1617 Fair Hearing Decision and Request for Review - 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.
1618 Agency Actions Following Fair Hearing Decisions - 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.
1618.1 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 payments.
1618.2 Recovery of Overpayments - When the hearing decision upholds agency action, any overpayment made during the fair hearing process is subject to recovery.
1619 Fair Hearings Concerning Spousal Impoverishment Policies - 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.