1615 Dismissal of Fair Hearings - Kansas statute K.S.A. 75-3306(h) states: "The Department for Children and Families shall not have jurisdiction to determine the facial validity of a state or federal statute. An administrative law judge from the Office of Administrative Hearings shall not 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 unless the motion is denied. DCF 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 EES Policy as needed for this information.) For dismissal requests regarding major program changes or cutbacks, specific citations will be provided from the EES Policy 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.
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.
1616 Place and Conduct of Fair Hearings - Fair hearings for applicants or recipients shall be held in the Department for Children and Families' administrative region in which the applicant or recipient resides unless another site has been designated by the hearing officer. 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 prehearing 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 prehearing 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 prehearing order.
The hearing officer may, and when required by statute shall, give nonparties 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 nonparties 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.
NOTE: The following special provisions apply to the Food Assistance Program Only.
NOTE: Food Assistance only – A client has the right to appeal a decision if desired which may include concerns of the federal or state law or regulations. If the household does not appear at the pre hearing agency conference the agency cannot withdraw, deny, or dismiss the scheduled fair hearing without the household first making a written withdrawal request.