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PA Bulletin, Doc. No. 03-361

NOTICES

DEPARTMENT OF
PUBLIC WELFARE

Draft Standing Practice Order

[33 Pa.B. 1168]

   The Department of Public Welfare (Department) announces its intent to issue the Standing Practice Order (Order) to govern Medical Assistance provider appeals heard before the Bureau of Hearings and Appeals (Bureau). Once issued, this Order will govern practice before the Bureau.

   The act of December 3, 2002 (P. L.         , No. 142) added 67 Pa.C.S. Chapter 11 (relating to Medical Assistance hearings and appeals). Section 1102(g) of 67 Pa.C.S. (relating to hearings before the Bureau) requires the Department to issue a standing order establishing rules governing practice before the Bureau prior to July 1, 2003, after receiving comment by interested parties. Chapter 11 of 67 Pa.C.S. provides a statutory framework for the provider appeal process that mandates, among other things, prompt adjudications, reasonable and necessary discovery and impartial adjudications to be implemented through the standing order. The goal of this Order is to ensure the just and speedy determination of provider appeals. The Order is organized to allow a reader to follow the basic order in 1 Pa.C.S. Part II (relating to General Rules of Administrative Practice and Procedure) (GRAPP). However, as set forth in Rule 2(b) (relating to construction and application of rules), the GRAPP provisions are inapplicable unless a provision to the contrary appears in Annex A to this notice.

   The following draft practice order accommodates the important goals embodied in 67 Pa.C.S. Chapter 11 by providing for the mandatory disclosure of information by both sides, a 120-day discovery period and the filing of detailed position papers by each party. The draft general order adopts many of the procedural rules of GRAPP. However, significant modifications have been made to accommodate the specific requirements of 67 Pa.C.S. Chapter 11 within the framework of a prompt adjudication. In addition, the Bureau has drawn upon the procedural rules used by the Federal Provider Reimbursement Review Board and the discovery rules set forth in the 231 Pa. Code (relating to Rules of Civil Procedure). The Order also contains a procedure for the expedited disposition of certain appeals which traditionally have been handled in a less formal manner.

   The Bureau expects these rules to substantially speed the process of resolving provider appeals. The mandatory disclosures requirement will expedite and simplify the discovery stage; the position paper requirement should facilitate the mutual resolution of disputes and, where settlement does not occur, should minimize or eliminate the need for evidentiary hearings, as should the possibility of resolution through dispositive motions. In addition, when a provider appeal proceeds to a hearing under the regular process set forth in this Order, the Bureau expects that, in most instances, the appeal will move from commencement to hearing within a period of 10 months, except when dispositive motions are filed. When the expedited process is used, the Bureau expects that the evidentiary hearing will be held in substantially less time.

   The provider appeal process commences with the filing of a request for hearing with the Bureau. The requirements for a request for hearing are set forth in detail in 67 Pa.C.S. § 1102(b). Of particular significance is the requirement in the law that amendments to the request for hearing may only be made as of right within 90 days after the filing of the request for hearing. This requirement evidences the Legislature's intent that the appeal document is more than a mere perfunctory notice. Accordingly, Rule 35(d) (relating to disclosures) requires providers to set forth specific factual or legal objections to the Department's action. Once the 90-day period has elapsed, the disputed facts and issues included in the request for hearing will govern further proceedings. Consolidation with other appeals, and intervention into the proceeding, will generally not be permitted after the 90-day period has elapsed.

   Upon receipt of a proper request for hearing, the Bureau will issue an acknowledgment letter containing certain critical deadlines, including the deadline for mandatory initial disclosure, the completion of discovery and the filing of position papers. The parties are expected to take the mandatory disclosure obligation seriously and sanctions may be imposed for failing to make good faith disclosures. In audit appeals, for example, the Department is expected to produce workpapers relative to disputed adjustments along with identifying information regarding the auditors. The provider, in turn, is expected to provide identifying information regarding individuals who determined that the auditors made errors, along with their workpapers and other documents supporting those assertions.

   Both parties are allowed 120 days to conduct additional discovery. Consistent with the procedures in many other tribunals, interrogatories and requests for admission are limited. Extensive interrogatories are often burdensome as well as unnecessary, and disputes over the wording of interrogatory responses are not an appropriate use of adjudicatory resources. Admission requests are limited because the parties should be communicating with each other and facts that would be admitted in response to requests for admission should be stipulated to. Depositions are limited to three in number. Experience has shown that these limits are usually reasonable and exceptions to permit additional discovery may be made by the Bureau for good cause shown. Additionally, senior Department managers may not be deposed unless their information is indispensable to the case.

   Following the conclusion of discovery, the provider is required to file a comprehensive position paper. This position paper is intended to be specific and should completely present the party's case in written form. If the provider fails to file a timely and complete position paper, the appeal will be considered to be abandoned, and the Bureau will automatically dismiss the matter. The Department will file its position paper within 60 days of the filing of the provider's position paper subsequent to which the case can be subject to a summary judgment motion or proceed to an evidentiary hearing.

   Providers' obligations, including those in 55 Pa. Code §§ 1101.51(e) and 1101.71 (relating to ongoing responsibilities of providers; and utilization control) to make records available and cooperate with Department reviews, remain unaffected and are not limited by these rules.

Fiscal Impact

   The fiscal note was prepared under the authority of section 612 of The Administrative Code of 1929 (71 P. S. § 232).

Contact Person

   The Department seeks comment from interested parties regarding the general procedure summarized in this notice, and the more specific and detailed implementing rules to read as set forth in Annex A. Comments should be submitted within 30 days of the date of publication of this notice to Thomas Cheffins, Director, Bureau of Hearings and Appeals, Department of Public Welfare, 2330 Vartan Way, 2nd Floor, Harrisburg, PA 17110-9721.

   Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).

Advisory Committee

   Under 67 Pa.C.S. § 1106(b), the Bureau intends to establish an advisory committee to provide assistance and guidance in the development and modification of regulations that may be promulgated after issuance of the standing order. The advisory committee will include individuals experienced in proceedings before the Bureau and other administrative agencies. Individuals interested in serving on the advisory committee should send a letter communicating their interest to Thomas Cheffins at the address previously listed.

ESTELLE B. RICHMAN,   
Acting Secretary

   Fiscal Note:  14-NOT-350. 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 142-2002 Establishing Rules Governing Practice And Procedure In Medical Assistance Provider Appeals

TABLE OF CONTENTS

PART I--PRELIMINARY PROVISIONS

Subpart A.  General Provisions

   Rule 1  Scope of Rules.

   Rule 2  Construction and application of rules.

   Rule 3  Definitions.

   Rule 4  Amendments to rules.

   Rule 5  Jurisdiction of the Bureau.

Subpart B. Time

   Rule 6  Timely Filing Required.

   Rule 7  Extensions of time.

PART II--DOCUMENTARY FILINGS

Subchapter A.  General Requirements

Filings Generally

   Rule 8  Title.

   Rule 9  Form.

   Rule 10  Incorporation by Reference.

Execution and Verification

   Rule 11  Verification.

Copies

   Rule 12  Number of copies; copying of Bureau docu ments.

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 docu ments.

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 hear ing.

   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 Pleadings.

   Rule 30  Termination 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 ap peals.

   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, order of procedure.

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.

   This order is issued pursuant to Act 2002-142, § 20.1 (67 Pa.C.S. §§ 101-1106 (relating to medical assistance hearings and appeals). The rules adopted by this order govern practice and procedure before the Bureau in provider appeals. These rules do not apply to appeals governed by 55 Pa. Code Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings).

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''), set forth at 1 Pa. Code Part II (relating to general rules of administrative practice and procedure). 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 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.

   Hearing--A proceeding commenced for the purpose of: (1) creating a factual evidentiary record relative to the merits of one or more issues raised in a request for hearing; or (2) 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--Any pleading filed by a provider pursuant to Rule 21 that commences a provider appeal and that is not a request for hearing.

   Pleading--A request for hearing, including any amendments thereto, or a petition for relief.

   Presiding officer--An individual designated by the Director to preside at a hearing or a prehearing conference.

   Program office--An office within the Department which is managed and operated by a deputy secretary or other 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 that is commenced by a provider by filing a request for hearing or petition for relief.

   Request for hearing--A pleading filed by a provider in order to appeal and obtain review of an agency action.

   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 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. If a provider files a petition for relief, the Bureau will create a record and make a recommendation to the Secretary regarding the petition for relief as specified in Rule 52(c) (relating to determinations and recommendations by the bureau).

   (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).

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 appeal), 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)  All legal documents in a provider appeal commenced by a petition for relief, 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

IN THE MATTER OF:               [Name of Provider]

BHA I.D. No.:
Docket No.:

[DESCRIPTIVE TITLE OF DOCUMENT]

   (c)  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.

   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.

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 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 Pa.R.C.P. 1024 (relating to verification).

   (b)  ''Verified,'' when used in reference to a written statement of fact by the signer, means supported by oath or affirmation or made subject to the penalties of 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 one 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, where 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 Department'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.

   The Department or a program office may give notice of an agency action by: (1) mailing a written notice of the action to a provider at the provider's business address; (2) serving notice of the action in the manner provided in Pa.R.C.P. 400--441; or (3) by publication in the Pennsylvania Bulletin.

Rule 14.  Service of pleadings and legal documents.

   Service of pleadings and legal documents shall be made as follows:

   (1)  Request for hearing. The provider that files a request for hearing shall serve a copy of the request on:

   (i)  The program office that initiated the agency action in dispute; and,

   (ii)  The Department's Office of General Counsel.

   (2)  Petition for relief. The provider that files a petition for relief shall serve a copy of the petition on:

   (i)  The Secretary; and,

   (ii)  The Department's Office of General Counsel.

   (3)  Legal document. A 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. Service shall be made by delivering in person or by mailing, properly addressed with postage prepaid, one copy of the pleading or legal document.

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 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 intends to challenge to 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 involved.

   (ii)  If the provider seeks 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 that the Department 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.

   (3)  If the provider received written notice of the agency action by mail or by personal service, the provider shall attach a copy of the written notice to the request for hearing. If the provider received written notice of the agency action by publication in the Pennsylvania Bulletin, the provider shall identify 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 appeal 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)  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. No other amendments to a request for hearing shall be permitted except as permitted in Rule 20(b) (relating to appeals nunc pro tunc).

   (d)  Any legal or factual objection or issue not raised in either a request for hearing filed with the time prescribed in subsection (a) or in an amended request for hearing filed within the time prescribed by subsection (c) shall be deemed waived. A general objection to an agency action shall be deemed a failure to object and shall constitute of waiver of all objections and issues relating to an action.

   (e)  The Bureau will dismiss a request for hearing, either on its on motion or on motion of a program office, if: (1) a provider fails to file its request in accordance with paragraph (1) of subsection (a); or, (2) the provider's request for hearing fails to conform to the requirements of Rule 18(c) (relating to request for hearing, content) and the 90 day time-period for amendments specified in subsection (c) has expired.

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 that 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 can 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.

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 23 (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 (d). 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.

   (g)  A supersedeas shall not be granted in a provider appeal commenced by a petition for relief.

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 affidavits are 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 in the facts pleaded.

   (2)  Lack of particularity in the legal authority cited as the basis for the grant of the supersedeas.

   (3)  An inadequately explained failure to support factual allegations by affidavits.

   (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 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 that 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 an agency action shall file an individual request for hearing in its own name, without joining any other provider as a joint 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 25 (relating to filing of petition 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 the 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 Pleadings.

   (a)  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).

   (b)  A petition for relief may be amended in accordance with 1 Pa. Code § 35.48 (relating to amendments of pleadings generally); except that no amendment to a petition for relief may be filed within 30 days proceeding the commencement of, or during a hearing on the petition unless directed or permitted by the Secretary or the presiding officer after all parties have been permitted to be heard theron.

Rule 30.  Termination of provider appeals.

   (a)  A provider appeal may be terminated prior to adjudication by one of the following:

   (1)  Withdrawal of the pleading in accordance 1 Pa. Code § 35.51 (relating to withdrawal of pleadings).

   (2)  A written Stipulation of Settlement executed by the parties and filed with and approved by the Bureau.

   (b)  When a request for hearing is withdrawn prior to adjudication, the withdrawal shall be with prejudice as to all issues that were or could have been raised in the appeal, unless otherwise indicated by the Bureau.

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