concurring specially.
I understand NDAC 75-02-11-18, the conciliation procedure, to be a special procedure whereby a participant in the food stamp program may explain failure to comply with the mandatory basic employment skills training program specified in NDAC 75-02-11-16(1). I believe the conciliation procedure, i.e., the opportunity to show good cause why the participant did not comply, provides adequate due process without the “fair hearing” procedure.
Due process is offered by a notice and hearing that are aimed at establishing the validity or the probable validity of the underlying claim. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); State v. One Black 1989 Cadillac, 522 N.W.2d 457 (N.D.1994); Garrison Memorial Hosp. v. Rayer, 453 N.W.2d 787 (N.D.1990). The procedure envisioned by the Department complies with this concept of due process. Therefore, insofar as the majority opinion suggests that the conciliation procedure does not provide due process, I do not join the opinion.
I concur in the result, however, because the regulations adopted by the Department, and the notices1 prescribed by the regulation, NDAC 75-02-11-18, do not inform the participant that failure to respond will limit the issues to be considered at the “fair hearing” available to the participant under NDAC 75-02-11-25. That rule incorporates by reference the procedures in NDAC Chapter 75-01-03 which defines a fair hearing as being an appeal hearing established under federal statutes and the Code of Federal Regulations and that requires the Department “to provide a dissatisfied claimant an opportunity for a hearing that meets the requirements for due process of law imposed under Goldberg v. Kelly, 397 U.S. 254 [90 S.Ct. 1011, 25 L.Ed.2d 287] (1970).”
Although the conciliation process established by NDAC 75-02-11-18 may very well meet the Goldberg requirements for due process, the Department concedes that its regulations provide for a further hearing under NDAC 75-02-11-25, but that the hearing is limited to determining whether or not the participant complied with the requirements and, if the participant did not comply, whether or not the participant provided reason for noncompliance. Whether or not there was good cause for noncompliance is, in the Department’s view, foreclosed because no response was made to the conciliation notice. This procedure seems reasonable if the participants understand they will not be permitted to explain why they didn’t comply if they do not respond to the conciliation notice. But, the notice does not tell them that nor do the regulations tell them that. Rather, the regulations would lead a participant to believe that after the conciliation process there is still a “fair hearing” at which all issues will be aired.
I am aware the bureaucracy is often criticized for its cumbersome procedures and its slowness to react to human needs. However, when the bureaucracy establishes procedures to permit it to respond in a less cumbersome, more informal and, hopefully, speedier manner, it is faced with decisions such as this *563which seem to require even lengthier, more cumbersome procedures. Indeed, as policies of insurance seem to grow in reaction to court decisions, so do the bureaucracy’s rules and regulations appear to become more complicated and more costly in response to our opinions.
Nevertheless, because the Department’s notice and regulations do not fairly describe the procedure envisioned by the Department, i.e., that the conciliation procedure is a threshold requirement to air the reasons for noncompliance at the “fair hearing,” I concur in the result reached by the majority opinion.
. The copies of the notices contained in the record are nearly impossible to read. They apparently contained instructions on the back which are not made part of the record. If the participant received no more legible a notice, that fact alone would justify reversal.