1613 Client's Rights Related to a Fair Hearing - The client or the client's representative shall have adequate opportunity to:

 

  1. Submit a request for a fair hearing, which may be on the Request for Administrative Hearing form, regarding any agency action. However, a hearing need not be granted if the request concerns only the validity of federal or state law or regulation. In addition, a hearing need not be granted when either state or federal law requires automatic adjustments for classes of recipients unless the reason for an individual appeal is incorrect computation. (See 1612 (1).)

  2. Examine the contents of his case file and all documents and records to be used by the agency at the hearing at a reasonable time before the date of the hearing as well as during the hearing. Refer to 1614 regarding confidential case file information.

  3. At his option, present his case himself, or with the aid of an authorized representative, and bring witnesses.

  4. Establish all pertinent facts and circumstances and advance any pertinent arguments without undue interference.

  5. Question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses.
  6. Submit evidence to establish all pertinent facts and circumstances in the case.

 

1614 Responsibilities of the Agency - Every applicant/recipient shall be informed in writing at the time of application and at the time of any subsequent action affecting medical assistance of the right to a fair hearing, the method of obtaining such hearing, and that representation may be by an authorized representative such as legal counsel, relative, friend, or other spokesperson.  The applicant/recipient shall be informed of the circumstances under which eligibility may be continued or reinstated during the appeal as well as an explanation that an appeal decision for one household member may result in a change in eligibility for other household members. Information printed on the application/redetermination form and notices of action will provide this information.

 

Agency hearing procedures shall be uniform, clearly written, and available to any interested party. At a minimum, the procedures shall include time limits for filing requests for appeals, advance notice requirements, hearing timeliness standards, and the rights and responsibilities of persons requesting a hearing. The booklet, Fair Hearing Procedures, shall be used for this purpose.

 

1614.1 Standard Procedures - The procedures set forth below shall be followed whenever a client makes an inquiry concerning a fair hearing, asks for fair hearing forms, or files a request for a fair hearing.
 

  1. The worker or supervisor should find out why the client is questioning the agency action. 

     

  2. If the client is only disagreeing with a federal or state law or policy, the reason for such policy should be discussed with the client.  

     

  3. If a client appears to be questioning the application of a federal or state law or policy to his individual situation (incorrect grant computation or use of incorrect facts), an administrative review shall be conducted to determine if the agency action was correct. Upon reconsideration, the agency may amend or change its decision at any time before or during the hearing. The hearing shall not be delayed or canceled because of this preliminary review.  

     

    If a satisfactory adjustment is reached prior to the hearing, the agency shall submit a written report to the hearing officer but the appeal shall remain pending until the client submits a signed written statement withdrawing the request for a fair hearing.

     

  4. If the client is questioning the decision regarding disability and the decision was made related to an SSI or SSA application for benefits, the client is to be referred to the SSA office to file an appeal. See 2637.

     

  5. If the client is questioning the decision regarding disability and the decision was made by Disability Determination and Referral Services (DDRS) based on an agency request via the  Disability Determination Request Medical Assistance Case and  Disability Determination Data/Report Medical Assistance Case,  the appeal will be processed through DDRS as specified in 1614.3 (9).

     

  6.  When a household member or representative makes an oral request for a fair hearing to the local office or to the Office of Administrative Hearings by telephone or in person, the agency shall document the request by using the Request for Administrative Hearing form. The date of the request shall be the date the oral communication was made to the agency and that date shall appear on the form. Lack of signature by the household member on the form used to document an oral request shall not invalidate the request.

     

1614.2 Agency Conference - The agency shall offer agency conferences to households wishing to contest an adverse agency action.  Staff shall advise households that use of an agency conference is optional and that it shall in no way replace or delay the fair hearing process.

  

The agency conference may be attended by the eligibility worker responsible for the agency action and shall be attended by an eligibility supervisor and/or the agency designee, and by the household and/or its representative. An agency conference may lead to an informal resolution of the dispute. However, a fair hearing shall still be held unless the household makes a written withdrawal of its request for a fair hearing.

  

Such conferences shall be scheduled within 2 working days of the date the appeal is filed, unless the household requests that it be scheduled later or states that it does not wish to have an agency conference.

 

1614.3 Completion of Summary - Within 15 days after the appellant has filed a request for a fair hearing, the agency shall furnish the appellant and the Office of Administrative Hearings with a summary. Two copies of the summary are sent to the Office of Administrative Hearings. The Office of Administrative Hearings will forward one copy to the appellant. The summary sets forth the following information:
 

  1. Name and address of the appellant;

     

  2. a summary statement concerning why the appellant is filing a request for a fair hearing;

     

  3. a brief chronological summary of the agency action which led to the appeal and the agency's action after receiving the request for fair hearing;

     

  4. a statement of the basis for the agency's decision;

     

  5. a citation of the applicable policies relied upon by the agency;

     

  6. a copy of the notice which notified the appellant of the decision in question;

     

  7. applicable correspondence; and 

     

  8. the name and title of the person or persons who will represent the agency at the hearing. 
     

  9. Appeals of a DDS disability decision should include copies of the medical information and forms (the original Disability Determination Request Medical Assistance Case and Disability Determination Data/Report Medical Assistance Case ) that were received from DDS related to the appeal. Any additional medical or social information that has become available and that would have bearing on the decision, including additional medical services and hospitalizations should be obtained. A special Medical Assistance Reconsideration Disability Report will be sent by DDS for obtaining this additional information. In addition, two new Authorization to Disclose Information to KDHE-DDS  are to be signed and included along with a new Disability Determination Request Medical Assistance Case  with the appropriate reconsideration box checked. This information shall be forwarded to DDS for reconsideration and review. If the case is approved for disability upon this re-evaluation, it will be returned to the local office for approval of assistance. If the DDS decision remains negative, an appeal form and agency summary along with the reconsideration file returned by DDS are to be submitted to the Administrative Hearing Section clearly identified as a DDS appeal case. A fair hearing will then be scheduled and conducted.

    If through an agency conference as discussed in 1614.2, the appellant has withdrawn the appeal, completion of the summary is not necessary. The Request for Administrative Hearing form should then be submitted, along with the Notice of Withdrawal of Appeal, to the Office of Administrative Hearings within 7 days of the date of the request for a fair hearing.

 

1614.4 Informing the Client of Termination of Assistance - The agency shall promptly inform the client in writing if assistance is to be terminated pending the fair hearing decision.

 

1614.5 Procedures For Requests Related to a Disability Determination - A request for a fair hearing on a decision based on a disability determination made by the agency, or contractors, according to 2662 is initially reviewed by the entity responsible for the disability decision.

  

1.  DDS Disability Determinations - Fair hearing requests are to be immediately referred to DDS for a reconsideration of disability. A special reconsideration will be completed by DDS prior to the hearing.

 

The Office of Administrative Hearings will generally direct these requests directly to DDS. DDS will request information from the eligibility worker to process the reconsideration. The Medical Assistance Reconsideration Disability Report will be sent to the worker. The form lists the information needed by DDS to complete the redetermination. A new DD-1104, with the Reconsideration field checked, and two new Authorization to Release Information forms (DD-1103) are included with the Reconsideration referral. It shall also include copies of the medical information and forms (the original DD-1104 and DD-1105) received back from DDS. Any additional medical or social information that has become available and would have bearing on the decision, including additional medical services and hospitalizations since the initial referral, are to be included as part of the referral. DDS will process the reconsideration.

  

If the disability is approved in the reconsideration, the case will be referred back to the agency for redetermination. If the DDS decision remains negative, a request for Administrative Hearing and agency summary must be completed and submitted to the Office of Administrative Hearings. The eligibility worker must ensure the case is clearly

designated a DDS case. DDS will take the lead in developing the agency's case for the fair hearing.

  

2.  Presumptive Medical Disability Team - A fair hearing request may involve MediKan or Medicaid. Any request for a fair hearing regarding the disability determination must be sent to OAH. The PMDT is also notified of the request using the Presumptive Medical Disability Notification Form (ES-3906).

  

3.  For cases where there is sufficient medical evidence, the PMDT will process a reconsideration. All cases approved for Tier 2 but denied Tier 1 will have sufficient evidence and be reconsidered. Any additional information available to the eligibility worker must be noted on the referral (e.g., medical services, social information, hospitalizations, etc.). Copies of the fair hearing request and any related materials are included with the referral. The PMDT may request additional information from the eligibility worker to develop the reconsideration.

  

If the reconsideration establishes a disability, or a higher level of disability, does exist the case will be referred back to the eligibility worker for redetermination. If the reconsideration upholds the original decision, the case will be prepared for a fair hearing. The PMDT will take the lead in preparing the appeal summary and representing the agency at the hearing, with the support of the eligibility worker.