[36 Pa.B. 7195]
[Saturday, November 25, 2006]
[Continued from previous Web Page] § 41.119. General scope of discovery.
IRRC suggested the Department should include specific citations to the relevant Pa.R.C.P. in the regulation.
Response
Section 41.119 was amended to include specific citations to the Pa.R.C.P.
§ 41.120. Limitations on scope of discovery.
One commentator noted there is no basis for a rule that automatically precludes the deposition of the Secretary if he is likely to have knowledge of discoverable information. Also, if a senior department official is likely to have discoverable information, then the senior department official should be obligated to appear for a deposition. Then, the Department would exercise complete control over this discovery process.
Response
The deliberations and policy decisions of the Secretary are protected by the deliberative process privilege. Commonwealth ex rel. Unified Judicial System v. Vartan, 557 Pa. 390, 733 A.2d 1258 (1999). Section 41.120(b) codifies that privilege and, under the rulemaking powers granted by Act 142, extends that privilege to encompass inquiries into purely factual matters. Therefore, unless the program office has named the Secretary to be one of its witnesses at the hearing, a provider cannot compel the Secretary to attend a deposition.
The protection afforded the Secretary is appropriate. First, it protects the Secretary's quasi-judicial role as is the ultimate adjudicator in the case on review of the Bureau determination. In addition, lower-ranking Departmental officials are agents of the Secretary and those officials possess knowledge of procedures. Also, the provider could seek to depose the Secretary as a tool to intimidate the Department and to hinder the Secretary from performing other official duties. The same rationale applies to senior Department officials. If senior Department officials were involved in the agency action, there are provisions that will allow those individuals to be deposed.
§ 41.122. Supplementing disclosures and responses.
One commentator and IRRC noted the word ''or'' should be inserted between ''ordered by the Bureau'' and ''if the party learns.''
Response
The section was revised to include the word ''or'' between ''ordered by the Bureau'' and ''if the party learns.''
§ 41.132. Actions on motions.
One commentator suggested this section should be revised to expressly supersede 1 Pa. Code § 35.180(a) (relating to action on motions).
Response
This section provides the Bureau will rule on dispositive motions within 60 days after receiving the moving party's reply to the nonmoving party's response if a reply is filed. If the moving party does not file a reply, the Bureau will rule on the dispositive motion within 60 days after the date on which the nonmoving party's response was due. Also, the Bureau will rule on all other motions within 30 days after the response is due. The Bureau will decide all prehearing motions within 20 days of the response. Chapter 41 only applies to MA provider appeals under § 41.1 (relating to scope). However, if the Bureau were to fail to rule on a motion within this time period, that failure is not deemed to be either a grant or a denial of the motion.
§ 41.153(a). Burden of proof and production.
One commentator suggested amending the section to place the burden of proof on the Department in cases involving allegations of overpayment, violation of program regulations, imposition of sanctions or penalties and proposed termination of provider agreements. The same commentator suggested adding 2 Pa.C.S. §§ 501--508 and 701--704 to the statutory authority relied upon for these new rules. Two commentators suggested placing the burden of proof on providers in cases inconsistent with Act 142 and the Commonwealth's common law concerning the allocation of the burden of proof. One commentator requested the burden of proof be on the Department when the Department imposes a penalty. One commentator requested the program office should have the burden of proof. IRRC suggested the Department should describe if and when the shift in burden of proof occurs in any case. Three legislators requested amendments to the regulations because the regulations allegedly create a disparity between providers and the Department and the regulations are unfair if the providers always bear the burden of proof. One legislator suggested the party asserting the fact should carry the burden of proof instead of always placing the burden of proof on the MA providers. Several legislators noted that the section should be amended because they don't provide for de novo review for providers.
Response
Act 142 does not require that the burden of proof be borne by either the program office or the provider. Therefore, the Bureau possesses the discretion to allocate the burden of proof through the use of its rulemaking power. Augelli v. Department of Public Welfare, 468 A.2d 524, 525 (Pa. Cmwlth 1983). During the period that the SPO has been in effect, the burden of proof was invariably allocated to providers. This facilitated the expeditious resolution of appeals and it has worked well in practice.
Section 41.153(a) sets forth as a general rule that the provider bears the burden of proof on issues raised by it in its appeal. This comports with ''the general rule . . . that the burden of proof is upon the party who, in substance, alleges that a thing is so, or, as it is more commonly put, the burden of proof rests upon the party having the affirmative of the issue as determined by the pleadings.'' Lincoln Intermediate Unit No. 12 v. Bermudian Springs School District, 65 Pa. Commw. 53, 441 A.2d 813 (1982). The acts of the Department are presumed to be valid and correct. Forbes Metropolitan Health System v. Department of Public Welfare, 558 A.2d 159 (Pa. Cmwlth 1988). In a provider appeal, the provider makes the affirmative assertion, that the contested agency action is invalid or incorrect.
However, after careful consideration of the comments, the section has been revised to reflect that the Department has the burden of proof if the notice of Departmental action asserts that the provider violated either of following provisions: section 1407(a)(1) of the Public Welfare Code (62 P. S. § 1407(a)(1)); or § 1101.75(a)(1) or (2) (relating to provider prohibited acts).
Generally, the laws and regulations administered by the Department do not include an element of scienter and, therefore, those laws and regulations can be enforced through administrative action without consideration of this element. Girard Prescription Center v Department of Public Welfare, 496 A.2d 83, 86 (Pa. Cmwlth 1985). Section 41.153(b) identifies the three provisions that are the exception to that general rule. To enforce these provisions through administrative action (as opposed to criminal prosecution or the beginning of a civil law suit), the Department must first make a determination that the provider acted with specific intent. In these instances, the Bureau finds that it is appropriate for the Department to bear the burden of proving that the provider violated the specified provisions. This shift of the burden of proof is consistent with the common law rule that fraud cannot be presumed, but must be proved. Section 41.153 was amended to account for this change in the burden of proof.
It is unnecessary to add specifically 2 Pa.C.S. §§ 501--508 and 701--704 to the statutory authority relied upon for these new rules because the regulation does not state that 2 Pa.C.S. §§ 501--508 and 701--704 is superseded by this regulation. The common law in this Commonwealth requires the application of 2 Pa.C.S. §§ 501--508 and 701--704 in cases involving Commonwealth agencies unless specifically superseded by regulation or statute. In addition, the powers enumerated in Act 142 provide sufficient authority.
§ 41.161(a). Written testimony.
One commentator asked whether this section expressly supersedes 1 Pa. Code § 35.137 (relating to oral examination).
Response
The section specifically supersedes 1 Pa. Code §§ 35.138 and 35.139 (relating to expert witnesses; and fees of witnesses). Section 41.161(a) concerns the admission of the written testimony of a witness, including expert witnesses instead of the witness testifying in person before the Bureau. The regulations do not supersede 1 Pa. Code § 35.137. The regulation at 1 Pa. Code § 35.137 refers to oral examination of a witness at a hearing and provides that ''witnesses shall be examined orally unless the testimony is taken by deposition as provided in §§ 35.145--35.152 (relating to depositions) or the facts are stipulated in the manner provided in § 35.112 (relating to conferences to expedite hearings) or in § 35.155 (relating to presentation and effect of stipulations) or the testimony is submitted in prepared written form as provided in § 35.138 (relating to expert witnesses). Witnesses whose testimony is to be taken shall be sworn, or shall affirm, before their testimony shall be deemed evidence in the proceeding or any questions are put to them.'' This section is in conformance with 1 Pa. Code § 35.137. However, this section adds to the provisions by specifying that a witness should be present for cross-examination or the parties must agree the witness' presence at the hearing is not required.
§ 41.162(a). Subpoenas.
IRRC asked that this section address the power which Act 142 granted to the Bureau to enforce subpoenas in Commonwealth Court, as specified in 67 Pa.C.S. § 1104(a).
Response
This section was not amended.
§ 41.171. Independence.
One commentator requested the definition of ''presiding officer'' be amended to indicate whether the appointed individual must be an employee of the Bureau or can be an employee of a program office. IRRC requested the Department explain the consequences resulting from noncompliance if a presiding officer engages in ex parte communication despite prohibition.
Response
The definition of ''presiding officer'' was added to § 41.3 (relating to definitions). A party who believes the presiding officer engaged in an inappropriate ex parte communication or is not acting in an independent manner from the Department may file a motion with supporting affidavits with the Director requesting the disqualification of the presiding officer from the specific appeal. The Director will review the facts and make an appropriate decision whether disqualification is appropriate.
§ 41.191(b). Determinations and recommendations by the Bureau.
One commentator suggests this section, in conjunction with § 41.5(b), creates a process inconsistent with Act 142 and requests the Department eliminate the section because Act 142 did not authorize a special waiver requests process. IRRC asked that the Department delete language restricting the Bureau's authority to adjudicate waiver requests presented in a request for hearing, or that the Department provide a justification for this rule.
Response
As previously explained, only the Secretary possesses the power to waive the application of a regulation or other program requirement. Therefore, in the absence of a delegation of that power to the Bureau, the Bureau has no power to do this. When a provider includes a waiver request in its request for hearing, the Bureau's role is to receive evidence from the parties on the question whether compliance with the program requirement should be waived, and to prepare a recommendation on that issue for the Secretary's consideration.
§ 41.201. Reopening of record prior to adjudication.
One commentator requests the section be amended to specifically afford a complete remedy when justice requires reopening the record and considering previously unavailable material evidence. IRRC requested the Department explain if parties can file amended pleadings and position papers if the record is reopened.
Response
This section was amended to add an additional subsection. That subsection specifies that, if the Bureau elects to reopen the record, and upon written request or motion to the Bureau or sua sponte by the Bureau, a provider will be afforded the opportunity to file an amendment to its request for hearing and that both parties will be permitted to file amended position papers. If the submittal of amended position papers is allowed, they shall be submitted in the same order as provided for in § 41.112, although the Bureau may alter the timing of the submittals.
§ 41.212(f) and (i). Review of Bureau determinations.
One commentator requested clarification on subsections (f) and (i) as to when a request is deemed denied or approved by virtue of the Secretary's inaction.
Response
If a request for review of the Bureau's determination is not acted upon by the Secretary within 30 days of receipt, then the request to review the determination is denied. If, after requesting the review of a determination, the Secretary grants the request and begins a review process, that review will be completed within 180 days. If the Secretary fails to issue an order before the 180th day, then the review will be deemed denied as against the requestor.
§ 41.213. Review of the Bureau recommendations.
One commentator suggested Act 142 does not empower the Bureau to make recommendations under this section, which allows for differential treatment of waiver requests, as opposed to other types of requests for a hearing.
Response
As previously explained, the Bureau has no jurisdiction to grant or deny a provider's waiver request. Therefore, the most that the Bureau can do is create a record for the Secretary's consideration, and prepare a recommendation regarding the request.
§ 41.214. Appeals.
One commentator noted Act 142 makes the Bureau's determination ''binding upon'' both parties unless the Secretary reviews the determination. Another commentator requested this section be amended to clearly enumerate the procedural requirements for judicial review.
Response
This section clearly indicates an aggrieved party who wishes to appeal for judicial review of either a final adjudication of the Bureau or the final order of the Secretary should refer to 2 Pa.C.S. Chapter 7 (relating to judicial review). If this section were altered or amended to specify the exact judicial body to which an appeal should be filed, then this section would work to supersede the statute. The statute more clearly specifies the procedural requirements for judicial review and a specification in this section would be redundant and potentially confusing.
Sunset Date
The Department is not establishing a sunset date for the regulations. The Department will continually monitor the regulations for effectiveness.
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 4, 2004, the Department submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 4447, to IRRC and the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.1) and (j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.1) and (j.2)), on October 3, 2006, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 19, 2006, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of proposed rulemaking has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) Adoption of these regulations in the manner provided by THIS Order is necessary and appropriate for the administration and enforcement of 67 Pa.C.S. § 1106.
Order
The Department, acting under 67 Pa.C.S. § 1106, orders that:
(a) The regulations of the Department, 55 Pa. Code, are amended by adding §§ 41.1--41.7, 41.11--41.15, 41.21--41.25, 41.31--41.33, 41.41--41.44, 41.51--41.53, 41.61, 41.71, 41.72, 41.81--41.83, 41.91, 41.92, 41.101, 41.102, 41.111--41.123, 41.131--41.136, 41.141, 41.151--41.153, 41.161, 41.162, 41.171, 41.181, 41.191, 41.201 and 41.211--41.214 to read as set forth in Annex A.
(b) The Secretary shall submit this order and Annex A to the Office of General Counsel and Attorney General for approval as to legality and form as required by law.
(c) The Secretary shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
ESTELLE B. RICHMAN,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 6742 (November 4, 2006).)
Fiscal Note: Fiscal Note 14-488 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 55. PUBLIC WELFARE
PART I. DEPARTMENT OF PUBLIC WELFARE
Subpart D. HEARINGS AND APPEALS
CHAPTER 41. MEDICAL ASSISTANCE PROVIDER APPEAL PROCEDURES GENERAL PROVISIONS
Sec.
41.1. Scope. 41.2. Construction and application. 41.3. Definitions. 41.4. Amendments to regulation. 41.5. Jurisdiction of the Bureau. 41.6. Timely filing required. 41.7. Extensions of time. DOCUMENTARY FILINGS
41.11. Title of document. 41.12. Form. 41.13. Incorporation by reference. 41.14. Verification. 41.15. Copies of documents. SERVICE AND AMENDMENT OF DOCUMENTS
41.21.
Notice of agency actions. 41.22. Service of pleadings and legal documents. 41.23. Proof of service. 41.24. Certificate of service. 41.25. Amendment or withdrawal of legal documents. REQUESTS FOR HEARING, PETITIONS FOR RELIEF AND OTHER PRELIMINARY MATTERS
41.31. Request for hearing. 41.32. Timeliness and perfection of requests for hearing. 41.33. Appeals nunc pro tunc. PETITIONS
41.41.
Waiver request. 41.42. Request for declaratory relief. 41.43. Request for issuance, amendment or deletion of regulations. 41.44. Transfer of petition for relief. SUPERSEDEAS
41.51. General. 41.52. Contents of petition for supersedeas. 41.53. Circumstances affecting grant or denial. INTERVENTION
41.61. Filing of petitions to intervene. ANSWERS
41.71. Answers generally. 41.72. Answers to petitions to intervene. CONSOLIDATION, AMENDMENT AND WITHDRAWAL OF APPEALS
41.81. Consolidation of provider appeals. 41.82. Amendments of requests for hearing. 41.83. Withdrawal of provider appeals. 41.91. PREHEARING PROCEDURES AND HEARINGS
Waiver of hearings.
41.92. Expedited disposition procedure for certain appeals. PREHEARING PROCEDURES AND PREHEARING CONFERENCES
41.101. Prehearing procedure in certain provider appeals. 41.102. Conferences. DISCLOSURES AND DISCOVERY
41.111. Disclosures. 41.112. Filing of position paper. 41.113. Content of provider position paper. 41.114. Content of program office position paper. 41.115. Statement regarding expert opinions. 41.116. Amendments to position papers. 41.117. Penalties for noncompliance. 41.118. Authorized forms of discovery. 41.119. General scope of discovery. 41.120. Limitations on scope of discovery. 41.121. Timing and sequence of discovery. 41.122. Supplementing disclosures and responses. 41.123. Signing of disclosures, discovery requests, responses and objections. MOTIONS
41.131. Motions in general. 41.132. Actions on motions. 41.133. Procedural motions. 41.134. Discovery motions. 41.135. Dispositive motions. 41.136. Miscellaneous motions. MEDIATION
41.141. Voluntary mediation. HEARINGS
41.151. Initiation of hearings. 41.152. Continuance of hearings. 41.153. Burden of proof and production. EVIDENCE AND WITNESSES
41.161. Written testimony. 41.162. Subpoenas. PRESIDING OFFICERS
41.171. Independence. POSTHEARING PROCEDURES
41.181. Posthearing briefs. AGENCY ACTION
41.191. Determinations and recommendations by the Bureau. REOPENING OF RECORD
41.201. Reopening of record prior to adjudication. RECONSIDERATION AND REVIEW BY THE SECRETARY
41.211. Reconsideration of interlocutory orders. 41.212. Review of Bureau determinations. 41.213. Review of Bureau recommendations. 41.214. Appeals.
GENERAL PROVISIONS § 41.1. Scope.
(a) This chapter governs the practice and procedures in MA provider appeals commencing on November 25, 2006, or after the effective date of this chapter.
(b) In addition to this chapter, GRAPP and other applicable Departmental regulations apply to the practice and procedures in MA provider appeals, except as specifically superseded in relevant sections of this chapter.
(c) This chapter does not apply to appeals governed by Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings).
§ 41.2. Construction and application.
(a) This chapter shall be liberally construed to secure the just, speedy and inexpensive determination of provider appeals. At every stage of a provider appeal, the Bureau may disregard any error or defect of procedure which does not affect the substantial rights of the parties.
(b) To the extent that GRAPP applies in MA provider appeals:
(i) The term ''agency'' as used in 1 Pa. Code Part II means ''Bureau.''
(ii) The term ''participant'' as used in 1 Pa. Code Part II means ''party.''
(iii) The term ''presiding officer'' as used in 1 Pa. Code Part II means ''presiding officer.''
§ 41.3. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Agency action--
(i) An adjudicative action of the Department or a program office that relates to the administration of the MA Program.
(ii) The term includes the actions identified in §§ 1101.84(a)--(c) and 1187.141(a) (relating to provider right of appeal; and nursing facility's right to appeal and to a hearing) and other actions relating to a provider's enrollment in, participation in, claims for payment or damages under or penalties imposed under the MA Program.
Bureau--The Bureau of Hearings and Appeals of the Department.
Department--The Department of Public Welfare.
Dispositive motion--
(i) A motion that seeks a final determination of one or more of the issues in a provider appeal without the need for hearing or further hearing.
(ii) The term includes the following:
(A) A motion to quash the provider appeal.
(B) A motion to dismiss the provider appeal.
(C) A motion for summary judgment.
(D) A motion for partial summary judgment.
(iii) The term does not include a motion in limine.
GRAPP--The General Rules of Administrative Practice and Procedure set forth in 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
Hearing--One of the following:
(i) A provider appeal.
(ii) A proceeding before a presiding officer for the purpose of creating a factual evidentiary record relative to the merits of one or more issues raised in a request for hearing.
(iii) A proceeding conducted by a presiding officer for the purpose of resolving an interlocutory matter, including, but not limited to, a petition for supersedeas.
Legal document--
(i) A motion, answer, brief, petition to intervene, request for reconsideration of an interlocutory order, request for review by the Secretary or other paper filed with the Bureau in a provider appeal, other than a pleading.
(ii) The term does not include attachments or exhibits.
MA--Medical Assistance.
Pa.R.C.P.--Pennsylvania Rules of Civil Procedure.
Party--A provider, a program office or an intervener.
Person--An individual, partnership, association, corporation, political subdivision, municipal authority or other entity.
Petition for relief--A document filed under 1 Pa. Code § 35.17, § 35.18 or § 35.19 (relating to petitions generally; petitions for issuance, amendment, waiver or deletion of regulations; and petitions for declaratory orders) of the GRAPP.
Pleading--A request for hearing, including amendments thereto.
Presiding officer--A member of the agency, or one or more trial examiners appointed according to law and designated, to preside at hearings or conferences, or other officers specially provided for and designated under statute to conduct specified classes of proceedings, but not including the agency head when sitting as such.
Program office-
(i) An office within the Department that is managed and operated by an individual who reports directly to the Secretary, including a deputy secretary, or a bureau or other administrative unit of an office within the Department that is managed and operated by an individual who reports directly to a deputy secretary.
(ii) The term does not include the Bureau.
Provider--One of the following:
(i) A person currently enrolled in the MA Program as a provider of services.
(ii) A person who has applied for enrollment in the MA Program as a provider of services.
(iii) A person whose enrollment in the MA Program as a provider of services has been suspended or terminated by the Department.
Provider appeal--A proceeding to obtain review of an agency action that is commenced by a provider by filing a request for hearing.
Request for hearing--The pleading filed by a provider in order to commence a provider appeal.
Secretary--The Secretary of Public Welfare.
Senior Department official--the Comptroller, the Chief Counsel of the Department, a nonclerical individual who works in the office of the Secretary or who reports directly to the Secretary, including a deputy secretary, or a director of a bureau within a program office.
Supersedeas--An order suspending the effect of an agency action pending the Bureau's determination in a provider appeal.
Waiver request--A request that the Secretary waive the application of a provision set forth in a Department regulation.
(b) The definition of ''pleading'' in subsection (a) supersedes the definition of ''pleading'' in 1 Pa. Code § 31.3 (relating to definitions of pleading).
§ 41.4. Amendments to regulation.
(a) The Department retains continuing jurisdiction under 67 Pa.C.S. § 1106 (relating to regulations) to adopt and amend regulations establishing practice and procedure as may be necessary to govern provider appeals.
(b) The Bureau may establish forms as may be required to implement this chapter.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 31.6 (relating to amendments to rules).
§ 41.5. Jurisdiction of the Bureau.
(a) Except as provided in subsections (b)--(d), the Bureau has exclusive original jurisdiction over provider appeals.
(b) The Bureau has no jurisdiction to make a final determination on a waiver request included in a request for hearing. The Bureau will create a record and make a recommendation to the Secretary regarding the waiver request as specified in § 41.191(b) (relating to determinations and recommendations by the Bureau).
(c) The Bureau has no jurisdiction to issue a final determination on the merits of an issue properly raised in a petition for relief.
(d) The Bureau's jurisdiction in provider appeals is subject to §§ 41.211 and 41.212 (relating to reconsideration of interlocutory orders; and review of Bureau determinations).
(e) The Bureau has no jurisdiction in a provider appeal involving an agency action if Federal law or Federal regulations require the aggrieved provider to use Federal appeal procedures in order to contest the agency action.
(f) Subsections (a)--(e) supersede 1 Pa. Code § 35.103 (relating to preliminary notice to Department of Justice).
§ 41.6. Timely filing required.
(a) Pleadings and legal documents required or permitted to be filed under this chapter, the regulations of the Department or another provision of law must be received for filing at the Bureau within the time limits permitted for the filing.
(b) Except as provided in § 41.32(b) (relating to timeliness and perfection of requests for hearing), the filing date is the date of receipt by the Bureau, and not the date of mailing.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 31.11 (relating to timely filing required).
§ 41.7. Extensions of time.
(a) Except when necessitated by the circumstances of the Bureau, no order or prehearing order will continue a provider appeal or extend the time for doing an act required by this chapter except upon written motion by a party filed in accordance with this chapter.
(b) When this chapter establishes a standard for an extension of time, a motion seeking an extension shall be resolved by the application of that standard. If this chapter does not otherwise establish a standard, the motion shall be resolved by the application of 1 Pa. Code § 31.15 (relating to extensions of time).
DOCUMENTARY FILINGS § 41.11. Title of document.
(a) Legal documents in a provider appeal commenced by a request for hearing, other than the initial pleading, shall display a caption at the top of the first page in the following form:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF PUBLIC WELFARE
BUREAU OF HEARINGS AND APPEALS
[Name of Provider] v. [Name of Program Office]
BHA I.D. No.:
Docket No.:
[Descriptive Title of Document](b) The descriptive title of a legal document must identify the party on whose behalf the filing is made.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 33.1 (relating to title).
§ 41.12. Form.
(a) Printed documents may not be less than 12-point font.
(b) An original hard copy of a pleading bearing an original signature must be filed with the Bureau by personal delivery or first-class mail.
(c) A legal document may be filed with the Bureau in hard copy by first-class mail or personal delivery.
(d) A legal document may be filed by facsimile if the document does not exceed 20 pages in length, including attachments and exhibits. An executed hard copy of a document filed by facsimile shall be maintained by the filing party and produced at the request of the Bureau or other party.
(e) Subsection (a) supersedes 1 Pa. Code § 33.2(b) (relating to form) as it relates to font size of printed documents.
§ 41.13. Incorporation by reference.
(a) A legal document on file with the Bureau in a provider appeal, and the exhibits or attachments thereto, may be incorporated by reference into another legal document that is subsequently filed in the same provider appeal.
(b) A document may be incorporated by reference to the specific document and prior filing in which it was physically filed, but not by reference to another document that incorporates it by reference.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 33.3 (relating to incorporation by reference).
§ 41.14. Verification.
(a) A pleading or legal document that contains an averment of fact not appearing of record or that contains a denial of fact must be verified as specified in subsection (b).
(b) A verification of a pleading or legal document must substantially conform to the following:
I, (name of person signing verification), in my capacity as (title or statement describing relationship to the party submitting the document), hereby state that I am authorized to make this verification on behalf of (party submitting the document) and that the facts set forth in the (document being verified) filed in this matter are true and correct to the best of my knowledge, information, and belief, and that this verification is being made subject to 18 Pa.C.S. § 4904, (relating to unsworn falsification to authorities.)(c) Subsections (a) and (b) supersede 1 Pa. Code § 33.12 (relating to verification).
§ 41.15. Copies of documents.
(a) Unless otherwise ordered by the Bureau, only the original of a pleading or a legal document shall be filed with the Bureau.
(b) One copy of a pleading or legal document filed with the Bureau will be served on each of the other parties to the provider appeal unless otherwise specified in this chapter.
(c) A document filed with the Bureau in a provider appeal is available for inspection and copying except that, if a document contains information protected by law against public disclosure, the document will not be available until the protected information has been redacted. When redaction is required, the person seeking access to or a copy of the document shall be required to pay the actual cost of redaction prior to the document being made available.
(d) Documents in the files of the Bureau may not be removed from the Bureau's custody. At the discretion of the Bureau, a person provided with access to a document under subsection (c) may make a copy using equipment available at the Bureau, or the Bureau may make a copy and provide it to the person requesting access. The rates for copies will be identical to the rates charged by the Department under the Right-to-Know Law (65 P. S. §§ 66.1--66.4).
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 33.15, 33.21, 33.22, 33.23 and 33.37.
SERVICE AND AMENDMENT OF DOCUMENTS § 41.21. Notice of agency actions.
(a) In the absence of a Department regulation specifying the method in which notice of an agency action is given, the Department or a program office may give notice of an agency action by one of the following methods:
(1) Mailing a written notice of the action to a provider at the provider's most recent business address on file with the Department.
(2) Serving notice of the action in the manner provided in Pa.R.C.P. Nos. 400--441.
(3) By publication in the Pennsylvania Bulletin if the agency action applies to a class of providers or makes system-wide changes affecting more than a single provider.
(b) In the absence of a Department regulation specifying the content of a notice of an agency action, notice of an agency action must include the following:
(1) The effective date of the agency action.
(2) The basis for the agency action.
(3) The date the notice was deposited in the mail or otherwise served on the provider.
§ 41.22. Service of pleadings and legal documents.
Service of pleadings and legal documents must be made on the same day the pleading or legal document is filed with the Bureau as follows:
(1) Pleading. The provider that files a pleading shall serve a copy on:
(i) The program office that initiated the agency action in dispute.
(ii) The Department's Office of General Counsel.
(2) Petition for supersedeas. The provider that files a petition for supersedeas shall serve a copy of the petition on:
(i) The program office that initiated the agency action in dispute.
(ii) The Department's Chief Counsel.
(3) Legal document. The party that files a legal document in a provider appeal shall serve a copy of the document on each other party to the appeal.
(4) Method of service.
(i) Service must be made by delivering in person or by mailing, properly addressed with postage prepaid, one copy of the pleading or legal document.
(ii) When a legal document is filed by facsimile, service must be made by facsimile in addition to the method set forth in subparagraph (i).
§ 41.23. Proof of service.
(a) A certificate of service in the form prescribed in § 41.24 (relating to certificate of service) must accompany and be attached to a pleading or legal document filed with the Bureau.
(b) Subsection (a) supersedes 1 Pa. Code §§ 33.31, 33.32, 33.35 and 33.36.
§ 41.24. Certificate of service.
(a) Each certificate of service must substantially conform to the following:
I hereby certify that I have this day served the foregoing document upon: (Identify name and address of each person served) by (Indicate method of service).(b) Subsection (a) supersedes 1 Pa. Code §§ 33.31, 33.32, 33.35 and 33.36.
§ 41.25. Amendment or withdrawal of legal documents.
(a) A party may amend a legal document, other than a position paper, by filing an amendment with the Bureau unless the Bureau otherwise orders.
(1) An amendment to a legal document will be deemed filed as of the date of receipt by the Bureau, unless the Bureau otherwise orders.
(2) A position paper may be amended as specified in § 41.116 (relating to amendments to position papers).
(b) A party may withdraw a legal document by filing a motion for leave to withdraw the document. The motion will be granted or denied by the Bureau as a matter of discretion.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 33.41, 33.42 and 33.51 (relating to amendments; withdrawal or termination; and docket).
REQUESTS FOR HEARING, PETITIONS FOR RELIEF AND OTHER PRELIMINARY MATTERS § 41.31. Request for hearing.
(a) A provider that is aggrieved by an agency action may appeal and obtain review of that action by the Bureau by filing a request for hearing in accordance with this chapter.
(b) A provider is aggrieved by an agency action if the action adversely affects the personal or property rights, privileges, immunities, duties, liabilities or obligations of the provider.
(c) When a provider files a request for hearing to contest an agency action, the program office that issued the notice of the agency action is a party to the provider appeal.
(d) A request for hearing must include the following:
(1) The name, address and telephone number of the provider.
(2) Detailed reasons why the provider believes the agency action is factually or legally erroneous.
(3) Identification of the specific issues that the provider will raise in its provider appeal.
(4) Specification of the relief that the provider is seeking.
(i) If the provider is challenging the validity of a regulation or statement of policy in its provider appeal, the provider shall state the challenge expressly and with particularity and identify the regulation or statement of policy involved.
(ii) If the provider is seeking relief from an agency action, in whole or in part, through waiver of the application of a regulation, the provider shall state its waiver request expressly and with particularity and identify the regulation involved.
(iii) A provider may not request a declaratory order or an order that the Department should be required to promulgate, amend or repeal a regulation as relief in a request for hearing. The requests shall be set forth in a petition for relief in accordance with 1 Pa. Code § 35.18 and 35.19 (relating to petitions for issuance, amendment, waiver or deletion of regulations; and petitions for declaratory orders).
(e) If the provider received written notice of the agency action by mail or personal service, the provider shall attach to the request for hearing a copy of the transmittal letter forwarding the written notice and the first page of the written notice, or, if there is no transmittal letter, a copy of the entire written notice. If the provider received written notice of the agency action by publication in the Pennsylvania Bulletin, the provider shall identify the date, volume and page number of the Pennsylvania Bulletin in the request for hearing.
(f) Subsections (a)--(e) supersede 1 Pa. Code §§ 35.1, 35.2, 35.5--35.7, 35.9--35.11 and 35.20 (relating to appeals from actions of the staff).
§ 41.32. Timeliness and perfection of requests for hearing.
(a) Except as permitted in § 41.33 (relating to appeals nunc pro tunc), the Bureau lacks jurisdiction to hear a request for hearing unless the request for hearing is in writing and is filed with the Bureau in a timely manner, as follows:
(1) If the program office gives notice of an agency action by mailing the notice to the provider, the provider shall file its request for hearing with the Bureau within 33 days of the date of the written notice of the agency action.
(2) If written notice of an agency action is given in a manner other than by mailing the notice to the provider, a provider shall file its request for hearing with the Bureau within 30 days of the date of the written notice of the agency action.
(b) If a provider files a request for hearing by first-class mail, the United States postmark appearing upon the envelope in which the request for hearing was mailed shall be considered the filing date of that request for hearing. If the provider files a request for hearing in another manner, or if the envelope in which the provider's request for hearing was mailed bears a postmark other than a United States postmark, the date the request for hearing is received in the Bureau will be considered the filing date.
(c) Except as permitted in § 41.33(b), a request for hearing may be amended only as follows:
(1) A provider may amend a request for hearing as a matter of right within 90 days of the filing date of the request for hearing.
(2) Upon motion of the provider or in response to a rule or order to show cause issued under subsection (f). The Bureau may permit a provider to amend a request for hearing more than 90 days after the filing of a request for hearing if the provider establishes either of the following:
(i) The amendment is necessary because of fraud or breakdown in the administrative process.
(ii) Both of the following conditions are met:
(A) The amendment is based upon additional information acquired after the expiration of the 90-day period that contradicts information previously disclosed by the Department or provides entirely new information not previously disclosed by the Department.
(B) The program office and other parties to the appeal will not be prejudiced if the amendment is allowed.
(d) A legal or factual objection or issue not raised in either a request for hearing filed within the time prescribed in subsection (a) or in an amended request for hearing filed under subsection (c) shall be deemed waived. A general objection to an agency action shall be deemed a failure to object and constitute a waiver of the objections and issues relating to an action.
(e) The Bureau will dismiss a request for hearing, either on its own motion or on motion of a program office, if a provider fails to file its request in accordance with the time limits specified in subsection (a).
(f) The Bureau will dismiss a request for hearing on its own motion or a motion of the program office if the following conditions are met:
(1) The provider's request for a hearing fails to conform to the requirements of § 41.31(d)--(e) (relating to request for hearing).
(2) The 90-day time period for amendments specified in subsection (c)(1) has expired.
(3) The provider fails to establish that an amendment should be permitted under subsection (c)(2).
(g) If the dismissal is based upon motion of the Bureau, the Bureau will issue a rule or order to show cause, with a date certain listed therein, and serve that rule or order to show cause upon the parties to the appeal.
(h) Subsections (a)--(g) supersede 1 Pa. Code §§ 35.1, 35.2, 35.5--35.7, 35.9--35.11, 35.105 and 35.106.
§ 41.33. Appeals nunc pro tunc.
(a) The Bureau, upon written motion and for good cause shown, may grant leave to a provider to file a request for hearing nunc pro tunc under the common law standard applicable in analogous cases in courts of original jurisdiction.
(b) The Bureau, upon written motion and for good cause shown, may grant leave to a provider to file an amendment to a request for hearing nunc pro tunc under the common law standard applicable in analogous cases in courts of original jurisdiction.
(c) The Secretary, upon written motion and for good cause shown, may grant leave to a party to file a request for review of a Bureau determination by the Secretary nunc pro tunc under the common law standard applicable in analogous cases in courts of original jurisdiction.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 35.1, 35.2, 35.5--35.7 and 35.9--35.11 and, to the extent that they would otherwise apply to the time for filing appeals with the Bureau, §§ 1187.1(d) and 6210.14(b) (relating to policy; and time extensions).
PETITIONS § 41.41. Waiver request.
(a) A provider may include a waiver request in a petition for relief only if the regulation that is the subject of the waiver request is not a basis for an agency action involving the provider.
(b) If an agency action involving the provider depends, in whole or in part, upon the application of a regulation of the Department, a provider aggrieved by that agency action may only present a waiver request pertaining to that regulation in the context of a request for hearing filed in accordance with § 41.31 (relating to request for hearing).
(c) To the extent that the waiver sought by a provider in a petition for relief has been or could have been included in a request for hearing, the Bureau will dismiss the petition for relief.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.18 (relating to petitions for issuance, amendment, waiver or deletion of regulations) to the extent that an appealable agency action is involved.
§ 41.42. Request for declaratory relief.
(a) A provider may include a request for declaratory relief in a petition for relief only if the relief sought by the provider would not modify or alter an agency action involving the provider.
(b) If the requested relief would modify an agency action involving the provider, the provider may only seek the relief in the context of a request for hearing filed in accordance with § 41.31 (relating to request for hearing).
(c) To the extent that a request for declaratory relief sought by a provider in a petition for relief has been or could have been included in a request for hearing, the Bureau will dismiss the petition for relief.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.19 (relating to petitions for declaratory orders) to the extent that an appealable agency action is involved.
§ 41.43. Request for issuance, amendment or deletion of regulations.
The sole means by which a provider may formally petition the Department for the issuance, amendment or deletion of a regulation or statement of policy is by filing a petition for relief under 1 Pa. Code § 35.18 (relating to petitions for issuance, amendment, waiver or deletion of regulations).
§ 41.44. Transfer of petition for relief.
(a) If a provider filed a petition for relief prior to the date of an agency action in which it has sought relief in connection with or relating to that agency action, the provider may file a motion to have the petition for relief transferred to the Bureau and deemed a request for hearing. The motion shall be filed within the time allowed for the filing of a request for a hearing specified in § 41.32(a) (relating to timeliness and perfection of requests for hearing).
(b) Subsection (a) supersedes 1 Pa. Code § 35.17 (relating to petitions generally) to the extent that an appealable agency action is involved.
SUPERSEDEAS § 41.51. General.
(a) The filing of a request for hearing does not act as an automatic supersedeas. However, a provider who has filed a request for hearing may petition the Bureau to grant a supersedeas of the agency action. The Bureau may, upon good cause shown, grant a provider's petition for supersedeas in accordance with § 41.53 (relating to circumstances affecting grant or denial).
(b) A petition for supersedeas must be set forth in writing and may be filed during a provider appeal.
(c) The Bureau will not issue a supersedeas without first conducting a hearing, but a hearing may be limited under subsection (e). The Bureau, upon motion or sua sponte, may direct that a prehearing conference be held before scheduling or holding a hearing on a supersedeas.
(d) A hearing on a supersedeas, if necessary, will be held expeditiously, if feasible within 2 weeks of the filing of the petition. In scheduling the hearing the Bureau will take into account the availability of the presiding officer and program office staff and the urgency and seriousness of the problem to which the order or action of the Department applies. If good cause is shown, the hearing will be held as soon as possible after the filing of the petition.
(e) If necessary to ensure prompt disposition, and at the discretion of the Bureau, a supersedeas hearing may be limited in time and format, with parties given a fixed amount of time to present their entire case, and with restricted rights of discovery or of cross-examination.
(f) The Bureau may impose costs or other appropriate sanctions on a party that files a petition for supersedeas in bad faith or on frivolous grounds.
§ 41.52. Contents of petition for supersedeas.
(a) A petition for supersedeas must plead facts with particularity and be supported by one of the following:
(1) Affidavits prepared as specified in Pa.R.C.P. Nos. 76 and 1035.4 (relating to definitions; and motion for summary judgment), setting forth facts upon which issuance of the supersedeas may depend.
(2) An explanation of why affidavits have not accompanied the petition if no supporting affidavit is submitted with the petition for supersedeas.
(b) A petition for supersedeas must state with particularity the citations of legal authority the petitioner believes form the basis for the grant of supersedeas.
(c) A petition for supersedeas may be denied upon motion made before a supersedeas hearing or during the proceedings, or sua sponte, without hearing, for one of the following reasons:
(1) Lack of particularity of the facts pleaded.
(2) Lack of particularity or inapplicability of the legal authority cited as the basis for the grant of the supersedeas.
(3) An inadequately explained failure to support factual allegations by affidavit.
(4) A failure to state grounds sufficient for the granting of a supersedeas.
§ 41.53. Circumstances affecting grant or denial.
(a) The Bureau, in granting or denying a supersedeas, will be guided by relevant judicial precedent. Factors to be considered include the following:
(1) Irreparable harm to the provider.
(2) The likelihood of the provider prevailing on the merits.
(3) The likelihood of injury to the public or other parties.
(b) A supersedeas will not be issued if injury to the public health, safety or welfare exists or is threatened during the period when the supersedeas would be in effect. If State law or Federal law or regulation requires that an action take effect prior to the final determination of an appeal, injury to the public health, safety or welfare shall be deemed to exist.
(c) In granting a supersedeas, the Bureau may impose conditions that are warranted by the circumstances, including the filing of a bond or the posting or provision of other security.
INTERVENTION § 41.61. Filing of petitions to intervene.
(a) Petitions to intervene and notices of intervention in a provider appeal may be filed following the filing of a request for hearing but in no event later than 60 days from the filing date on the provider's request for hearing, unless for extraordinary circumstances and for good cause shown, the Bureau authorizes a late filing.
(b) Subsection (a) supersedes 1 Pa. Code §§ 35.23, 35.24 and 35.39--35.41.
ANSWERS § 41.71. Answers generally.
(a) An answer to a pleading is not required.
(b) Answers to legal documents, if permitted or required by this chapter, must be filed with the Bureau within 20 days after the date of service of the legal document, unless either of the following occurs:
(1) A different period is specifically required in this chapter.
(2) For cause, the Bureau with or without motion prescribes a different time, but in no case may an answer be required in less than 10 days after the date of service.
(c) Answers must be in writing and conform to the requirements of this chapter. Answers must admit or deny in detail each material fact asserted in the legal document answered and state clearly and concisely the facts and law relied upon.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.35 (relating to answers to complaints and petitions).
§ 41.72. Answers to petitions to intervene.
(a) A party may file an answer to a petition to intervene, and in default thereof, may be deemed to have waived an objection to the granting of the petition.
(b) Answers shall be filed within 20 days after the date of service of the petition, unless for cause the Bureau with or without motion prescribes a different time.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.36 (relating to answers to petitions to intervene).
CONSOLIDATION, AMENDMENT AND WITHDRAWAL OF APPEALS § 41.81. Consolidation of provider appeals.
(a) Each provider that wishes to appeal an agency action shall file an individual request for hearing in its own name, without joining another provider.
(b) The Bureau, on timely motion, may order that a provider appeal be consolidated with one or more other provider appeals if the Bureau determines that the provider appeals in question involve substantially similar or materially related issues of law or fact and that consolidation is otherwise appropriate.
(c) Consolidation is appropriate if it will not prejudice the ability of the nonmoving party to perform adequate discovery or to adequately present its claim or defense, and if it will not unduly delay the adjudication of the earlier-filed matter.
(d) A provider appeal will not be consolidated except upon motion filed by one or more parties.
(e) In addition to the general requirements for motions in §§ 41.131--41.136 (relating to motions), a motion for consolidation must include the following:
(1) Identification of the issues of law raised in each provider appeal and the extent to which each is shared or distinct.
(2) Identification of the material facts that serve as a basis for each appeal and the extent to which each of these facts is shared or distinct.
(3) Justification or advantages to support consolidation.
(f) In addition to the general requirements for answers to motions in § 41.72 (relating to answers to petitions to intervene), an answer to a motion for consolidation must explain how consolidation would, if allowed, adversely affect the nonmoving party's ability to conduct and complete discovery, or its ability to present its claims or defenses.
(g) A motion to consolidate will be considered untimely as to a provider appeal if it is filed after the date set for the conclusion of discovery in that provider appeal. An untimely motion to consolidate will only be granted with the consent of the nonmoving parties.
(h) If a provider seeks to consolidate its provider appeal with a provider appeal filed by a different provider, the motion for consolidation shall be deemed to be opposed by the other provider unless an affirmative statement to the contrary is set forth in the motion.
(i) A motion for consolidation and an answer thereto must be served on each person that is a party to the other provider appeals for which consolidation is sought.
(j) If the Bureau grants a provider's motion to consolidate, the discovery available to the providers in the consolidated appeals must, in the aggregate, comply with the limitations specified in § 41.120 (relating to limitations on scope of discovery).
(k) Subsections (a)--(j) supersede 1 Pa. Code §§ 35.45 and 35.122 (relating to consolidation; and consolidation of formal hearings).
§ 41.82. Amendments of requests for hearing.
(a) Amendments to a request for hearing will not be permitted except as specified in §§ 41.32(c) and 41.33(b) (relating to timeliness and perfection of requests for hearing; and appeals nunc pro tunc).
(b) Subsection (a) supersedes 1 Pa. Code § 35.48--35.50 (relating to amendments of pleading generally; amendments to conform to the evidence; and directed amendments).
§ 41.83. Withdrawal of provider appeals.
(a) A provider may withdraw or end its provider appeal prior to adjudication by one of the following:
(1) The provider notifies the Bureau in writing that it is withdrawing its provider appeal.
(2) The parties to a provider appeal sign a written stipulation of settlement in which the provider agrees to withdraw the provider appeal.
(b) When a provider appeal is withdrawn prior to adjudication, the withdrawal shall be with prejudice, except that the appeal may be reopened if, on motion of the provider, the Bureau finds that the withdrawal of the appeal was reasonable and not done for dilatory or vexatious purposes, that the program office will not be prejudiced by the reopening, and that good cause exists for permitting the appeal to be re-opened.
(c) Unless the written notice or stipulation of settlement provides otherwise, a withdrawal of a provider appeal under this section shall be effective on the date the written notice or stipulation of settlement is received by the Bureau.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.51 (relating to withdrawal of pleadings).
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