Section 41.153. Burden of proof and production

(a) Except as provided in subsection (b), the provider has the burden of proof to establish its case by a preponderance of the evidence and is required to make a prima facie case by the close of its case-in-chief.

(b) If the agency action at issue in the provider’s appeal is based upon the Department’s determination that the provider committed an act prohibited by section 1407(a)(1) of the Public Welfare Code (62 P. S. § 1407(a)(1)), or § 1101.75(a)(1) or (2) (relating to provider prohibited acts), the Department has the burden of proving that the provider violated those provisions. The provider has the burden of proving the other issues raised in the provider’s request for hearing.

(c) The party with the burden of proof has the burden of production, unless otherwise directed by the presiding officer, upon a determination included in the record by the presiding officer that the evidence is peculiarly within the knowledge or control of another party or participant, in which case the order of presentation may be varied by the presiding officer.

(d) Each party shall have the right to an opening statement, presentation of evidence, cross-examination, objection, motion and argument and closing argument.

(e) A pleading or a position paper must, without further action, be considered part of the record. A pleading or a position paper will never be considered as evidence of a fact other than that of the filing thereof, unless offered and received into evidence under this chapter.

(f) Subsections (a)—(e) supersede 1 Pa. Code § § 35.125 and 35.126 (relating to order of procedure; and presentation by the parties).

Notation

Cross References

This section cited in 55 Pa. Code § 41.114 (relating to content of program office position paper).