Kansas Family Medical Assistance
Manual (KFMAM)
Eligibility Policy - 4/23/2024
01000 >>> 01500
01420
1501 Request for a Hearing - 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 the KDHE-DHCF. The Office of Administrative Hearings in the Department of Administration administers the agency's fair hearing program pursuant to the Kansas Administrative Procedure Act (K.S.A. 77-501 et seq.).
The request may be made orally (either in person or by telephone), in writing (either in person or by mail), by fax, or by email.
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.
The following persons may request a fair hearing:
1501.01 - 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 KC6100 Medical Representative Authorization Form or medical representative section on the application form is required to authorize a 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 or appropriate jurisdiction may request a fair hearing or represent the decedent in a fair hearing action.
1502 Time Period for Requesting a Hearing - 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 email shall be the next business day.
1502.01 - 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 1503, 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, discontinuance, or termination of assistance.
1503 Continuation of Benefits - - 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, the notice of adverse action is mailed, and the review period has not expired, assistance shall not be suspended, discontinued, or terminated until a decision is rendered after a hearing, unless:
1503.01 - A determination is made at the hearing by the hearing officer that the sole issue is one of state or federal law or regulation or change in state or federal law and not one of incorrect application of a policy (when appropriate KanCare Clearinghouse staff should raise this issue in the hearing in order for the referee to render a decision).
1503.02 - A change (except the matter under appeal) affecting the recipient's assistance occurs while the fair hearing decision is pending and the recipient fails to request a hearing after notice of the change.
1503.03 - The request for a fair hearing concerns a discontinued program or service.
1503.04 - The review period expires. The household may reapply and may be determined eligible for a new review period with assistance as determined by the agency.
1503.05 - A mass change affecting the household's eligibility or level of coverage or share of cost occurs while the hearing decision is pending.
Assistance shall also be continued at its prior level if the client or agency submits a timely request for review by the State Appeals Committee. See 1507.
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 1505.05.
1504 Client's Rights Related to a Fair Hearing - The client or the client's representative shall have adequate opportunity to:
1504.01 - Submit a request for a fair hearing (including a request to expedite as described in 1505.06), 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 1503.01.
1504.02 - 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. See 1224 and subsections regarding confidential case file information.
1504.03 - At his option, present his case himself, or with the aid of an authorized representative, and bring witnesses.
1504.04 - Establish all pertinent facts and circumstances and advance any pertinent arguments without undue interference.
1504.05 - Question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses.
1504.06 - Submit evidence to establish all pertinent facts and circumstances in the case.
1505 Responsibilities of the KanCare Clearinghouse - 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. In addition, 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 Office of Administrative Hearings (OAH) has created a Q&A document describing the Medicaid fair hearing process. That document (OAH Frequently Asked Questions) can be found in the Miscellaneous Section of the Appendix.
1505.01 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 eligibility staff 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 eligibility determination 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 MKEESM 2636.
(5) If the client is questioning the decision regarding disability and the decision was made by Disability Determination Services (DDS) based on an KDHE request via the DD-1104 and DD-1105, the appeal will be processed through DDS as specified in MKEESM 1614.6(1).
(6) When a household member or representative makes an oral request for a fair hearing to the KanCare Clearinghouse 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.
1505.02 Agency Contact - Once a fair hearing has been received, the KanCare Clearinghouse 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.
(1) Unable to Contact - The KanCare Clearinghouse shall make at least two (2) attempts to contact the client by telephone to explain the agency action taken on the case. All unsuccessful attempts to contact the client shall be thoroughly documented in the case file. If the agency is unable to contact the client by telephone to discuss the agency action, the KanCare Clearinghouse shall complete an Agency Summary as described in 1505.04.
(2) Contact Completed - If the KanCare Clearinghouse is able to contact the client by telephone to explain the agency action and the client is satisfied with the agency explanation, the client should be asked if he/she is willing to withdraw the fair hearing request. Whether or not the client is willing to voluntarily withdraw the fair hearing request will determine the next action taken by the agency.
(a) Client Agrees to Withdraw - If the client agrees to withdraw the fair hearing request, the KanCare Clearinghouse shall complete a Motion to Dismiss based on the client’s decision to withdraw the fair hearing request. There is no need to complete an Agency Summary at this point. See. 1505.03.
(b) Client Does Not Withdraw- If the client does not agree to withdraw the fair hearing request and states an intent to continue the appeal, the KanCare Clearinghouse shall complete an Agency summary as described in 1505.04. See also 1505.06 concerning dismissal of fair hearing.
1505.03 Withdrawal of Request - 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 KanCare Clearinghouse 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.
1505.04 Completion of Summary - Within 15 days after the appellant has filed a request for a fair hearing, the KanCare Clearinghouse shall furnish the appellant and the Office of Administrative Hearings (OAH) with a summary. One copy of the summary shall be sent electronically to OAH. Another copy shall be mailed to the appellant or representative. The summary shall include 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.
When the request for a fair hearing involves a Disability Determination Services (DDS) disability determination, the process described in MKEESM 1614.6(1)(c) shall be followed.
If, through an agency contact as discussed in 1505.02, the appellant has withdrawn the appeal, see 1505.03, 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.
1505.05 Informing the Client of Termination of Assistance - The KanCare Clearinghouse shall promptly inform the client in writing if assistance is to be terminated pending the fair hearing decision. See 1503 concerning continuation of assistance.
1505.06 Expedited Fair Hearing - 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:
(1) Request - As indicated above, a request to expedite the fair hearing process may be made at the time of the request for fair hearing or at any time prior to the scheduled hearing. If the expedited request is received after the original fair hearing is filed, it is important to note that this is not a separate hearing request, but rather simply a request to expedite the process for the previously filed hearing request. Therefore, to avoid duplicating appeals, whenever an expedited request is received, staff should ascertain whether or not there is already an existing active appeal.
(2) Documentation - An expedited request cannot be granted without documentation supporting a claim of urgent medical need. The documentation must be provided at the time of the expedited request. The supporting documentation should be based on medical records and/or the written opinion of a medical professional familiar with the appellant’s condition and circumstances. A simple statement of medical need is not sufficient proof of an urgent medical need, nor are self-serving statements provided by the appellant or by family and friends lacking medical credentials.
Note: Refusal or failure to supply supporting documentation with the expedited processing request will result in an automatic denial of the request.
(3) Evaluation - The documentation provided shall be reviewed by KDHE-DHCF clinical staff to determine if the appellant has an urgent medical need which necessitates the need to expedite the fair hearing. An urgent medical need means that the appellant’s life, health, or ability to attain, maintain, or regain maximum function is in jeopardy if the hearing is not expedited.
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.
(4) Decision- Based on the evaluation completed by the clinical team reported to the Fair Hearings Manager, the expedited request shall be either denied or approved.
(a) Denied - If the expedited request is approved, the Fair Hearings Manager will contact the Office of Administrative Hearings to schedule the hearing as expeditiously as possible, but no later than 7 working days after the date the expedited request is received. The KanCare Clearinghouse shall also complete the Appeal Summary and forward to the Office of Administrative Hearings as expeditiously as possible, but no later than 15 days from the date the fair hearing request is received ,see 1505.04.
1505.07 Federally Facilitated Exchange (FFE) Fair Hearing - 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 KanCare Clearinghouse 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 KanCare Clearinghouse.
Upon receipt of the appeal package, the KanCare Clearinghouse shall conduct an administrative review of the case based on the information provided and redetermine eligibility for Medicaid and/or CHIP. If the applicant is determined eligible based on the review, coverage shall be promptly approved with notification provided to the applicant. If the KanCare Clearinghouse 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 KanCare Clearinghouse shall also notify the FFE of the outcome of the redetermination.
1505.08 Dismissal of Fair Hearings - 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 1505.01, 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. KDHE-DHCF must mail a copy of the Motion to Dismiss to the appellant. Staff 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 Eligibility Policy Section.
Fair hearings shall also be dismissed if the request is not received within the time periods specified in 1502, 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 1501.01.
Assistance shall continue as noted in 1503 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.
1506 Place and Conduct of Fair Hearings - Fair hearings for applicants or recipients shall be held in the Social and Rehabilitation Services' administrative area 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.
1507 Fair Hearing Decision and Request for Review - A fair hearing decision 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 and the decision shall be sent to the client and the KanCare Clearinghouse.
The client/respondent shall be informed of his right to have the State Appeals Committee review the decision of the hearing officer and also his right to petition to the District Court. A request to the State Appeals Committee must be made within 18 days of the date of the fair hearing decision. The client/respondent may also have the right to request a re-hearing in order to submit additional information or evidence. This request must also be made within 18 days of the date of the fair hearing decision.
Assistance shall be continued at its prior level if the client or the agency requests a review by the State Appeals Committee. Assistance shall continue until a decision is rendered by the State Appeals Committee.
The decision of the Appeals Committee is final and binding upon the client and the agency on the date of the decision. This is true even if one of the parties should appeal the matter to the District Court. Assistance shall not continue at its prior level following the decision of the State Appeals Committee unless there is a court order to the contrary.
1508 Agency Actions Following Fair Hearing Decisions - The decision of the hearing officer shall be implemented immediately upon receipt (including decisions related to disability) if the decision is favorable to the client and the agency does not intend to request a review by the State Appeals Committee. A report of such action shall be submitted to the Administrative Hearings Section. If the agency requests such a review, the decision shall not be implemented until a final decision by the State Appeals Committee has been rendered. Also, if the decision is unfavorable to the client, the decision shall not be implemented until the 18th day following the date of the mailing of the initial decision to allow the client the opportunity to request a review by the State Appeals Committee. If a request is made within the 18-day period, the decision shall not be implemented.
1508.01 Retroactive Payments - 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 coverage.
1508.02 Recovery of Overpayments - When the hearing decision upholds agency action, any overpayment made during the fair hearing process is subject to recovery, except in situations where the action being appealed is the application of a CSS penalty.