[36 Pa.B. 7195]
[Saturday, November 25, 2006]
[Continued from previous Web Page]
PREHEARING PROCEDURES AND HEARINGS § 41.91. Waiver of hearings.
A hearing need not be held if one of the following occurs:
(1) The provider waives its right to hearing.
(2) The parties stipulate to 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.
(3) The Bureau determines that there are no material facts in dispute.
(4) Subsections (a)--(c) supersede 1 Pa. Code § 35.101 (relating to waiver of hearing).
§ 41.92. Expedited disposition procedure for certain appeals.
(a) This section applies to provider appeals involving the denial of claims for payment through the prior authorization process, the denial of requests for precertification, 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 under § 1101.68 (relating to invoicing for services), the denial, termination or suspension of an exceptional DME grant as defined in § 1187.2 (relating to definitions) and the denial of a program exception request filed under § 1150.63 (relating to waivers).
(b) A request for hearing in a provider appeal subject to this section shall be submitted in writing to the Bureau within the time limits specified in accordance with § 41.32(a) (relating to timeliness and perfection of requests for hearing) and include both of the following:
(1) The information specified in § 41.31(d) (relating to request for hearing).
(2) Relevant supporting documentation.
(c) 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.
(d) Unless the information has already been exchanged, each party shall give to the other parties a document that it will introduce as an exhibit and a list of the persons, including medical or other experts, which it will call as a witness at the hearing.
(e) The Bureau will promptly schedule a hearing taking into due consideration the availability of expert witnesses. The Bureau will provide at least 3 weeks notice of a hearing from the date of notice.
(f) The following sections of this chapter do not apply to appeals subject to this section:
(1) Section 41.11 (relating to title of document).
(2) Section 41.12 (relating to form).
(3) Section 41.14 (relating to verification).
(4) Section 41.22(1)(ii) (relating to service of pleadings and legal documents).
(5) Section 41.23 (relating to proof of service).
(6) Sectin 41.24 (relating to certificate of service).
(7) Section 41.101 (relating to prehearing procedure in certain provider appeals).
(8) Sections 41.111--41.123.
(9) Section 41.134 (relating to discovery motions).
(10) Section 41.135 (relating to dispositive motions), except for a motion to dismiss based upon timeliness.
(11) Section 41.141 (relating to voluntary mediation).
(12) Section 41.151 (relating to initiation of hearings).
(13) Section 41.181 (relating to posthearing briefs).
(g) 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 section or may order that one or more of the sections identified in subsection (f) apply in whole or in part to the appeal. In the case of a motion seeking an order to apply §§ 41.111--41.121 to a provider appeal identified in subsection (a), in order to show good cause, the moving party shall 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.
(h) Upon joint motion of the parties to a provider appeal, the Bureau may order that this section applies to a provider appeal not identified in subsection (a).
(i) A motion to exempt an appeal from this section under subsection (g) and a joint motion to apply this section to an appeal under subsection (h) 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
§ 41.101. Prehearing procedure in certain provider appeals.
(a) Upon the filing of a request for hearing, the Bureau will issue a prehearing order specifying the following:
(1) The parties shall make disclosures in accordance with §§ 41.111--41.117.
(2) Discovery requests must be served within 90 days of the date of the prehearing order and discovery must be concluded within 120 days of the date of the prehearing order.
(3) Motions to compel discovery shall be filed within 30 days of the close of discovery.
(4) 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 subsection (a), or that agrees to discovery beyond the limitations set forth in § 41.120 (relating to limitations on discovery).
(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 this chapter without the agreement of each party to the appeal.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.111 (relating to conferences to adjust, settle or expedite proceedings).
§ 41.102. 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 another issue therein, or other matters to expedite the orderly conduct and disposition of a hearing.
(b) A stipulation of the parties or order of the Bureau as a result of the conference shall be binding upon the parties.
DISCLOSURES AND DISCOVERY § 41.111. Disclosures.
(a) A party to a provider appeal commenced by a request for hearing shall, without awaiting a discovery request, disclose information to each other party as specified in this section.
(b) The program office will disclose the following:
(1) The name, title, business address and telephone number of each staff person directly involved in the agency action, and, if different, the name, title, business address and telephone number of the officials or staff designated to testify on its behalf regarding the agency action and the issues on which the designated individual will testify. In the case of an audit appeal, the program office will, at a minimum, identify every auditor involved in the audit and every audit supervisor and audit manager who reviewed the audit report.
(2) A copy of, or a description by category and location of, the documents, data compilations and tangible things, not privileged or protected from disclosure, that were relied upon in issuing the agency action, or that formed the basis for the agency action.
(c) The provider shall disclose the following:
(1) The name, title, business address and telephone number of each person who provided facts, opinions or other information that were relied upon in drafting the request for hearing or petition for supersedeas or that support or form the basis for, the allegations contained therein; and, if different, the name, title, business address and telephone number of the officials or staff designated to testify on its behalf regarding the agency action and the issues on which the designated person will testify.
(2) A copy of, or a description by category and location of, the documents, data compilations and tangible things, not privileged or protected from disclosure, that were relied upon in drafting the request for hearing or petition for supersedeas or that support or form the basis for, the allegations contained therein. In a case when a provider alleges in its request for hearing that its costs or its claim for payment is supported by documents, the provider shall disclose the supporting documents.
(d) The parties shall make their initial mandatory disclosures within 45 days of the date of the Bureau's initial prehearing order, unless a different time is set by stipulation of the parties or by the prehearing order of the Bureau.
(e) A party shall make its initial disclosures based on the information in its possession or otherwise then reasonably available to it. A party will not be excused from making its disclosures because it has not fully completed its investigation of the case, because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
(f) An opposing party is not obligated to respond to a discovery request made under §§ 41.118--41.121 until the party that propounded the request has made its mandatory initial disclosures in compliance with this section.
§ 41.112. Filing of position paper.
(a) The provider shall file its position paper and required documentation with the Bureau and serve it on the program office within 60 days of the close of discovery or another date as may be specified in the Bureau's prehearing order. If the provider fails to meet the position paper due date or fails to supply the Bureau with the required documentation, the Bureau will dismiss the provider's appeal, unless the provider shows good cause for its noncompliance.
(b) The program office will file its position paper and required documentation with the Bureau and serve it on the provider within 60 days of the date of service of the provider's position paper or another date as may be specified in the Bureau's prehearing order. If the program office fails to meet the position paper due date, the Bureau will bar it from presenting evidence and witnesses at the hearing, unless the program office shows good cause for its noncompliance.
(c) The Bureau disfavors requests for extensions of time to file position papers. The Bureau may grant an extension if the following conditions are met:
(1) A party submits a written request for extension.
(2) The request is received by the Bureau in time for it to review the matter prior to the due date.
(3) The party establishes that good cause exists to warrant an extension.
(d) Failure to complete discovery before the due date of the position paper will ordinarily not be considered sufficient cause to extend the deadline, unless the failure is due to the noncooperation of the other side. A request for extension should be considered denied unless the Bureau affirmatively grants the extension in writing before the papers are due.
§ 41.113. Content of provider position paper.
(a) For each issue identified in its request for hearing or amended request for hearing, the provider's position paper must state the relevant facts and present arguments setting forth the provider position.
(b) For each issue identified in its request for hearing or amended request for hearing, the provider shall include the following:
(1) A summary of the pertinent facts and circumstances.
(2) Citations to the relevant statutory provisions, regulations and other controlling authorities.
(3) The monetary amount in dispute only if the sum is certain in whole or in part as of the date the position paper is due. If the sum in dispute is not certain as of the date the position paper is due, the party is required to identify the regulation that is applicable to determining such sum and a supporting affidavit for the reason the sum could not be determined.
(4) An explanation showing how the monetary amount was computed.
(5) Other relief sought by the provider in connection with the issue.
(6) The name and business address of every witness whose testimony the provider will present.
(7) A copy of every document that the provider will offer into evidence to support its position with respect to the issue.
(8) This section supersedes 1 Pa. Code §§ 35.164 and 35.165 (relating to documents on file with agency; and public documents).
§ 41.114. Content of program office position paper.
(a) For each issue identified in the provider's position paper, the program office's position paper will state whether it accepts or disputes the provider's statements regarding the following:
(1) Summary of the pertinent facts and circumstances.
(2) Citations to the relevant statutory provisions, regulations and other controlling authorities.
(3) Computation of the monetary amount in dispute.
(b) If the program office disputes the facts, citations or monetary amount, it will provide a counterstatement of the items in dispute if the information has not already been published in the Pennsylvania Bulletin.
(c) The program office's position paper will identify those additional issues not addressed by the provider that it believes should be determined by the Bureau.
(d) For each disputed issue, the program office will include a summary of the pertinent facts, circumstances and citations to the relevant statutory provisions, regulations and other controlling authorities.
(e) The program office will provide the name and business address of every witness whose testimony it will present and a copy of every document that it will offer into evidence to support its position on each issue identified in its position paper.
(f) On those occasions when the Department bears the burden of proof under § 41.153(b) (relating to burden of proof and production), the program office will file an initial position paper. That position paper will conform to § 41.113 (relating to content of provider position paper), except § 41.113(b)(3)--(5). If the program office fails to timely file its initial position paper and required documentation with the Bureau, the Bureau will affirm the provider's appeal as to those issues on which the program office bears the burden of proof, unless the program office shows good cause for its noncompliance. Once that program office's initial position paper has been filed, the provider shall file its position paper, which shall address all issues raised in the provider's request for hearing, including those on which it bears the burden of proof. Thereafter, the program office will file another position paper, which will address any issues on which the provider bears the burden of proof. The deadlines for filing these position papers will be set by order of the Bureau.
(g) This section supersedes 1 Pa. Code §§ 35.164 and 35.165 (relating to documents on file with agency; and public documents).
§ 41.115. Statement regarding expert opinions.
(a) For each issue in dispute, a party's position paper must address the party's reliance upon an expert. The party shall state whether its position depends, in whole or in part, upon the judgment, opinion or testimony of a person who, if called to testify, would be called as an expert.
(b) When a party's position depends, at least in part, upon the judgment, opinion or testimony of an expert, the party's position paper must include a ''statement of expert opinion.''
(c) Consistent with Pa.R.C.P. No. 4003.5 (relating to discovery of expert testimony, trial preparation material), and unless the Bureau orders to the contrary, each expert opinion statement must include the following:
(1) An identification of the expert by name and address.
(2) The subject matter on which the expert is expected to testify.
(3) An identification of the substance of the facts and opinions to which the expert is expected to testify.
(4) A summary of the grounds for each opinion to which the expert is expected to testify.
(5) The signature of the expert.
(6) A brief statement of the expert's qualifications or a current curriculum vitae.
(d) The parties shall submit a joint statement of undisputed facts at least 20 days prior to the hearing.
§ 41.116. Amendments to position papers.
The Bureau may permit a party to amend its position paper upon motion of the party and for good cause shown.
§ 41.117. Penalties for noncompliance.
(a) A party will not be permitted to offer the testimony of a witness at a hearing on a provider appeal unless either the party disclosed the identity of the witness in the party's position paper or the party establishes that there is good cause to permit the testimony of the witness.
(b) A party will not be permitted to introduce a document into evidence at a hearing on a provider appeal unless the party identified the document as an exhibit and served the other parties to the provider appeal with a copy of the document at the time the party filed its position paper with the Bureau unless there is good cause.
(c) This section does not preclude a party from introducing a document or testimony solely for use as an impeachment of a witnesses's credibility even if a party did not give advance notice to the opposing party.
§ 41.118. Authorized forms of discovery.
Once the time period for mandatory disclosures has elapsed, a party to a provider appeal commenced by a request for hearing may obtain discovery by one or more of the following methods:
(1) Interrogatories.
(2) Requests for the production of documents.
(3) Expert reports.
(4) Requests for admission.
(5) Depositions of witnesses and designees of parties.
§ 41.119. General scope of discovery.
(a) Parties may obtain discovery regarding a matter, not privileged, that is relevant to the claim or defense of another party in a provider appeal, including the existence, description, nature, custody, condition and location of the books, documents or other tangible things and the identity and location of persons having knowledge of a discoverable matter.
(b) Except to the extent inconsistent with or as otherwise provided in this chapter, discovery shall be governed by Pa.R.C.P 4001--4020 as authorized by this chapter. The term ''court'' as used in the Pa.R.C.P. means ''Bureau''; the term ''prothonotary'' or ''clerk of court'' as used in the Pa.R.C.P. means ''Formal Docketing Unit.''
§ 41.120. Limitations on scope of discovery.
(a) In addition to the general limitation on the scope of discovery and deposition in Pa.R.C.P. No. 4011 (relating to limitation of scope of discovery and deposition), the following limitations on discovery apply:
(1) Interrogatories to a party, as a matter of right, may not exceed ten in number. Interrogatories inquiring as to the names and locations of witnesses, or the existence, location and custodian of documents or physical evidence each will be construed as one interrogatory.
(i) Other interrogatories, including subdivisions of one numbered interrogatory, will be construed as separate interrogatories.
(ii) If counsel for a party believes that more than ten interrogatories are necessary, counsel shall consult with opposing counsel promptly and attempt to reach a written stipulation as to a reasonable number of additional interrogatories.
(iii) Counsel are expected to comply with this requirement in good faith. If the parties cannot agree on a written stipulation, the Bureau, upon motion of a party, may permit the party to serve additional interrogatories if the party establishes to the Bureau's satisfaction that additional interrogatories are reasonable and necessary in light of the particular facts involved and that they will not prevent the prompt and efficient adjudication of the provider appeal.
(2) Request for admissions to a party, as a matter of right, will not exceed ten in number.
(i) Requests for admissions, including subdivisions of one numbered request, will be construed as a separate request.
(ii) If counsel for a party believes that more than ten requests for admission are necessary, counsel shall consult with opposing counsel promptly and attempt to reach a written stipulation as to a reasonable number of additional requests.
(iii) Counsel are expected to comply with this requirement in good faith. If the parties cannot agree on a written stipulation, the Bureau, upon motion of a party, may permit the party to serve additional requests for admission if the party establishes to the Bureau's satisfaction that additional requests for admission are reasonable and necessary in light of the particular facts involved and that they will not prevent the prompt and efficient adjudication of the provider appeal.
(3) Depositions, as a matter of right, may not exceed three in number.
(i) A deposition of a person will not be permitted if the person has already been deposed in the appeal.
(ii) If counsel for a party believes that more than three depositions or that the deposition of a person who has already been deposed are necessary, counsel shall consult with opposing counsel promptly and attempt to reach a written stipulation as to a reasonable number of additional depositions.
(iii) Counsel are expected to comply with this requirement in good faith. If the parties cannot agree on a written stipulation, the Bureau, upon motion of a party, may permit the party to take additional depositions if the party establishes to the Bureau's satisfaction that additional depositions are reasonable and necessary in light of the particular facts involved and that they will not prevent the prompt and efficient adjudication of the provider appeal.
(b) Unless the Secretary has been identified as a witness by the program office, a party may not depose the Secretary.
(c) Unless a senior Department official has been identified as a witness by the program office or agrees to submit to a deposition, a party may not depose a senior Department official regardless of the number of depositions taken, except that the Bureau, upon motion of a party, may permit the party to depose a senior Department official if the party establishes to the Bureau's satisfaction that the following apply:
(1) The senior Department official was personally involved in the disputed agency action.
(2) The deposition of the senior Department official is reasonable and necessary in light of the particular facts involved and will not prevent the prompt and efficient adjudication of the provider appeal.
(d) The Bureau may issue protective orders limiting or precluding discovery in accordance with § 41.120(a)--(c) (relating to limitations on scope of discovery) or as specified in Pa.R.C.P. No. 4012 (relating to protective orders).
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 35.145--35.152 as the sections relate to discovery only.
§ 41.121. Timing and sequence of discovery.
Unless the Bureau upon motion, for the convenience of parties and witnesses and in the interest of justice, orders otherwise, methods of discovery may be used regardless of sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, does not operate to delay another party's discovery.
§ 41.122. Supplementing disclosures and responses.
(a) A party has a duty to supplement or correct a disclosure under §§ 41.111--41.117 to include information thereafter acquired if ordered by the Bureau or if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
(b) A party is under a duty to supplement responses made to discovery requests as set forth in Pa.R.C.P. No. 4007.4 (relating to supplementing responses).
§ 41.123. Signing of disclosures, discovery requests, responses and objections.
(a) Every disclosure shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.
(b) Every discovery request, response or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the request, response, or objection and state the signer's address.
(c) The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information and belief, formed after a reasonable inquiry, the request, response or objection is:
(1) Consistent with this chapter and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.
(2) Not interposed for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(3) Not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
(d) If a request, response or objection is not signed, it will be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response or objection, and a party will not be obligated to take action with respect to it until it is signed.
(e) If without substantial justification a certification is made in violation of this section, the Bureau, upon motion or upon its own initiative, will impose upon the individual who made the certification, the party on whose behalf the disclosure, request, response or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including reasonable attorney fees.
MOTIONS § 41.131. Motions in general.
(a) This section applies to every motion, except oral motions made during the course of a hearing.
(b) Motions and responses to motions must be in writing, signed by a party or its attorney and accompanied by a proposed order.
(c) Unless the time is extended by the Bureau, a response to a dispositive motion shall be filed within 30 days of service of the motion, and a response to other motions shall be filed within 20 days of service of the other motions.
(d) Except in the case of a dispositive motion, the Bureau will deem a party's failure to respond to a motion to be the party's lack of opposition to the motion.
(e) Except in the case of a dispositive motion, the moving party may not file a reply to a response to its motion, unless the Bureau orders otherwise.
(f) Subsections (a)--(e) supersede 1 Pa. Code §§ 35.54, 35.55 and 35.179 (relating to motions as to complaint; motions as to answer; and objections to motions).
§ 41.132. Actions on motions.
(a) The Bureau will rule on dispositive motions within 60 days after the moving party's reply to the nonmoving party's response, if a reply is filed. If the moving party does not file a reply, the Bureau will rule on a dispositive motion within 60 days after the date on which the nonmoving party's response is due.
(b) The Bureau will rule on motions other than dispositive motions within 30 days after the date on which the nonmoving party's response is due.
(c) Notwithstanding subsections (a) and (b), the Bureau will rule on each outstanding prehearing motion no later than 20 days prior to the commencement of the hearing.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.180(a) (relating to action on motions).
§ 41.133. Procedural motions.
(a) This section applies to motions that pertain to the procedural aspects of a case, including motions for continuance, expedited consideration, extensions of time in which to file documents and stays of proceedings.
(b) Procedural motions must contain a statement indicating the nonmoving party's position on the relief requested or a statement that the moving party, after a reasonable effort, has been unable to determine the nonmoving party's position.
(c) If the parties consent to the relief requested, the request may be embodied in a letter, provided the letter indicates the consent of the other parties.
(d) Requests for extensions or continuances, whether in letter or motion form, must be accompanied by a proposed order.
(e) Procedural motions and responses may not be accompanied by supporting memoranda of law unless otherwise ordered by the Bureau.
§ 41.134. Discovery motions.
(a) This section applies to motions filed to resolve disputes arising from the conduct of discovery under §§ 41.118--41.121.
(b) A motion to compel discovery must contain as exhibits the discovery requests and answers giving rise to the dispute.
(c) A party may file a memorandum of law in support of its discovery motion or its response to a discovery motion. The supporting memorandum of law shall be filed at the same time the motion or response is filed.
§ 41.135. Dispositive motions.
(a) This section applies to dispositive motions.
(b) Motions for summary judgment or partial summary judgment and responses to those motions must conform to Pa.R.C.P. No. 1035.1--1035.5 (relating to motion for summary judgment).
(c) Dispositive motions must be accompanied by a supporting memorandum of law. The Bureau may deny a dispositive motion if a party fails to file a supporting memorandum of law.
(d) An affidavit or other document relied upon in support of a dispositive motion, response or reply, that is not already a part of the record, must be attached to the motion, response or reply or it will not be considered by the Bureau in ruling thereon.
§ 41.136. Miscellaneous motions.
(a) This section applies to a motion not otherwise addressed in §§ 41.133--41.135 (relating to procedural motions; discovery motions; and dispositive motions), including a motion in limine, a motion to strike and a motion for recusal.
(b) A memorandum of law in support of a miscellaneous motion or response to a miscellaneous motion shall be filed with the miscellaneous motion or response.
MEDIATION § 41.141. Voluntary mediation.
(a) Upon request by the parties, the Bureau may stay a provider appeal commenced by a request for hearing for up to 120 days to allow the parties to utilize voluntary mediation services through the Office of General Counsel Mediation Program.
(b) The parties shall file their request for stay with the Bureau at least 14 days before initiation of hearings by the Bureau.
(c) At the end of the initial stay, the parties shall jointly file a statement that sets forth the status of mediation activities conducted. The parties may request an additional stay if necessary to complete the mediation process.
(d) The grant of an additional stay for mediation is in the Bureau's discretion and the Bureau may impose limitations the Bureau deems appropriate.
(e) A party's participation in voluntary mediation may not be used as evidence in a proceeding before the Bureau.
(f) Communications between the parties during the mediation period shall be regarded as offers of settlement and are neither discoverable nor admissible as evidence in a proceeding before the Bureau.
HEARINGS § 41.151. Initiation of hearings.
(a) If, after the Bureau has ruled on a dispositive motion, a hearing is required to determine the remaining issues, the Bureau will, after consultation with the parties, schedule a formal evidentiary hearing and send a notice of hearing to each of the parties to the provider appeal.
(b) A hearing may, if permitted by this chapter or by agreement of the parties, be conducted via telephone.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.121 (relating to initiation of hearings).
§ 41.152. Continuance of hearings.
(a) A hearing may not be continued except for compelling reasons.
(b) A motion for continuance of a hearing must be submitted to the Bureau in writing with a copy served upon the other parties to the proceedings, except that during the course of a hearing in a proceeding, the requests may be made by oral motion in the hearing.
(c) In the event that the parties are engaged in good faith settlement negotiations, the Bureau may grant a joint continuance request of not more than 60 days.
§ 41.153. Burden of proof and production.
(a) Except as provided in subsection (b), the provider has the burden of proof to establish its case by a preponderance of the evidence and is required to make a prima facie case by the close of its case-in-chief.
(b) If the agency action at issue in the provider's appeal is based upon the Department's determination that the provider committed an act prohibited by section 1407(a)(1) of the Public Welfare Code (62 P. S. § 1407(a)(1)), or § 1101.75(a)(1) or (2) (relating to provider prohibited acts), the Department has the burden of proving that the provider violated those provisions. The provider has the burden of proving the other issues raised in the provider's request for hearing.
(c) The party with the burden of proof has the burden of production, unless otherwise directed by the presiding officer, upon a determination included in the record by the presiding officer that the evidence is peculiarly within the knowledge or control of another party or participant, in which case the order of presentation may be varied by the presiding officer.
(d) Each party shall have the right to an opening statement, presentation of evidence, cross-examination, objection, motion and argument and closing argument.
(e) A pleading or a position paper must, without further action, be considered part of the record. A pleading or a position paper will never be considered as evidence of a fact other than that of the filing thereof, unless offered and received into evidence under this chapter.
(f) Subsections (a)--(e) supersede 1 Pa. Code §§ 35.125 and 35.126 (relating to order of procedure; and presentation by the parties).
EVIDENCE AND WITNESSES § 41.161. Written testimony.
(a) Written testimony of a witness, including an expert witness, on numbered lines in question and answer form, may be admitted into evidence provided the witness is present for cross-examination at the hearing or the parties agree that the witness' presence at the hearing is not required.
(b) Written testimony shall be filed concurrently with the proffering party's position paper unless a different time is prescribed by the Bureau. Objections to written testimony that can be reasonably anticipated prior to hearing must be in writing and filed within the time prescribed for prehearing motions in limine, unless otherwise ordered by the Bureau.
(c) If a party desires to file written testimony prior to the close of the record, it may do so only upon motion approved by the Bureau for good cause. This approval will include the scope of the written testimony and the time for filing the testimony and service upon opposing counsel.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 35.138 and 35.139 (relating to expert witnesses; and fees of witnesses).
§ 41.162. Subpoenas.
(a) Except as otherwise provided in this chapter or by order of the Bureau, requests for subpoenas and subpoenas will be governed by Pa.R.C.P. No. 234.1--234.4 and 234.6--234.9. The term ''court'' as used in Pa.R.C.P means ''Bureau''; the term ''Prothonotary'' or ''clerk of court'' as used in Pa.R.C.P means ''Formal Docketing Unit.''
(b) Proof of service of the subpoena need not be filed with the Bureau.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.142 (relating to subpoenas).
PRESIDING OFFICERS § 41.171. Independence.
(a) The presiding officers will act independently of employees or public officials of the Department whose actions are subject to review before the Bureau.
(b) The presiding officers may not engage in ex parte communications concerning a hearing with a party to the hearing.
(c) A presiding officer may withdraw from a proceeding when he deems himself disqualified, or he may be withdrawn by the agency head for good cause found after timely affidavits alleging personal bias or other disqualification have been filed and the matter has been heard by the agency head or by another presiding officer to whom the agency head has delegated the matter for investigation and report.
POSTHEARING PROCEDURES § 41.181. Posthearing briefs.
(a) The initial posthearing brief of each party must be as concise as possible and may not exceed 50 pages. An initial posthearing brief must contain proposed findings of fact, with references to the appropriate exhibit or page of the transcript, an argument with citation to supporting legal authority and proposed conclusions of law.
(b) The provider shall file its initial posthearing brief first and within the time specified by the presiding officer, which may not be less than 30 days from the closing of the record unless the provider consents to a shorter period of time. The program office will file its initial posthearing brief within 30 days of the date of service of the provider's brief.
(c) The provider may file a reply brief within 20 days of service of the program office posthearing brief. A reply brief must be as concise as possible and may not exceed 25 pages.
(d) Longer briefs and surreply briefs may be permitted at the discretion of the presiding officer.
(e) A party may waive the filing of a posthearing brief.
(f) If a party files a posthearing brief, a disputed issue or legal theory that is not argued in the party's posthearing brief will be deemed waived.
(g) Subsections (a)--(f) supersede 1 Pa. Code §§ 35.191--35.193 (relating to proceedings in which briefs are to be filed; content and form of briefs; and filing and service of briefs).
AGENCY ACTION § 41.191. Determinations and recommendations by the Bureau.
(a) The Bureau will conduct a de novo review of the factual and legal issues that are timely raised and properly preserved in a provider appeal. Except as provided in subsection (b), the Bureau will issue a determination adjudicating the contested issues of law and fact within its jurisdiction, and issue an appropriate order, decree or decision.
(b) If a request for hearing includes a waiver request, the Bureau will make a written recommendation for consideration by the Secretary proposing that the waiver be either granted or denied and stating the Bureau's reasoning in support of its position. If the request for hearing raises factual and legal issues in addition to the waiver request, the Bureau will issue its written recommendation together with its final determination adjudicating the remaining factual and legal issues, as specified in subsection (c). If the request for hearing does not raise other issues, the Bureau's written recommendation on the waiver request will be issued within the time limits and served on the parties as specified in subsection (c).
(c) The Bureau will issue a determination in a provider appeal within 30 days of the filing of the posthearing briefs, or, if the parties waive the filing of posthearing briefs, within 30 days of the close of the record or receipt of the transcript, whichever is later. The Bureau will serve a copy of its determination on the parties to the proceeding or their representatives.
(d) A party aggrieved by a determination of the Bureau may request the Secretary to review the determination under § 41.212 (relating to review of Bureau determinations). For purposes of this section, a program office will be deemed to be aggrieved if the Bureau determination does one or more of the following:
(1) Sustains the provider's appeal in whole or in part.
(2) Interprets a statute, regulation, statement of policy or bulletin applied by the program office in a manner inconsistent with the interpretation of that office.
(3) Alters a policy of the program office or purports to impose a new or different rule or policy on the program office.
(e) The Secretary will review written recommendations of the Bureau issued under subsection (b) or (c) under § 41.213 (review of bureau recommendations).
(f) Subsections (a)--(e) supersede 1 Pa. Code §§ 35.201--35.207, 35.211--35.214 and 35.221.
REOPENING OF RECORD § 41.201. Reopening of record prior to adjudication.
(a) After the conclusion of the hearing on the merits and before the Bureau issues an adjudication, the Bureau, upon its own motion or upon a motion filed by a party, may reopen the record as provided in this section.
(b) The record may be reopened upon the basis of recently discovered evidence when each of the following circumstances are present:
(1) Evidence is discovered that conclusively establishes a material fact of the case or that contradicts a material fact that had been assumed or stipulated by the parties to be true.
(2) Evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.
(3) Evidence is not cumulative.
(c) The record may also be reopened to consider evidence that has become material as a result of a change in legal authority occurring after the close of the record. A motion to reopen the record on this basis must specify the change in legal authority and demonstrate that it applies to the matter pending before the Bureau. The motion need not meet the requirements of subsection (d)(2) and (3).
(d) A motion seeking to reopen the record must:
(1) Identify the evidence that the moving party seeks to add to the record.
(2) Describe the efforts that the moving party had made to discover the evidence prior to the close of the record.
(3) Explain how the evidence was discovered after the close of the record.
(e) A motion filed under subsection (b) must be verified and motions to reopen must contain a certification by counsel that the motion is being filed in good faith and not for the purpose of delay. The motion shall be served upon the parties to the proceedings.
(f) Upon written request or motion to the Bureau or sua sponte by the Bureau, the parties will be afforded the opportunity to file amended pleadings and position papers, if the Bureau orders that the record be reopened. The additional pleadings and position papers will be due to the Bureau as ordered by the presiding officer.
(g) Subsections (a)--(f) supersede 1 Pa. Code §§ 35.231 and 35.232 (relating to reopening of application of party; and reopening by presiding officer).
RECONSIDERATION AND REVIEW BY THE SECRETARY § 41.211. Reconsideration of interlocutory orders.
(a) A motion for reconsideration by the Secretary of an interlocutory order or ruling of the Bureau must be filed within 10 days of the order or ruling. The petition must demonstrate that extraordinary circumstances justify immediate consideration of the matter by the Secretary. A party may file a memorandum of law at the time the motion or response is filed.
(b) A copy of the motion shall be served upon the parties. A party wishing to file an answer may do so within 10 days of service or as ordered by the Bureau or the Secretary.
(c) The failure of a party to file a motion under this section will not result in a waiver of an issue.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.241 (relating to application for rehearing or reconsideration).
§ 41.212. Review of Bureau determinations.
(a) A determination of the Bureau will be deemed the final adjudication of the Department effective upon expiration of the 30-day time period specified in subsection (b) unless an aggrieved party requests review by the Secretary within that 30-day time period.
(b) A request for review shall be filed within 30 days of the mailing date of the Bureau determination. An untimely request for review will be dismissed as of course unless the filing party can satisfy the requirements of § 41.33 (relating to appeals nunc pro tunc).
(c) A request for review must be in writing, state concisely the alleged errors in the Bureau determination and identify the particular relief sought. If the party requesting review is seeking relief by reason of matters that have arisen since the hearing and Bureau determination, or by reason of a matter that would arise from compliance with the Bureau determination, the party shall specifically identify those matters in its request.
(d) If an aggrieved party timely requests review of a Bureau determination, the Secretary may enter an order granting or denying the request for review within 30 days of receipt of the request. No party has a right to have a Bureau determination reviewed by the Secretary, but only a right to request this review. The decision to grant or deny a request lies within the discretion of the Secretary.
(e) If the Secretary enters an order denying a request for review within 30 days of receipt of the request, the Bureau's determination will be deemed the final adjudication of the Department effective on the date of the order denying the request for review.
(f) If the Secretary fails to act on a request for review within 30 days of receipt of the request, the request for review will be deemed denied. The Bureau's determination will be deemed the final adjudication of the Department effective on the date on which the request for review is deemed denied.
(g) Answers to a request for review will not be considered by the Secretary unless the Secretary has granted review. If, and to the extent the Secretary has granted review, a response in the nature of an answer may be filed by a party, other than the party requesting review. The response must be confined to the issues upon which the Secretary has granted review.
(h) If the Secretary grants review, the Secretary will enter a final order within 180 days of the date of the order granting review. The final order may affirm, reverse or modify the findings of fact, conclusions of law or the relief set forth in the Bureau's determination, and may, to promote fairness and the proper administration of the MA Program, waive compliance with program requirements.
(i) If the Secretary fails to act within 180 days of the order granting review, the determination of the Bureau will be deemed approved by, and the final order of, the Secretary effective the date it is deemed approved.
§ 41.213. Review of Bureau recommendations.
(a) The Secretary will review and issue a final order adopting, rejecting or modifying a recommendation of the Bureau issued under § 41.191(b) (relating to determinations and recommendations by the Bureau).
(b) A party to the provider appeal in which the Bureau's recommendation was issued may file a brief with the Secretary setting forth its position regarding the recommendation at the same time the party requests review of the Bureau's related determination under § 41.212 (relating to review of Bureau determinations) or, if the party is not seeking review of the Bureau's determination, within 30 days of the date of the mailing date of the Bureau recommendation.
(c) A brief supporting or opposing the Bureau's recommendation must state concisely the reasons for the party's position on the recommendation, set forth proposed findings of fact and conclusions of law for consideration by the Secretary and specify what relief should be granted or denied by the Secretary. The brief may not exceed 25 pages.
(d) The Secretary's final order regarding a recommendation issued under § 41.191(b) will be issued in accordance with the following:
(1) If review is granted under § 41.212, the date on which the Secretary issues a final order.
(2) If review is not granted under § 41.212, 180 days from the date of receipt of the written recommendation.
(e) If the Secretary does not issue a final order regarding a recommendation issued under § 41.191(b) within the time frames specified in subsection (d), the recommendation of the Bureau will be deemed adopted by, and the final order of, the Secretary effective the date it is deemed adopted.
§ 41.214. Appeals.
A provider aggrieved by a final adjudication of the Department issued under § 41.212(a), (e) or (f) (relating to review of Bureau determinations), or a final order of the Secretary issued under § 41.212 (e), (h) or (i) or § 41.213(a) or (d) (relating to review of Bureau recommendations) may petition for judicial review in accordance with 2 Pa.C.S. Chapter 7, Subchapter A (relating to judicial review of Commonwealth agency action).
[Pa.B. Doc. No. 06-2326. Filed for public inspection November 22, 2006, 9:00 a.m.]
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