A request for a fair hearing is defined as a clear expression, oral or written, to appeal a decision or final action of any agency or employee of KDHE-DHCF. The Office of Administrative Hearings administers the agency's fair hearing program pursuant to the Kansas Administrative Procedure Act (K.S.A. 77-501 et seq.)
A request for fair hearing may be made orally (either in person or by telephone), in writing (either in person or by mail), by fax, or by e-mail.
The rights, responsibilities, and procedures for fair hearings for other interested persons are similar to those applicants/recipients as explained in this section except that hearings for other interested persons shall be held in Topeka.
Any person who is an applicant, recipient or is authorized to represent the applicant/recipient may request a fair hearing for the individual. This includes the applicant/recipient’s attorney or an individual appointed as a Medical Representative. Form KC-6100, Medical Representative Authorization Form, or medical representative section on the application form is required to authorize a medical representative as stated above. This authorization must be signed prior to the date the request for fair hearing is filed.
In addition, the applicant/recipient can provide a written authorization allowing an attorney, or other individual, to request a fair hearing on his/her behalf. For deceased individuals, only persons specifically authorized by a court of appropriate jurisdiction may request a fair hearing or represent the decedent in a fair hearing action.
The date of request shall be the date the agency received the request. The date of request for oral requests is the day the person requests a fair hearing in person or by telephone. The date of receipt of a fair hearing request submitted after business hours by telephone, fax or e-mail shall be the next business day.
Unless preempted by federal law, a request for a fair hearing shall be in writing and received by the agency within 33 days from the date the notice of action is mailed. When a request for a fair hearing is received prior to the effective date of action as prescribed in 1612, assistance may be continued.
Such request may relate to an applicant's request for assistance which is denied, or is not acted upon with reasonable promptness, and to any recipient who is aggrieved by any agency action resulting in suspension, reduction, discontinuance, or termination of assistance.
If a written or oral request for a fair hearing is received on a Medicaid only program (excludes CHIP) prior to the effective date of action and the notice of adverse action is mailed assistance shall not be suspended, reduced, discontinued, or terminated until a decision is rendered after a hearing, unless:
Assistance shall also be continued at the prior level if the client or agency requests a review by the State Appeals Committee. See 1617.
NOTE: In any case where action was taken without timely notice, if the recipient requests a hearing within 10 days of the mailing of the notice of action, and the agency determines that the action resulted from other than the application of state or federal law or policy or a change in state or federal law, assistance shall be reinstated and continued until a decision is rendered in the matter as set forth above.
The agency shall promptly inform the household in writing if assistance is reduced or terminated pending the hearing decision. See 1614.5.
The client or the client's representative shall have adequate opportunity to:
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. Information about the KDHE hearing procedures for providers for KanCare and fee for service is available at Appeals & Fair Hearings.
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.
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.
Once a fair hearing request has been received, the agency shall attempt to contact the client, or the client’s representative, by telephone to explain the agency action and the effective date of the action taken.
The client may withdraw the request for fair hearing at any stage of the appeal process, up to and including the day of the fair hearing. The request must be in writing and signed by the client or the client’s representative. A special form, Notice of Withdrawal of Appeal, is available for this purpose. The agency may offer this form to the client for completion, but any writing evidencing the intent to withdraw shall be accepted.
The request may be submitted to either the agency or directly to the Office of Administrative Hearings (OAH). The request may be delivered by mail, fax, or in person. The appeal process will continue until the written withdrawal request has been formally received by OAH.
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 (OAH) with a summary. One copy of the summary shall be sent electronically to the OAH. Another copy shall be mailed to the appellant or representative. The summary shall include the following information:
When the request for fair hearing involves a Disability Determination Services (DDS) disability determination, the process described in 1614.6(1)(c) shall be followed.
If through an agency contract as discussed in 1614.2, the appellant has withdrawn the appeal (see 1614.3), 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 OAH within 7 days of the date of the request for a fair hearing.
The agency shall promptly inform the client in writing if assistance is to be terminated pending the fair hearing decision. See 1612 concerning continuation of assistance.
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.
A request to expedite the fair hearing process may be granted for an appellant who demonstrates an urgent medical need. The request may be made either at the time the fair hearing is filed or any time thereafter up to the actual date of the scheduled hearing. If granted, the hearing will be scheduled as soon as possible. If the expedited request is denied, the hearing process will proceed on a normal schedule.
The following additional provisions apply:
NOTE: Refusal or failure to supply supporting documentation with the expedited processing request will result in an automatic denial of the request.
As indicated above, the determination will be based on the documentation (i.e., medical records and/or medical professional statement) provided at the time of the expedited request. That determination is then forwarded to the Fair Hearings Manager.
Please note that this evaluation is not the same as a disability determination for eligibility purposes. The purpose of the review is to determine if an urgent medical need exists which warrants expediting the fair hearing process. The review is not intended to determine if the appellant meets the disability criteria for disability-related medical assistance programs.
An applicant may appeal a decision made by the Federally Facilitated Exchange (FFE) concerning his/her application for coverage and/or eligibility for the subsidy through the Health Insurance Marketplace. That appeal request will be sent to the Marketplace Appeals Center for adjudication. During the appeal process the Marketplace Appeals Center may determine that the appellant is potentially eligible for Medicaid or CHIP coverage.
In that instance, the Marketplace Appeals Center will submit an electronic appeal package to the agency containing consumer account information. The package of information will include not only information provided directly by the applicant when he/she completed the Health Insurance Marketplace application, but also data obtained from the result of any verifications performed by the Federally Facilitated Exchange (FFE). Also included in the package is the appeal request submitted by the appellant. This information shall be used by the agency to review the individual’s eligibility for medical assistance.
NOTE: The agency should only receive an appeal package for individuals who have already applied for and been denied Medicaid and/or CHIP coverage by the agency.
Upon receipt of the appeal package, the agency shall conduct an administrative review of the case based on the information provided and redetermine eligibility for Medicaid and/or CHIP coverage. If the applicant is determined eligible based on the review, coverage shall be promptly approved with notification provided to the applicant. If the agency determines that the applicant is not eligible, the application shall remain denied. The applicant shall be notified of the decision with the right to appeal. Whatever decision is made, the agency shall also notify the FFE of the outcome of the redetermination.
By Kansas statute, the agency has no jurisdiction to determine the facial validity of a state or federal statute. Nor does an administrative law judge from the Office of Administrative Hearings have jurisdiction to determine the facial validity of an agency rule and regulation. So, clients have no right to a fair hearing if they simply disagree with a regulation that results in a loss of eligibility. However, clients may have a hearing if they believe that the agency incorrectly applied such regulation to the client’s individual situation (use of incorrect facts). The issue is whether the client is only challenging the validity of the regulation or really presenting a factual dispute. If there is no dispute between the client and the agency as to the facts involved, the client’s request for a fair hearing in most instances will be dismissed by the hearing officer before the hearing.
As such, if the client is only disagreeing with a federal or state law or regulation (whether a current regulation or one that is changing) and, after following the procedures set forth in 1614.1 (1) - (3), wishes to file a request for a fair hearing (or fails to withdraw a request previously filed), the agency should complete a Motion to Dismiss form. The form is to be submitted to the Office of Administrative Hearings within 10-days of the request for a hearing. A copy of the appropriate Notice of Action and the Request for Administrative Hearing form should be attached to the motion. Do not submit an appeal summary unless the motion is denied. The agency must mail a copy of the Motion to Dismiss to the appellant. The worker should complete the Certificate of Service and sign it. Write the actual mailing date on the certificate, as well as the appellant's name and address. On the Motion to Dismiss, the line "Such action is based on" should reflect the appropriate law or regulation. (Contact Eligibility Policy as needed for this information.) For dismissal requests regarding major program changes or cutbacks, specific citations will be provided from the Section.
Fair hearings shall also be dismissed if the request is not received within the time periods specified in 1611, or the household or its representative fails, without good cause, to appear at the scheduled hearing, or is received from an individual who is not authorized to represent the applicant/recipient in a fair hearing as indicated in 1610 and 1613(3).
Assistance shall continue as noted in 1612 until a decision is rendered concerning the dismissal. If the dismissal request is approved, assistance shall be terminated unless the appellant requests State Appeals Committee review within the 15 days allowed. If the dismissal request is denied, assistance must continue until the presiding officer issues an initial order affirming the agency action, unless there is a State Appeals Committee review request.
Fair hearings for applicants or recipients shall be held in the Office of Administrative Hearings or the KDHE District Office. At least 10-days prior to the hearing, advance written notice shall be mailed to all parties involved to permit adequate preparation of the case.
The hearing officer may conduct the fair hearing or any pre-hearing by telephone or other electronic means if each participant in the hearing or prehearing has an opportunity to participate in the entire proceeding while the proceeding is taking place. A party may be granted a face to face hearing or prehearing if good cause can be shown that a fair and impartial hearing or pre-hearing could not be conducted by telephone or other electronic means.
At a hearing, the hearing officer shall regulate the course of the proceedings. To the extent necessary for full disclosure of all relevant facts and issues, the hearing officer shall provide all parties the opportunity to respond, present evidence and argument, conduct cross-examination and submit rebuttal evidence, except as restricted by a limited grant of intervention or by a pre-hearing order.
The hearing officer may, and when required by statute shall, give non-parties an opportunity to present oral or written statements. If the hearing officer proposes to consider a statement by a nonparty, the hearing officer shall give all parties an opportunity to challenge or rebut it and, on motion of any party, the hearing officer shall require the statement to be given under oath or affirmation.
A hearing officer need not be bound by technical rules of evidence, but shall give the parties reasonable opportunity to be heard and to present evidence. Evidence need not be excluded solely because it is hearsay.
All testimony of parties and witnesses shall be made under oath or affirmation. Statements of non-parties may be received as evidence.
Any part of the evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party. Documentary evidence may be received in the form of a copy or excerpt. Upon request, parties shall be given an opportunity to compare the copy with the original if available.
The hearing officer may not communicate, directly or indirectly, regarding any issue in the proceeding while the proceeding is pending, with any party or participant, with any person who has a direct or indirect interest in the outcome of the proceeding or with any person who presided at a previous stage of the proceeding, without notice and opportunity for all parties to participate in the communication.
A fair hearing decision (the initial order) shall be rendered by the hearing officer no later than 90 days after receipt of the request on a Request for Administrative Hearing form or similar document. The decision is sent to the client and the KanCare Clearinghouse.
As stated in the initial order, both the responsible agency and the client/responsible party have the right to request a review of the initial order. The KDHE-DHCF State Appeals Committee reviews the decision of the hearing officer. The request for review is made to the State Appeals Committee. The request must be made within 18 days of the date of the initial decision (15 days from the date the initial order was served plus 3 days mailing time for a total of 18 days). A rehearing may also be requested within 18 days of the initial decision.
Assistance shall be continued at its prior level if an agency-level review is requested and shall continue at this level until a decision is rendered by the appropriate authority. However, final implementation of the order may be delayed pending the outcome of the agency-level review. See 1618.
The decision of the agency-level review is final and binding upon the client and the agency on the date of the decision. This is true even if the matter is appealed to the District Court. Assistance shall not continue at its prior level following the agency-level decision of the State Appeals Committee unless there is a court order to the contrary.
For decisions favorable to the client which are not pending an agency-level review, the initial order shall be implemented immediately upon receipt of the order. If the agency has requested further review of the initial order, implementation is delayed until a decision on the agency-level review is rendered.
For orders unfavorable to the client, the decision shall not be implemented until the 18th day following the date the initial decision is mailed. This is to allow the client the opportunity to request an agency-level review. If a request is made within the 18 day period, the decision shall not be implemented until the agency-level review is final.
When the hearing decision is favorable to the client, or when the agency decides in favor of the client prior to the hearing, the agency shall promptly make corrective payments.
When the hearing decision upholds agency action, any overstated eligibility made during the fair hearing process is subject to recovery.
Under the federal spousal impoverishment law as described in 8144 (NF) and 8244 (HCBS), the community or institutionalized spouse is entitled to a fair hearing if dissatisfied with the determination of:
In regards, to the above conditions, the hearings officer would determine whether or not the initial determination was correct.
The right to a fair hearing is limited to applicants and recipients. There is no right to a fair hearing on resource assessments made without an application. [See 8144.1 (NF) or 8244.1 (HCBS).]
A fair hearing officer may also increase the amount of the community spouse income allowance if either spouse establishes that a greater allowance is necessary due to exceptional circumstances resulting in significant financial duress. These circumstances shall be defined as expenses which are unforeseen or which are ongoing and are reasonable and necessary for the health, safety, and/or well-being of the community spouse. An additional allowance would only be provided to the extent that the originally determined community spouse income allowance is inadequate to cover the expenses. Expenses which could result in significant financial duress would include costs associated with prescribed special diet foods or supplements, costs of medical, remedial, or other support services necessary for community spouses to maintain themselves in the community, cost of repairs which are necessary to maintain the home in a livable condition, and other costs associated with unforeseen circumstances such as a fire or flood which result in loss of housing, clothing, household goods, or other necessities. Substantiating documentation will be necessary. Financial duress could not be claimed for usual increases in the cost of rent, food, housing, or clothing.
If a finding of financial duress is made, the hearing officer will establish a new community spouse income allowance sufficient to cover such expenses and specify whether the condition is temporary or will be continuing. If temporary, the hearing officer will establish the duration of the additional allowance and advise the client that if the circumstances continue, he or she may request an extension through the fair hearings process. If continuing, the circumstances shall be reviewed on an annual basis at the time of redetermination. In addition, the community spouse is responsible for notifying the agency at any time should the circumstances change. When the exceptional circumstances no longer exist, the community spouse allowance is to be readjusted should the circumstances change.
In addition to the above provisions, the hearing officer may also grant an increase to the community spouse resource allowance if either spouse establishes that an additional amount is necessary in order to raise the community spouse's income to the allowable community spouse income allowance amount as determined in accordance with 8144.2 (NF) or 8244.2 or as determined through a fair hearing. In either instance, the total amount of resources allowed shall be regarded as part of the community spouse resource allowance for eligibility purposes. The allowance may only be increased under this provision when the institutionalized spouse has allocated the maximum amount allowable under 8144.2 (NF) or 8244.2 (HCBS). In addition, the hearing officer must take into account the income-generated value of the current allocation as well as the additional resources requested to be provided to the community spouse and require that they be invested so that the income is maximized (such as a single premium life annuity) based upon the salable or market value of the property.
NOTE: This provision shall not be used to circumvent the resource verification process described in 1322.2 (3). If the maximum income allocation is already being made, a request to have the hearing officer judicially grant an increase in the community spouse resource allowance is not appropriate. The individual may still request a regular fair hearing on the amount of the community spouse resource allowance where no or partial verification of resources was provided.