Final Standing Practice Order [33 Pa.B. 3053] Pursuant to the act of December 3, 2002 (P. L. 1147, No. 142) (''Act 142''), § 20.1, 67 Pa.C.S. § 1102(g) (relating to hearings before the Bureau), the Department of Public Welfare (''Department''), Bureau of Hearings and Appeals (''Bureau'') hereby issues the Standing Order (Order) set forth in Annex A. The Order establishes rules governing Medical Assistance (''MA'') provider appeals. The Order is effective July 1, 2003.
Summary of Public Comments and Revisions
Act 142 added 67 Pa.C.S. Chapter 11 (relating to Medical Assistance hearings and appeals), which establishes a statutory framework for MA provider appeals. Section 1102(g) of 67 Pa.C.S. (relating to hearings before the Bureau) requires that the Bureau, after receiving public comments, issue an order prior to July 1, 2003 establishing rules governing practice before the Bureau in MA provider appeals. In accordance with § 1102(g), the Bureau published a proposed Order at 33 Pa.B. 1168 (March 1, 2003) and asked interested parties to submit written comment within 30 days.
The Bureau received written comments from six commentators representing trade associations and private law firms within the 30-day comment period. The Bureau has carefully reviewed and considered the comments and thanks the commentators for their thoughtful comments and recommendations on the proposed Order. A summary of the major written comments, the Bureau's response to those comments and the revisions made to the proposed Order follows.
General--Regulation
Two commentators suggested that Act 142 requires that the Department publish proposed and final regulations by July 1, 2004 and that the Department solicit public input through the formal rulemaking process including public and legislative review.
Response
Act 142 specifies that the Department, through the Bureau, must promulgate regulations establishing rules of procedure as may be necessary to carry out the provisions of Act 142 by July 1, 2004, and establish an advisory committee ''to provide assistance and guidance'' in the development and modification of any such regulations. When the Bureau published the proposed Order for comment, it solicited individuals interested in serving on the regulatory advisory committee to submit a letter of interest to the Bureau Director. The Bureau will establish the advisory committee and seek the committee's input regarding the nature and scope of regulations necessary to carry out the provisions of the Act.
General--Rules
One commentator suggested that the Order disadvantages providers rather than sets fair processes and procedures and that many elements of the Order expand the privileges of the Department while restricting the rights of providers. Another commentator suggested that the Order does not provide for fair and equitable treatment of providers. That same commentator also stated that the Order does not assure just, speedy and inexpensive determination and that it does not contain sufficient opportunity for providers to receive notice and be heard. The commentator suggested that the Order gives too much discretion to the Bureau, but also stated that the Order does not sufficiently maintain the Bureau's independence.
Response
Consistent with Act 142, the Order expressly guarantees the independence and impartiality of the Bureau hearing officers in deciding appeals. See Rule 50 (relating to independence; ex parte communications). In considering the comments and drafting this Order, however, the Bureau recognized that the complexity of any adjudicative process must be weighed against the time and expense associated with that process. The Order sets forth rules that are intended to achieve a just and speedy determination of provider disputes while protecting and balancing both the public and private interests involved. For example, the Order specifies the minimum discovery to which a party in entitled as a matter of right, but allows the party to exceed the minimum if the party establishes that more discovery is reasonable and necessary in the particular case involved.
The Bureau finds that the Order provides sufficient notice and opportunity to be heard to providers and gives appropriate discretion to Bureau. The Order provides the Bureau with the same level of discretion to adjudicate provider appeals as is afforded to comparable administrative adjudicative tribunals, such as the Environmental Hearing Board and the Medicare Provider Reimbursement Board, and as is already provided under GRAAP. Placing undue restrictions on or eliminating the Bureau's discretion in adjudicating provider disputes would not only be inappropriate, but would hinder the Bureau's ability to conduct a de novo review as required by Act 142. See also Millcreek Manor v. DPW, 796 A.2d 1020 (Pa.Cmwlth Ct. 2002).
General--Time Frames
One commentator suggested that the Bureau should be required to resolve provider payment and reimbursement decisions within a specified time period, such as two to three years.
Response
Act 142 requires the Bureau to ''promptly adjudicate'' provider appeals and to ''establish deadlines for interim and final actions by the Bureau and parties to any proceeding before the Bureau.'' In accordance with these requirements, the Order sets forth various deadlines for the parties to, among other things, make disclosures, submit position papers and file procedural and dispositive motions in provider appeals. The Order also establishes deadlines for the Bureau to act on motions and to issue determinations in provider appeals. As written, the Order contemplates that adjudications generally will be issued within the time frame suggested by the commentator.
General--Scope of Order
One commentator criticized the proposed Order as being overly broad. This commentator suggested that Act 142 does not reach a provider's right to petition the Secretary of Public Welfare under 1 Pa. Code §§ 35.17--35.20 (relating to pleadings and other preliminary matters) in that such matters are not appeals from adjudications. This same commentator stated that, to the extent the Order seeks to regulate areas beyond the statutory authority of Act 142, the Order violates the Commonwealth Documents Law (45 P. S. § 1201 et seq.) by superseding 1 Pa. Code §§ 35.14--35.24 and that such matters continue to be regulated by 1 Pa. Code, Part II, Chapters 31, 33 and 35, General Rules of Administrative Practice and Procedure (GRAPP) unless and until the Department adopts regulations.
Another commentator criticized the proposed Order as being unduly narrow. This commentator suggested that the Order makes an artificial distinction between ''waiver request,'' ''petition for relief'' and ''hearing'' and that the Order imposes significant restrictions on waivers and petitions. This commentator suggested that Act 142 applies to any decision of the Department relating to the administration of the MA program, including decisions on requests for changes to or waivers from regulations, policies, procedures or interpretations. The commentator suggested that by providing different procedures for petitions for relief, the Department has inappropriately narrowed the scope of the hearing to which providers are entitled under the Act.
Response
At the outset, the Bureau notes that there is general agreement that Act 142 grants providers the right to appeal adjudicative determinations of the Department to the Bureau and that the Order should encompass those matters. The commentators' disagreement with each other and the proposed Order centers on whether and to what extent the Order should also apply to actions of the type currently permitted under §§ 35.17--35.20 of GRAPP. Those rules permit the submission of ''petitions'' seeking the issuance, amendment, waiver or appeal of regulations, the issuance of declaratory orders and the appeal of actions taken by ''subordinate officers'' of an agency. As proposed, the Order would have superseded §§ 35.17--35.20 but would have continued to distinguish between these types of actions and those involving adjudicative agency actions. The distinction was reflected throughout the proposed Order, including in the definitions of ''request for hearing'' and ''petition for relief.''
Having evaluated the commentators' views regarding the proper scope of the Order, the Bureau agrees with commentators that the scope of the Order should be identical to that of Act 142. The Bureau intends that Order cover the procedural matters encompassed by Act 142, but no others. In cases that involve actions outside the scope of Act 142, other rules (e.g., 55 Pa. Code Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings) or GRAPP) apply.
Act 142 provides that a Department action or decision is appealable only if the provider is ''aggrieved.'' 67 Pa.C.S. § 1102(a). In order for a provider to be aggrieved, the action must be adjudicative in character. ''Adjudicative agency actions are those that affect one individual or a few individuals, and apply existing laws or regulations to facts that occurred prior to the adjudication.'' Small v. Horn, (Pa., 1998). Act 142 specifies that hearings under the act only involve ''adjudications of the Department relating to the administration of the [MA] Program'' and that encompass ''action[s] relating to a provider's enrollment in, participation in, claims for payment or damages under or penalties imposed under the program.''
When the Department undertakes an adjudicative action, Act 142 and this Order apply, and the aggrieved provider must file a timely and proper request for hearing in order to contest the action. Since an adjudicative agency action may be undertaken by a subordinate official, the Bureau agrees with the second commentator that Act 142 and the Order supersede 1 Pa. Code § 35.20, which presently permits a provider to appeal actions taken by a subordinate officer directly to the Secretary. Contrary to § 35.20, under this Order, any such appeal must be filed with the Bureau.
Adjudicative actions do not include agency actions ''that are legislative in character,'' i.e., actions that ''result in rules of prospective effect and bind all, or at least a broad class of, citizens.'' Id. Under existing Pennsylvania law, the issuance of regulations is a legislative act, not an ''adjudication.'' Laurel Lake Ass'n v. Pennsylvania Fish and Boat Comm'n, 710 A.2d 129, 132 (Pa.Cmwlth. 1998); Insurance Co. of North America v. Insurance Dept., 15 Pa.Cmwlth. 462, 327 A.2d 411 (1974). Consequently, the Bureau agrees with the first commentator that petitions requesting the issuance, amendment or repeal of regulations would not involve an appealable adjudicative action and, therefore, would not fall within the scope of Act 142. Thus, such petitions would properly be filed under 1 Pa. Code § 35.18 and GRAPP would apply in such matters.
The Bureau recognizes that a provider may request a waiver of a regulation or request declaratory relief without any underlying appealable action having been taken by the Department. Since Act 142 only applies to appealable actions, the Bureau also agrees with the first commentator that such requests would fall outside the scope of Act 142. Instead, such requests must be made by petition under 1 Pa. Code § 35.18 and GRAPP would apply in such matters.
In consideration of the comments received, the Bureau has eliminated or revised the various provisions that would have prescribed rules of procedure relating to properly filed petitions for relief. These changes, which are explained in greater detail in subsequent sections of this preamble, have the following effect: so long as there is no underlying appealable ''agency action,'' the procedures governing petitions for relief are those set forth in the GRAPP. Where an appealable action is taken, however, Act 142 and the Order will apply. Thus, the Order continues to require that all issues and requests for relief relating to a contested agency action, including requests for waiver of a regulation or a determination of the applicability or meaning of a regulation or policy, must be set forth in a proper and timely request for hearing.
Rule 1. Scope of rule
One commentator suggested that the Order inappropriately excludes certain types of claims. The commentator believes that the Order must encompass proceedings affecting recipients to the extent a provider is aggrieved by a Departmental action and, therefore, 55 Pa. Code Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings) should not be excluded from the scope of the Order.
Response
Act 142 applies only to medical assistance provider appeals. Recipient appeals under 55 Pa. Code Chapter 275 are not included within the scope of Act 142, and, therefore, are not subject to this Order. When providers are permitted to file certain appeals for recipients under a valid power of attorney or court order, they are acting as the recipient's representative. To the extent the provider is permitted by law to act as a recipient's representative, the provider is asserting the recipient's right to appeal and Chapter 275 properly applies.
Rule 1. Other revisions
The Department clarified this rule to identify the effective date of the Order and to define the scope of the rules in general and the limitations applicable to appeals filed before, on and after December 3, 2002.
Rule 2. Construction and application of rules
One commentator suggested that the approach of selective and partial incorporation of the GRAPP by reference into the Order is confusing and will create disputes. The commentator suggested that partial incorporation by reference is troubling because the Order supersedes 1 Pa. Code § 31.6 (relating to amendments to rules) that provides the Joint Documents Committee may amend the GRAPP, including its application to hearings before Bureau. The commentator suggests that the Order should supersede the GRAPP in its entirety and that relevant provisions of the GRAPP should be restated to create a single set of comprehensive rules.
Response
For purposes of this Order, the Bureau has continued to incorporate by reference those GRAAP rules that have not otherwise been superceded by the Order. The Bureau will seek input from the regulatory advisory committee as to whether any regulations promulgated by the Department should set forth, rather than incorporate by reference, the applicable GRAPP rules.
Rule 3. Definitions--Agency Action
Several commentators suggested that the definition of the term ''agency action'' should be revised to be consistent with Act 142. They suggested that Act 142 limits the Bureau's authority to adjudications and that other actions continue to be regulated by Administrative Agency Law and 1 Pa. Code, Part II (relating to the general rules of administrative practice and procedure).
Response
As discussed previously, this Order applies only to provider appeals contesting adjudicative actions of the Department. The Bureau has revised the definition of ''agency action'' accordingly. The revision is intended make clear that the statutory right granted by Act 142 to bring proceedings before the Bureau does not arise by reason of the lack of or absence of an adjudicative agency action. The remainder of the definition of ''agency action'' tracks the provisions set forth in Act 142's definition of ''hearing,'' which provides further instruction on the concept of what is appealable.
Rule 3. Definitions--Hearing
Three commentators requested that the definition of ''hearing'' be revised to be consistent with Act 142. Specific comments included: a) The Bureau's authority is limited by Act 142 to adjudications, b) Act 142 does not limit hearings to contested factual issues, but instead includes a proceeding concerning an adjudication relating to the administration of the Medical Assistance program and c) Act 142 provides that hearings be conducted before the Bureau, not the Secretary of Public Welfare.
One commentator suggested that there is an artificial distinction between ''waiver request,'' ''petition for relief'' and ''hearing'' and that significant restrictions are imposed on waivers and petitions. That commentator suggested that, under Act 142, any decision of the Department relating to the administration of the MA program is subject to hearing, including request for changes to or waivers from regulations, policies, procedures or interpretations. The commentator suggested that the Department has inappropriately narrowed the scope of the hearing to which providers are entitled under the Act.
Response
Act 142 defines ''hearing'' to be a ''proceeding'' commenced by a provider pursuant to 67 Pa.C.S. § 1102(a). Thus, when used in this manner, the term ''hearing'' is synonymous with such terms as ''action,'' ''appeal'' and ''matter.'' 2 Pa.C.S. § 101. Consistent with the statutory definition, the Order uses the term ''request for a hearing'' to refer to the initial pleading that a provider must file in order to commence such an action. 67 Pa.C.S. § 1102(b)(1) and (d).
In some instances, however, Act 142 uses ''hearing'' in the ordinary sense, to refer to those parts of an action at which evidence is presented and interlocutory disputes are considered and resolved. 67 Pa.C.S. §§ 1102(e)(1) and (2); 1104. Thus, as used by Act 142, ''hearing'' has a variety of meanings. The Bureau has revised the term ''hearing'' to include all of the statutory meanings. In addition, in order to improve the clarity of the Order, the Bureau has retained the term ''provider appeal'' as a synonym for ''hearing'' as defined by the Act at 67 Pa.C.S. § 1101. As retained, the term no longer encompasses actions commenced by ''petitions for relief.''
As noted previously, Act 142 only applies to ''adjudications of the Department relating to the administration of the [MA] Program.'' Petitions for relief seeking the amendment, repeal or adoption of regulations or seeking the waiver of a regulation in the absence of an agency action do not involve adjudicative acts of the Department and, therefore, do not fall within the meaning of the term ''hearing'' as it is defined in 67 Pa. C.S. § 1101. If a provider seeks a waiver of a regulation in connection with an adjudicative agency action, Act 142 and this Order do apply.
Rule 3. Definitions--Petition for relief
One commentator suggested that the definition of ''petition for relief'' should reflect that it may not involve an appeal.
Response
The Bureau agrees with the comment that the Order applies only to matters arising from ''agency actions'' and so has revised the Order to eliminate those provisions that would have regulated other types of matters. The Bureau has retained and revised the term ''petition for relief'' in order to identify those actions that are commenced by providers which fall outside the scope of Act 142.
Rule 3. Definitions--Presiding officer
One commentator suggested that this term should indicate whether the individuals appointed by the director are required to be Bureau or program office employees. Alternatively, the commentators suggested that the Order should provide that presiding officers will be appointed by the Director from a panel of Bureau employees whose sole function is to act as presiding officers.
Response
The Bureau currently assigns individuals who are either employed by the Bureau or under contract with the Bureau and who receive special training in conducting administrative hearings and issuing adjudications in accordance with applicable statutes and regulations to preside in provider appeals. In keeping with Act 142's requirement of independence, the Bureau does not assign any employee or official of the Department whose actions are subject to review by the Bureau to act as a presiding officer. Nor does the Bureau assign an individual, whether employed by or under contract with the Bureau, to hear a case that involves a matter in which he or she participated by way of investigation, enforcement or litigation on behalf of a party. The Bureau does not intend to change its current practices regarding the assignment of presiding officers. Upon further review, the Bureau has determined that the GRAPP definition of presiding officer is sufficient and has eliminated the definition of presiding officer from this rule.
Rule 3. Definitions--Provider appeal
One commentator suggested that the term ''provider appeal'' be stricken since it causes confusion between those matters that are within Act 142 and those that are not.
Response
The term ''provider appeal'' was included in the proposed Order in order to collectively refer to two distinct types of actions. Because, as discussed elsewhere, the final Order has been revised to pertain only to ''requests for hearings,'' the proposed definition of ''provider appeal'' has become obsolete. However, since Act 142 gives the term ''hearing'' multiple meanings, ''provider appeal'' has been revised and retained as a synonym for one ''hearing'' as defined at 67 Pa.C.S. § 1101. The Bureau finds that, when used in this manner, ''provider appeal'' improves the clarity of the Order.
Rule 3. Definitions--Senior Department official
One commentator suggested that this term is defined too broadly. The commentator suggested the elimination of persons who work in the Office of the Secretary or who report directly to the Secretary.
Response
The Bureau has retained the term as defined in the proposed Order, but has revised the conditions under which a party will be permitted to depose a senior department official. (See response under Rule 36(c)(4)(ii)(relating to methods to discover additional information).)
Rule 3. Other changes
The Bureau has included a definition of GRAPP in the rule.
Rule 5. Jurisdiction of the Bureau
One commentator requested that the Bureau clarify that its jurisdiction is not exclusive with respect to administrative penalties where there is dual Federal and state jurisdiction. The commentator requested that the Bureau establish procedures to prevent duplication and unnecessary expense in these cases. Another commentator questioned whether appeals under the Order would be used to resolve disputes brought by providers that operate under Medical Assistance Waiver Programs.
Response
Federal regulations may require providers to use Federal appeal procedures in order to contest the imposition of sanctions and remedies. See, e.g., 42 C.F.R. 431.153(g) (relating to evidentiary hearing). Rule 5 has been revised to clarify that, in such instances, the Federal rules govern and the Bureau would not have jurisdiction.
This Order will apply to an appeal by a provider aggrieved by an adjudicative action relating to an MA Waiver Program. For example, the Order will apply to a dispute involving the rejection of a waiver provider's invoice under the 180-day rule. The Order will not apply, however, to determinations relating to an individual's eligibility for waiver services or other determinations involving applicants or recipients of waiver services. Appeals from such determinations are governed by 55 Pa. Code Chapter 275.
Rule 6. Timely filing required
One commentator questioned whether the Bureau will use the 30-day timeframe found in 55 Pa. Code §§ 1101.84(a), (b) and (c) (relating to provider right of appeal), 6210.123 (relating to time limit for submission of appeals) and 6211.33 (relating to denied waiver), or, the timeframe at 67 Pa.C.S. § 1103(b). The same commentator asked if filing of appeals and amendments will be accepted by facsimile or other types of electronic transmission.
Response
Act 142 establishes the timeframes for provider appeals. Those statutory timeframes are contained in Rule 19 (relating to timeliness and perfection of requests for hearings.) Rule 19 supercedes any prior inconsistent Department regulations. Except as authorized by Rule 20 (relating to appeals nunc pro tunc), a provider must file its request for hearing, and any amendment thereto, in writing within the timeframes specified in Rule 19.
Rule 9 (relating to form) has been revised to specify that the Bureau will only accept for filing an original hard copy of a pleading bearing an original signature. The Bureau will not accept pleadings filed by facsimile or electronic submission.
Rule 7. Extensions of time
One commentator asked if requests for extensions of time will be accepted by facsimile or other types of electronic transmission.
Response
Rule 9 has been revised to permit legal documents, including motions, to be filed by facsimile so long as they do not exceed 20 pages in length, including attachments and exhibits.
Rule 11. Verification
One commentator suggested that this rule is overly broad and burdensome. The commentator suggested that all parties already must sign and certify pursuant to Rule 38 (relating to signing of disclosures, discovery, discovery requests, responses and objections). The commentator suggested amending this rule to require that the Bureau identify those documents containing facts of significance that must be verified.
A second commentator requested clarification of the phrase ''not appearing of record'' and who must verify a response on behalf of the Department or a program office.
Response
Courts routinely require litigants to verify facts set forth in the documents that they file. See, e.g. Pa.R.C.P. 1024 (relating to verification); 52 Pa. Code §§ 1.36 (relating to verification). The Bureau has determined that verification should likewise be required in MA provider appeals. Upon consideration of the comments, the Bureau has revised Rule 11 to clarify that a pleading or a legal document containing averments of fact not of record and denials of fact must be verified. The Bureau has also revised the rule to set out an acceptable form of verification. Any fact contained in a pleading or legal document that has not been previously verified or stipulated by the parties must be verified in the form specified in the rule or in a form that substantially complies with the rule.
Rule 12. Number of copies; copying of Bureau documents.
One commentator suggested that a party filing a document containing privileged or confidential information should prominently designate the document as such and allow parties to motion to protect against disclosure or to challenge the characterization as privileged or confidential.
Response
Rule 12(c) makes any document, including pleadings, legal documents, attachments and exhibits, that a party files with the Bureau generally available to the public regardless whether a particular document satisfies the definition of ''public record'' set forth in Section 1 of the Right to Know Law. 65 P. S. § 66.1. However, Rule 12(c) does not abrogate or affect any existing rule of law that either bars disclosure of protected health information or other confidential information or that limits a person's right of access to documents or information. Thus, for example, the limitations on disclosures of information set forth at 55 Pa. Code § 105.4 (relating to procedures) and 45 CFR Parts 160 and 164 (relating to standards for privacy of individually identifiable health information) are unaffected by Rule 12(c). Therefore, the Bureau will apply those limitations in considering any request for access to filed documents.
Because the record in Bureau proceedings may be disclosed to the public, parties should carefully review the documents that they submit for filing to ensure that they do not contain personal health information or other confidential information that identifies individuals. If parties must include materials with confidential information in documents filed with the Bureau, the parties should redact identifying information from the documents or file a motion pursuant to Rule 40 (relating to procedural motions) for permission to file the documents under seal. If a party files a document with a redaction, the Bureau, on its own or upon motion of another party, may require production of the unredacted document for in camera inspection in order to ascertain that only protected information has been withheld.
Rule 13. Notice of agency actions
Two commentators suggested that notice through the Pennsylvania Bulletin is not appropriate for cases involving denial of reimbursement and that the option of service by publication in the Pennsylvania Bulletin should be limited to cases in which other methods cannot be used or have failed.
A third commentator suggested that the Order: a) fails to address when a written notice of agency action is not provided, b) fails to establish standards for what constitutes effective written notice of agency action and c) deviates from Act 142 that allows a minimum of 30 days to appeal after receiving ''notice'' of agency action. The commentator suggested revision to recognize that a provider may obtain notice that the Department has taken a final action through conduct of the agency. The commentator suggested clarification of the following: a) that providers are authorized to file an appeal upon receipt of information sufficient to conclude that the Department has taken action adverse to the interests of provider, b) if the Department fails to give written notice of agency action, time for filing appeal should not run until the Department gives proper written notice of agency action and c) final versus preliminary agency action appeal timeframes.
Response
Act 142 contemplates that the Department must have undertaken some affirmative action in order for a right to a hearing to arise. 67 Pa.C.S. §§ 1101 (definition of ''hearing''); 1102(a); 1102(b)(2). Under Act 142, a condition precedent to the filing of a request for hearing is that the Department shall have given the provider ''notice of departmental action.'' Act 142 clearly contemplates that any such notice shall be given in writing.
In some instances, Department regulations may specify how the Department or a program office gives notice of an agency action. See e.g. 55 Pa. Code § 1187.95(a)(4) (relating to general principles for rate and price setting). Rule 13 is not intended to modify or replace existing notice requirements, nor is it intended to add additional notice requirements to those already in place. Rule 13 has been revised to clarify that the Department or program office must give notice of an agency action in accordance with Departmental regulations that relate to the particular action involved. When departmental regulations do not specify the method by which notice must be given, the Bureau has revised Rule 13 to specify how the Department or program office must give notice and to clarify the circumstances in which notice may be given by publication in the Pennyslvania Bulletin.
Rule 14. Service of pleadings and legal documents
The Bureau has revised Rule 14 to specify the date on which service of pleadings and legal documents must be made and when service must be made by facsimile.
Rule 18. Request for hearing
Three commentators provided suggestions for revision of Rule 18(b). One commentator raised concerns that since Departmental actions and notices often do not contain extensive information, providers may not be able to respond with the specificity required by the Rule in the timeframe allowed. A second commentator suggested the deletion of the phrase ''in detail'' in (b)(2). A third commentator suggested that a copy of the transmittal letter providing notice of action rather than the entire notice be required, to save unnecessary paper storage and postage.
Response
The Department's written notices of agency actions are required to and generally contain sufficient information for providers to determine if and why they disagree with an agency action. For example, when the Department issues a notice of termination under 55 Pa. Code § 1101.77 (relating to enforcement actions by the Department), the notice states the basis for the action, the effective date of the action and whether and when the Department will consider re-enrolling the provider. See 55 Pa. Code § 1101.77(d). In addition, Department regulations have long required that all MA providers ''explain in detail the reasons for [their] appeal'' in their notices of appeal (55 Pa. Code § 1101.84(a)(4) (relating to provider right of appeal)), and, since January 1996, have required that appeals by MA nursing facility providers ''state in detail the reasons why the facility believes the [Department's] decision is factually or legally erroneous and the specific issues that the facility will raise in its appeal.'' 55 Pa. Code § 1187.191(d)(2) (relating to nursing facility's right to appeal and to a hearing). The requirement for specificity is also consistent with Act 142, which allows a provider 90 days to amend their requests for hearing as a matter of right and then specifies that the Bureau must conduct a ''de novo review of all factual and legal issues raised by a provider in the request for hearing.''
The Bureau agrees with the suggestion that when the Department transmits notice of an agency action under cover of a letter to the provider, the provider need only attach a copy of the transmittal letter, rather than the entire notice, to its request for hearing.
Rule19(c). Timeliness and perfection of requests for hearing
One commentator suggested that Act 142 does not preclude the Bureau from permitting additional amendments after the initial 90-day period. The commentator suggested that the limitation of amendments to a nunc pro tunc standard is inconsistent with 1 Pa. Code §§ 35.48--35.50 and that the limitation would preclude parties from stipulating to additional time. The commentator suggested that time limits for amendment are inconsistent with time limits on discovery and disclosure, and since discovery will usually be completed more than 90 days after the filing of a request for hearing, this is inconsistent with due process and permits the agency to hide relevant information and defeats proper adjudication on the merits. Under Rule 36 (relating to methods to discover additional information), discovery cannot begin until 45 days after filing a request for hearing.
Another commentator suggested that while Act 142 provides that a request for hearing may be amended within 90 days of filing, the statute does not prohibit subsequent amendments for good cause shown. The commentator suggested that to prohibit amendments after 90 days, or to apply nunc pro tunc standard, is unreasonable because the basis for the agency action may not be clear until after discovery or after receipt of the pre-hearing position paper or hearing testimony. The commentator suggested that the use of a liberal good cause rule for amendment to hearing requests should be applied.
Response
As noted in comments summarized under ''General-Rules,'' providers have suggested that the Rules should provide for a just, speedy and inexpensive adjudicatory process. The Bureau agrees with providers that the rules set forth in the Order should promote this goal. In keeping with this goal, the Rules established by this Order are intended to encourage litigation practices that support prompt adjudications and that avoid unnecessary expense and undue burdens on the parties and on the MA Program.
Most providers know why they disagree with a Department determination when they file an appeal. In the relatively few instances where the reasons for the Department's actions may be unclear, the statute and the Rules automatically allow providers an additional 90 days to evaluate the Department's determination. This additional period should permit providers a sufficient amount of time to identify the bases for their appeals in the majority of cases. In reaching this conclusion, the Bureau considered the fact that, since 1996, departmental regulations have permitted nursing facility providers 90 days within which to amend their appeals as a matter of right, yet very few providers have seen the need to file amended appeals.
Upon consideration of the comments, however, the Bureau recognizes that, on rare occasions, there may be circumstances under which further amendments to a request for hearing might be warranted and could be allowed without undermining the goal of a just, speedy and prompt adjudicatory process. The Bureau has revised Rule 19 to allow additional amendments after the initial 90-day period under certain limited circumstances. First, an amendment after 90 days will be allowed if the provider establishes that the amendment is necessary because of fraud or breakdown in the administrative process. Second, an amendment after 90 days will be allowed if the provider establishes that (1) the amendment is based upon additional information acquired after the expiration of the 90-day period which either contradicts information previously disclosed by the Department or provides new information not previously disclosed by the Department; and (2) the program office and any other parties to the appeal will not be prejudiced if the amendment is allowed.
Consistent with the requirements relating to position papers, the Bureau has also revised Rule 19 to prohibit an amendment to a request for hearing within 30 days of the commencement of the hearing in the provider appeal. If a provider seeks to amend its appeal within 30 days of the commencement of a hearing, the Bureau retains the discretion and flexibility under the Order to continue the hearing in order to permit the amendment but enable the program office to prepare an adequate response to the amended appeal.
Rule 19(d)--Timeliness and perfection of requests for hearing
One commentator suggested that this rule be revised to eliminate the requirement that a general objection is deemed to be a waiver of all objections to an agency's action, particularly where objections are required to be filed before completion of discovery.
Response
Rule 19(d) requires that providers to give the program office sufficient notice of the bases for their appeal so that the program office has a reasonable opportunity to respond. It is also intended to assist the Bureau in conducting an appropriate de novo review. As noted previously, under Act 142 and this Order providers have 90 days within which to amend their appeals as a matter of right. In addition, the Bureau has revised the rule to allow providers to amend their requests for hearing after the 90-day period has expired on the basis of after acquired evidence. The rules thus provide sufficient time to providers to comply with the specificity requirement.
Rule 19(e)--Timeliness and perfection of requests for hearing
One commentator suggested that the Bureau be required to notify the provider of the reason for dismissal of a provider's request for a hearing. The commentator suggested that a request that substantially complies with the technical filing requirements should not be dismissed by the Bureau on its own motion.
A second commentator requested that this rule provide for notice of the Bureau's proposed motion to dismiss and opportunity to be heard or to correct the filing.
Response
Upon consideration of the comments, the Bureau has added language to Rule 19 that requires the Bureau to issue a rule or order, with a date certain listed for response, upon a provider and to allow the provider who will be aggrieved by the Rule or Order an opportunity to object to the proposed dismissal or to establish that it should be permitted to amend its appeal.
Rule 21--Limitations on the use of petitions for relief
Two commentators suggested that Act 142 does not authorize the limitation of provider's rights to seek waivers of regulations through the Order and that such limitations must be promulgated through the Commonwealth Documents Law. They maintain that limiting waivers, petitions for relief and the ability to obtain declaratory relief from regulations to the context of a hearing request is contrary to the statute. They suggest that because the Secretary of Public Welfare rules on waiver requests after receiving Bureau recommendations, there is no remaining right of appeal de novo, although Act 142 requires de novo review for all adjudications. A third commentator stated that this rule is too restrictive and that the Bureau should be given discretion to allow for corrections or amendments to ''improperly constituted'' appeals or petitions for relief. The commentator maintains that, under current state and Federal practice a provider has the opportunity to file an amended document and that providers should not be prohibited from pursing a waiver or declaratory relief as a result of a technical issue.
Response
The Bureau has eliminated or revised the various provisions of the Order that would have prescribed rules of procedure relating to petitions for relief properly filed under 1 Pa. Code §§ 35.17--35.19. If there is no underlying ''appealable agency action,'' the procedures governing such petitions for relief are those set forth in the GRAPP. Where an appealable action has been taken by the Department, however, Act 142 sets forth the exclusive procedure to obtain review of and relief regarding that action, and this Order applies.
In consideration of the comments, the Bureau has revised the title of Rule 21 to clarify that it only applies to petitions for relief that involve an agency action. In addition, the Bureau has included a new provision in the rule that permits a provider to file a motion to convert a prior filed petition for relief to a request for hearing and transfer it to the Bureau for determination. Any such motion must be filed within the filing deadlines that otherwise apply to a request for hearing. The Bureau has otherwise retained Rule 21 as proposed. Consistent with Act 142, the effect of the rule is that all issues and requests for relief relating to an agency action, including requests for waiver of a regulation or a determination of the applicability or meaning of a regulation or policy, must be set forth in a proper and timely request for hearing.
Rule 22. Supersedeas; General
One commentator requested clarification of classes of Departmental cases in which actions by the Department are not effective until after a hearing. For example, if the Department intends that fines levied as penalties by the Department are to be effective and collected prior to the final adjudication of a matter, the Department should clarify this point here.
Response
When the Department gives written notice of an agency action, the notice specifies the date on which the action has or will become effective. Therefore, no additional clarification is necessary.
Rule 22(f). Supersedeas; Sanctions
One commentator suggested that Act 142 does not authorize the imposition of costs and sanctions without promulgation of a regulation through the rulemaking process. The same commentator requested clarification of ''other appropriate sanctions.''
Response
Act 142 authorizes the Bureau to ''issue a standing order establishing rules governing practice before the Bureau.'' The authority to ''govern practice'' includes the inherent authority to enforce compliance with the rules of practice. What is an appropriate sanction will depend on the facts of the particular case.
Rule 22(g). Supersedeas; General
One commentator suggested that this rule is contrary to Act 142 because it does not permit the Bureau to grant a supersedeas for good cause shown based upon evaluation of relevant circumstances. A second commentator suggested that this rule is too restrictive in requiring the dismissal of a request for supersedeas in a provider appeal is commenced by petition of relief. The commentator suggests that, consistent with current state and Federal practice, a provider should be given the opportunity to file an amended document.
Response
In consideration of the comments, the Bureau has revised Rule 22 to eliminate subsection (g) relating to petitions for relief. Petitions for relief filed pursuant to 1 Pa. Code §§ 35.17--35.19 are governed by GRAPP. The Order otherwise incorporates the language of Act 142.
Rule 25. Filing for petitions to intervene
One commentator requested clarification of the timeframe since the preamble for the proposed Order allowed 90 days for intervention, but the rule itself allows 60 days.
Response
The preamble to the proposed rule was in error. A petition to intervene must be filed within 60 days of the filing of a request for hearing.
Rule 26(c). Answers generally
One commentator suggested that since answers are required to be filed before discovery, the requirements of the Rule are too specific.
Response
With the possible exception of a dispositive motion, a party should be able to answer a motion or other legal document regardless of whether discovery has been completed. Dispositive motions are not due until after the close of discovery. See Rule 33(a)(5) and Rule 35(c)(1) (relating to disclosures).
Rule 28. Consolidation of provider appeals
One commentator suggested that consolidation provisions should permit providers to consolidate requests for hearings from the outset to ensure efficiency. The commentator also suggested that the presiding officer should be authorized to modify discovery limits in consolidated cases. Another commentator suggested that this rule is overly restrictive with respect to discovery limitations on consolidation issues.
Response
Act 142 contemplates that consolidation will occur only upon motion and only after individual provider appeals have been filed. 67 Pa.C.S. § 1102(e)(2)(vi). Keeping the rule as proposed will ensure that only those providers who are willing to have their appeals combined with others will be subject to consolidation, and will ensure that parties who are opposed to consolidation have the meaningful opportunity to offer opposition, instead of being presented with a fait accompli. It also is consistent with the Bureau's internal docketing and case-tracking requirements.
If a provider asserts the need to conduct individual discovery in an appeal, this suggests that the facts and legal issues raised in the appeal may be sufficiently unique to make consolidation inappropriate. Consolidation is only appropriate if there is a substantially similar or materially related issue of law or fact. Consequently, the Bureau expects that most consolidated appeals will not be appreciably more complex than individual appeals, and that additional discovery generally will be neither reasonable nor necessary. Where consolidation is permitted, Rule 36 allows the parties to request permission from the Bureau to exceed the discovery limits in particular cases. Therefore, the Bureau has the discretion and flexibility to address the discovery issue on a case-by-case basis upon an appropriate showing by providers that additional discovery is reasonable and necessary.
Rule 28(f). Consolidation of provider appeals
One commentator requested clarification of what constitutes prejudice.
Response
Prejudice means the non-moving party is placed at such a disadvantage that it would be impracticable to perform meaningful discovery or adequately present its claim.
Rule 28(f). Consolidation of provider appeals
One commentator suggested that the time limits for consolidation are unreasonable and requested an extension of the timeframe or allowance of exceptions to the timeframe based on serial as well as contemporaneous Departmental determinations.
Response
Under Rule 28, a Motion to Consolidate must be filed before the expiration of the 120-day discovery period authorized by Rule 33(2) (relating to prehearing procedures in certain provider appeals.) This rule allows an adequate time frame for the parties to determine whether a case or cases should be consolidated. Moreover, the Bureau expects that the Order will result in the prompt adjudication of provider appeals and, consequently, that there should be no need for several appeals be strung together. The Bureau also expects that, in cases where a provider has an issue that repeats from year to year, the prompt adjudication of the issue during the initially filed appeal should expedite the resolution of later-filed appeals that raise similar issues.
Rule 30(b). Termination of provider appeals.
One commentator suggested the rule should limit prejudice that the withdrawal of a request for hearing causes in order to reduce the number of appeals required to preserve issues that can affect payment for subsequent years. The commentator further suggested that the rule should limit prejudice in payment matters only to payments for the fiscal period at issue or that arise from the audit adjustments appealed, but should not extend to the validity of audit practice, or the application, validity or interpretation of a regulation.
A second commentator requested deletion of this rule. The commentator suggested that the rule is unnecessary because the withdrawal of the appeal in most cases makes an appeal of the same action impossible because the appeal would not be timely. The commentator states that the impact of 30(b) is contrary to doctrines relating to issue and claims preclusion as well as due process since the standard ''all issues that were or could have been raised in the appeal'' is too vague and uncertain.
Response
In consideration of the comments, the Bureau has revised the rule to make clear that the prejudice only applies to all issues that were or could have been raised as to the agency action under appeal. Thus, for example, the withdrawal of an appeal of an audit would prevent the facility from thereafter contesting the audit adjustments contained in that audit, the validity of any audit practice undertaken in that audit or from alleging that the audit was in error because the Department misinterpreted or misapplied its regulations or applied invalid regulations. On the other hand, the withdrawal would not prevent the provider from filing an appeal relating to an audit for a different fiscal period and raising issues as to that audit, even those that are similar or identical to issues that were or could have been raised in the withdrawn appeal. The Bureau has also revised the rule to clarify the means by which a provider may withdraw its appeal prior to adjudication and the date on which any such withdrawal becomes effective.
Rule 32. Expedited disposition procedure for certain appeals
One commentator requested a definition of ''program exception requests.'' The commentator suggested that if it includes requests under policy statements at 55 Pa. Code §§ 1187.21a and 1187.113a (relating to nursing facility exception requests and nursing facility replacement beds-statements of policy), then the rule is inconsistent with due process under Millcreek Manor v. DPW, 796 A.2d 1020 (Pa.Cmwlth.Ct. 2002). The commentator contended that Act 142 does not permit the Department to limit matters for which discovery is as of right, but that the burden should be on the party to establish necessity for the use of expedited procedures, not for a party to establish the necessity for due process. The commentator suggested that that unless a party can show good cause why expedited disposition is appropriate, due process and the Administrative Agency Law require a presumption that it is not. A second commentator suggested deletion of this rule, as it is inconsistent with Act 142 that allows reasonable and necessary discovery in all proceedings.
Another commentator requested clarification as to why certain rules do not apply in an expedited action.
A fourth commentator questioned why expedited disposition would not apply to terminations or suspensions of Medical Assistance status, because such hearings will have a greater impact on a provider since such hearings are held only after the termination's effective date.
Response
Act 142 does not permit parties to conduct unlimited discovery as a matter of right. Act 142 specifies that, in holding hearings and issuing adjudications in provider appeals, the Bureau will, among other things, ''allow reasonable and necessary discovery in the form of interrogatories, requests for the production of documents, expert reports, requests for admissions and depositions of witnesses and designess of parties, subject to case management plans and limitations as necessary to facilitate the prompt and efficient issuance of adjudications.'' In conformity with the statute, Rule 32 recognizes that the reasonableness and necessity of discovery is determined by the case in which it is sought. What is reasonable and necessary in some types of cases is neither reasonable nor necessary in others.
The types of cases listed in Rule 32 are cases that have traditionally been handled by both providers and the program offices in a somewhat less formal manner. The purpose of the rule is to preserve this practice while providing the opportunity for such discovery as is reasonable and necessary under particular circumstances. The balance reached in this rule for the listed cases best accomplishes the dual goals of the legislature in making reasonable and necessary discovery available consistent with promoting prompt and efficient adjudications. Neither Act 142 nor rules of procedure applicable to other matters mandate or permit unlimited discovery. For example, both Federal rules and the Pennsylvania Rules of Civil Procedure limit discovery as appropriate to particular situations. See e.g. Pa.R.C.P. No. 1930.5 eliminating discovery in support matters unless authorized by a special order of court.
Rule 32 does not include nursing facility exception requests as one commentator suggested. The Bureau has revised the rule to clarify that the ''program exception requests'' referred to in this rule are those defined in 55 Pa. Code § 1150. Such matters have traditionally been handled in the less formal manner referred to previously.
As to the comment that an expedited disposition ought to be available in cases other than those listed in Rule 32, such as provider terminations, Rule 32 accommodates this request. The rule permits a party to ask the Bureau to apply all or any of the procedures of Rule 32 in any other case. Likewise, the rule permits a party to a Rule 32 case to request the Bureau to apply any or all of the procedures eliminated by Rule 32 in an individual case otherwise subject to the rule.
Rule 33. Prehearing procedure in certain provider appeals
One commentator suggested that the Order should allow providers to challenge the action of the Bureau; the commentator expressed concern that permitting the Bureau discretion ''as it deems appropriate'' is unchallengeable.
Response
Hearing Officers must have discretion to set deadlines and impose discovery limitations in order to ensure that cases move through the appeal process in an expeditious manner. As is the case in common pleas courts and other administrative tribunals, pre-hearing orders are not ordinarily subject to review. However, in extraordinary circumstances, pre-hearing orders may be reviewed under Rule 54 (relating to reconsideration of interlocutory orders).
Rule 35(a) and (b). Disclosures
One commentator suggested that the rule should be revised to provide consistent treatment between providers and the Department; if providers have to disclose their opinions then the Department should also be required to do so.
Response
Rule 35 is intended to impose commensurate disclosure obligations. The rule has been revised to make clear that a program office must include required documentation with its position paper and that any party that intends to rely on expert testimony must include a ''statement of expert opinion'' in its position paper.
Rule 35(b). Disclosures
Three commentators suggested that the Department should be required to submit to the provider a list describing all documents that it has deemed privileged or protected from disclosure and the basis for the protection claim. They further suggested that a provider should be permitted to seek the same relief and to identify documents in its possession that are protected such as trade secrets.
One commentator suggested that the requirements for mandatory initial disclosures should be more in conformance with Rule 26(a) of the Federal Rules of Civil Procedure and that Departmental disclosures should not be limited to staff persons directly involved in agency action and those designated to testify, but should include all individuals likely to have discoverable information. Departmental disclosures should not be limited to items relied upon in issuing the agency action, but should include all items in possession of the Department that may be used to support the agency's position in the appeal.
One commentator suggested that the provider should not have differing initial mandatory disclosure burdens than the Department, but that both parties should be held to the same standard.
Response
As noted previously, Rule 35 has been revised so that it imposes commensurate disclosure obligations on providers and program offices. The mandatory initial disclosure requirements set forth in the rule are intended to ensure the parties will use them to provide meaningful information. They are not intended to encompass all information that the parties may want to obtain from each other, and they can be supplemented by discovery where needed. Among the issues that can be probed through discovery is the identification of withheld documents, or additional witnesses and documents.
Rule 35(c)(1). Disclosures
One commentator suggested that the provider should not be prejudiced by the Department's issuance of its position paper after the provider submits its paper. Another commentator suggested that the provider is prejudiced if the Department does not give its position paper. Another commentator suggested that the Department should not be allowed an additional 60 days after service of provider's position paper because it unduly prejudices the provider's case since the Department can evaluate the provider's position paper before the Department has to provide a complete and full statement of its position. They suggested simultaneous submission, plus a 45-day rebuttal or supplemental period to respond to the opposing party's position paper.
Three commentators objected to the disparity of the rule's effect as between providers and the Department and suggested that both parties should be held to the same standard if they fail to meet the position paper due date. At a minimum, the commentators suggested that the provider must be given time to review the Department's position paper before a hearing is scheduled. One commentator suggested that if the Department does not submit a position paper, it should be precluded from putting on a defense.
Response
Rule 35 contemplates that all parties to a provider appeal must prepare and exchange position papers. The rule requires providers to produce their position papers first and under the penalty of dismissal because providers bear the burden of proof and production in provider appeals. In imposing these requirements, the rule is patterned after the process used by the Federal Provider Reimbursement Review Board (PRRB) in Medicare reimbursement disputes.
In such matters, a Medicare provider contesting the determination made by a fiscal intermediary is required to present an initial position paper to the fiscal intermediary, which then has 60 days to evaluate the provider's position, determine whether any disputed issues can be resolved and prepare its own position paper. PRRB rules also require the dismissal of a Medicare provider reimbursement appeal if the provider fails to file its position paper on time and notification to the Centers for Medicare and Medicaid Service (CMS) if the fiscal intermediary fails to file its position paper on time.
As in the Medicare process, this Order requires a provider to articulate the bases for its appeal and gives the program office a fixed period of time to evaluate the merits of the provider's position, and state whether and why they disagree with the provider's position on each issue in dispute. By compelling the parties to detail and assess each other's respective positions, the Order encourages prompt settlements in provider appeals. When settlements are not possible, it enables all parties and the Bureau to focus their efforts at hearing on the matters that are truly in dispute. Moreover, like the PRRB rules, the Order requires that providers prosecute their appeals in a regular and timely fashion. Further, like the PRRB rules, the Order does not permit the entry of a default judgment against the government.
The Order also ensures that providers will have sufficient time for providers to review the program office's position papers before a hearing is scheduled. Rule 33(a)(5) gives providers 60 days from the filing the program office's position paper to file dispositive motions. Rule 45 (relating to initiation of hearings) states that the Bureau will schedule a hearing only after it has ruled on any dispositive motions and consulted with the parties.
Rule 35(c)(3) and (5). Disclosure of witnesses
One commentator suggested that this rule is too restrictive and that parties should have the right to amend their witness list at a minimum for good cause shown, to include amendment in response to a witness identified by the other party. Another commentator questioned how the information regarding witnesses will be provided to assure there are no penalties if the identity of the witness has changed over time.
Response
The Bureau expects that, in the majority of cases, the parties will know who their witnesses are well in advance of the hearing. If, however, a party determines that a witness identified in its position paper will not be available or that it intends to offer the testimony of additional witnesses not identified in its position paper, the party may file a motion to amend its position paper for good cause under Rule 35(c)(4). The Bureau may permit the amendment as long as there is more than 30 days until the commencement of the hearing.
As a general rule, the Bureau will not permit a party to offer the testimony of any witness who has not been identified in the party's position paper. Upon consideration of the comments, the Bureau has determined to provide an exception to this general rule if the party seeking to offer the testimony of an undisclosed witness establishes that good cause exists to allow the testimony. The Bureau intends this exception to apply only in limited situations, such as where the death or illness of a previously disclosed witness within 30 days of hearing necessitates a substitute witnesses, or similar circumstances beyond the control of the party that otherwise demonstrate a need for relief. In determining whether good cause exists, the Bureau will consider, among other things, whether the testimony of the witness is critical to the party's case, why the identity of the witness was not disclosed previously, whether other parties would be prejudiced if the testimony is allowed, and whether allowing the testimony will delay the prompt and efficient adjudication of the appeal. The Bureau also retains the discretion and flexibility under the rules to continue a hearing to allow other parties to conduct appropriate discovery regarding any newly identified witness.
Rule 36(c). Methods to discover additional information
Two commentators suggested that interrogatories and requests for admissions should not be limited to 10 each but should be allowed as of right. The same commentator also requested clarification as to whether a party can request a waiver of the limit. One commentator suggested that providers should be entitled to more than 3 depositions, particularly in licensing appeals.
Response
As noted previously, Act 142 does not permit parties to conduct unlimited discovery. It authorizes such ''reasonable and necessary'' discovery as may be permitted consistent with the ''prompt and efficient'' adjudication of provider appeals. The Order permits the use of the identified forms of discovery, subject to limitations, that, in the majority of cases will afford adequate discovery and a just, speedy and inexpensive administrative process. The Order allows for additional discovery beyond the limitations set forth in the rules by agreement of the parties or upon a showing that the statutory standard is met.
Rule 36(c)(4)(ii). Methods to discover additional information
Four commentators suggested that this rule is unduly burdensome and that depositions of senior Departmental staff, including the Secretary and deputies, should be allowed if the provider can demonstrate that the deposition will likely lead to discovery of relevant information not disclosed by other agency staff, or, if documents demonstrate the senior official has been personally involved in or has knowledge of the disputed action. This should be permitted without a Bureau order. One commentator suggested that if this shield is permitted for Departmental staff persons, the same shield should apply for senior provider staff as well. Commentators suggested clarification of knowledge of senior officials ''which is not privileged''; this language should not allow a novel theory of executive privilege to shield Departmental staff.
Response
As noted previously, Act 142 does not authorize unlimited discovery, but only such reasonable and necessary discovery as may be permitted consistent with the just, speedy and inexpensive adjudication of a provider appeal. In the majority of cases, providers can obtain reasonable and necessary information relevant to their appeals from documents and other information provided by subordinate department staff. Upon consideration of the comments, the Bureau has revised the rule to permit a party to depose a senior department official, other than the Secretary, upon motion, if the party establishes to the Bureau's satisfaction that the official was personally involved in the disputed action and that the deposition is reasonable and necessary in light of the particular facts involved and will not delay the prompt and efficient adjudication of the provider appeal. The Bureau has also eliminated the requirement that a provider seeking to depose a senior departmental official establish that the official ''has knowledge which is not privileged.'' This revision is not intended to waive any privilege that may exist, including executive or deliberative process privilege, but rather to shift the burden of asserting the privilege to the program office. The prohibition on deposing the Secretary has been retained, since she is the ultimate adjudicator in the case on review of the Bureau determination.
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[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 AppealsTABLE 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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[Continued from previous Web Page] Disclosures and Discovery Rule 35. Disclosures.
(a) Duty of Disclosure. A party to a provider appeal commenced by a request for hearing must, without awaiting a discovery request, disclose information to each other party as specified in this section.
(b) Mandatory Initial Disclosures:
(1) The program office shall disclose:
(i) 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 any officials or staff designated to testify on its behalf regarding the agency action and the issues on which designated person 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; and,
(ii) A copy of, or a description by category and location of, all 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.
(2) The provider shall disclose:
(i) The name, title, business address, and telephone number of every person who provided facts, opinions, or other information that were relied upon in drafting the request for hearing or petition for supersedeas, if any, or that support or form the basis for, the allegations contained therein; and, and, if different, the name, title, business address and telephone number of any officials or staff designated to testify on its behalf regarding the agency action and the issues on which designated person will testify; and,
(ii) A copy of, or a description by category and location of, all 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, if any, or that support or form the basis for, the allegations contained therein; and, in a case where 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.
(3) 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.
(4) A party shall make its initial disclosures based on the information in its possession or otherwise then reasonably available to it. A party shall not be excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
(5) An opposing party has no obligation to respond to a discovery request made pursuant to Rule 36 (relating to methods to discover additional information) until the party that propounded the request has made its mandatory initial disclosures in compliance with this subsection. A provider whose initial mandatory disclosure identifies documents in the possession of the Department or program office but fails to provide copies of the provider's own records or documents in support of one or more of the issues raised in the provider's request for hearing shall not be in compliance with this subsection.
(c) Position papers.
(1) General requirements:
(i) 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 such other 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.
(ii) The program office shall file its position paper and required documentation with the Bureau and serve it on the provider within sixty (60) days of the date of service of provider's position paper or such other 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 schedule the case for hearing and will notify the Chief Counsel of the Department.
(2) Extensions. The Bureau disfavors requests for extensions of time to file position papers. The Bureau may grant an extension if: (i) a party submits a written request for extension; (ii) the request is received by the Bureau in time for it to review the matter prior to the due date; and, (iii) the party establishes that good cause exists to warrant an extension. 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 non-cooperation 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.
(3) Content of position papers.
(i) Provider. For each issue identified in its request for hearing or amended request for hearing, the provider's position paper shall state the relevant facts and present arguments setting forth the provider's position. Specifically, the provider shall include for each issue: a summary of the pertinent facts and circumstances, citations to the relevant statutory provisions, regulations, and other controlling authorities, the monetary amount in dispute, if any, and an explanation showing how the amount was computed and any other relief sought by the provider in connection with the issue. In addition, the provider shall provide for each issue the name and business address of every witness whose testimony the provider will present and a copy of every document that the provider will offer into evidence to support its position with respect to the issue.
(ii) Program office. For each issue identified in the provider's position paper, the program office's position paper shall state whether the program office accepts or disputes the provider's summary of the pertinent facts and circumstances, the provider's citations to the relevant statutory provisions, regulations, and other controlling authorities, and the provider's computation of the monetary amount in dispute. If the program office disputes the facts, citations or monetary amount, the program office shall provide a counterstatement of the items in dispute. The program office's position paper must also identify any additional issues not addressed by the provider that the program office believes should be determined by the Bureau. For each such issue, the program office shall include a summary of the pertinent facts and circumstances, and citations to the relevant statutory provisions, regulations, and other controlling authorities. In addition, the program office shall provide the name and business address of every witness whose testimony the program office will present and a copy of every document that the program will offer into evidence to support its position on each issue identified in its position paper.
(iii) Statement regarding expert opinions. For each issue, a party's position paper shall include a section that addresses 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. Where a party's position depends, at least in part, upon the judgment, opinion, or testimony of such a person, the party's position paper shall include a ''statement of expert opinion.'' Consistent with the requirements of 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 such statement shall: (A) identify the expert by name and address; (B) state the subject matter on which the expert is expected to testify; (C) identify the substance of the facts and opinions to which the expert is expected to testify; (D) summarize the grounds for each opinion to which the expert is expected to testify: and (E) be signed by the expert.
(4) Amendments. The Bureau may permit a party to amend a position paper upon motion of the party and for good cause shown except that no amendment to a position paper shall be permitted within 30 days of the commencement of the hearing in the provider appeal.
(5) Penalties for Noncompliance. A party shall not be permitted to offer the testimony of any 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. A party shall 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.
Rule 36. Methods to Discover Additional Information.
(a) 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: interrogatories, requests for the production of documents, expert reports, requests for admissions and depositions of witnesses and designees of parties.
(b) General Scope of Discovery.
(1) Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party in a provider appeal, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
(2) Except to the extent inconsistent with or as otherwise provided in this Order, discovery shall be governed by the relevant Pa.R.C.P applicable to the form of discovery authorized by this Order. When the term ''court'' is used in the Pa.R.C.P., ''Bureau'' is to be understood; when the terms ''prothonotary'' or ''clerk of court'' are used in the Pa.R.C.P., ''Formal Docketing Unit'' is to be understood.
(c) Limitations. In addition to the general limitation on the scope of discovery and deposition set forth in Pa.R.C.P. 4011 (relating to limitation of scope of discovery and deposition), the limitations on discovery in paragraphs (1)--(4) apply in provider appeals.
(1) Interrogatories. Interrogatories to a party, as a matter of right, shall 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 shall be construed as one interrogatory. All other interrogatories, including subdivisions of one numbered interrogatory, shall be construed as separate interrogatories. 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. Counsel are expected to comply with this requirement in good faith. In the event 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) Requests for Admissions. Request for admissions to a party, as a matter of right, shall not exceed ten in number. All requests for admissions, including subdivisions of one numbered request, shall be construed as a separate request. 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. Counsel are expected to comply with this requirement in good faith. In the event 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 by Oral or Written Examination. Depositions, as a matter of right, shall not exceed three in number. A deposition of a person shall not be permitted if the person has already been deposed in the appeal. 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. Counsel are expected to comply with this requirement in good faith. In the event 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.
(4) Deposition of the Secretary and Senior Department Officials.
(i) Unless the Secretary has been identified as a witness by the program office, a party may not depose the Secretary.
(ii) 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:
(A) The senior department official was personally involved in the disputed agency action.
(B) 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) Protective Orders. The Bureau may issue protective orders limiting or precluding discovery in accordance with subsection (c) or as specified in Pa.R.C.P. 4012 (relating to protective orders).
(e) 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 in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, does not operate to delay any other party's discovery.
Rule 37. Supplementing disclosures and responses.
(a) Disclosures. A party has a duty to supplement or correct a disclosure under Rule 35 (relating to disclosures) 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) Responses to Discovery Requests. A party is under a duty to supplement responses made to discovery requests as set forth in Pa.R.C.P. 4007.4 (relating to supplementing responses).
Rule 38. 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.
(1) 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:
(i) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(ii) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
(iii) 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.
(2) If a request, response, or objection is not signed, it shall 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 shall not be obligated to take any action with respect to it until it is signed.
(3) If without substantial justification a certification is made in violation of this rule, the Bureau, upon motion or upon its own initiative, shall impose upon the person 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 a reasonable attorney's fee.
Motions Rule 39. General.
(a) This Rule applies to all motions made in a provider appeal, except oral motions made during the course of a hearing.
(b) Motions and responses to motions shall be in writing, signed by a party or its attorney and shall be 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 any other motion shall be filed within 20 days of service of the motion.
(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) Action on motions.
(1) The Bureau will rule on dispositive motions within 60 days after the moving party's reply to the non-moving 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 non-moving party's response is due.
(2) The Bureau will rule on motions other than dispositive motions within 30 days after the date on which the non-moving party's response is due.
(3) Notwithstanding paragraphs (1) and (2) of subsection (f), the Bureau will rule on all outstanding pre-hearing motions no later than 20 days prior to the commencement of the hearing.
Rule 40. Procedural motions.
(a) This Rule applies to motions in a provider appeal that pertain to the procedural aspects of a case, including motions for continuance, for expedited consideration, for extensions of time in which to file documents and for stay of proceedings.
(b) Procedural motions shall 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 all 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, shall 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.
Rule 41. Discovery motions.
(a) This Rule applies to motions filed to resolve disputes arising from the conduct of discovery under Rule 36 (relating to methods to discover additional information).
(b) A motion to compel discovery shall 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.
Rule 42. Dispositive motions.
(a) This Rule applies to dispositive motions in a provider appeal.
(b) Motions for summary judgment or partial summary judgment and responses to such motions shall conform to Pa.R.C.P. 1035.1--1035.5 (relating to motion for summary judgment).
(c) Dispositive motions shall 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, shall be attached to the motion, response or reply or it will not be considered by the Bureau in ruling thereon.
Rule 43. Miscellaneous motions.
(a) This Rule applies to a motion in a provider appeal not otherwise addressed in Rules 40--42 (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 Rule 44. Voluntary mediation.
(a) Upon request by all 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 which 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. 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 Rule 45. Initiation of hearings.
(a) If, after the Bureau has ruled on any dispositive motions, a hearing is required to determine any remaining issues, the Bureau will, after consultation with the parties, schedule a formal evidentiary hearing and send a notice of hearing to all parties to the provider appeal.
(b) A hearing may, if permitted by the rules or by agreement of the parties, be conducted via telephone.
Rule 46. Continuance of hearings.
A hearing may not be continued except for compelling reasons. A motion for continuance of a hearing shall 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.
Rule 47. Burden of proof and production.
(a) 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. The provider 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.
(b) Each party shall have the right to an opening statement, presentation of evidence, cross-examination, objection, motion and argument, and closing argument.
(c) A pleading shall, without further action, be considered part of the record. In no event, however, shall a pleading be considered as evidence of any fact other than that of the filing thereof, unless offered and received into evidence under these rules.
Subchapter C. Evidence and Witnesses General Rule 48. 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 in a provider appeal 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 which can be reasonably anticipated prior to hearing shall be in writing and filed within the time prescribed for pre-hearing 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 shall include the scope of the written testimony and the time for filing the testimony and service upon opposing counsel.
Subpoenas Rule 49. Subpoenas.
(a) Except as otherwise provided in this chapter or by order of the Bureau, requests for subpoenas and subpoenas shall be governed by Pa.R.C.P. 234.1--234.4 (relating to subpoena to attend and testify, subpoena, issuance, service, compliance fees, prisoners, notice to attend, notice to produce, subpoena, notice to attend, notice to produce, relief from compliance, motion to quash) and 234.6--234.9 (relating to form of subpoena, form of notice to attend, form of notice to produce, notice and acknowledgment of receipt of subpoena by mail). When the term ''court'' is used in Pa.R.C.P. ''Bureau'' is to be understood; when the terms ''Prothonotary'' or ''clerk of court'' are used in Pa.R.C.P. ''Formal Docketing Unit'' is to be understood.
(b) Proof of service of the subpoena need not be filed with the Bureau.
Subchapter E. Presiding Officers Rule 50. Independence, Ex parte Communications.
(a) The presiding officers shall act independently of employees or public officials of the Department whose actions are subject to review before the Bureau.
(b) The presiding officers shall not engage in ex parte communications concerning a hearing with any party to the hearing.
Subchapter F. Posthearing Procedures Briefs Rule 51. Post hearing briefs.
(a) The initial post hearing brief of each party shall be as concise as possible and may not exceed 50 pages. An initial post hearing brief shall 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 post hearing brief first and within the time 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 of time. The program office shall file its initial post hearing 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 post hearing brief. A reply brief shall 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 post-hearing brief.
(f) If a party files a post hearing brief, any disputed issue or any legal theory that is not argued in the party's post hearing brief shall be deemed waived.
Subchapter G. Agency Action. Decisions Rule 52. Determinations and Recommendations by the Bureau.
(a) The Bureau will conduct a de novo review of all 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 all contested issues of law and fact within its jurisdiction, and issue an appropriate order, decree or decision.
(b) In the event that 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 any 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 thirty days of the filing of all post hearing briefs, or, if the parties waive the filing of post hearing briefs, within thirty 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 all 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 pursuant to Rule 55 (relating to review of bureau determinations). For purposes of this rule, a program office shall be deemed to be aggrieved if the Bureau determination sustains the provider's appeal in whole or in part; if the Bureau determination interprets a statute, regulation or other statement of policy or bulletin applied by the program office in a manner inconsistent with the interpretation of that office; or if the Bureau determination alters a policy of that office or purports to impose a new or different rule or policy on that office.
(e) The Secretary will review written recommendations of the Bureau issued pursuant to subsections (b) or (c) pursuant to Rule 56 (review of bureau recommendations).
Subchapter H. Reopening of Record Rule 53. Reopening of record prior to adjudication.
(a) After the conclusion of the hearing on the merits in a provider appeal 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 all of the following circumstances are present:
(1) Evidence has been discovered which would conclusively establish a material fact of the case or would contradict a material fact which had been assumed or stipulated by the parties to be true.
(2) The evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.
(3) The 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 shall specify the change in legal authority and demonstrate that it applies to the matter pending before the Bureau. Such motion need not meet the requirements of paragraphs (2) and (3) of subsection (d).
(d) A motion seeking to reopen the record shall:
(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) shall be verified and all motions to reopen shall 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 all parties to the proceedings.
Reconsideration and Review by the Secretary Rule 54. Reconsideration of interlocutory orders.
(a) A motion for reconsideration by the Secretary of an interlocutory order or ruling of the Bureau shall 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 any issue.
Rule 55. 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 must be filed within 30 days of the mailing date of the Bureau determination. An untimely request for review shall be dismissed as of course unless the filing party can satisfy the requirements of Rule 20 (relating to appeals nunc pro tunc).
(c) A request for review shall be in writing and shall state concisely the alleged errors in the Bureau determination and shall 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 such review. The decision to grant or deny such 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 shall 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 thirty days of receipt of the request, the request for review shall be deemed denied, and the Bureau's determination shall be deemed the final adjudication of the Department effective on the date on which the request for review is deemed denied.
(g) No answers to a request for review will 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 any party, other than the party requesting review. The response shall 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, in order to promote fairness and the proper administration of the Medical Assistance 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 shall be deemed approved by, and the final order of, the Secretary effective the date it is deemed approved.
Rule 56. Review of Bureau recommendations.
(a) The Secretary will review and issue a final order adopting, rejecting or modifying a recommendation of the Bureau issued pursuant to Rule 52(b) (relating to determinations and recommendations by the bureau).
(b) Any 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 Rule 55 (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 shall state concisely the reasons for the party's position on the recommendation, shall set forth any proposed findings of fact and conclusions of law for consideration by the Secretary and shall specify what relief, if any, should be granted or denied by the Secretary. The brief shall not exceed 25 pages.
(d) The Secretary's final order regarding a recommendation issued pursuant to Rule 52(b) (relating to determinations and recommendations by the bureau) will be issued no later than:
(1) The date on which the Secretary issues a final order if review is granted under Rule 55 (relating to review of bureau determinations); or
(2) 180 days from the date of receipt of the written recommendation, if review is not granted under Rule 55 (relating to review of bureau determinations).
(e) If the Secretary does not issue a final order regarding a recommendation issued pursuant to Rule 52(b) (relating to determinations and recommendations by the bureau) within the time frames specified in subsection (d), the recommendation of the Bureau shall be deemed adopted by, and the final order of, the Secretary effective the date it is deemed adopted.
Rule 57. Appeals.
A provider aggrieved by a final adjudication of the Department issued pursuant to Rule 55 (a), (e) or (f) (relating to review of bureau determinations), or a final order of the Secretary issued pursuant to Rule 55 (e), (h) or (i) (relating to review of bureau determinations) or Rule 56(a) or (d) (relating to review of bureau recommendations) may petition for judicial review in accordance with 2 Pa.C.S. Ch.7 subch.11 (relating to judicial review of commonwealth agency action).
Appendix A
Title of GRAPP SectionGRAPP Section
______ Chapter 31 Status of GRAPP Section 31.1 Scope of part This section of the GRAPP is superseded. 31.2 Liberal construction This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 1 and 2. 31.3 Definitions This section of the GRAPP is applicable to provider appeals but is supplemented by Rule 3. 31.4 Information and special instructions This section of the GRAPP remains applicable to provider appeals. 31.5 Communications and filing generally This section of the GRAPP remains applicable only to the extent it is not inconsistent with a rule, including but not limited to Rules 8--29 and Rules 33--43. 31.6 Amendments to rules This section of the GRAPP is superseded. 31.11 Timely filing required This section of the GRAPP is superseded. 31.12 Computation of time This section of the GRAPP remains applicable to provider appeals. 31.13 Issuance of agency orders This section of the GRAPP remains applicable to provider appeals. 31.14 Effective dates of agency orders Subsection (a) of this section is superseded; subsection (b) of this section remains applicable to provider appeals. 31.15 Extensions of time This section of the GRAPP is applicable to provider appeals but is supplemented by Rule 7. 31.21 Appearance in person This section of the GRAPP remains applicable to provider appeals. 31.22 Appearance by attorney This section of the GRAPP remains applicable to provider appeals. 31.23 Other representation prohibited at hearings This section of the GRAPP remains applicable to provider appeals. 31.24 Notice of appearance This section of the GRAPP remains applicable to provider appeals. 31.25 Form of notice of appearance This section of the GRAPP remains applicable to provider appeals. 31.26 Service on attorneys This section of the GRAPP remains applicable to provider appeals. 31.27 Contemptuous conduct This section of the GRAPP remains applicable to provider appeals. 31.28 Suspension and disbarment This section of the GRAPP remains applicable to provider appeals. Chapter 33 33.1 Title This section of the GRAPP is superseded. 33.2 Form This section of the GRAPP is superseded. 33.3 Incorporation by reference This section of the GRAPP is superseded. 33.4 Single pleading or submittal covering more than one matter This section of the GRAPP remains applicable to provider appeals. 33.11 Execution This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 9, 14 and 38. 33.12 Verification This section of the GRAPP is superseded. 33. 15 Number of copies This section of the GRAPP is superseded. 33.21 Filing fees This section of the GRAPP is superseded. 33.22 Mode of payment of fees This section of the GRAPP is superseded. 33.23 Copy fees This section of the GRAPP remains applicable to provider appeals. 33.31 Service by the agency This section of the GRAPP is superseded. 33.32 Service by a participant This section of the GRAPP is superseded. 33.33 Effect of service upon an attorney This section of the GRAPP remains applicable to provider appeals. 33.34 Date of service This section of the GRAPP remains applicable to provider appeals but is supplemented by Rule 14. 33.35 Proof of service This section of the GRAPP is superseded. 33.36 Form of certificate of service This section of the GRAPP is superseded. 33.37 Number of copies This section of the GRAPP is superseded. 33.41 Amendments This section of the GRAPP is superseded. 33.42 Withdrawal or terminations This section of the GRAPP is superseded. 33.51 Docket This section of the GRAPP is superseded. 33.61 Application for waiver of formal requirements This section of the GRAPP remains applicable to provider appeals. Chapter 35 35-A PLEADINGS AND OTHER PRELIMINARY MATTERS 35.1 Applications generally This section of the GRAPP is superseded. 35.2 Contents of applications This section of the GRAPP is superseded. 35.5 Form and content of informal complaints This section of the GRAPP is superseded. 35.6 Correspondence handling of informal complaints This section of the GRAPP is superseded. 35.7 Discontinuance of informal complaints without prejudice This section of the GRAPP is superseded. 35.9 Formal complaints generally This section of the GRAPP is superseded. 35.10 Form and content of formal complaints This section of the GRAPP is superseded. 35.11 Joinder of formal complaints This section of the GRAPP is superseded. 35.14 Order to show cause This section of the GRAPP remains applicable to provider appeals. 35.17 Petitions generally To the extent that an appealable agency action is involved, this section of the GRAPP is superseded. 35.18 Petitions for issuance, amendment, waiver or repeal of regulations To the extent that an appealable agency action is involved, this section of the GRAPP is superseded. 35.19 Petitions for declaratory orders To the extent that an appealable agency action is involved, this section of the GRAPP is superseded. 35.20 Appeals from actions of the staff This section of the GRAPP is superseded. 35.23 Protest generally This section of the GRAPP is superseded. 35.24 Effect of protest This section of the GRAPP is superseded. 35.27 Initiation of intervention This section of the GRAPP remains applicable to provider appeals. 35.28 Eligibility to intervene This section of the GRAPP remains applicable to provider appeals. 35.29 Form and content of petitions to intervene This section of the GRAPP remains applicable to provider appeals. 35.30 Filing of petitions to intervene This section of the GRAPP remains applicable to provider appeals. 35.31 Notice and action on petitions to intervene This section of the GRAPP remains applicable to provider appeals. 35.32 Limitation of participation in hearings This section of the GRAPP remains applicable to provider appeals. 35.35 Answers to complaints and petitions This section of the GRAPP is superseded. 35.36 Answers to petitions to intervene This section of the GRAPP is superseded. 35.37 Answers to orders to show cause This section of the GRAPP remains applicable to provider appeals. 35.38 Respondents seeking affirmative relief This section of the GRAPP remains applicable to provider appeals. 35.39 Replies to respondents seeking affirmative relief This section of the GRAPP is superseded. 35.40 Answers to amendments of pleadings This section of the GRAPP is superseded. 35.41 Satisfaction of complaints This section of the GRAPP is superseded. 35.45 Consolidation This section of the GRAPP is superseded. 35.48 Amendments of pleadings generally This section of the GRAPP is superseded. 35.49 Amendments to conform to the evidence This section of the GRAPP is superseded. 35.50 Directed amendments This section of the GRAPP is superseded. 35.51 Withdrawal of pleadings This section of the GRAPP is superseded. 35.54 Motions as to complaint This section of the GRAPP is superseded. 35.55 Motions as to answer This section of the GRAPP is superseded. 35-B HEARINGS AND CONFERENCES 35.101 Waiver of hearing This section of the GRAPP is superseded. 35.102 Hearing calendar This section of the GRAPP remains applicable to provider appeals. 35.103 Preliminary notice to Department of Justice This section of the GRAPP is superseded. 35.104 Notice of rulemaking proceedings This section of the GRAPP is superseded. 35.105 Notice of nonrulemaking proceedings This section of the GRAPP is superseded. 35.106 Contents of notice of nonrulemaking proceedings This section of the GRAPP is superseded. 35.111 Conferences to adjust, settle or expedite proceedings This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 33, 34, and 44. 35.112 Conferences to expedite hearings This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 33 and 34. 35.113 Initiation of conferences This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 33 and 34. 35.114 Authority of presiding officer at conference This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 33 and 34. 35.115 Offers of settlement This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 33, 34, and 44. 35.116 Refusal to make admissions or stipulate This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 33 and 34. 35.121 Initiation of hearings This section of the GRAPP is superseded. 35.122 Consolidation of formal hearings This section of the GRAPP is superseded. 35.123 Conduct of hearings This section of the GRAPP remains applicable to provider appeals. 35.124 Appearances This section of the GRAPP remains applicable to provider appeals. 35.125 Order of procedure This section of the GRAPP is superseded. 35.126 Presentation by the parties This section of the GRAPP is superseded. 35.127 Limiting number of witnesses This section of the GRAPP remains applicable to provider appeals. 35.128 Additional evidence This section of the GRAPP remains applicable to provider appeals. 35.131 Recording of proceedings This section of the GRAPP remains applicable to provider appeals. 35.132 Transcript corrections This section of the GRAPP remains applicable to provider appeals. 35.133 Copies of trascripts This section of the GRAPP remains applicable to provider appeals. 35-C EVIDENCE AND WITNESSES 35.137 Oral examination This section of the GRAPP remains applicable to provider appeals. 35.138 Expert witnesses This section of the GRAPP is superseded. 35.139 Fees of witnesses This section of the GRAPP is superseded. 35.142 Subpoenas This section of the GRAPP is superseded. 35.145 Depositions This section is inapplicable to discovery but is otherwise applicable to provider appeals. 35.146 Notice and application This section is inapplicable to discovery but is otherwise applicable to provider appeals. 35.147 Authorization of taking deposition This section is inapplicable to discovery but is otherwise applicable to provider appeals. 35.148 Officer before whom deposition is taken This section is inapplicable to discovery but is otherwise applicable to provider appeals. 35.149 Oath and reduction to writing This section is inapplicable to discovery but is otherwise applicable to provider appeals. 35.150 Scope and conduct of examination This section is inapplicable to discovery but is otherwise applicable to provider appeals. 35.151 Status of deposition as part of record This section is inapplicable to discovery but is otherwise applicable to provider appeals. 35.152 Fees of officers and deponents This section is inapplicable to discovery but is otherwise applicable to provider appeals. 35.155 Presentation and effect of stipulations This section of the GRAPP remains applicable to provider appeals. 35.161 Form and admissibility of evidence This section of the GRAPP remains applicable to provider appeals. 35.162 Reception and ruling on evidence This section of the GRAPP remains applicable to provider appeals. 35.163 Designation of relevant portions of documentary evidence This section of the GRAPP remains applicable to provider appeals. 35.164 Documents on file with agency This section of the GRAPP remains applicable to provider appeals. 35.165 Public documents This section of the GRAPP remains applicable to provider appeals. 35.166 Prepared expert testimony This section of the GRAPP remains applicable to provider appeals. 35.167 Records in other proceedings This section of the GRAPP remains applicable to provider appeals. 35.168 Form and size of documentary evidence This section of the GRAPP remains applicable to provider appeals. 35.169 Copies to parties and agency This section of the GRAPP remains applicable to provider appeals. 35.173 Official notice of facts This section of the GRAPP remains applicable to provider appeals. 35-D MOTIONS 35.177 Scope and contents of motions This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 38, 39, 40, and 41. 35.178 Presentation of motions This section of the GRAPP is applicable to provider appeals but is supplemented by Rule 38. 35.179 Objections to motions This section of the GRAPP is superseded. 35.180 Action on motions This section of the GRAPP is applicable to provider appeals but is supplemented by Rules 39--43. 35-E PRESIDING OFFICERS 35.185 Designation of presiding officers This section of the GRAPP remains applicable to provider appeals. 35.186 Disqualification of a presiding officer This section of the GRAPP remains applicable to provider appeals. 35.187 Authority delegated to presiding officers This section of the GRAPP remains applicable to provider appeals. 35.188 Restrictions on duties and activities This section of the GRAPP remains applicable to provider appeals. 35.189 Manner of conduct of hearings This section of the GRAPP remains applicable to provider appeals. 35.190 Appeals to agency head from rulings of presiding officers This section of the GRAPP remains applicable to provider appeals. 35-F BRIEFS 35.191 Proceedings in which briefs are to be filed This section of the GRAPP is superseded. 35.192 Content and form of briefs This section of the GRAPP is superseded. 35.193 Filing and service of briefs This section of the GRAPP is superseded. 35.-G PROPOSED REPORTS 35.201 Certification of record without proposed report This section of the GRAPP is superseded. 35.202 Proceedings in which proposed reports are prepared This section of the GRAPP is superseded. 35.203 Unavailability of presiding officer This section of the GRAPP is superseded. 35.204 Oral argument before presiding officer This section of the GRAPP is superseded. 35.205 Contents of proposed reports This section of the GRAPP is superseded. 35.206 Proposed report a part of the record This section of the GRAPP is superseded. 35.207 Service of proposed reports This section of the GRAPP is superseded. 35.211 Procedure to except to proposed report This section of the GRAPP is superseded. 35.212 Content and form of briefs on exceptions This section of the GRAPP is superseded. 35.213 Effect of failure to except to proposed report This section of the GRAPP is superseded. 35.214 Oral argument on exceptions This section of the GRAPP is superseded. 35-H BRIEFS AND ARGUMENT IN ABSENCE OF PROPOSED REPORT 35.221 Briefs and oral argument in absence of proposed report This section of the GRAPP is superseded. 35.225 Interlocutory orders This section of the GRAPP remains applicable to provider appeals. 35.226 Final orders This section of the GRAPP remains applicable to provider appeals. 35-I REOPENING AND REHEARING 35.231 Reopening on application of party This section of the GRAPP is superseded. 35.232 Reopening by presiding officer This section of the GRAPP is superseded. 35.233 Reopening by agency action This section of the GRAPP remains applicable to provider appeals. 35.241 Application for rehearing or reconsideration This section of the GRAPP is superseded. [Pa.B. Doc. No. 03-1269. Filed for public inspection June 27, 2003, 9:00 a.m.]
