42 C.F.R. Subpart D—Hearings on Conformity of State Medicaid Plans and Practice to Federal Requirements
Title 42 - Public Health
(a) This subpart sets forth the rules for hearings to States that appeal a decision to disapprove State plan material (under §430.18) or to withhold Federal funds (under §430.35), because the State plan or State practice in the Medicaid program is not in compliance with Federal requirements. (b) Nothing in this subpart is intended to preclude or limit negotiations between CMS and the State, whether before, during, or after the hearing to resolve the issues that are, or otherwise would be, considered at the hearing. Such negotiations and resolution of issues are not part of the hearing, and are not governed by the rules in this subpart except as expressly provided. All pleadings, correspondence, exhibits, transcripts of testimony, exceptions, briefs, decisions, and other documents filed in the docket in any proceeding may be inspected and copied in the office of the CMS Docket Clerk. Inquiries may be made to the Docket Clerk, Hearing Staff, Bureau of Eligibility, Reimbursment and Coverage, 300 East High Rise, 6325 Security Boulevard, Baltimore, Maryland, 21207. Telephone: (301) 594–8261. (a) Filing. All papers in the proceedings are filed with the CMS Docket Clerk, in an original and two copies. Originals only of exhibits and transcripts of testimony need be filed. (b) Service. All papers in the proceedings are served on all parties by personal delivery or by mail. Service on the party's designated attorney is considered service upon the party. Upon notice to all parties, the Administrator or the presiding officer may modify or waive any rule in this subpart upon determination that no party will be unduly prejudiced and the ends of justice will thereby be served. (a) The presiding officer at a hearing is the Administrator or his designee. (b) The designation of the presiding officer is in writing. A copy of the designation is served on all parties. The Administrator mails the State a notice of hearing or opportunity for hearing that— (a) Specifies the time and place for the hearing; (b) Specifies the issues that will be considered; (c) Identifies the presiding officer; and (d) Is published in the (a) Time. The hearing is scheduled not less than 30 nor more than 60 days after the date of notice to the State. The scheduled date may be changed by written agreement between CMS and the State. (b) Place. The hearing is conducted in the city in which the CMS regional office is located or in another place fixed by the presiding officer in light of the circumstances of the case, with due regard for the convenience and necessity of the parties or their representatives. The list of issues specified in the notice of hearing may be augmented or reduced as provided in this section. (a) Additional issues. (1) Before a hearing under §430.35, the Administrator may send written notice to the State listing additional issues to be considered at the hearing. That notice is published in the (2) If the notice of additional issues is furnished to the State less than 20 days before the scheduled hearing date, postponement is granted if requested by the State or any other party. The new date may be 20 days after the date of the notice, or a later date agreed to by the presiding officer. (b) New or modified issues. If, as a result of negotiations between CMS and the State, the submittal of plan amendment, a change in the State program, or other actions by the State, any issue is resolved in whole or in part, but new or modified issues are presented, as specified by the presiding officer, the hearing proceeds on the new or modified issues. (c) Issues removed from consideration—(1) Basis for removal. If at any time before, during, or after the hearing, the presiding officer finds that the State has come into compliance with Federal requirements on any issue or part of an issue, he or she removes the appropriate issue or part of an issue from consideration. If all issues are removed, the hearing is terminated. (2) Notice to parties. Before removing any issue or part of an issue from consideration, the presiding officer provides all parties other than CMS and the State with— (i) A statement of the intent to remove and the reasons for removal; and (ii) A copy of the proposed State plan provision on which CMS and the State have agreed. (3) Opportunity for written comment. The notified parties have 15 days to submit, for consideration by the presiding officer, and for the record, their views as to, or any information bearing upon, the merits of the proposed plan provision and the merits of the reasons for removing the issue from consideration. (d) Remaining issues. The issues considered at the hearing are limited to those issues of which the State is notified as provided in §430.70 and paragraph (a) of this section, and new or modified issues described in paragraph (b) of this section. They do not include issues or parts of issues removed in accordance with paragraph (c) of this section. (a) CMS and the State. CMS and the State are parties to the hearing. (b) Other individuals—(1) Basis for participation. Other individuals or groups may be recognized as parties if the issues to be considered at the hearing have caused them injury and their interest is within the zone of interests to be protected by the governing Federal statute. (2) Petition for participation. Any individual or group wishing to participate as a party must, within 15 days after notice of hearing is published in the (i) Petitioner's interest in the proceeding; (ii) Who will appear for petitioner; (iii) The issues on which petitioner wishes to participate; and (iv) Whether petitioner intends to present witnesses. The petitioner must also serve a copy of the petition on each party of record at that time. (3) Comments on petition. Any party may, within 5 days of receipt of the copy of the petition, file comments on it. (4) Action on petition. (i) The presiding officer promptly determines whether each petitioner has the requisite interest in the proceedings and approves or denies participation accordingly. (ii) If petitions are made by more than one individual or group with common interests, the presiding officer may— (A) Request all those petitioners to designate a single representative; or (B) Recognize one or more of those petitioners to represent all of them. (iii) The presiding officer gives each petitioner written notice of the decision and, if the decision is to deny, briefly states the grounds for denial. (c) Amicus curiae (friend of the court)—(1) Petition for participation. Any person or organization that wishes to participate as amicus curiae must, before the hearing begins, file with the CMS Docket Clerk, a petition that concisely states— (i) The petitioners' interest in the hearing; (ii) Who will represent the petitioner; and (iii) The issues on which the petitioner intends to present argument. (2) Action on amicus curiae petition. The presiding officer may grant the petition if he or she finds that the petitioner has a legitimate interest in the proceedings, that such participation will not unduly delay the outcome and may contribute materially to the proper disposition of the issues. (3) Nature of amicus participation. An amicus curiae is not a party to the hearing but may participate by— (i) Submitting a written statement of position to the presiding officer before the beginning of the hearing; (ii) Presenting a brief oral statement at the hearing, at the point in the proceedings specified by the presiding officer; and (iii) Submitting a brief or written statement when the parties submit briefs. The amicus curiae must serve copies of any briefs or written statements on all parties. (a) The presiding officer has the duty to conduct a fair hearing, to avoid delay, maintain order, and make a record of the proceedings. He or she has the authority necessary to accomplish those ends, including but not limited to authority to take the following actions: (1) Change the date, time, and place of the hearing after due notice to the parties. This includes authority to postpone or adjourn the hearing in whole or in part. In a hearing on disapproval of a State plan, or State plan amendments, changes in the date of the hearing are subject to the time limits imposed by section 1116(a)(2) of the Act. (2) Hold conferences to settle or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the issues. (3) Regulate participation of parties and amici curiae and require parties and amici curiae to state their position with respect to the various issues in the proceeding. (4) Administer oaths and affirmations. (5) Rule on motions and other procedural items, including issuance of protective orders or other relief to a party against whom discovery is sought. (6) Regulate the course of the hearing and conduct of counsel. (7) Examine witnesses. (8) Receive, rule on, exclude or limit evidence or discovery. (9) Fix the time for filing motions, petitions, briefs, or other items. (10) If the presiding officer is the Administrator, make a final decision. (11) If the presiding officer is a designee of the Administrator, certify the entire record including recommended findings and proposed decision to the Administrator. (12) Take any action authorized by the rules in this subpart or in conformance with the provisions of 5 U.S.C. 551 through 559. (b) The presiding officer does not have authority to compel by subpoena the production of witnesses, papers, or other evidence. (c) If the presiding officer is a designee of the Administrator, his or her authority pertains to the issues of compliance by a State with Federal requirements, and does not extend to the question of whether, in case of any noncompliance, Federal payments will be denied in respect to the entire State plan or only for certain categories under, or parts of, the State plan affected by the noncompliance. All parties may: (a) Appear by counsel or other authorized representative, in all hearing proceedings. (b) Participate in any prehearing conference held by the presiding officer. (c) Agree to stipulations as to facts which will be made a part of the record. (d) Make opening statements at the hearing. (e) Present relevant evidence on the issues at the hearing. (f) Present witnesses who then must be available for cross-examination by all other parties. (g) Present oral arguments at the hearing. (h) Submit written briefs, proposed findings of fact, and proposed conclusions of law, after the hearing. CMS and any party named in the notice issued under §430.70 has the right to conduct discovery (including depositions) against opposing parties. Rules 26–37 of the Federal Rules of Civil Procedures apply to such proceedings; there will be no fixed rule on priority of discovery. Upon written motion, the presiding officer promptly rules upon any objection to discovery action initiated under this section. The presiding officer also has the power to grant a protective order or relief to any party against whom discovery is sought and to restrict or control discovery so as to prevent undue delay in the conduct of the hearing. Upon the failure of any party to make discovery, the presiding officer may issue any order and impose any sanction (other than contempt orders) authorized by Rule 37 of the Federal Rules of Civil Procedure. (a) Evidentiary purpose. The hearing is directed to receiving factual evidence and expert opinion testimony related to the issues involved in the proceeding. Argument is not received in evidence. It must be presented in statements, memoranda, or briefs, as determined by the presiding officer. Brief opening statements, concerning the party's position and what he or she intends to prove, may be made at hearings. (b) Testimony. Testimony is given orally under oath or affirmation by witnesses at the hearing. Witnesses are available at the hearing for cross-examination by all parties. (c) Stipulations and exhibits. Two or more parties may agree to stipulations of fact. Those stipulations, and any exhibit proposed by any party, are exchanged before the hearing if the presiding officer so requires. (d) Rules of evidence. (1) Technical rules of evidence do not apply to hearings conducted under this subpart. However, rules or principles designed to ensure production of the most credible evidence available and to subject testimony to test by cross-examination are applied by the presiding officer when reasonably necessary. (2) A witness may be cross-examined on any matter material to the proceeding without regard to the scope of his or her direct examination. (3) The presiding officer may exclude irrelevant, immaterial, or unduly repetitious evidence. (4) All documents and other evidence offered or taken for the record are open to examination by the parties and an opportunity is given to refute facts and arguments advanced on either side of the issues. The presiding officer may immediately exclude from the hearing any person who— (a) Uses disrespectful, disorderly, or contumacious language or engages in contemptuous behavior; (b) Refuses to comply with directions; or (c) Uses dilatory tactics. Letters expressing views or urging action and other unsponsored written material regarding matters in issue in a hearing are placed in the correspondence section of the docket of the proceeding. These data are not considered part of the evidence or record in the hearing. (a) Filing. The official transcripts of testimony, together with any stipulations, briefs, or memoranda of law, are filed with CMS. (b) Availability of transcripts. CMS designates an official reporter for each hearing. Transcripts of testimony in hearings may be obtained from the official reporter by the parties and the public at rates not in excess of the maximum rates fixed by the contract between CMS and the reporter. (c) Correction of transcript. Upon notice to all parties, the presiding officer may authorize corrections that affect substantive matters in the transcript. The transcript of testimony, exhibits, and all papers and requests filed in the proceedings, except the correspondence section of the docket, including rulings and any recommended or initial decision constitute the exclusive record for decision. The presiding officer fixes the time for filing posthearing briefs, which may contain proposed findings of fact and conclusions of law. The presiding officer may also permit reply briefs. (a) Administrator presides. If the presiding officer is the Administrator, he or she issues the hearing decision within 60 days after expiration of the period for submission of posthearing briefs. (b) Administrator's designee presides. If the presiding officer is other than the Administrator, the procedure is as follows: (1) Upon expiration of the period allowed for submission of posthearing briefs, the presiding officer certifies the entire record, including his or her recommended findings and proposed decision, to the Administrator. The Administrator serves a copy of the recommended findings and proposed decision upon all parties and amici, if any. (2) Any party may, within 20 days, file with the Administrator exceptions to the recommended findings and proposed decision and a supporting brief or statement. (3) The Administrator reviews the recommended decision and, within 60 days of its issuance, issues his or her own decision. (c) Effect of Administrator's decision. The decision of the Administrator under this section is the final decision of the Secretary and constitutes “final agency action” within the meaning of 5 U.S.C. 704 and a “final determination” within the meaning of section 1116(a)(3) of the Act and §430.38. The Administrator's decision is promptly served on all parties and amici. (a) Scope of decisions. If the Administrator concludes that withholding of FFP is necessary because a State is out of compliance with Federal requirements, in accordance with §430.35, the decision also specifies— (1) Whether no further payments will be made to the State or whether payments will be limited to parts of the program not affected by the noncompliance; and (2) The effective date of the decision to withhold. (b) Consultation. The Administrator may ask the parties for recommendations or briefs or may hold conferences of the parties on the question of further payments to the State. (c) Effective date of decision. The effective date of a decision to withhold Federal funds will not be earlier than the date of the Administrator's decision and will not be later than the first day of the next calendar quarter. The provisions of this section may not be waived under §430.64.
Title 42: Public Health
PART 430—GRANTS TO STATES FOR MEDICAL ASSISTANCE PROGRAMS
Subpart D—Hearings on Conformity of State Medicaid Plans and Practice to Federal Requirements
§ 430.60 Scope.
§ 430.62 Records to be public.
§ 430.63 Filing and service of papers.
§ 430.64 Suspension of rules.
§ 430.66 Designation of presiding officer for hearing.
§ 430.70 Notice of hearing or opportunity for hearing.
§ 430.72 Time and place of hearing.
§ 430.74 Issues at hearing.
§ 430.76 Parties to the hearing.
§ 430.80 Authority of the presiding officer.
§ 430.83 Rights of parties.
§ 430.86 Discovery.
§ 430.88 Evidence.
§ 430.90 Exclusion from hearing for misconduct.
§ 430.92 Unsponsored written material.
§ 430.94 Official transcript.
§ 430.96 Record for decision.
§ 430.100 Posthearing briefs.
§ 430.102 Decisions following hearing.
§ 430.104 Decisions that affect FFP.
