE {#sec-900-kar-10-125 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:125}

900 KAR 10:130 Appeals of Eligibility for KHBE Participation and Insurance Affordability Programs {#sec-900-kar-10-130 omnilex-key=us-ky-regs-official--title-900--900 KAR 10:130}

Chapter 12 Telehealth

900 KAR 12:005 Telehealth terminology and requirements {#sec-900-kar-12-005 omnilex-key=us-ky-regs-official--title-900--900 KAR 12:005}

Chapter 13 Guaranteed Acceptance Program

900 KAR 13:010 Guaranteed Acceptance Program (GAP) reporting requirements {#sec-900-kar-13-010 omnilex-key=us-ky-regs-official--title-900--900 KAR 13:010}

Chapter 14 Essential Personal Care Visitor Program

900 KAR 14:010 Essential personal care visitor programs; visitation guidelines {#sec-900-kar-14-010 omnilex-key=us-ky-regs-official--title-900--900 KAR 14:010}

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