Kan. Admin. Regs. Agency 133 — Office of Administrative Hearings

Article 1 General Procedures Concerning Parties

Kan. Admin. Regs. § 133-1-1 Definitions

(a) As used in this article, each of the terms defined by K.S.A. 77-502, and amendments thereto, shall have the meaning specified in that statute.

(b) Each of the following terms shall have the meaning specified in this subsection:

(1) "Director" means director of the office of administrative hearings.

(2) "KAPA" means the Kansas administrative procedure act, K.S.A. 77-501 et seq., and amendments thereto.

(3) "OAH" means the office of administrative hearings.

(4) "Presiding officer" means the administrative law judge assigned to preside over an administrative hearing.

***** Authenticated Kansas Administrative Regulation *****

History

• History: (Authorized by and implementing K.S.A. 2016 Supp. 75-37,121 and 77-562; effective Jan. 20, 2017.)

Kan. Admin. Regs. § 133-1-2 Assignment of administrative law judges

(a) Any state agency head or a designee may request that the director assign an administrative law judge to act as the presiding officer in an administrative hearing that is neither subject to KAPA nor listed in K.S.A. 77-551, and amendments thereto, and for which the agency head is responsible. The request may be made in writing, by telephone, or by electronic transmission.

(b)(1) Upon receiving a request for assignment of an administrative law judge, an administrative law judge of OAH shall be assigned by the director, unless the director determines either of the following:

(A) The existing caseloads of the administrative law judges would prevent OAH from providing a timely hearing.

(B) There is a conflict that would subject the administrative law judges to disqualification.

(2) In making each assignment, the relative experience, caseloads, and expertise of the OAH administrative law judges, as well as potential conflicts, time frames, and other relevant resources and factors, may be considered by the director.

(c) After the assignment of an administrative law judge, the requesting state agency shall forward to the director written documentation of the basis for the administrative hearing, which may include any of the following materials:

(1) A request for an administrative hearing;

(2) a petition for a hearing from a party to the state agency proceedings;

(3) the order that is the subject of the request for a hearing; or

(4) any other documentation of the event or action that forms the basis for the administrative hearing under applicable law.

***** Authenticated Kansas Administrative Regulation *****

History

• History: (Authorized by and implementing K.S.A. 2016 Supp. 75-37,121 and 77-562; effective Jan. 20, 2017.)

Kan. Admin. Regs. § 133-1-3 Conduct of proceedings

(a)(1) Each administrative hearing to which an administrative law judge is assigned under K.S.A. 75-37,121(b), and amendments thereto, shall be conducted in accordance with KAPA, unless other applicable statutes or regulations provide otherwise.

(2) Each administrative hearing to which an administrative law judge is assigned under K.S.A. 75-37,121(d), and amendments thereto, shall be conducted in accordance with any applicable statutes, regulations, ordinances, or other law.

(b) All parties to the state agency proceedings may be required by the administrative law judge or the director to submit motions, objections, briefs, and other pleadings in a format established by the director and with the number of copies prescribed by the director.

(c) When an administrative law judge is assigned to an administrative hearing under K.S.A. 75-37,121(d), and amendments thereto, the order issued by the administrative law judge shall contain the elements required under any applicable statutes, regulations, ordinances, or other law.

***** Authenticated Kansas Administrative Regulation *****

History

• History: (Authorized by and implementing K.S.A. 2016 Supp. 75-37,121 and 77-562; effective Jan. 20, 2017.)

Kan. Admin. Regs. § 133-1-4 Electronic filing

(a) As used in this regulation, each of the following terms shall have the meaning specified in this subsection:

(1) "Filing" means any pleading, motion, objection, proffer of evidence, discovery request or response, brief, or any other formal communication by a party regarding the docketed administrative proceeding for which the filing is relevant and the filer is a party.

(2) "OAH e-filing system" and "system" mean a public, web-based internet portal established by OAH to which the parties to a proceeding are given secure and password-protected access for the purpose of sending or receiving electronically submitted filings regarding their proceeding.

(b) In any proceeding for which the director has appointed a presiding officer, any party to the proceeding may submit any filing to the presiding officer by using mail or telephone facsimile. Additionally or alternatively, any party may submit any filing for its proceeding using the OAH e-filing system, subject to the following:

(1) The system may be used only by parties who meet the following requirements:

(A) Have submitted to OAH a written and signed consent to the terms of use for the system that are specified by the director; and

(B) have completed the system's online registration for the specific proceeding to which they are a party.

(2) The only modes by which signed consent to the terms of use for the system may be submitted to OAH are personal service, mail, telephone facsimile, or scanning and electronically mailing the signed consent document to the electronic mail address specified for only this purpose by the director.

(3) Once a party's signed consent is received by OAH, the party shall be sent by OAH, in a manner specified by the agreed terms of use, directions and information for completing that party's online registration for the system.

(4) Any party may satisfy its duty to serve a copy of its filings to any other party using the OAH e-filing system, but only if both the serving party and the recipient party have completed their prerequisite signed consent and online registration for the immediate proceeding to which they are party.

(5) Only OAH personnel and the parties to a given proceeding shall have access to submit online or to view online any filings for their proceedings. Whether filed electronically or through other means, records of a proceeding shall be available to nonparties only as provided by the Kansas open records act, K.S.A. 45-215 et seq., and amendments thereto.

(c) No person may submit a filing or use the OAH e-filing system for a proceeding to which the person is not a party unless the presiding officer has recognized the person as an authorized representative of the party on whose behalf the person is filing or using the system.

(d) All orders and notices issued by the presiding officer shall be served in conformity with K.S.A. 77-531, and amendments thereto.

(e) A party's inability to utilize the OAH e-filing system shall not constitute a basis for an extension of time in which to file any matter with the presiding officer or with opposing parties. This inability shall not affect any applicable filing deadlines imposed by law or by order of the presiding officer.

(f) For purposes of determining whether an error was committed by the OAH e-filing system before the effective date of a default or initial order, any party to the proceedings in question may request that OAH perform an audit of the system and deliver the audit findings to the presiding officer if all of the following conditions are met:

(1) The requesting party alleges that it was unable to make a timely filing due to an error of the system.

(2) The timeliness or existence of the filing transaction in question is material to the disposition of the party's case.

(3) The party submits its audit request before a proposed default order for its case has become effective or before an initial order in the case has been issued.

(g) For purposes of determining whether an error was committed by the OAH e-filing system during an appeal pursuant to K.S.A. 77-527 and amendments thereto, any party to the appeal may request that OAH perform an audit of the system and deliver the audit findings to the agency head if all of the following conditions are met:

(1) The requesting party alleges that it was unable to make a timely filing during the course of the appeal due to an error of the system.

(2) The timeliness or existence of the filing transaction in question is material to the disposition of the party's appeal.

(3) The party submits its audit request before a final order on its appeal has been issued.

(h) Concise documentation of the results of any system audit performed in accordance with this regulation shall be incorporated into the record of any case in which a system error was alleged.

***** Authenticated Kansas Administrative Regulation *****

History

• History: (Authorized by K.S.A. 2016 Supp. 75-37,121 and 77-562; implementing K.S.A. 2016 Supp. 77-519 and 77-531; effective Jan. 20, 2017.)