[33 Pa.B. 1168]
[Continued from previous Web Page]
Subchapter B. Prehearings Procedures and Hearings
General Rule 31. Waiver of hearings.
A hearing need not be held if:
(a) The provider waives its right to hearing; or
(b) The parties stipulate the material facts or agree to submit direct and rebuttal testimony or documentary evidence in affidavit form (sworn or affirmed on personal knowledge) or by deposition; or
(c) The Bureau determines that the material facts are not in dispute and the Bureau grants a dispositive motion dismissing the provider appeal or determining all of the issues raised in the appeal.
Rule 32. Expedited Disposition Procedure for Certain Appeals.
(a) This rule shall apply to all provider appeals involving the denial of claims for payment through the prior authorization process, the denial of requests for pre-certification, the recovery of overpayments or improper payments through the utilization review process, the denial of claims upon prepayment review, the denial of claims for payment pursuant to 55 Pa. Code 1101.68 (relating to invoicing for services), the denial, termination or suspension of an exceptional DME grant (as defined in 55 Pa. Code § 1187.51 (relating to definitions)), and the denial of a program exception request.
(b) A request for hearing in a provider appeal subject to this rule must: (1) be submitted in writing to the Bureau within the time limits specified in accordance with Rule 19(a) (relating to timeliness and perfection of appeal); (2) include the information specified in Rule 18 (b) (relating to request for hearing; and, must include all relevant supporting documentation. The provider shall send a copy of its request for hearing to the program office issuing the notice of the agency action at the same time it files its request with the Bureau.
(c) Unless the information has already been exchanged, the provider and the program office shall exchange any document that it will introduce as an exhibit and a list of any persons, including medical or other experts, that it will call as a witness at the hearing.
(d) The Bureau will schedule a hearing taking into due consideration the availability of expert witnesses.
(e) The following rules do not apply to provider appeals subject to this rule:
(1) Rule 8 (relating to title).
(2) Rule 9 (relating to form).
(3) Rule 11 (relating to verification).
(4) Rule 14(a)(2) (requiring service on the Department's Office of General Counsel).
(5) Rule 15 (relating to proof of service).
(6) Rule 16 (relating to certificate of service).
(7) Rule 33 (relating to prehearing procedure).
(8) Rule 35 (relating to disclosures).
(9) Rule 36 (relating to methods to discovery additional information).
(10) Rule 37 (relating to supplementing disclosure and discovery responses).
(11) Rule 38 (relating to signing of disclosures, discovery requests, responses and objections)
(12) Rule 41 (relating to discovery motions).
(13) Rule 42 (relating to dispositive motions), except for a motion to dismiss based upon timeliness.
(14) Rule 44 (relating to voluntary mediation).
(15) Rule 51 (relating to posthearing briefs).
(f) Upon motion of a party, and for good cause shown, the Bureau may order that a provider appeal identified in subsection (a) be exempt from this rule or may order that one or more of the rules identified in subsection (e) apply in whole or in part to the appeal.
(g) Upon joint motion of the parties to a provider appeal, the Bureau may order that this rule applies to a provider appeal not identified in subsection (a).
(h) A motion to exempt an appeal from this rule under subsection (f), and a joint motion to apply this rule to an appeal under subsection (g) may be filed with the request for hearing but shall be filed no later than 30 days from the filing date of the request for hearing in the provider appeal.
Prehearing Procedures And Prehearing Conferences Rule 33. Prehearing procedure in certain provider appeals.
(a) Upon the filing of a request for hearing, the Bureau will issue a prehearing order specifying that:
(1) The parties shall make disclosures in accordance with Rule 35 (relating to disclosures).
(2) All discovery requests shall be served within 90 days of the date of the prehearing order and that all discovery shall be concluded within 120 days of the date of the prehearing order.
(3) All motions to compel discovery shall be filed with 30 days of the close of discovery;
(4) Any other miscellaneous prehearing motions, including motions in limine shall be filed within 60 days of the date of filing of the program office's position paper; and,
(5) Dispositive motions shall be filed within 60 days of the date of the filing of program office's position paper.
(b) The parties may, within 30 days of the date of the prehearing order, submit a Joint Proposed Case Management Order to the Bureau that proposes alternative dates for completion of the matters specified in paragraphs (1)--(5) of subsection (a), or that agrees to discovery beyond the limitations set forth in Rule 36(c)(1)--(3) (relating to methods to discover additional information).
(c) The Bureau may issue subsequent prehearing orders incorporating the alternate dates and discovery limitations proposed by the parties or specifying other dates and discovery limitations that the Bureau deems appropriate.
Rule 34. Conferences.
(a) The Bureau, on its own motion or on motion of a party, may hold a conference either prior to or during a hearing for the purpose of considering offers of settlement, adjustment of the proceeding or any issue therein, or other matters to expedite the orderly conduct and disposition of a hearing.
(b) A stipulation of the parties or order of the Bureau as a result of the conference shall be binding upon the parties.
Disclosures and Discovery Rule 35. Disclosures.
(a) Duty of Disclosure. A party to a provider appeal commenced by a request for hearing must, without awaiting a discovery request, disclose information to each other party as specified in this section.
(b) Mandatory Initial Disclosures:
(1) The program office shall disclose:
(i) The name, title, business address and telephone number of each staff person directly involved in the agency action; and, if different, the name, title, business address and telephone number of any officials or staff designated to testify on its behalf regarding the agency action and the issues on which designated person will testify; in the case of an audit appeal, the program office will at a minimum identify every auditor involved in the audit and every audit supervisor and audit manager who reviewed the audit report; and,
(ii) a copy of, or a description by category and location of, all documents, data compilations, and tangible things, not privileged or protected from disclosure, that were relied upon in issuing the agency action, or that formed the basis for the agency action.
(2) The provider shall disclose:
(i) The name, title, business address, and telephone number of every person who provided facts, opinions, or other information that were relied upon in drafting the request for hearing or petition for supersedeas, if any, or that support or form the basis for, the allegations contained therein; and, and, if different, the name, title, business address and telephone number of any officials or staff designated to testify on its behalf regarding the agency action and the issues on which designated person will testify; and,
(ii) A copy of, or a description by category and location of, all documents, data compilations, and tangible things, not privileged or protected from disclosure, that were relied upon in drafting the request for hearing or petition for supersedeas, if any, or that support or form the basis for, the allegations contained therein; and, in a case where a provider alleges in its request for hearing that its costs or its claim for payment is supported by documents, the provider shall disclose the supporting documents.
(3) The parties shall make their initial mandatory disclosures within 45 days of the date of the Bureau's initial prehearing order, unless a different time is set by stipulation of the parties or by the prehearing order of the Bureau.
(4) A party shall make its initial disclosures based on the information in its possession or otherwise then reasonably available to it. A party shall not be excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
(5) An opposing party has no obligation to respond to a discovery request made pursuant to Rule 36 (relating to methods to discover additional information) until the party that propounded the request has made its mandatory initial disclosures in compliance with this subsection. A provider whose initial mandatory disclosure identifies documents in the possession of the Department or program office but fails to provide copies of the provider's own records or documents in support of one or more of the issues raised in the provider's request for hearing shall not be in compliance with this subsection.
(c) Position papers.
(1) General requirements:
(i) The provider shall file its position paper and required documentation with the Bureau and serve it on the program office within 60 days of the close of discovery or such other date as may be specified in the Bureau's prehearing order. If the provider fails to meet the position paper due date or fails to supply the Bureau with the required documentation, the Bureau will dismiss the provider's appeal.
(ii) The program office shall file its position paper with the Bureau and serve it on the provider within sixty (60) days of the date of service of provider's position paper or such other date as may be specified in the Bureau's prehearing order. If the program office fails to meet the position paper due date, the Bureau will schedule the case from hearing and will notify the Chief Counsel of the Department.
(2) Extensions. The Bureau disfavors requests for extensions of time to file position papers. The Bureau may grant an extension if: (i) a party submits a written request for extension; (ii) the request is received by the Bureau in time for it to review the matter prior to the due date; and, (iii) the party establishes that extraordinary conditions exist that warrant an extension. Failure to complete discovery before the due date of the position paper will ordinarily not be considered sufficient cause to extend the deadline, unless due to the non-cooperation of the other side. A request for extension should be considered denied unless the Bureau affirmatively grants the extension in writing before the papers are due.
(3) Content of position papers.
(i) Provider. For each issue identified in its request for hearing or amended request for hearing, the provider's position paper shall state the relevant facts and present arguments setting forth the provider's position. Specifically, the provider shall include for each issue: a summary of the pertinent facts and circumstances, citations to the relevant statutory provisions, regulations, and other controlling authorities, the monetary amount in dispute, if any, and an explanation showing how the amount was computed and any other relief sought by the provider in connection with the issue. In addition, the provider shall provide for each issue the name and business address of every witness whose testimony the provider will present and a copy of every document that the provider will offer into evidence to support its position with respect to the issue.
(ii) Program office. For each issue identified in the provider's position paper, the program office's position paper shall state whether the program office accepts or disputes the provider's summary of the pertinent facts and circumstances, the provider's citations to the relevant statutory provisions, regulations, and other controlling authorities, and the provider's computation of the monetary amount in dispute. If the program office disputes the facts, citations or monetary amount, the program office shall provide a counterstatement of the items in dispute. The program office's position paper must also identify any additional issues not addressed by the provider that the program office believes should be determined by the Bureau. For each such issue, the program office shall include a summary of the pertinent facts and circumstances, and citations to the relevant statutory provisions, regulations, and other controlling authorities. In addition, the program office shall provide the name and business address of every witness whose testimony the program office will present and a copy of every document that the program will offer into evidence to support its position on each issue identified in its position paper.
(iii) Statement regarding expert opinions. For each issue, a party's position paper shall include a section that addresses the party's reliance upon an expert. The party shall state whether its position depends, in whole or in part, upon the judgment, opinion, or testimony of a person who, if called to testify, would be called as an expert. Where a party's position depends, at least in part, upon the judgment, opinion, or testimony of such a person, the provider's position paper shall include a ''statement of expert opinion.'' Consistent with the requirements of Pa.R.C.P. No. 4003.5 (relating to discovery of expert testimony, trial preparation material), and unless the Bureau orders to the contrary, each such statement shall: (A) identify the expert by name and address; (B) state the subject matter on which the expert is expected to testify; (C) identify the substance of the facts and opinions to which the expert is expected to testify; (D) summarize the grounds for each opinion to which the expert is expected to testify: and (E) be signed by the expert.
(4) Amendments. The Bureau may permit a party to amend a position paper upon motion of the party and for good cause shown except that no amendment to a position paper shall be permitted within 30 days of the commencement of the hearing in the provider appeal.
(5) Penalties for Noncompliance. A party shall not be permitted to offer the testimony of any witness at a hearing on a provider appeal unless the party disclosed the identity of the witness in the party's position paper. A party shall not be permitted to introduce a document into evidence at a hearing on a provider appeal unless party identified the document as an exhibit and served the other parties to the provider appeal with a copy of the document at the time the party filed its position paper with the Bureau.
Rule 36. Methods to Discover Additional Information.
(a) Authorized Forms of Discovery. Once the time period for mandatory disclosures has elapsed, a party to a provider appeal commenced by a request for hearing may obtain discovery by one or more of the following methods: interrogatories, requests for the production of documents, expert reports, requests for admissions and depositions of witnesses and designees of parties.
(b) General Scope of Discovery.
(1) Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party in a provider appeal, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
(2) Except to the extent inconsistent with or as otherwise provided in this Order, discovery shall be governed by the relevant Pa.R.C.P applicable to the form of discovery authorized by this Order. When the term ''court'' is used in the Pa.R.C.P., ''Bureau'' is to be understood; when the terms ''prothonotary'' or ''clerk of court'' are used in the Pa.R.C.P., ''Formal Docketing Unit'' is to be understood.
(c) Limitations. In addition to the general limitation on the scope of discovery and deposition set forth in Pa.R.C.P. 4011 (relating to limitation of scope of discovery and deposition), the limitations on discovery in paragraphs (1)--(4) apply in provider appeals.
(1) Interrogatories. Interrogatories to a party, as a matter of right, shall not exceed ten in number. Interrogatories inquiring as to the names and locations of witnesses, or the existence, location and custodian of documents or physical evidence each shall be construed as one interrogatory. All other interrogatories, including subdivisions of one numbered interrogatory, shall be construed as separate interrogatories. If counsel for a party believes that more than ten interrogatories are necessary, counsel shall consult with opposing counsel promptly and attempt to reach a written stipulation as to a reasonable number of additional interrogatories. Counsel are expected to comply with this requirement in good faith. In the event a written stipulation cannot be agreed upon, the party seeking to submit additional interrogatories may file a motion with the Bureau showing the necessity for relief.
(2) Requests for Admissions. Request for admissions to a party, as a matter of right, shall not exceed ten in number. All requests for admissions, including subdivisions of one numbered request, shall be construed as separate request. If counsel for a party believes that more than ten requests for admission are necessary, counsel shall consult with opposing counsel promptly and attempt to reach a written stipulation as to a reasonable number of additional requests. Counsel are expected to comply with this requirement in good faith. In the event a written stipulation cannot be agreed upon, the party seeking to submit additional requests for admissions may file a motion with the Bureau showing the necessity for relief.
(3) Depositions by Oral or Written Examination. Depositions, as a matter of right, shall not exceed three in number. A deposition of a person shall not be permitted if the person has already been deposed in the appeal. If counsel for a party believes that more than three depositions or that the deposition of a person who has already been deposed are necessary, counsel shall consult with opposing counsel promptly and attempt to reach a written stipulation as to a reasonable number of additional depositions. Counsel are expected to comply with this requirement in good faith. In the event a written stipulation cannot be agreed upon, the party seeking to submit additional depositions may file a motion with the Bureau showing the necessity for relief.
(4) Deposition of the Secretary and Senior Department Officials.
(i) Unless the Secretary has been identified as a witness by the program office, a party may not depose the Secretary.
(ii) Unless a senior department official has been identified as a witness by the program office, a party may not depose a senior department official regardless of the number of depositions taken, except upon order of the Bureau which is based upon a finding that all of the following apply:
(A) The senior department official was personally involved in the disputed agency action.
(B) The senior department official has knowledge which is not privileged.
(C) The senior department official has knowledge which is not shared by a subordinate official or employee.
(d) Protective Orders. The Bureau may issue protective orders limiting or precluding discovery in accordance with subsection (c) or as specified in Pa.R.C.P. 4012 (relating to protective orders).
(e) Timing and Sequence of Discovery. Unless the Bureau upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, does not operate to delay any other party's discovery.
Rule 37. Supplementing Disclosures and Responses.
(a) Disclosures. A party has a duty to supplement or correct a disclosure under Rule 35 (relating to disclosures) to include information thereafter acquired if ordered by the Bureau or if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
(b) Responses to Discovery Requests. A party is under a duty to supplement responses made to discovery requests as set forth in Pa.R.C.P. 4007.4 (relating to supplementing responses).
Rule 38. Signing of Disclosures, Discovery Requests, Responses, and Objections.
(a) Every disclosure shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.
(b) Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the request, response, or objection and state the signor's address.
(1) The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:
(i) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(ii) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
(iii) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
(2) If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.
(3) If without substantial justification a certification is made in violation of this rule, the Bureau, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.
Motions Rule 39. General.
(a) This Rule applies to all motions made in a provider appeal, except oral motions made during the course of a hearing.
(b) Motions and responses to motions shall be in writing, signed by a party or its attorney and shall be accompanied by a proposed order.
(c) Unless the time is extended by the Bureau, a response to a dispositive motion shall be filed within 30 days of service of the motion, and a response to any other motion shall be filed within 20 days of service of the motion.
(d) Except in the case of a dispositive motion, the Bureau will deem a party's failure to respond to a motion to be the party's lack of opposition to the motion.
(e) Except for a response to dispositive motion, the moving party may not file a reply to a response to its motion, unless the Bureau orders otherwise.
(f) Action on motions.
(1) The Bureau will rule on dispositive motions within 60 days after the moving party's reply to the non-moving party's response, if a reply is filed. If the moving party does not file a reply, the Bureau will rule on a dispositive motion within 60 days after the date on which the non-moving party's response is due.
(2) The Bureau will rule on motions other than dispositive motions within 30 days after the date on which the non-moving party's response is due.
(3) Notwithstanding paragraphs (1) and (2) of subsection (f), the Bureau will rule on all outstanding pre-hearing motions no later than 20 days prior to the commencement of the hearing.
Rule 40. Procedural motions.
(a) This Rule applies to motions in a provider appeal that pertain to the procedural aspects of a case, including motions for continuance, for expedited consideration, for extensions of time in which to file documents and for stay of proceedings.
(b) Procedural motions shall contain a statement indicating the nonmoving party's position on the relief requested or a statement that the moving party, after a reasonable effort, has been unable to determine the nonmoving party's position.
(c) If all parties consent to the relief requested, the request may be embodied in a letter, provided the letter indicates the consent of the other parties.
(d) Requests for extensions or continuances, whether in letter or motion form, shall be accompanied by a proposed order.
(e) Procedural motions and responses may not be accompanied by supporting memoranda of law unless otherwise ordered by the Bureau.
Rule 41. Discovery motions.
(a) This Rule applies to motions filed to resolve disputes arising from the conduct of discovery under Rule 36 (relating to methods to discover additional information).
(b) A motion to compel discovery shall contain as exhibits the discovery requests and answers giving rise to the dispute.
(c) A party may file a memorandum of law in support of its discovery motion or its response to a discovery motion. The supporting memorandum of law shall be filed at the same time the motion or response is filed.
Rule 42. Dispositive motions.
(a) This Rule applies to dispositive motions in a provider appeal.
(b) Motions for summary judgment or partial summary judgment and responses to such motions shall conform to Pa.R.C.P. 1035.1-1035.5 (relating to motion for summary judgment).
(c) Dispositive motions shall be accompanied by a supporting memorandum of law. The Bureau may deny a dispositive motion if a party fails to file a supporting memorandum of law.
(d) An affidavit or other document relied upon in support of a dispositive motion, response or reply, that is not already a part of the record, shall be attached to the motion, response or reply or it will not be considered by the Bureau in ruling thereon.
Rule 43. Miscellaneous motions.
(a) This section applies to a motion in a provider appeal not otherwise addressed in Rules 66--69 (relating to procedural motions; discovery motions; and dispositive motions), including a motion in limine, a motion to strike and a motion for recusal.
(b) A memorandum of law in support of a miscellaneous motion or response to a miscellaneous motion shall be filed with the miscellaneous motion or response.
Mediation Rule 44. Voluntary mediation.
(a) Upon request by all the parties, the Bureau may stay a provider appeal commenced by a request for hearing for up to 120 days to allow the parties to utilize voluntary mediation services through the Office of General Counsel Mediation Program.
(b) The parties shall file their request for stay with the Bureau at least 14 days before initiation of hearings by the Bureau.
(c) At the end of the initial stay, the parties shall jointly file a report, prepared and signed by the mediator, which sets forth the history of mediation activities conducted. The parties may request an additional stay if necessary to complete the mediation process.
(d) The grant of an additional stay for mediation is in the Bureau's discretion and the Bureau may impose limitations the Bureau deems appropriate.
(e) A settlement reached by the parties as a result of voluntary mediation shall be submitted to the Bureau for approval under Rule 30 (relating to termination of provider appeals).
(f) Only a signed settlement agreement shall be binding and it shall bind only the parties signing it.
(g) A party's participation in voluntary mediation may not be used as evidence in a proceeding before the Bureau. Communications between the parties during the mediation period shall be regarded as offers of settlement and are neither discoverable nor admissible as evidence in a proceeding before the Bureau.
Hearings Rule 45. Initiation of hearings.
(a) If, after the Bureau has ruled on any dispositive motions, a hearing is required to determine any remaining issues, the Bureau will, after consultation with the parties, schedule a formal evidentiary hearing and send a notice of hearing to all parties to the provider appeal.
(b) A hearing may, if permitted by the rules or by agreement of the parties, be conducted via telephone.
Rule 46. Continuance of hearings.
A hearing may not be continued except for compelling reasons. Requests for continuances shall be submitted to the Bureau in writing with a copy served upon the other parties to the proceedings, except that during the course of a hearing in a proceeding, the requests may be made by oral motion in the hearing.
Rule 47. Burden of proof, order of procedure.
(a) The provider has the burden of proof to establish its case by a preponderance of the evidence, and is required to make a prima facie case by the close of its case-in-chief. The provider shall open and close, unless otherwise directed by the presiding officer, upon a determination that the evidence is peculiarly within the knowledge or control of another party or participant, in which case the order of presentation may be varied by the presiding officer.
(b) Each party shall have the right to an opening statement, presentation of evidence, cross-examination, objection, motion and argument, and closing argument.
(c) A pleading shall, without further action, be considered part of the record. In no event, however, shall a pleading be considered as evidence of any fact other than that of the filing thereof, unless offered and received into evidence under these rules.
Subchapter C. Evidence and Witnesses
General Rule 48. Written testimony.
(a) Written testimony of a witness, including an expert witness, on numbered lines in question and answer form, may be admitted into evidence in a provider appeal provided the witness is present for cross-examination at the hearing.
(b) Written testimony shall be filed concurrently with the proffering party's position paper unless a different time is prescribed by the Bureau. Objections to written testimony which can be reasonably anticipated prior to hearing shall be in writing and filed within the time prescribed for pre-hearing motions in limine, unless otherwise ordered by the Bureau.
(c) If a party desires to file written testimony prior to the close of the record, it may do so only upon motion approved by the Bureau for good cause. This approval shall include the scope of the written testimony and the time for filing the testimony and service upon opposing counsel.
Subpoenas Rule 49. Subpoenas.
(a) Except as otherwise provided in this chapter or by order of the Bureau, requests for subpoenas and subpoenas shall be governed by Pa.R.C.P. 234.1-234.4 (relating to subpoena to attend and testify, subpoena, issuance, service, compliance fees, prisoners, notice to attend, notice to produce, subpoena, notice to attend, notice to produce, relief from compliance, motion to quash) and 234.6-234.9 (relating to form of subpoena, form of notice to attend, form of notice to produce, notice and acknowledgment of receipt of subpoena by mail). When the term ''court'' is used in Pa.R.C.P. ''Bureau'' is to be understood; when the terms ''Prothonotary'' or ''clerk of court'' are used in Pa.R.C.P. ''Formal Docketing Unit'' is to be understood.
(b) Proof of service of the subpoena need not be filed with the Bureau.
Subchapter E. Presiding Officers Rule 50. Independence, Ex parte Communications.
(a) The presiding officers shall act independently of employees or public officials of the Department whose actions are subject to review before the Bureau.
(b) The presiding officers shall not engage in ex parte communications concerning a hearing with any party to the hearing.
Subchapter F. Posthearing Procedures
Briefs Rule 51. Post hearing briefs.
(a) The initial post hearing brief of each party shall be as concise as possible and may not exceed 50 pages. An initial post hearing brief shall contain proposed findings of fact, with references to the appropriate exhibit or page of the transcript, an argument with citation to supporting legal authority, and proposed conclusions of law.
(b) The provider shall file its initial post hearing brief first and within the time specified by the presiding officer. The program office shall file its initial post hearing brief within 30 days of the date of service of the provider's brief.
(c) The provider may file a reply brief within 20 days of service of the program office post hearing brief. A reply brief shall be as concise as possible and may not exceed 25 pages.
(d) Longer briefs and surreply briefs may be permitted at the discretion of the presiding officer.
(e) An issue which is not argued in a post hearing brief shall be deemed waived.
Subchapter G. Agency Action.
Decisions Rule 52. Determinations and Recommendations by the Bureau.
(a) The Bureau will conduct a de novo review of all factual and legal issues that are timely raised and properly preserved in a provider appeal. Except as provided in subsection (b) and (c), the Bureau will issue a determination adjudicating all contested issues of law and fact within its jurisdiction, and issue any appropriate order decree or decision.
(b) In the event that a request for hearing includes a waiver request, the Bureau will make a written recommendation for consideration by the Secretary proposing that the waiver be either granted or denied and stating the Bureau's reasoning in support of its position. If the request for hearing raises factual and legal issues in addition to the waiver request, the Bureau will issue its written recommendation together with its final determination adjudicating the remaining factual and legal issues, as specified in subsection (d). If the request for hearing does not raise any other issues, the Bureau's written recommendation on the waiver request will be issued in the time limits and served on the parties as specified in subsection (d).
(c) In a provider appeal commenced by a petition for relief, the Bureau will make a written recommendation for consideration by the Secretary that sets forth proposed findings of fact and conclusions of law and a recommends that the relief sought in the petition be either granted or denied and states the Bureau's reasoning in support of its position. The Bureau's written recommendation will served on all parties to the proceeding or their representatives.
(d) The Bureau will issue a determination in a provider appeal within thirty days of the filing of all post hearing briefs, or, if the parties waive the filing of post hearing briefs, within thirty days of the close of the record or receipt of the transcript, whichever is later. The Bureau will serve a copy of its determination on all parties to the proceeding or their representatives.
(e) A party who is aggrieved by a determination of the Bureau may request the Secretary to review the determination pursuant to Rule 55 (relating to review of bureau determinations). For purposes of this rule a program office shall be deemed to be aggrieved if the Bureau determination sustains the provider's appeal in whole or in part; if the Bureau determination interprets a statute, regulation or other statement of policy or bulletin applied by the program office in a manner inconsistent with the interpretation of that office; or if the Bureau determination alters a policy of that office or purports to impose a new or different rule or policy on that office.
(f) The Secretary will review written recommendations of the Bureau issued pursuant to subsections (b) or (c) pursuant to Rule 56 (review of bureau recommendations).
Subchapter H. Reopening of Record Rule 53. Reopening of record prior to adjudication.
(a) After the conclusion of the hearing on the merits in a provider appeal and before the Bureau issues an adjudication, the Bureau, upon its own motion or upon a motion filed by a party, may reopen the record as provided in this section.
(b) The record may be reopened upon the basis of recently discovered evidence when all of the following circumstances are present:
(1) Evidence has been discovered which would conclusively establish a material fact of the case or would contradict a material fact which had been assumed or stipulated by the parties to be true.
(2) The evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.
(3) The evidence is not cumulative.
(c) The record may also be reopened to consider evidence that has become material as a result of a change in legal authority occurring after the close of the record. A motion to reopen the record on this basis shall specify the change in legal authority and demonstrate that it applies to the matter pending before the Bureau. Such motion need not meet the requirements of paragraphs (2) and (3) of subsection (d).
(d) A motion seeking to reopen the record shall:
(1) Identify the evidence that the moving party seeks to add to the record.
(2) Describe the efforts that the moving party had made to discover the evidence prior to the close of the record.
(3) Explain how the evidence was discovered after the close of the record.
(e) A motion filed under subsection (b) shall be verified and all motions to reopen shall contain a certification by counsel that the motion is being filed in good faith and not for the purpose of delay. The motion shall be served upon the parties to the proceedings.
Reconsideration and Review by the Secretary Rule 54. Reconsideration of interlocutory orders.
(a) A motion for reconsideration of an interlocutory order or ruling by the Secretary shall be filed within 10 days of the order or ruling. The petition must demonstrate that extraordinary circumstances justify consideration of the matter by the Secretary. A party may file a memorandum of law at the time the motion or response is filed.
(b) A copy of the motion shall be served upon the parties. A party wishing to file an answer may do so within 10 days of service or as ordered by the Bureau.
(c) The failure of a party to file a motion under this section will not result in a waiver of any issue.
Rule 55. Review of Bureau Determinations.
(a) A determination of the Bureau will be deemed the final adjudication of the Department effective upon expiration of the 30-day time period specified in subsection (b) unless an aggrieved party requests review by the Secretary within that 30-day time period.
(b) A request for review must be filed within 30 days of the mailing date of the Bureau determination. An untimely request for review shall be dismissed as of course unless the filing party can satisfy the requirements of Rule 20 (relating to appeals nunc pro tunc).
(c) A request for review shall be in writing and shall state concisely the alleged errors in the Bureau determination and shall identify the particular relief sought. If the party requesting review is seeking relief by reason of matters that have arisen since the hearing and Bureau determination, or by reason of a matter that would arise from compliance the party shall specifically identify those matters in its request.
(d) If an aggrieved party timely requests review of a Bureau determination, the Secretary may enter an order granting or denying the request for review within 30 days of receipt of the request. No party has a right to have a Bureau determination reviewed by the Secretary, but only a right to request such review. The decision to grant or deny such a request lies within the discretion of the Secretary.
(e) If the Secretary enters an order denying a request for review within 30 days of receipt of the request, the Bureau's determination shall be deemed the final adjudication of the Department effective the date of the order denying review.
(f) If the Secretary fails to act on a request for review within thirty days of receipt of the request, the request for review shall be deemed denied, and the Bureau's determination shall be deemed the final adjudication of the Department effective the date on which review is deemed denied.
(g) No answers to a request for review will be considered by the Secretary unless the Secretary grants review. If, and to the extent the Secretary grants review, a response in the nature of an answer may be filed by any party, other than the party requesting review. The response shall be confined to the issues upon which the Secretary has granted review.
(h) If the Secretary grants review, the Secretary will enter a final order within 180 days of the date of the order granting review. The final order may affirm, reverse or modify the findings of fact, conclusions of law or the relief set forth in the Bureau's determination, and may, in order to promote fairness and the proper administration of the Medical Assistance Program, waive compliance with program requirements.
(i) If the Secretary fails to act within 180 days of the order granting review, the determination of the Bureau shall be deemed approved by, and the final order of, the Secretary effective the date it is deemed approved.
Rule 56. Review of Bureau Recommendations.
(a) The Secretary will review and issue a final order adopting, rejecting or modifying a recommendation of the Bureau issued pursuant to Rule 52(b) or (c) (relating to determinations and recommendations by the bureau).
(b) Any party to the provider appeal in which the Bureau's recommendation was issued may file a brief with the Secretary setting forth its position regarding the recommendation.
(1) If the Bureau's recommendation was issued pursuant to Rule 52 (b) (relating to determinations and recommendations by the bureau), the party must file its brief at the same time the party requests for review of the Bureau's related determination under Rule 55 (relating to review of bureau determinations) or, if the party is not seeking review of the Bureau's determination, within 30 days of the date of the mailing date of the Bureau recommendation.
(2) If the Bureau recommendation was issued pursuant to Rule 52 (c) (relating to determinations and recommendations by the bureau), the party must file its brief within 30 days of the date of the mailing date of the Bureau recommendation.
(3) A brief supporting or opposing the Bureau's recommendation shall state concisely the reasons for the party's position on the recommendation, shall set forth any proposed findings of fact and conclusions of law for consideration by the Secretary and shall specify what relief, if any, should be granted or denied by the Secretary. The brief shall not exceed 25 pages.
(c) The Secretary's final order regarding a recommendation issued pursuant to Rule 52(b) (relating to determinations and recommendations by the bureau) will be issued no later than:
(1) The date on which the Secretary issues a final order if review is granted under Rule 55 (relating to review of bureau determinations); or
(2) 180 days from the date of receipt of the written recommendation, if review is not granted under Rule 55 (relating to review of bureau determinations).
(d) If the Secretary does not issue a final order regarding a recommendation issued pursuant to Rule 52(b) (relating to determinations and recommendations by the bureau) within the time frames specified in subsection (c), the recommendation of the Bureau shall be deemed adopted by, and the final order of, the Secretary effective the date it is deemed adopted.
Rule 57. Appeals.
A provider aggrieved by a final adjudication of the Department issued pursuant to Rule 55 (a), (e) or (f) (relating to review of bureau determinations), or a final order of the Secretary issued pursuant to Rule 55 (h) or (i) (relating to review of bureau determinations) or Rule 56(a) or (d) (relating to review of bureau recommendations) may petition for judicial review in accordance with 2 Pa.C.S. Ch.7 subch.11 (relating to judicial review of commonwealth agency action).
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