[33 Pa.B. 3053]
[Continued from previous Web Page] Rule 38(b)(3). Signing of disclosures, discovery requests, responses and objections
One commentator suggested that sanctions should not be imposed for making discovery requests that are burdensome or expensive; instead, if a party believes that a request is unreasonable the party should file a motion seeking a protective order from the Bureau. The commentator suggested that opposing parties should not be required to guess whether particular requests may be deemed unreasonable or unduly expensive or burdensome. Another commentator suggested that Act 2002-142 does not provide authority to impose sanctions not imposed by GRAPP without promulgation through the rulemaking process.
Response
Act 142 authorizes the Bureau to issue this Order to establish rules governing practice in provider appeals. This authorization includes the inherent authority to enforce compliance with the rules through the imposition of sanctions. Together with other rules, Rule 38 provides a procedure by which discovery disputes can be resolved in a manner that permits sanctions to be avoided in cases where a non-responding party does so because it is unduly burdensome. The rule also permits sanction to be imposed on parties that seeking inappropriate and unreasonable discovery. As in common pleas courts, the Bureau will determine whether a discovery request is unduly burdensome and expensive on a case-by-case basis.
Rule 44. Voluntary mediation
One commentator questioned whether the Bureau will propose another rule to establish a procedure for arbitration.
Response
Act 142 authorizes, but does not require, the Bureau to establish mediation programs to ''promote the settlement of matters subject to its jurisdiction or to narrow issues subject to dispute through the use of mediation and arbitration.'' In Rule 44, the Bureau authorizes stays in provider appeals to permit parties to use the Office of General Counsel Mediation Program. The Bureau does not plan to establish an arbitration procedure at this time but will seek input from the regulatory advisory committee.
The Bureau has revised Rule 44 to eliminate the requirement that the mediator prepare and sign a report of the mediation activities. Instead, under the revised rule, the parties must jointly file a statement setting forth the status of mediation activities. The Bureau has also eliminated the requirements relating to settlements arrived at during the mediation process because the Bureau determined that there is no reason to treat settlements arrived at during mediation differently from other settlements. If a provider agrees to withdraw its appeal as a result of a settlement during the mediation process, Rule 30 applies.
Rule 47. Burden of proof and production
One commentator suggested an amendment to provide for instances in which the program office has the burden of proof, and suggested that the standard of proof should be included. A second commentator suggested that the burden of proof regarding imposition of a sanction including demand for overpayment should be on the Department as is true of current practice and required under due process principles. The same commentator requested clarification of the differing burdens of proof in different kinds of cases. The commentator also suggested that Act 142 does not provide authority to amend GRAPP without rulemaking.
Response
Act 142 does not change the burden of proof in sanction cases or other provider appeals. Rule 47 correctly reflects the burden of proof in provider appeals. Act 142 authorizes the Bureau to establish rules governing practice in provider appeals and where the Bureau has established such rules, those rules, not GRAPP, apply. In this instance, however, the burden of production set forth in Rule 47 is in accord with GRAPP. The Bureau has changed the title of the rule to reflect that it relates to the burden of proof and the burden of production and has revised the rule to clarify that the presiding officer's determination to vary the order of production must be included in the record.
Rule 48(a). Written testimony
One commentator suggested an amendment to permit pre-filed testimony, as appropriate, without undermining the parties' ability to challenge the credibility and reliability of witnesses.
Response
In Rule 48(a), the Bureau recognizes the need, at times, for a party to file pre-filed testimony. In addition, the Bureau has clarified the rule to specify that the pre-filed testimony will be admitted only if the witness is available at hearing for cross-examination or the parties agree that the witness' presence is not required. The opposing party will have the ability to challenge the pre-filed testimony as indicated under Rule 48(b).
Rule 51(b). Post-hearing briefs
One commentator suggested that briefs should be filed in the order of the burden of proof. The same commentator suggested that the Order presumes a provider burden of proof, which is inconsistent with current Departmental practice and due process principles.
Another commentator suggested that the provider time frame for submitting briefs should be specific, such as within 30 days.
Response
The rule, which requires the provider to file its brief first, recognizes that the provider has the burden to demonstrate that the disputed action is erroneous for the reason identified in the provider's request for hearing. In consideration of the comments the Bureau has revised the rule to make clear that the provider's brief will be due on the date specified by the presiding officer which shall not be less than 30 days from the closing of the record unless the provider consents to a shorter period. The rule gives the presiding officer the discretion to allow the provider more than 30 days to submit a post-hearing brief depending on the difficulty and/or number of the issues involved in a case. The Bureau has also revised the rule to clarify that a party may waive the filing of post-hearing brief, but that if a party files a post-hearing brief, any disputed issue or legal theory not raised in its brief is waived.
Rule 51(e). Post-hearing briefs
One commentator suggested that this section is unclear and that is seems to require all parties to argue all issues in the post-hearing brief, even if the issues are not in dispute. The commentator suggested an amendment to include only a disputed issue which is not argued shall be deemed waived, or provide for the parties to stipulate to particular issues.
Response
In consideration of the comment, the Bureau has revised Rule 51(3) to add the word ''disputed'' before the word ''issue.''
Rule 55. Review of Bureau determination
One commentator suggested that Rule 55 should make clear that the filing date of a request for review would be determined in the same way provided in Rule 19 (relating to timeliness and perfection of requests for hearings), and, therefore, the filing date of a request for review filed by mail would be the United State postmark date.
Response
Act 142 requires that the Bureau use the United States postmark date to determine the filing date of a request for hearing. It does not impose a similar requirement for requests for review by the Secretary. Under the Order, the filing date of a request for review is the date of receipt. The Bureau will seek input from the Advisory Committee on whether the regulations should permit use of the United States postmark date in determining the filing date of a request for review.
Rule 55(f) and (i). Review of Bureau determination
One commentator suggested a clarification as to when a request is deemed denied or approved by the Secretary's inaction.
Response
Consistent with Act 142, Rule 55 specifies that a request for review is deemed denied if the Secretary fails to act on the request within 30 days of its receipt. Rule 55 also specifies that if the Secretary grants a request for review within 30 days, but fails to enter a final order within 180 days, the Bureau determination is deemed approved by the Secretary and becomes the final adjudication of the Department.
Rule 55(g). Review of Bureau determination
One commentator suggested an amendment to permit a provider to submit a response to the Secretary's grant for review of particular issues raised by provider.
Response
The party filing a request for review should fully address the reasons why the Bureau's determination should be reversed in its request for review. The merits of the issues raised in the party's request and the timeliness of the request are factors that will be considered by the Secretary in deciding whether to grant review in a particular case. If the Secretary grants review, the opposing party is given an opportunity to file a response only as to the issues upon which the Secretary has granted review. In conducting her review, the Secretary will have the entire record available to her, including the briefs filed by the parties below.
Rule 55(h). Review of Bureau determination
One commentator suggested limiting the Secretary's review to 90 days. The commentator further suggested that failure of the Secretary to act in 90 days should result in provider's position being affirmed.
Response
Rule 55 reflects the time frames for Secretarial review provided in Act 142. Act 142 states that the Secretary has 180 days from the date of the order granting review to issue a final order. If the Secretary does not act with 180 days of granting review, Act 142 specifies that the Bureau's determination is deemed approved by the Secretary.
Rule 57. Appeals
One commentator suggested that the procedural requirements for judicial review be clearly enumerated.
Response
The procedures and requirements relating to appeals from final orders of the Department are contained in the Administrative Agency Law, 2 Pa. C.S. §§ 701--704 and the Pennsylvania Rules of Appellate Procedure.
Other changes
In addition to the changes discussed in the Public Comment section, the Bureau made several additional changes to correct typographical errors, enhance the clarity of the rules and conform to the changes previously discussed.
ESTELLE B. RICHMAN,
SecretaryFiscal Note: 14-NOT-350A. No fiscal impact; (8) recommends adoption.
Annex A
DEPARTMENT OF PUBLIC WELFARE
BUREAU OF HEARINGS AND APPEALS
Standing Practice Order Pursuant to § 20.1 of Act 2002-142 Establishing Rules Governing Practice And Procedure In Medical Assistance
Provider Appeals
TABLE OF CONTENTS
PART I--PRELIMINARY PROVISIONS Subpart A. General Provisions
Rule 1 Scope of rules. Rule 2 Construction and application of rules. Rule 3 Definitions. Rule 4 Amendments to rules. Rule 5 Jurisdiction of the Bureau. Subpart B. Time
Rule 6 Timely filing required. Rule 7 Extensions of time. PART II--DOCUMENTARY FILINGS Subchapter A. General Requirements Filings Generally
Rule 8 Title. Rule 9 Form. Rule 10 Incorporation by reference. Execution and Verification Rule 11 Verification. Copies
Rule 12 Number of copies; copying of Bureau documents. Subchapter B. Service of Documents Rule 13 Notice of agency actions. Rule 14 Service of pleadings and legal documents. Rule 15 Proof of service. Rule 16 Certificate of service. Subchapter C. Miscellaneous Provisions Amendments and Withdrawals of Legal Documents
Rule 17 Amendment and withdrawal of legal documents. PART III--PROVIDER APPEALS Subchapter A. Requests for Hearing, Petitions for Relief and Other Preliminary Matters Request for Hearings
Rule 18 Request for hearing. Rule 19 Timeliness and perfection of requests for hearing. Rule 20 Appeals nunc pro tunc. Petitions
Rule 21 Limitations on the use of petitions for relief. Supersedeas
Rule 22 General. Rule 23 Contents of petition for supersedeas. Rule 24 Circumstances affecting grant or denial. Intervention
Rule 25 Filing of petitions to intervene. Answers
Rule 26 Answers generally. Rule 27 Answers to petitions to intervene. Consolidation
Rule 28 Consolidation of provider appeals. Amendments and Withdrawals of Provider Appeals
Rule 29 Amendments of requests for hearing. Rule 30 Withdrawal of provider appeals. Subchapter B. Prehearings Procedures and Hearings
General
Rule 31 Waiver of hearings. Rule 32 Expedited disposition procedure for certain appeals. Prehearing Procedures and Prehearing Conferences
Rule 33 Prehearing procedure in certain provider appeals. Rule 34 Conferences. Disclosures and Discovery Rule 35 Disclosures. Rule 36 Methods to discover additional information. Rule 37 Supplementing disclosures and responses. Rule 38 Signing of disclosures, discovery requests, responses and objections. Motions
Rule 39 General. Rule 40 Procedural motions. Rule 41 Discovery motions. Rule 42 Dispositive motions. Rule 43 Miscellaneous motions. Mediation
Rule 44 Voluntary mediation. Hearings
Rule 45 Initiation of hearings. Rule 46 Continuance of hearings. Rule 47 Burden of proof and production. Subchapter C. Evidence and Witnesses General
Rule 48 Written testimony. Subpoenas
Rule 49 Subpoenas. Subchapter E. Presiding Officers
Rule 50 Independence, Ex parte Communications. Subchapter F. Posthearing Procedures Briefs
Rule 51 Post hearing briefs. Subchapter G. Agency Action Decisions
Rule 52 Determinations and recommendations by the Bureau. Subchapter H. Reopening of Record Rule 53 Reopening of record prior to adjudication. Reconsideration and Review by the Secretary
Rule 54 Reconsideration of interlocutory orders. Rule 55 Review of Bureau determinations. Rule 56 Review of Bureau recommendations. Rule 57 Appeals.
Part I--Preliminary Provisions
Subpart A. General Provisions Rule 1. Scope of rules.
(a) This order is issued pursuant to Act 2002-142, § 20.1, 67 Pa.C.S. § 1102(g) (Act) (relating to hearings before the bureau). This order is effective July 1, 2003 and applies to provider appeals commenced on or after December 3, 2002.
(b) Except as set forth in subsections (c), (d) and (e), the rules adopted by this order govern practice and procedure in provider appeals. In those matters in which this order is inapplicable, the General Rules of Administrative Practice and Procedure set forth in Title 1 of the Pennsylvania Code (GRAPP) and applicable Departmental regulations apply.
(c) This order does not apply to appeals governed by 55 Pa. Code Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings).
(d) This order does not apply to provider appeals commenced before December 3, 2002.
(e) The rules adopted by the order apply in cases filed on or after December 3, 2002 but before July 1, 2003, except as follows:
(1) Nonconformity of a pleading or legal document with this order shall not in itself be a basis for objection.
(2) Except for the time limits, schedules and periods specified in Rule 19 (relating to timeliness and perfection of requests for hearing), the time limits, schedules and periods specified in this order do not apply. When a rule sets forth a time limit, schedule or period, the parties may agree to an alternative time limit, schedule or period or the Bureau may issue an order specifying such alternative time limit or period as the Bureau deems appropriate.
(3) Rules 35 and 37 (relating to disclosures and supplementing disclosures and responses) do not apply.
Rule 2. Construction and application of rules.
(a) The rules adopted by this order shall be liberally construed to secure the just, speedy and inexpensive determination of provider appeals.
(b) Except to the extent that Appendix A to these rules provides to the contrary, these rules replace and supersede the General Rules of Administrative Practice and Procedure (GRAAP) To the extent that GRAAP applies in provider appeals, when the term ''agency'' is used in 1 Pa. Code Part II, the term ''Bureau'' is to be understood; when the term ''participant'' is used in 1 Pa. Code Part II, the term ''party'' is to be understood; and when the term ''presiding officer'' is used in 1 Pa. Code Part II, the term ''presiding officer'' is to be understood.
Rule 3. Definitions.
The following words and terms, when used in these rules, have the following meanings, unless the context clearly indicates otherwise:
Agency Action--An adjudicative action of the Department or a program office that relates to the administration of the MA Program. The term includes the actions identified in 55 Pa. Code §§ 1101.84(a)--(c) (relating to provider right of appeal) and 1187.141(a) (relating to 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.
Department--The Department of Public Welfare.
Director--The Director of the Bureau.
Dispositive motion--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. The term includes: a motion to quash the provider appeal, a motion to dismiss the provider appeal, a motion for summary judgment, and a motion for partial summary judgment, but does not include a motion in limine.
GRAPP--The General Rules of Administrative Practice and Procedure set forth at 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).
Hearing--Any 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--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. The term does not include attachments or exhibits.
Pa.R.C.P.--Pennsylvania Rules of Civil Procedure.
Party--A provider, a program office, or an intervenor.
Person--An individual, partnership, association, corporation, political subdivision, municipal authority or other entity.
Petition for relief--A document filed pursuant to §§ 35.17, 35.18 or 35.19 of the GRAPP.
Pleading--A request for hearing, including any amendments thereto.
Program office--An office within the Department which is managed and operated by a person who reports directly to the Secretary, including a Deputy Secretary, or a bureau or other administrative unit of an office within the Department which is managed and operated by person who reports directly to a deputy secretary. The term does not include the Bureau.
Provider--Either (i) a person currently enrolled in the MA Program as a provider of services; or (ii) a person who has applied for enrollment in the MA Program as a provider of services; or, (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 person 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.
Rule 4. Amendments to rules.
(a) The Department retains continuing jurisdiction under 67 Pa.C.S. § 1106 (relating to regulations) to adopt regulations establishing rules of procedure as may be necessary to govern provider appeals.
(b) The Bureau will establish an advisory committee, including individuals experienced in proceedings before the Bureau and other administrative agencies, to provide assistance and guidance in the development and modification of regulations which may be promulgated under 67 Pa.C.S. § 1106.
(c) The Bureau may establish such forms as may be required to implement these Rules.
Rule 5. Jurisdiction of the Bureau.
(a) Except as provided in subsections (b), (c) and (d), the Bureau has exclusive original jurisdiction over all 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 Rule 52(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 Rule 54 (relating to reconsideration of interlocutory orders) and Rule 55 (relating to 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.
Subpart B. Time Rule 6. Timely filing required.
Pleadings and legal documents required or permitted to be filed under this part, the regulations of the Department or any other provision of law shall be received for filing at the Bureau within the time limits, if any, permitted for the filing. Except as provided in Rule 19(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.
Rule 7. Extensions of time.
(a) Except when necessitated by the circumstances of the Bureau, no order or pre-hearing order shall continue a provider appeal or extend the time for doing any act required by these rules except upon written motion by a party filed in accordance with these rules.
(b) Where these rules establish a standard for an extension of time, a motion seeking such an extension shall be resolved by the application of that standard. In the event that these rules do not otherwise establish such a standard, the motion shall be resolved by application of the rules set forth in 1 Pa. Code § 31.15 (relating to extensions of time).
Part II--Documentary Filings
Subchapter A. General Requirements
Filings Generally Rule 8. Title.
(a) All 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 shall identify the party on whose behalf the filing is made. (E.g., Appellant's Motion to Compel Discovery.)
Rule 9. Form.
(a) Pleadings and legal documents shall conform to the requirements of 1 Pa. Code § 33.2 (relating to form) except that the font used must be at least 12 point.
(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.
Rule 10. Incorporation by reference.
Any legal document on file with the Bureau in a provider appeal, and any exhibits or attachments thereto, may be incorporated by reference into another legal document that is subsequently filed in the same provider appeal. A document may be so 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.
Execution and Verification Rule 11. Verification.
(a) Every pleading or legal document that contains an averment of fact not appearing of record or that contains a denial of fact shall be verified as specified in subsection (b).
(b) A verification of a pleading or legal document shall 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.
Copies Rule 12. Number of copies; copying of Bureau 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 any 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 these rules.
(c) Any document filed with the Bureau in a provider appeal is available for for inspection and copying except that, if a document contains information protected by law against public disclosure, the document shall not be available unless and 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 shall not be removed from the Bureau's custody. A person provided with access to a document pursuant to (c) may make a photocopy of that document using a photocopier available at the Bureau at a charge of $0.15 per page. Upon request the Bureau may, in its discretion, agree to make a photocopy and provide it to the person requesting access, in which case the charge shall be $0.25 per page. In the event that a person wants a certified copy of a document, the copy shall be made by the Bureau at the rate of $0.25 per page and, in addition, the fee for the certification shall be $2.00 per document.
Subchapter B. Service of Documents Rule 13. 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 any 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. 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.
Rule 14. Service of pleadings and legal documents.
Service of pleadings and legal documents shall 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; and,
(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; and,
(ii) The Department's Office of General Counsel.
(3) Legal document. The party that files a legal document in a provider appeal shall serve a copy of the document on all other parties to the appeal.
(4) Method of service.
(i) Service shall 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 shall be made by facsimile in addition to the method set forth in subparagraph (i).
Rule 15. Proof of Service.
A certificate of service in the form prescribed in Rule 16 (relating to certificate of service) shall accompany and be attached to a pleading or legal document filed with the Bureau.
Rule 16. Certificate of Service.
Each certificate of service shall 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).
Subchapter C. Miscellaneous Provisions
Amendments and Withdrawals of Legal Documents Rule 17. Amendment and withdrawal of legal documents.
(a) A party may amend a legal document, other than a position paper, by filing an amendment with the Bureau at any time unless the Bureau otherwise orders.
(1) An amendment to a legal document shall 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 Rule 35(c)(4) (relating to disclosures).
(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.
Part III--Provider Appeals
Subchapter A. Requests for Hearing, Petitions for Relief and Other Preliminary Matters
Request for Hearings Rule 18. Request for hearing.
(a) General.
(1) 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 these rules.
(2) 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.
(3) 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.
(b) Content. A request for hearing shall conform to the following:
(1) The request shall set forth the name, address and telephone number of the provider.
(2) The request shall state in detail the reasons why the provider believes the agency action is factually or legally erroneous, identify the specific issues that the provider will raise in its provider appeal, and specify 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 such challenge expressly and with particularity, and shall 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 shall 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. Any such request shall be set forth in a petition for relief in accordance with 1 Pa. Code § 35.18 (relating to petitions for issuance, amendment, waiver or deletion of regulations).
(3) If the provider received written notice of the agency action by mail or by 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. 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.
Rule 19. Timeliness and perfection of requests for hearing.
(a) Except as authorized in Rule 20 (relating to appeals nunc pro tunc), jurisdiction of the Bureau will not attach to 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 any other 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 Rule 20(b) (relating to appeals nunc pro tunc), 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 issued pursuant to 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) Any 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 pursuant to subsection (c) shall be deemed waived. A general objection to an agency action shall be deemed a failure to object and shall constitute a waiver of all 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:
(i) The provider's request for a hearing fails to conform to the requirements of Rule 18(b) (relating to request for hearing).
(ii) The 90-day time period for amendments specified in paragraph (c)(1) has expired.
(iii) The provider fails to establish that an amendment should be permitted pursuant to paragraph (c)(2).
(g) If the dismissal is based upon motion of the Bureau, the Bureau will issue a rule or an order to show cause, with a date certain listed therein, and serve that rule or order to show cause upon all parties to the appeal.
Rule 20. 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 pursuant to 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 pursuant to 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 pursuant to the common law standard applicable in analogous cases in courts of original jurisdiction.
Petitions Rule 21. Limitations on the use of Petitions for Relief.
(a) Waiver requests. 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. 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 Rule 18 (relating to requests for hearing). 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.
(b) Request for declaratory relief. 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. If the requested relief would modify an agency action involving the provider, the provider may only seek such relief in the context of a request for hearing filed in accordance with Rule 18 (relating to requests for hearing). To the extent that a request for declaratory relief is 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.
(c) 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.
(d) 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. Any such motion must be filed within the time allowed for the filing of a request for a hearing specified in Rule 19(a) (relating to timeliness and perfection of requests for hearing).
Supersedeas Rule 22. 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 Rule 24 (relating to circumstances affecting grant or denial).
(b) A petition for supersedeas must be set forth in writing and may be filed at any time during a provider appeal.
(c) The Bureau will not issue a supersedeas without first conducting a hearing, but a hearing may be limited pursuant to 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, shall be held expeditiously--if feasible within 2 weeks of the filing of the petition--taking into account the availability of the presiding officer and program office staff, and taking into account the urgency and seriousness of the problem to which the order or action of the Department applies. If good cause is shown, the hearing shall 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.
Rule 23. Contents of petition for supersedeas.
(a) A petition for supersedeas shall plead facts with particularity and shall be supported by one of the following:
(1) Affidavits prepared as specified in Pa.R.C.P. 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 shall 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.
Rule 24. Circumstances affecting grant or denial.
(a) The Bureau, in granting or denying a supersedeas, will be guided by relevant judicial precedent. Among the factors to be considered:
(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 shall 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 require 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 Rule 25. Filing of petitions to intervene.
Petitions to intervene and notices of intervention in a provider appeal may be filed at any time 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.
Answers Rule 26. Answers generally.
(a) No answer to a pleading is required.
(b) Answers to legal documents, if permitted or required by these Rules, shall be filed with the Bureau within 20 days after the date of service of the legal document, unless: (1) a different period is specifically required by these rules; or (2) for cause, the Bureau with or without motion shall prescribe a different time, but in no case may an answer be required in less than 10 days after the date of service.
(c) Answers shall be in writing and conform to the requirements of these Rules. Answers shall admit or deny specifically and in detail each material fact asserted in the legal document answered and shall state clearly and concisely the facts and law relied upon.
Rule 27. 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 shall prescribe a different time.
Consolidation Rule 28. Consolidation of provider appeals.
(a) Individual provider appeals. Each provider that wishes to appeal an agency action shall file an individual request for hearing in its own name, without joining any other provider.
(b) Consolidation by Motion. 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) Appropriateness. For purposes of this rule, consolidation is appropriate if it will not prejudice the ability of the non-moving 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) Motions. No provider appeal shall be consolidated except upon motion filed by one or more parties. In addition to the general requirements for motions set forth in Rule 39, any motion for consolidation shall: (1) identify the issues of law raised in each provider appeal and indicate the extent to which each is shared or distinct; (2) identify the material facts that serve as a basis for each appeal and indicate the extent to which each of these facts is shared or distinct; and (3) the justifications or advantages that support consolidation.
(e) Answers. In addition to the general requirements for answers to motions set forth in Rule 27 (relating to answers to petitions to intervene), any answer to a motion for consolidation shall explain how consolidation would, if allowed, adversely affect the non-moving party's ability to conduct and complete discovery, or its ability to present its claims or defenses.
(f) Deadline for Motions to Consolidate. A motion to consolidate shall be 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 shall only be granted with the consent of all non-moving parties.
(g) Consent of Other Providers. In the event that 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.
(h) Service. A motion for consolidation and any answer thereto shall be served on each person that is a party to any of the provider appeals for which consolidation is sought.
(i) Effect of Consolidation Upon Discovery. If the Bureau grants a provider's motion to consolidate, the discovery, if any, available to all providers in the consolidated appeals shall, in the aggregate, comply with the limitations specified in Rule 36(c) (relating to limitations).
Amendments and Withdrawals of Provider Appeals Rule 29. Amendments of requests for hearing.
No amendments to a request for hearing shall be permitted except as specified in Rule 19(c) (relating to timeliness and perfection of appeal) and Rule 20(b) (relating to appeals nunc pro tunc).
Rule 30. 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 withraw the provider appeal.
(b) When a provider appeal is withdrawn prior to adjudication, the withdrawal shall be with prejudice as to all issues relating to the disputed agency action that were or could have been raised in the appeal.
(c) Unless the written notice or stipulation of settlement provides otherwise, a withdrawal of a provider appeal pursuant to this Rule shall be effective on the date the written notice or stipulation of settlement is received by the Bureau.
Subchapter B. Prehearings Procedures and Hearings
General Rule 31. Waiver of hearings.
A hearing need not be held if any of the following occur:
(a) The provider waives its right to hearing.
(b) The parties stipulate the material facts or agree to submit direct and rebuttal testimony or documentary evidence in affidavit form (sworn or affirmed on personal knowledge) or by deposition.
(c) The Bureau determines that there are no material facts in dispute.
Rule 32. Expedited disposition procedure for certain appeals.
(a) This rule shall apply to all provider appeals involving the denial of claims for payment through the prior authorization process, the denial of requests for pre-certification, the recovery of overpayments or improper payments through the utilization review process, the denial of claims upon prepayment review, the denial of claims for payment pursuant to 55 Pa. Code § 1101.68 (relating to invoicing for services), the denial, termination or suspension of an exceptional DME grant (as defined in 55 Pa. Code § 1187.51 (relating to definitions)), and the denial of a program exception request filed pursuant to 55 Pa. Code § 1150.63 (relating to waivers).
(b) A request for hearing in a provider appeal subject to this rule shall: (1) be submitted in writing to the Bureau within the time limits specified in accordance with Rule 19(a) (relating to timeliness and perfection of appeal); (2) include the information specified in Rule 18 (b) (relating to request for hearing); and, (3) must include all relevant supporting documentation. The provider shall send a copy of its request for hearing to the program office issuing the notice of the agency action at the same time it files its request with the Bureau.
(c) Unless the information has already been exchanged, each party shall give to the other parties any document that it will introduce as an exhibit and a list of any persons, including medical or other experts, that it will call as a witness at the hearing.
(d) The Bureau will promptly schedule a hearing taking into due consideration the availability of expert witnesses.
(e) The following rules do not apply to provider appeals subject to this rule:
(1) Rule 8 (relating to title).
(2) Rule 9 (relating to form).
(3) Rule 11 (relating to verification).
(4) Rule 14(1)(ii) (relating to service of pleadings and legal documents).
(5) Rule 15 (relating to proof of service).
(6) Rule 16 (relating to certificate of service).
(7) Rule 33 (relating to prehearing procedure in certain provider appeals).
(8) Rule 35 (relating to disclosures).
(9) Rule 36 (relating to methods to discover additional information).
(10) Rule 37 (relating to supplementing disclosures and responses).
(11) Rule 38 (relating to signing of disclosures, discovery requests, responses and objections)
(12) Rule 41 (relating to discovery motions).
(13) Rule 42 (relating to dispositive motions), except for a motion to dismiss based upon timeliness.
(14) Rule 44 (relating to voluntary mediation).
(15) Rule 45 (relating to initiation of hearings).
(16) Rule 51 (relating to posthearing briefs).
(f) Upon motion of a party, and for good cause shown, the Bureau may order that a provider appeal identified in subsection (a) be exempt from this rule or may order that one or more of the rules identified in subsection (e) apply in whole or in part to the appeal. In the case of a motion seeking an order to apply Rule 35 (relating to disclosures) and Rule 36 (relating to methods to discover additional information) to a provider appeal identified in subsection (a), in order to show good cause, the moving party must establish that the disclosures or discovery will not prevent the prompt and efficient adjudication of the appeal and are reasonable and necessary given the facts involved in the appeal.
(g) Upon joint motion of the parties to a provider appeal, the Bureau may order that this rule applies to a provider appeal not identified in subsection (a).
(h) A motion to exempt an appeal from this rule under subsection (f) and a joint motion to apply this rule to an appeal under subsection (g) may be filed with the request for hearing but shall be filed no later than 30 days from the filing date of the request for hearing in the provider appeal.
Prehearing Procedures and Prehearing Conferences Rule 33. Prehearing procedure in certain provider appeals.
(a) Upon the filing of a request for hearing, the Bureau will issue a prehearing order specifying all of the following.
(1) The parties shall make disclosures in accordance with Rule 35 (relating to disclosures).
(2) All discovery requests shall be served within 90 days of the date of the prehearing order and that all discovery shall be concluded within 120 days of the date of the prehearing order.
(3) All motions to compel discovery shall be filed within 30 days of the close of discovery.
(4) Any other miscellaneous prehearing motions, including motions in limine, shall be filed within 60 days of the date of filing of the program office's position paper.
(5) Dispositive motions shall be filed within 60 days of the date of the filing of the program office's position paper.
(b) The parties may, within 30 days of the date of the prehearing order, submit a Joint Proposed Case Management Order to the Bureau that proposes alternative dates for completion of the matters specified in paragraphs (1)--(5) of subsection (a), or that agrees to discovery beyond the limitations set forth in Rule 36(c)(1)--(4) (relating to methods to discover additional information).
(c) The Bureau may issue subsequent prehearing orders incorporating the alternate dates and discovery limitations proposed by the parties or specifying other dates and discovery limitations that the Bureau deems appropriate, except that the Bureau will not establish dates or impose limitations that are more restrictive than the dates or limitations otherwise provided for in these rules without the agreement of all parties to the appeal.
Rule 34. Conferences.
(a) The Bureau, on its own motion or on motion of a party, may hold a conference either prior to or during a hearing for the purpose of facilitating settlement, adjustment of the proceeding or any issue therein, or other matters to expedite the orderly conduct and disposition of a hearing.
(b) A stipulation of the parties or order of the Bureau as a result of the conference shall be binding upon the parties.
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