§ 41.32. Timeliness and perfection of requests for hearing.
(a) Except as permitted in § 41.33 (relating to appeals nunc pro tunc), the Bureau lacks jurisdiction to hear a request for hearing unless the request for hearing is in writing and is filed with the Bureau in a timely manner, as follows:
(1) If the program office gives notice of an agency action by mailing the notice to the provider, the provider shall file its request for hearing with the Bureau within 33 days of the date of the written notice of the agency action.
(2) If written notice of an agency action is given in a manner other than by mailing the notice to the provider, a provider shall file its request for hearing with the Bureau within 30 days of the date of the written notice of the agency action.
(b) If a provider files a request for hearing by first-class mail, the United States postmark appearing upon the envelope in which the request for hearing was mailed shall be considered the filing date of that request for hearing. If the provider files a request for hearing in another manner, or if the envelope in which the provider’s request for hearing was mailed bears a postmark other than a United States postmark, the date the request for hearing is received in the Bureau will be considered the filing date.
(c) Except as permitted in § 41.33(b), a request for hearing may be amended only as follows:
(1) A provider may amend a request for hearing as a matter of right within 90 days of the filing date of the request for hearing.
(2) Upon motion of the provider or in response to a rule or order to show cause issued under subsection (f). The Bureau may permit a provider to amend a request for hearing more than 90 days after the filing of a request for hearing if the provider establishes either of the following:
(i) The amendment is necessary because of fraud or breakdown in the administrative process.
(ii) Both of the following conditions are met:
(A) The amendment is based upon additional information acquired after the expiration of the 90-day period that contradicts information previously disclosed by the Department or provides entirely new information not previously disclosed by the Department.
(B) The program office and other parties to the appeal will not be prejudiced if the amendment is allowed.
(d) A legal or factual objection or issue not raised in either a request for hearing filed within the time prescribed in subsection (a) or in an amended request for hearing filed under subsection (c) shall be deemed waived. A general objection to an agency action shall be deemed a failure to object and constitute a waiver of the objections and issues relating to an action.
(e) The Bureau will dismiss a request for hearing, either on its own motion or on motion of a program office, if a provider fails to file its request in accordance with the time limits specified in subsection (a).
(f) The Bureau will dismiss a request for hearing on its own motion or a motion of the program office if the following conditions are met:
(1) The provider’s request for a hearing fails to conform to the requirements of § 41.31(d)—(e) (relating to request for hearing).
(2) The 90-day time period for amendments specified in subsection (c)(1) has expired.
(3) The provider fails to establish that an amendment should be permitted under subsection (c)(2).
(g) If the dismissal is based upon motion of the Bureau, the Bureau will issue a rule or order to show cause, with a date certain listed therein, and serve that rule or order to show cause upon the parties to the appeal.
(h) Subsections (a)—(g) supersede 1 Pa. Code § § 35.1, 35.2, 35.5—35.7, 35.9—35.11, 35.105 and 35.106.
Cross References This section cited in 55 Pa. Code § 41.6 (relating to timely filing required); 55 Pa. Code § 41.32a (clarification regarding the definition of ‘‘mailing’’—statement of policy); 55 Pa. Code § 41.44 (relating to transfer of petition for relief); 55 Pa. Code § 41.82 (relating to amendments of requests for hearing); and 55 Pa. Code § 41.92 (relating to expedited disposition procedure for certain appeals).
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