1615 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 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.