NOTICES
Final Standing Practice Order
[33 Pa.B. 3053] Pursuant to the act of December 3, 2002 (P. L. 1147, No. 142) (''Act 142''), § 20.1, 67 Pa.C.S. § 1102(g) (relating to hearings before the Bureau), the Department of Public Welfare (''Department''), Bureau of Hearings and Appeals (''Bureau'') hereby issues the Standing Order (Order) set forth in Annex A. The Order establishes rules governing Medical Assistance (''MA'') provider appeals. The Order is effective July 1, 2003.
Summary of Public Comments and Revisions
Act 142 added 67 Pa.C.S. Chapter 11 (relating to Medical Assistance hearings and appeals), which establishes a statutory framework for MA provider appeals. Section 1102(g) of 67 Pa.C.S. (relating to hearings before the Bureau) requires that the Bureau, after receiving public comments, issue an order prior to July 1, 2003 establishing rules governing practice before the Bureau in MA provider appeals. In accordance with § 1102(g), the Bureau published a proposed Order at 33 Pa.B. 1168 (March 1, 2003) and asked interested parties to submit written comment within 30 days.
The Bureau received written comments from six commentators representing trade associations and private law firms within the 30-day comment period. The Bureau has carefully reviewed and considered the comments and thanks the commentators for their thoughtful comments and recommendations on the proposed Order. A summary of the major written comments, the Bureau's response to those comments and the revisions made to the proposed Order follows.
General--Regulation
Two commentators suggested that Act 142 requires that the Department publish proposed and final regulations by July 1, 2004 and that the Department solicit public input through the formal rulemaking process including public and legislative review.
Response
Act 142 specifies that the Department, through the Bureau, must promulgate regulations establishing rules of procedure as may be necessary to carry out the provisions of Act 142 by July 1, 2004, and establish an advisory committee ''to provide assistance and guidance'' in the development and modification of any such regulations. When the Bureau published the proposed Order for comment, it solicited individuals interested in serving on the regulatory advisory committee to submit a letter of interest to the Bureau Director. The Bureau will establish the advisory committee and seek the committee's input regarding the nature and scope of regulations necessary to carry out the provisions of the Act.
General--Rules
One commentator suggested that the Order disadvantages providers rather than sets fair processes and procedures and that many elements of the Order expand the privileges of the Department while restricting the rights of providers. Another commentator suggested that the Order does not provide for fair and equitable treatment of providers. That same commentator also stated that the Order does not assure just, speedy and inexpensive determination and that it does not contain sufficient opportunity for providers to receive notice and be heard. The commentator suggested that the Order gives too much discretion to the Bureau, but also stated that the Order does not sufficiently maintain the Bureau's independence.
Response
Consistent with Act 142, the Order expressly guarantees the independence and impartiality of the Bureau hearing officers in deciding appeals. See Rule 50 (relating to independence; ex parte communications). In considering the comments and drafting this Order, however, the Bureau recognized that the complexity of any adjudicative process must be weighed against the time and expense associated with that process. The Order sets forth rules that are intended to achieve a just and speedy determination of provider disputes while protecting and balancing both the public and private interests involved. For example, the Order specifies the minimum discovery to which a party in entitled as a matter of right, but allows the party to exceed the minimum if the party establishes that more discovery is reasonable and necessary in the particular case involved.
The Bureau finds that the Order provides sufficient notice and opportunity to be heard to providers and gives appropriate discretion to Bureau. The Order provides the Bureau with the same level of discretion to adjudicate provider appeals as is afforded to comparable administrative adjudicative tribunals, such as the Environmental Hearing Board and the Medicare Provider Reimbursement Board, and as is already provided under GRAAP. Placing undue restrictions on or eliminating the Bureau's discretion in adjudicating provider disputes would not only be inappropriate, but would hinder the Bureau's ability to conduct a de novo review as required by Act 142. See also Millcreek Manor v. DPW, 796 A.2d 1020 (Pa.Cmwlth Ct. 2002).
General--Time Frames
One commentator suggested that the Bureau should be required to resolve provider payment and reimbursement decisions within a specified time period, such as two to three years.
Response
Act 142 requires the Bureau to ''promptly adjudicate'' provider appeals and to ''establish deadlines for interim and final actions by the Bureau and parties to any proceeding before the Bureau.'' In accordance with these requirements, the Order sets forth various deadlines for the parties to, among other things, make disclosures, submit position papers and file procedural and dispositive motions in provider appeals. The Order also establishes deadlines for the Bureau to act on motions and to issue determinations in provider appeals. As written, the Order contemplates that adjudications generally will be issued within the time frame suggested by the commentator.
General--Scope of Order
One commentator criticized the proposed Order as being overly broad. This commentator suggested that Act 142 does not reach a provider's right to petition the Secretary of Public Welfare under 1 Pa. Code §§ 35.17--35.20 (relating to pleadings and other preliminary matters) in that such matters are not appeals from adjudications. This same commentator stated that, to the extent the Order seeks to regulate areas beyond the statutory authority of Act 142, the Order violates the Commonwealth Documents Law (45 P. S. § 1201 et seq.) by superseding 1 Pa. Code §§ 35.14--35.24 and that such matters continue to be regulated by 1 Pa. Code, Part II, Chapters 31, 33 and 35, General Rules of Administrative Practice and Procedure (GRAPP) unless and until the Department adopts regulations.
Another commentator criticized the proposed Order as being unduly narrow. This commentator suggested that the Order makes an artificial distinction between ''waiver request,'' ''petition for relief'' and ''hearing'' and that the Order imposes significant restrictions on waivers and petitions. This commentator suggested that Act 142 applies to any decision of the Department relating to the administration of the MA program, including decisions on requests for changes to or waivers from regulations, policies, procedures or interpretations. The commentator suggested that by providing different procedures for petitions for relief, the Department has inappropriately narrowed the scope of the hearing to which providers are entitled under the Act.
Response
At the outset, the Bureau notes that there is general agreement that Act 142 grants providers the right to appeal adjudicative determinations of the Department to the Bureau and that the Order should encompass those matters. The commentators' disagreement with each other and the proposed Order centers on whether and to what extent the Order should also apply to actions of the type currently permitted under §§ 35.17--35.20 of GRAPP. Those rules permit the submission of ''petitions'' seeking the issuance, amendment, waiver or appeal of regulations, the issuance of declaratory orders and the appeal of actions taken by ''subordinate officers'' of an agency. As proposed, the Order would have superseded §§ 35.17--35.20 but would have continued to distinguish between these types of actions and those involving adjudicative agency actions. The distinction was reflected throughout the proposed Order, including in the definitions of ''request for hearing'' and ''petition for relief.''
Having evaluated the commentators' views regarding the proper scope of the Order, the Bureau agrees with commentators that the scope of the Order should be identical to that of Act 142. The Bureau intends that Order cover the procedural matters encompassed by Act 142, but no others. In cases that involve actions outside the scope of Act 142, other rules (e.g., 55 Pa. Code Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings) or GRAPP) apply.
Act 142 provides that a Department action or decision is appealable only if the provider is ''aggrieved.'' 67 Pa.C.S. § 1102(a). In order for a provider to be aggrieved, the action must be adjudicative in character. ''Adjudicative agency actions are those that affect one individual or a few individuals, and apply existing laws or regulations to facts that occurred prior to the adjudication.'' Small v. Horn, (Pa., 1998). Act 142 specifies that hearings under the act only involve ''adjudications of the Department relating to the administration of the [MA] Program'' and that encompass ''action[s] relating to a provider's enrollment in, participation in, claims for payment or damages under or penalties imposed under the program.''
When the Department undertakes an adjudicative action, Act 142 and this Order apply, and the aggrieved provider must file a timely and proper request for hearing in order to contest the action. Since an adjudicative agency action may be undertaken by a subordinate official, the Bureau agrees with the second commentator that Act 142 and the Order supersede 1 Pa. Code § 35.20, which presently permits a provider to appeal actions taken by a subordinate officer directly to the Secretary. Contrary to § 35.20, under this Order, any such appeal must be filed with the Bureau.
Adjudicative actions do not include agency actions ''that are legislative in character,'' i.e., actions that ''result in rules of prospective effect and bind all, or at least a broad class of, citizens.'' Id. Under existing Pennsylvania law, the issuance of regulations is a legislative act, not an ''adjudication.'' Laurel Lake Ass'n v. Pennsylvania Fish and Boat Comm'n, 710 A.2d 129, 132 (Pa.Cmwlth. 1998); Insurance Co. of North America v. Insurance Dept., 15 Pa.Cmwlth. 462, 327 A.2d 411 (1974). Consequently, the Bureau agrees with the first commentator that petitions requesting the issuance, amendment or repeal of regulations would not involve an appealable adjudicative action and, therefore, would not fall within the scope of Act 142. Thus, such petitions would properly be filed under 1 Pa. Code § 35.18 and GRAPP would apply in such matters.
The Bureau recognizes that a provider may request a waiver of a regulation or request declaratory relief without any underlying appealable action having been taken by the Department. Since Act 142 only applies to appealable actions, the Bureau also agrees with the first commentator that such requests would fall outside the scope of Act 142. Instead, such requests must be made by petition under 1 Pa. Code § 35.18 and GRAPP would apply in such matters.
In consideration of the comments received, the Bureau has eliminated or revised the various provisions that would have prescribed rules of procedure relating to properly filed petitions for relief. These changes, which are explained in greater detail in subsequent sections of this preamble, have the following effect: so long as there is no underlying appealable ''agency action,'' the procedures governing petitions for relief are those set forth in the GRAPP. Where an appealable action is taken, however, Act 142 and the Order will apply. Thus, the Order continues to require that all issues and requests for relief relating to a contested agency action, including requests for waiver of a regulation or a determination of the applicability or meaning of a regulation or policy, must be set forth in a proper and timely request for hearing.
Rule 1. Scope of rule
One commentator suggested that the Order inappropriately excludes certain types of claims. The commentator believes that the Order must encompass proceedings affecting recipients to the extent a provider is aggrieved by a Departmental action and, therefore, 55 Pa. Code Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings) should not be excluded from the scope of the Order.
Response
Act 142 applies only to medical assistance provider appeals. Recipient appeals under 55 Pa. Code Chapter 275 are not included within the scope of Act 142, and, therefore, are not subject to this Order. When providers are permitted to file certain appeals for recipients under a valid power of attorney or court order, they are acting as the recipient's representative. To the extent the provider is permitted by law to act as a recipient's representative, the provider is asserting the recipient's right to appeal and Chapter 275 properly applies.
Rule 1. Other revisions
The Department clarified this rule to identify the effective date of the Order and to define the scope of the rules in general and the limitations applicable to appeals filed before, on and after December 3, 2002.
Rule 2. Construction and application of rules
One commentator suggested that the approach of selective and partial incorporation of the GRAPP by reference into the Order is confusing and will create disputes. The commentator suggested that partial incorporation by reference is troubling because the Order supersedes 1 Pa. Code § 31.6 (relating to amendments to rules) that provides the Joint Documents Committee may amend the GRAPP, including its application to hearings before Bureau. The commentator suggests that the Order should supersede the GRAPP in its entirety and that relevant provisions of the GRAPP should be restated to create a single set of comprehensive rules.
Response
For purposes of this Order, the Bureau has continued to incorporate by reference those GRAAP rules that have not otherwise been superceded by the Order. The Bureau will seek input from the regulatory advisory committee as to whether any regulations promulgated by the Department should set forth, rather than incorporate by reference, the applicable GRAPP rules.
Rule 3. Definitions--Agency Action
Several commentators suggested that the definition of the term ''agency action'' should be revised to be consistent with Act 142. They suggested that Act 142 limits the Bureau's authority to adjudications and that other actions continue to be regulated by Administrative Agency Law and 1 Pa. Code, Part II (relating to the general rules of administrative practice and procedure).
Response
As discussed previously, this Order applies only to provider appeals contesting adjudicative actions of the Department. The Bureau has revised the definition of ''agency action'' accordingly. The revision is intended make clear that the statutory right granted by Act 142 to bring proceedings before the Bureau does not arise by reason of the lack of or absence of an adjudicative agency action. The remainder of the definition of ''agency action'' tracks the provisions set forth in Act 142's definition of ''hearing,'' which provides further instruction on the concept of what is appealable.
Rule 3. Definitions--Hearing
Three commentators requested that the definition of ''hearing'' be revised to be consistent with Act 142. Specific comments included: a) The Bureau's authority is limited by Act 142 to adjudications, b) Act 142 does not limit hearings to contested factual issues, but instead includes a proceeding concerning an adjudication relating to the administration of the Medical Assistance program and c) Act 142 provides that hearings be conducted before the Bureau, not the Secretary of Public Welfare.
One commentator suggested that there is an artificial distinction between ''waiver request,'' ''petition for relief'' and ''hearing'' and that significant restrictions are imposed on waivers and petitions. That commentator suggested that, under Act 142, any decision of the Department relating to the administration of the MA program is subject to hearing, including request for changes to or waivers from regulations, policies, procedures or interpretations. The commentator suggested that the Department has inappropriately narrowed the scope of the hearing to which providers are entitled under the Act.
Response
Act 142 defines ''hearing'' to be a ''proceeding'' commenced by a provider pursuant to 67 Pa.C.S. § 1102(a). Thus, when used in this manner, the term ''hearing'' is synonymous with such terms as ''action,'' ''appeal'' and ''matter.'' 2 Pa.C.S. § 101. Consistent with the statutory definition, the Order uses the term ''request for a hearing'' to refer to the initial pleading that a provider must file in order to commence such an action. 67 Pa.C.S. § 1102(b)(1) and (d).
In some instances, however, Act 142 uses ''hearing'' in the ordinary sense, to refer to those parts of an action at which evidence is presented and interlocutory disputes are considered and resolved. 67 Pa.C.S. §§ 1102(e)(1) and (2); 1104. Thus, as used by Act 142, ''hearing'' has a variety of meanings. The Bureau has revised the term ''hearing'' to include all of the statutory meanings. In addition, in order to improve the clarity of the Order, the Bureau has retained the term ''provider appeal'' as a synonym for ''hearing'' as defined by the Act at 67 Pa.C.S. § 1101. As retained, the term no longer encompasses actions commenced by ''petitions for relief.''
As noted previously, Act 142 only applies to ''adjudications of the Department relating to the administration of the [MA] Program.'' Petitions for relief seeking the amendment, repeal or adoption of regulations or seeking the waiver of a regulation in the absence of an agency action do not involve adjudicative acts of the Department and, therefore, do not fall within the meaning of the term ''hearing'' as it is defined in 67 Pa. C.S. § 1101. If a provider seeks a waiver of a regulation in connection with an adjudicative agency action, Act 142 and this Order do apply.
Rule 3. Definitions--Petition for relief
One commentator suggested that the definition of ''petition for relief'' should reflect that it may not involve an appeal.
Response
The Bureau agrees with the comment that the Order applies only to matters arising from ''agency actions'' and so has revised the Order to eliminate those provisions that would have regulated other types of matters. The Bureau has retained and revised the term ''petition for relief'' in order to identify those actions that are commenced by providers which fall outside the scope of Act 142.
Rule 3. Definitions--Presiding officer
One commentator suggested that this term should indicate whether the individuals appointed by the director are required to be Bureau or program office employees. Alternatively, the commentators suggested that the Order should provide that presiding officers will be appointed by the Director from a panel of Bureau employees whose sole function is to act as presiding officers.
Response
The Bureau currently assigns individuals who are either employed by the Bureau or under contract with the Bureau and who receive special training in conducting administrative hearings and issuing adjudications in accordance with applicable statutes and regulations to preside in provider appeals. In keeping with Act 142's requirement of independence, the Bureau does not assign any employee or official of the Department whose actions are subject to review by the Bureau to act as a presiding officer. Nor does the Bureau assign an individual, whether employed by or under contract with the Bureau, to hear a case that involves a matter in which he or she participated by way of investigation, enforcement or litigation on behalf of a party. The Bureau does not intend to change its current practices regarding the assignment of presiding officers. Upon further review, the Bureau has determined that the GRAPP definition of presiding officer is sufficient and has eliminated the definition of presiding officer from this rule.
Rule 3. Definitions--Provider appeal
One commentator suggested that the term ''provider appeal'' be stricken since it causes confusion between those matters that are within Act 142 and those that are not.
Response
The term ''provider appeal'' was included in the proposed Order in order to collectively refer to two distinct types of actions. Because, as discussed elsewhere, the final Order has been revised to pertain only to ''requests for hearings,'' the proposed definition of ''provider appeal'' has become obsolete. However, since Act 142 gives the term ''hearing'' multiple meanings, ''provider appeal'' has been revised and retained as a synonym for one ''hearing'' as defined at 67 Pa.C.S. § 1101. The Bureau finds that, when used in this manner, ''provider appeal'' improves the clarity of the Order.
Rule 3. Definitions--Senior Department official
One commentator suggested that this term is defined too broadly. The commentator suggested the elimination of persons who work in the Office of the Secretary or who report directly to the Secretary.
Response
The Bureau has retained the term as defined in the proposed Order, but has revised the conditions under which a party will be permitted to depose a senior department official. (See response under Rule 36(c)(4)(ii)(relating to methods to discover additional information).)
Rule 3. Other changes
The Bureau has included a definition of GRAPP in the rule.
Rule 5. Jurisdiction of the Bureau
One commentator requested that the Bureau clarify that its jurisdiction is not exclusive with respect to administrative penalties where there is dual Federal and state jurisdiction. The commentator requested that the Bureau establish procedures to prevent duplication and unnecessary expense in these cases. Another commentator questioned whether appeals under the Order would be used to resolve disputes brought by providers that operate under Medical Assistance Waiver Programs.
Response
Federal regulations may require providers to use Federal appeal procedures in order to contest the imposition of sanctions and remedies. See, e.g., 42 C.F.R. 431.153(g) (relating to evidentiary hearing). Rule 5 has been revised to clarify that, in such instances, the Federal rules govern and the Bureau would not have jurisdiction.
This Order will apply to an appeal by a provider aggrieved by an adjudicative action relating to an MA Waiver Program. For example, the Order will apply to a dispute involving the rejection of a waiver provider's invoice under the 180-day rule. The Order will not apply, however, to determinations relating to an individual's eligibility for waiver services or other determinations involving applicants or recipients of waiver services. Appeals from such determinations are governed by 55 Pa. Code Chapter 275.
Rule 6. Timely filing required
One commentator questioned whether the Bureau will use the 30-day timeframe found in 55 Pa. Code §§ 1101.84(a), (b) and (c) (relating to provider right of appeal), 6210.123 (relating to time limit for submission of appeals) and 6211.33 (relating to denied waiver), or, the timeframe at 67 Pa.C.S. § 1103(b). The same commentator asked if filing of appeals and amendments will be accepted by facsimile or other types of electronic transmission.
Response
Act 142 establishes the timeframes for provider appeals. Those statutory timeframes are contained in Rule 19 (relating to timeliness and perfection of requests for hearings.) Rule 19 supercedes any prior inconsistent Department regulations. Except as authorized by Rule 20 (relating to appeals nunc pro tunc), a provider must file its request for hearing, and any amendment thereto, in writing within the timeframes specified in Rule 19.
Rule 9 (relating to form) has been revised to specify that the Bureau will only accept for filing an original hard copy of a pleading bearing an original signature. The Bureau will not accept pleadings filed by facsimile or electronic submission.
Rule 7. Extensions of time
One commentator asked if requests for extensions of time will be accepted by facsimile or other types of electronic transmission.
Response
Rule 9 has been revised to permit legal documents, including motions, to be filed by facsimile so long as they do not exceed 20 pages in length, including attachments and exhibits.
Rule 11. Verification
One commentator suggested that this rule is overly broad and burdensome. The commentator suggested that all parties already must sign and certify pursuant to Rule 38 (relating to signing of disclosures, discovery, discovery requests, responses and objections). The commentator suggested amending this rule to require that the Bureau identify those documents containing facts of significance that must be verified.
A second commentator requested clarification of the phrase ''not appearing of record'' and who must verify a response on behalf of the Department or a program office.
Response
Courts routinely require litigants to verify facts set forth in the documents that they file. See, e.g. Pa.R.C.P. 1024 (relating to verification); 52 Pa. Code §§ 1.36 (relating to verification). The Bureau has determined that verification should likewise be required in MA provider appeals. Upon consideration of the comments, the Bureau has revised Rule 11 to clarify that a pleading or a legal document containing averments of fact not of record and denials of fact must be verified. The Bureau has also revised the rule to set out an acceptable form of verification. Any fact contained in a pleading or legal document that has not been previously verified or stipulated by the parties must be verified in the form specified in the rule or in a form that substantially complies with the rule.
Rule 12. Number of copies; copying of Bureau documents.
One commentator suggested that a party filing a document containing privileged or confidential information should prominently designate the document as such and allow parties to motion to protect against disclosure or to challenge the characterization as privileged or confidential.
Response
Rule 12(c) makes any document, including pleadings, legal documents, attachments and exhibits, that a party files with the Bureau generally available to the public regardless whether a particular document satisfies the definition of ''public record'' set forth in Section 1 of the Right to Know Law. 65 P. S. § 66.1. However, Rule 12(c) does not abrogate or affect any existing rule of law that either bars disclosure of protected health information or other confidential information or that limits a person's right of access to documents or information. Thus, for example, the limitations on disclosures of information set forth at 55 Pa. Code § 105.4 (relating to procedures) and 45 CFR Parts 160 and 164 (relating to standards for privacy of individually identifiable health information) are unaffected by Rule 12(c). Therefore, the Bureau will apply those limitations in considering any request for access to filed documents.
Because the record in Bureau proceedings may be disclosed to the public, parties should carefully review the documents that they submit for filing to ensure that they do not contain personal health information or other confidential information that identifies individuals. If parties must include materials with confidential information in documents filed with the Bureau, the parties should redact identifying information from the documents or file a motion pursuant to Rule 40 (relating to procedural motions) for permission to file the documents under seal. If a party files a document with a redaction, the Bureau, on its own or upon motion of another party, may require production of the unredacted document for in camera inspection in order to ascertain that only protected information has been withheld.
Rule 13. Notice of agency actions
Two commentators suggested that notice through the Pennsylvania Bulletin is not appropriate for cases involving denial of reimbursement and that the option of service by publication in the Pennsylvania Bulletin should be limited to cases in which other methods cannot be used or have failed.
A third commentator suggested that the Order: a) fails to address when a written notice of agency action is not provided, b) fails to establish standards for what constitutes effective written notice of agency action and c) deviates from Act 142 that allows a minimum of 30 days to appeal after receiving ''notice'' of agency action. The commentator suggested revision to recognize that a provider may obtain notice that the Department has taken a final action through conduct of the agency. The commentator suggested clarification of the following: a) that providers are authorized to file an appeal upon receipt of information sufficient to conclude that the Department has taken action adverse to the interests of provider, b) if the Department fails to give written notice of agency action, time for filing appeal should not run until the Department gives proper written notice of agency action and c) final versus preliminary agency action appeal timeframes.
Response
Act 142 contemplates that the Department must have undertaken some affirmative action in order for a right to a hearing to arise. 67 Pa.C.S. §§ 1101 (definition of ''hearing''); 1102(a); 1102(b)(2). Under Act 142, a condition precedent to the filing of a request for hearing is that the Department shall have given the provider ''notice of departmental action.'' Act 142 clearly contemplates that any such notice shall be given in writing.
In some instances, Department regulations may specify how the Department or a program office gives notice of an agency action. See e.g. 55 Pa. Code § 1187.95(a)(4) (relating to general principles for rate and price setting). Rule 13 is not intended to modify or replace existing notice requirements, nor is it intended to add additional notice requirements to those already in place. Rule 13 has been revised to clarify that the Department or program office must give notice of an agency action in accordance with Departmental regulations that relate to the particular action involved. When departmental regulations do not specify the method by which notice must be given, the Bureau has revised Rule 13 to specify how the Department or program office must give notice and to clarify the circumstances in which notice may be given by publication in the Pennyslvania Bulletin.
Rule 14. Service of pleadings and legal documents
The Bureau has revised Rule 14 to specify the date on which service of pleadings and legal documents must be made and when service must be made by facsimile.
Rule 18. Request for hearing
Three commentators provided suggestions for revision of Rule 18(b). One commentator raised concerns that since Departmental actions and notices often do not contain extensive information, providers may not be able to respond with the specificity required by the Rule in the timeframe allowed. A second commentator suggested the deletion of the phrase ''in detail'' in (b)(2). A third commentator suggested that a copy of the transmittal letter providing notice of action rather than the entire notice be required, to save unnecessary paper storage and postage.
Response
The Department's written notices of agency actions are required to and generally contain sufficient information for providers to determine if and why they disagree with an agency action. For example, when the Department issues a notice of termination under 55 Pa. Code § 1101.77 (relating to enforcement actions by the Department), the notice states the basis for the action, the effective date of the action and whether and when the Department will consider re-enrolling the provider. See 55 Pa. Code § 1101.77(d). In addition, Department regulations have long required that all MA providers ''explain in detail the reasons for [their] appeal'' in their notices of appeal (55 Pa. Code § 1101.84(a)(4) (relating to provider right of appeal)), and, since January 1996, have required that appeals by MA nursing facility providers ''state in detail the reasons why the facility believes the [Department's] decision is factually or legally erroneous and the specific issues that the facility will raise in its appeal.'' 55 Pa. Code § 1187.191(d)(2) (relating to nursing facility's right to appeal and to a hearing). The requirement for specificity is also consistent with Act 142, which allows a provider 90 days to amend their requests for hearing as a matter of right and then specifies that the Bureau must conduct a ''de novo review of all factual and legal issues raised by a provider in the request for hearing.''
The Bureau agrees with the suggestion that when the Department transmits notice of an agency action under cover of a letter to the provider, the provider need only attach a copy of the transmittal letter, rather than the entire notice, to its request for hearing.
Rule19(c). Timeliness and perfection of requests for hearing
One commentator suggested that Act 142 does not preclude the Bureau from permitting additional amendments after the initial 90-day period. The commentator suggested that the limitation of amendments to a nunc pro tunc standard is inconsistent with 1 Pa. Code §§ 35.48--35.50 and that the limitation would preclude parties from stipulating to additional time. The commentator suggested that time limits for amendment are inconsistent with time limits on discovery and disclosure, and since discovery will usually be completed more than 90 days after the filing of a request for hearing, this is inconsistent with due process and permits the agency to hide relevant information and defeats proper adjudication on the merits. Under Rule 36 (relating to methods to discover additional information), discovery cannot begin until 45 days after filing a request for hearing.
Another commentator suggested that while Act 142 provides that a request for hearing may be amended within 90 days of filing, the statute does not prohibit subsequent amendments for good cause shown. The commentator suggested that to prohibit amendments after 90 days, or to apply nunc pro tunc standard, is unreasonable because the basis for the agency action may not be clear until after discovery or after receipt of the pre-hearing position paper or hearing testimony. The commentator suggested that the use of a liberal good cause rule for amendment to hearing requests should be applied.
Response
As noted in comments summarized under ''General-Rules,'' providers have suggested that the Rules should provide for a just, speedy and inexpensive adjudicatory process. The Bureau agrees with providers that the rules set forth in the Order should promote this goal. In keeping with this goal, the Rules established by this Order are intended to encourage litigation practices that support prompt adjudications and that avoid unnecessary expense and undue burdens on the parties and on the MA Program.
Most providers know why they disagree with a Department determination when they file an appeal. In the relatively few instances where the reasons for the Department's actions may be unclear, the statute and the Rules automatically allow providers an additional 90 days to evaluate the Department's determination. This additional period should permit providers a sufficient amount of time to identify the bases for their appeals in the majority of cases. In reaching this conclusion, the Bureau considered the fact that, since 1996, departmental regulations have permitted nursing facility providers 90 days within which to amend their appeals as a matter of right, yet very few providers have seen the need to file amended appeals.
Upon consideration of the comments, however, the Bureau recognizes that, on rare occasions, there may be circumstances under which further amendments to a request for hearing might be warranted and could be allowed without undermining the goal of a just, speedy and prompt adjudicatory process. The Bureau has revised Rule 19 to allow additional amendments after the initial 90-day period under certain limited circumstances. First, an amendment after 90 days will be allowed if the provider establishes that the amendment is necessary because of fraud or breakdown in the administrative process. Second, an amendment after 90 days will be allowed if the provider establishes that (1) the amendment is based upon additional information acquired after the expiration of the 90-day period which either contradicts information previously disclosed by the Department or provides new information not previously disclosed by the Department; and (2) the program office and any other parties to the appeal will not be prejudiced if the amendment is allowed.
Consistent with the requirements relating to position papers, the Bureau has also revised Rule 19 to prohibit an amendment to a request for hearing within 30 days of the commencement of the hearing in the provider appeal. If a provider seeks to amend its appeal within 30 days of the commencement of a hearing, the Bureau retains the discretion and flexibility under the Order to continue the hearing in order to permit the amendment but enable the program office to prepare an adequate response to the amended appeal.
Rule 19(d)--Timeliness and perfection of requests for hearing
One commentator suggested that this rule be revised to eliminate the requirement that a general objection is deemed to be a waiver of all objections to an agency's action, particularly where objections are required to be filed before completion of discovery.
Response
Rule 19(d) requires that providers to give the program office sufficient notice of the bases for their appeal so that the program office has a reasonable opportunity to respond. It is also intended to assist the Bureau in conducting an appropriate de novo review. As noted previously, under Act 142 and this Order providers have 90 days within which to amend their appeals as a matter of right. In addition, the Bureau has revised the rule to allow providers to amend their requests for hearing after the 90-day period has expired on the basis of after acquired evidence. The rules thus provide sufficient time to providers to comply with the specificity requirement.
Rule 19(e)--Timeliness and perfection of requests for hearing
One commentator suggested that the Bureau be required to notify the provider of the reason for dismissal of a provider's request for a hearing. The commentator suggested that a request that substantially complies with the technical filing requirements should not be dismissed by the Bureau on its own motion.
A second commentator requested that this rule provide for notice of the Bureau's proposed motion to dismiss and opportunity to be heard or to correct the filing.
Response
Upon consideration of the comments, the Bureau has added language to Rule 19 that requires the Bureau to issue a rule or order, with a date certain listed for response, upon a provider and to allow the provider who will be aggrieved by the Rule or Order an opportunity to object to the proposed dismissal or to establish that it should be permitted to amend its appeal.
Rule 21--Limitations on the use of petitions for relief
Two commentators suggested that Act 142 does not authorize the limitation of provider's rights to seek waivers of regulations through the Order and that such limitations must be promulgated through the Commonwealth Documents Law. They maintain that limiting waivers, petitions for relief and the ability to obtain declaratory relief from regulations to the context of a hearing request is contrary to the statute. They suggest that because the Secretary of Public Welfare rules on waiver requests after receiving Bureau recommendations, there is no remaining right of appeal de novo, although Act 142 requires de novo review for all adjudications. A third commentator stated that this rule is too restrictive and that the Bureau should be given discretion to allow for corrections or amendments to ''improperly constituted'' appeals or petitions for relief. The commentator maintains that, under current state and Federal practice a provider has the opportunity to file an amended document and that providers should not be prohibited from pursing a waiver or declaratory relief as a result of a technical issue.
Response
The Bureau has eliminated or revised the various provisions of the Order that would have prescribed rules of procedure relating to petitions for relief properly filed under 1 Pa. Code §§ 35.17--35.19. If there is no underlying ''appealable agency action,'' the procedures governing such petitions for relief are those set forth in the GRAPP. Where an appealable action has been taken by the Department, however, Act 142 sets forth the exclusive procedure to obtain review of and relief regarding that action, and this Order applies.
In consideration of the comments, the Bureau has revised the title of Rule 21 to clarify that it only applies to petitions for relief that involve an agency action. In addition, the Bureau has included a new provision in the rule that permits a provider to file a motion to convert a prior filed petition for relief to a request for hearing and transfer it to the Bureau for determination. Any such motion must be filed within the filing deadlines that otherwise apply to a request for hearing. The Bureau has otherwise retained Rule 21 as proposed. Consistent with Act 142, the effect of the rule is that all issues and requests for relief relating to an agency action, including requests for waiver of a regulation or a determination of the applicability or meaning of a regulation or policy, must be set forth in a proper and timely request for hearing.
Rule 22. Supersedeas; General
One commentator requested clarification of classes of Departmental cases in which actions by the Department are not effective until after a hearing. For example, if the Department intends that fines levied as penalties by the Department are to be effective and collected prior to the final adjudication of a matter, the Department should clarify this point here.
Response
When the Department gives written notice of an agency action, the notice specifies the date on which the action has or will become effective. Therefore, no additional clarification is necessary.
Rule 22(f). Supersedeas; Sanctions
One commentator suggested that Act 142 does not authorize the imposition of costs and sanctions without promulgation of a regulation through the rulemaking process. The same commentator requested clarification of ''other appropriate sanctions.''
Response
Act 142 authorizes the Bureau to ''issue a standing order establishing rules governing practice before the Bureau.'' The authority to ''govern practice'' includes the inherent authority to enforce compliance with the rules of practice. What is an appropriate sanction will depend on the facts of the particular case.
Rule 22(g). Supersedeas; General
One commentator suggested that this rule is contrary to Act 142 because it does not permit the Bureau to grant a supersedeas for good cause shown based upon evaluation of relevant circumstances. A second commentator suggested that this rule is too restrictive in requiring the dismissal of a request for supersedeas in a provider appeal is commenced by petition of relief. The commentator suggests that, consistent with current state and Federal practice, a provider should be given the opportunity to file an amended document.
Response
In consideration of the comments, the Bureau has revised Rule 22 to eliminate subsection (g) relating to petitions for relief. Petitions for relief filed pursuant to 1 Pa. Code §§ 35.17--35.19 are governed by GRAPP. The Order otherwise incorporates the language of Act 142.
Rule 25. Filing for petitions to intervene
One commentator requested clarification of the timeframe since the preamble for the proposed Order allowed 90 days for intervention, but the rule itself allows 60 days.
Response
The preamble to the proposed rule was in error. A petition to intervene must be filed within 60 days of the filing of a request for hearing.
Rule 26(c). Answers generally
One commentator suggested that since answers are required to be filed before discovery, the requirements of the Rule are too specific.
Response
With the possible exception of a dispositive motion, a party should be able to answer a motion or other legal document regardless of whether discovery has been completed. Dispositive motions are not due until after the close of discovery. See Rule 33(a)(5) and Rule 35(c)(1) (relating to disclosures).
Rule 28. Consolidation of provider appeals
One commentator suggested that consolidation provisions should permit providers to consolidate requests for hearings from the outset to ensure efficiency. The commentator also suggested that the presiding officer should be authorized to modify discovery limits in consolidated cases. Another commentator suggested that this rule is overly restrictive with respect to discovery limitations on consolidation issues.
Response
Act 142 contemplates that consolidation will occur only upon motion and only after individual provider appeals have been filed. 67 Pa.C.S. § 1102(e)(2)(vi). Keeping the rule as proposed will ensure that only those providers who are willing to have their appeals combined with others will be subject to consolidation, and will ensure that parties who are opposed to consolidation have the meaningful opportunity to offer opposition, instead of being presented with a fait accompli. It also is consistent with the Bureau's internal docketing and case-tracking requirements.
If a provider asserts the need to conduct individual discovery in an appeal, this suggests that the facts and legal issues raised in the appeal may be sufficiently unique to make consolidation inappropriate. Consolidation is only appropriate if there is a substantially similar or materially related issue of law or fact. Consequently, the Bureau expects that most consolidated appeals will not be appreciably more complex than individual appeals, and that additional discovery generally will be neither reasonable nor necessary. Where consolidation is permitted, Rule 36 allows the parties to request permission from the Bureau to exceed the discovery limits in particular cases. Therefore, the Bureau has the discretion and flexibility to address the discovery issue on a case-by-case basis upon an appropriate showing by providers that additional discovery is reasonable and necessary.
Rule 28(f). Consolidation of provider appeals
One commentator requested clarification of what constitutes prejudice.
Response
Prejudice means the non-moving party is placed at such a disadvantage that it would be impracticable to perform meaningful discovery or adequately present its claim.
Rule 28(f). Consolidation of provider appeals
One commentator suggested that the time limits for consolidation are unreasonable and requested an extension of the timeframe or allowance of exceptions to the timeframe based on serial as well as contemporaneous Departmental determinations.
Response
Under Rule 28, a Motion to Consolidate must be filed before the expiration of the 120-day discovery period authorized by Rule 33(2) (relating to prehearing procedures in certain provider appeals.) This rule allows an adequate time frame for the parties to determine whether a case or cases should be consolidated. Moreover, the Bureau expects that the Order will result in the prompt adjudication of provider appeals and, consequently, that there should be no need for several appeals be strung together. The Bureau also expects that, in cases where a provider has an issue that repeats from year to year, the prompt adjudication of the issue during the initially filed appeal should expedite the resolution of later-filed appeals that raise similar issues.
Rule 30(b). Termination of provider appeals.
One commentator suggested the rule should limit prejudice that the withdrawal of a request for hearing causes in order to reduce the number of appeals required to preserve issues that can affect payment for subsequent years. The commentator further suggested that the rule should limit prejudice in payment matters only to payments for the fiscal period at issue or that arise from the audit adjustments appealed, but should not extend to the validity of audit practice, or the application, validity or interpretation of a regulation.
A second commentator requested deletion of this rule. The commentator suggested that the rule is unnecessary because the withdrawal of the appeal in most cases makes an appeal of the same action impossible because the appeal would not be timely. The commentator states that the impact of 30(b) is contrary to doctrines relating to issue and claims preclusion as well as due process since the standard ''all issues that were or could have been raised in the appeal'' is too vague and uncertain.
Response
In consideration of the comments, the Bureau has revised the rule to make clear that the prejudice only applies to all issues that were or could have been raised as to the agency action under appeal. Thus, for example, the withdrawal of an appeal of an audit would prevent the facility from thereafter contesting the audit adjustments contained in that audit, the validity of any audit practice undertaken in that audit or from alleging that the audit was in error because the Department misinterpreted or misapplied its regulations or applied invalid regulations. On the other hand, the withdrawal would not prevent the provider from filing an appeal relating to an audit for a different fiscal period and raising issues as to that audit, even those that are similar or identical to issues that were or could have been raised in the withdrawn appeal. The Bureau has also revised the rule to clarify the means by which a provider may withdraw its appeal prior to adjudication and the date on which any such withdrawal becomes effective.
Rule 32. Expedited disposition procedure for certain appeals
One commentator requested a definition of ''program exception requests.'' The commentator suggested that if it includes requests under policy statements at 55 Pa. Code §§ 1187.21a and 1187.113a (relating to nursing facility exception requests and nursing facility replacement beds-statements of policy), then the rule is inconsistent with due process under Millcreek Manor v. DPW, 796 A.2d 1020 (Pa.Cmwlth.Ct. 2002). The commentator contended that Act 142 does not permit the Department to limit matters for which discovery is as of right, but that the burden should be on the party to establish necessity for the use of expedited procedures, not for a party to establish the necessity for due process. The commentator suggested that that unless a party can show good cause why expedited disposition is appropriate, due process and the Administrative Agency Law require a presumption that it is not. A second commentator suggested deletion of this rule, as it is inconsistent with Act 142 that allows reasonable and necessary discovery in all proceedings.
Another commentator requested clarification as to why certain rules do not apply in an expedited action.
A fourth commentator questioned why expedited disposition would not apply to terminations or suspensions of Medical Assistance status, because such hearings will have a greater impact on a provider since such hearings are held only after the termination's effective date.
Response
Act 142 does not permit parties to conduct unlimited discovery as a matter of right. Act 142 specifies that, in holding hearings and issuing adjudications in provider appeals, the Bureau will, among other things, ''allow reasonable and necessary discovery in the form of interrogatories, requests for the production of documents, expert reports, requests for admissions and depositions of witnesses and designess of parties, subject to case management plans and limitations as necessary to facilitate the prompt and efficient issuance of adjudications.'' In conformity with the statute, Rule 32 recognizes that the reasonableness and necessity of discovery is determined by the case in which it is sought. What is reasonable and necessary in some types of cases is neither reasonable nor necessary in others.
The types of cases listed in Rule 32 are cases that have traditionally been handled by both providers and the program offices in a somewhat less formal manner. The purpose of the rule is to preserve this practice while providing the opportunity for such discovery as is reasonable and necessary under particular circumstances. The balance reached in this rule for the listed cases best accomplishes the dual goals of the legislature in making reasonable and necessary discovery available consistent with promoting prompt and efficient adjudications. Neither Act 142 nor rules of procedure applicable to other matters mandate or permit unlimited discovery. For example, both Federal rules and the Pennsylvania Rules of Civil Procedure limit discovery as appropriate to particular situations. See e.g. Pa.R.C.P. No. 1930.5 eliminating discovery in support matters unless authorized by a special order of court.
Rule 32 does not include nursing facility exception requests as one commentator suggested. The Bureau has revised the rule to clarify that the ''program exception requests'' referred to in this rule are those defined in 55 Pa. Code § 1150. Such matters have traditionally been handled in the less formal manner referred to previously.
As to the comment that an expedited disposition ought to be available in cases other than those listed in Rule 32, such as provider terminations, Rule 32 accommodates this request. The rule permits a party to ask the Bureau to apply all or any of the procedures of Rule 32 in any other case. Likewise, the rule permits a party to a Rule 32 case to request the Bureau to apply any or all of the procedures eliminated by Rule 32 in an individual case otherwise subject to the rule.
Rule 33. Prehearing procedure in certain provider appeals
One commentator suggested that the Order should allow providers to challenge the action of the Bureau; the commentator expressed concern that permitting the Bureau discretion ''as it deems appropriate'' is unchallengeable.
Response
Hearing Officers must have discretion to set deadlines and impose discovery limitations in order to ensure that cases move through the appeal process in an expeditious manner. As is the case in common pleas courts and other administrative tribunals, pre-hearing orders are not ordinarily subject to review. However, in extraordinary circumstances, pre-hearing orders may be reviewed under Rule 54 (relating to reconsideration of interlocutory orders).
Rule 35(a) and (b). Disclosures
One commentator suggested that the rule should be revised to provide consistent treatment between providers and the Department; if providers have to disclose their opinions then the Department should also be required to do so.
Response
Rule 35 is intended to impose commensurate disclosure obligations. The rule has been revised to make clear that a program office must include required documentation with its position paper and that any party that intends to rely on expert testimony must include a ''statement of expert opinion'' in its position paper.
Rule 35(b). Disclosures
Three commentators suggested that the Department should be required to submit to the provider a list describing all documents that it has deemed privileged or protected from disclosure and the basis for the protection claim. They further suggested that a provider should be permitted to seek the same relief and to identify documents in its possession that are protected such as trade secrets.
One commentator suggested that the requirements for mandatory initial disclosures should be more in conformance with Rule 26(a) of the Federal Rules of Civil Procedure and that Departmental disclosures should not be limited to staff persons directly involved in agency action and those designated to testify, but should include all individuals likely to have discoverable information. Departmental disclosures should not be limited to items relied upon in issuing the agency action, but should include all items in possession of the Department that may be used to support the agency's position in the appeal.
One commentator suggested that the provider should not have differing initial mandatory disclosure burdens than the Department, but that both parties should be held to the same standard.
Response
As noted previously, Rule 35 has been revised so that it imposes commensurate disclosure obligations on providers and program offices. The mandatory initial disclosure requirements set forth in the rule are intended to ensure the parties will use them to provide meaningful information. They are not intended to encompass all information that the parties may want to obtain from each other, and they can be supplemented by discovery where needed. Among the issues that can be probed through discovery is the identification of withheld documents, or additional witnesses and documents.
Rule 35(c)(1). Disclosures
One commentator suggested that the provider should not be prejudiced by the Department's issuance of its position paper after the provider submits its paper. Another commentator suggested that the provider is prejudiced if the Department does not give its position paper. Another commentator suggested that the Department should not be allowed an additional 60 days after service of provider's position paper because it unduly prejudices the provider's case since the Department can evaluate the provider's position paper before the Department has to provide a complete and full statement of its position. They suggested simultaneous submission, plus a 45-day rebuttal or supplemental period to respond to the opposing party's position paper.
Three commentators objected to the disparity of the rule's effect as between providers and the Department and suggested that both parties should be held to the same standard if they fail to meet the position paper due date. At a minimum, the commentators suggested that the provider must be given time to review the Department's position paper before a hearing is scheduled. One commentator suggested that if the Department does not submit a position paper, it should be precluded from putting on a defense.
Response
Rule 35 contemplates that all parties to a provider appeal must prepare and exchange position papers. The rule requires providers to produce their position papers first and under the penalty of dismissal because providers bear the burden of proof and production in provider appeals. In imposing these requirements, the rule is patterned after the process used by the Federal Provider Reimbursement Review Board (PRRB) in Medicare reimbursement disputes.
In such matters, a Medicare provider contesting the determination made by a fiscal intermediary is required to present an initial position paper to the fiscal intermediary, which then has 60 days to evaluate the provider's position, determine whether any disputed issues can be resolved and prepare its own position paper. PRRB rules also require the dismissal of a Medicare provider reimbursement appeal if the provider fails to file its position paper on time and notification to the Centers for Medicare and Medicaid Service (CMS) if the fiscal intermediary fails to file its position paper on time.
As in the Medicare process, this Order requires a provider to articulate the bases for its appeal and gives the program office a fixed period of time to evaluate the merits of the provider's position, and state whether and why they disagree with the provider's position on each issue in dispute. By compelling the parties to detail and assess each other's respective positions, the Order encourages prompt settlements in provider appeals. When settlements are not possible, it enables all parties and the Bureau to focus their efforts at hearing on the matters that are truly in dispute. Moreover, like the PRRB rules, the Order requires that providers prosecute their appeals in a regular and timely fashion. Further, like the PRRB rules, the Order does not permit the entry of a default judgment against the government.
The Order also ensures that providers will have sufficient time for providers to review the program office's position papers before a hearing is scheduled. Rule 33(a)(5) gives providers 60 days from the filing the program office's position paper to file dispositive motions. Rule 45 (relating to initiation of hearings) states that the Bureau will schedule a hearing only after it has ruled on any dispositive motions and consulted with the parties.
Rule 35(c)(3) and (5). Disclosure of witnesses
One commentator suggested that this rule is too restrictive and that parties should have the right to amend their witness list at a minimum for good cause shown, to include amendment in response to a witness identified by the other party. Another commentator questioned how the information regarding witnesses will be provided to assure there are no penalties if the identity of the witness has changed over time.
Response
The Bureau expects that, in the majority of cases, the parties will know who their witnesses are well in advance of the hearing. If, however, a party determines that a witness identified in its position paper will not be available or that it intends to offer the testimony of additional witnesses not identified in its position paper, the party may file a motion to amend its position paper for good cause under Rule 35(c)(4). The Bureau may permit the amendment as long as there is more than 30 days until the commencement of the hearing.
As a general rule, the Bureau will not permit a party to offer the testimony of any witness who has not been identified in the party's position paper. Upon consideration of the comments, the Bureau has determined to provide an exception to this general rule if the party seeking to offer the testimony of an undisclosed witness establishes that good cause exists to allow the testimony. The Bureau intends this exception to apply only in limited situations, such as where the death or illness of a previously disclosed witness within 30 days of hearing necessitates a substitute witnesses, or similar circumstances beyond the control of the party that otherwise demonstrate a need for relief. In determining whether good cause exists, the Bureau will consider, among other things, whether the testimony of the witness is critical to the party's case, why the identity of the witness was not disclosed previously, whether other parties would be prejudiced if the testimony is allowed, and whether allowing the testimony will delay the prompt and efficient adjudication of the appeal. The Bureau also retains the discretion and flexibility under the rules to continue a hearing to allow other parties to conduct appropriate discovery regarding any newly identified witness.
Rule 36(c). Methods to discover additional information
Two commentators suggested that interrogatories and requests for admissions should not be limited to 10 each but should be allowed as of right. The same commentator also requested clarification as to whether a party can request a waiver of the limit. One commentator suggested that providers should be entitled to more than 3 depositions, particularly in licensing appeals.
Response
As noted previously, Act 142 does not permit parties to conduct unlimited discovery. It authorizes such ''reasonable and necessary'' discovery as may be permitted consistent with the ''prompt and efficient'' adjudication of provider appeals. The Order permits the use of the identified forms of discovery, subject to limitations, that, in the majority of cases will afford adequate discovery and a just, speedy and inexpensive administrative process. The Order allows for additional discovery beyond the limitations set forth in the rules by agreement of the parties or upon a showing that the statutory standard is met.
Rule 36(c)(4)(ii). Methods to discover additional information
Four commentators suggested that this rule is unduly burdensome and that depositions of senior Departmental staff, including the Secretary and deputies, should be allowed if the provider can demonstrate that the deposition will likely lead to discovery of relevant information not disclosed by other agency staff, or, if documents demonstrate the senior official has been personally involved in or has knowledge of the disputed action. This should be permitted without a Bureau order. One commentator suggested that if this shield is permitted for Departmental staff persons, the same shield should apply for senior provider staff as well. Commentators suggested clarification of knowledge of senior officials ''which is not privileged''; this language should not allow a novel theory of executive privilege to shield Departmental staff.
Response
As noted previously, Act 142 does not authorize unlimited discovery, but only such reasonable and necessary discovery as may be permitted consistent with the just, speedy and inexpensive adjudication of a provider appeal. In the majority of cases, providers can obtain reasonable and necessary information relevant to their appeals from documents and other information provided by subordinate department staff. Upon consideration of the comments, the Bureau has revised the rule to permit a party to depose a senior department official, other than the Secretary, upon motion, if the party establishes to the Bureau's satisfaction that the official was personally involved in the disputed action and that the deposition is reasonable and necessary in light of the particular facts involved and will not delay the prompt and efficient adjudication of the provider appeal. The Bureau has also eliminated the requirement that a provider seeking to depose a senior departmental official establish that the official ''has knowledge which is not privileged.'' This revision is not intended to waive any privilege that may exist, including executive or deliberative process privilege, but rather to shift the burden of asserting the privilege to the program office. The prohibition on deposing the Secretary has been retained, since she is the ultimate adjudicator in the case on review of the Bureau determination.
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