La. Admin. Code tit. 48 § I-4643

Current through Register Vol. 50, No. 11, November 20, 2024

Section I-4643 - Administrative Appeal Process

A. Any party may appear and be heard at an appeal proceeding through an attorney at law or designated representative. A designated representative must file a written notice of appearance on behalf of the facility identifying him/herself by name, address and telephone number, and identifying the party represented in addition to written authorization to appear on behalf of the facility.

B. The administrative appeal hearing shall be conducted by an administrative law judge (ALJ) or his or her successor from the DAL.

C. Preliminary Conferences

1. The ALJ may schedule a preliminary conference.

2. The purposes of a preliminary conference, if scheduled, include, but are not limited to the following:

a. clarification, formulation and simplification of issues(s);

b. resolution of matters in controversy;

c. exchange of documents and information;

d. stipulations of fact so as to avoid unnecessary introduction of evidence at the formal review;

e. the identification of witnesses; and

f. such other matters that may aid in the disposition of the issues.

3. When the ALJ schedules a preliminary conference, all parties shall be notified in writing. The notice shall direct any parties and their attorneys to appear at a specified date, time and place.

4. Where the preliminary conference resolves all or some matters in controversy, a summary of the findings agreed to at the conference shall be provided to all parties.

5. Where the preliminary conference does not resolve all matters in controversy, an administrative hearing shall be scheduled on those matters still in controversy.

D. Hearings

1. When an administrative hearing is scheduled, the facility and/or its attorney and the agency representative, shall be notified in writing of the date, time and place of the hearing.

2. Evidence. The taking of evidence shall be controlled in a manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the issues shall be explained, and the order in which the evidence will be received shall be explained.

a. Testimony shall be taken only on oath, affirmation or penalty of perjury.

b. Each party shall have the right to:

i. call and examine witnesses;

ii. introduce exhibits;

iii. question opposing witnesses and parties on any matter relevant to the issue even though the matter was not covered in the direct examination; and

iv. impeach any witness regardless of which party first called him to testify; and

v. rebut the evidence against him.

c. The administrative law judge (ALJ) may question any party or witness and may admit any relevant and material evidence.

d. Each party shall arrange for the presence of their witnesses at the hearing.

e. A subpoena to compel the attendance of a witness may be issued by the ALJ upon written request by a party and showing the need therefore, or by the ALJ on his own motion.

f. An application for a subpoena duces tecum for the production by a witness of books, papers, correspondence, memoranda, or other records shall be:

i. in writing to the ALJ;

ii. give the name and address of the person or entity upon whom the subpoena is to be served;

iii. precisely describe the material that is desired to be produced;

iv. state the materiality thereof to the issue involved in the proceeding; and

v. include a statement indicating that to the best of the applicant's knowledge, the witness has such items in his possession or under his control.

3. The facility has the burden to prove that the imposition of a sanction was erroneous.

4. An audio recording of the hearing shall be made. A transcript will be prepared and reproduced at the request of a party to the hearing, provided he bears the cost of a copy of the transcript.

5. At the conclusion of the hearing, the ALJ may take the matter under submission.

6. Specific written findings as to each issue contested by the facility shall be made.

7. The ALJ has the authority to affirm, reverse, or modify the sanction(s) imposed by the department.

8. The ALJ does not have the authority to:

a. rescind or amend any violation of federal law, statute, or regulation found by LDH on behalf of CMS; or

b. amend or rescind any violation of state law, statute, rule or manual in an appeal of a civil fine or of any other sanction, except license revocation, suspension and non-renewal.

9. Such findings shall be submitted in writing to the facility at its last known address and to the department and other affected parties.

E. Continuances

1. A hearing may be continued to another time or place, or a further hearing may be ordered by the ALJ on his own motion or upon showing of good cause, at the request of any party.

2. Where the ALJ determines that additional evidence is necessary for the proper determination of the case, he/she may, at his/her discretion:

a. continue the hearing to a later date and order the party to produce additional evidence; or

b. close the hearing and hold the record open in order to permit the introduction of additional documentary evidence.

3. Any evidence so submitted shall be made available to both parties and each party shall have the opportunity for rebuttal.

4. Written notice of the time and place of a continued or further hearing shall be provided to each party, except that when a continuance of further hearing is ordered during a hearing, oral notice of the time and place of the hearing may be given to each party present at the hearing.

F. If a facility representative fails to appear at a hearing, the appeal may be dismissed and the departmental findings made final. A copy of the decision shall be mailed to each party.

La. Admin. Code tit. 48, § I-4643

Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 39:3083 (November 2013), Amended LR 491218 (7/1/2023).

AUTHORITY NOTE: Promulgated in accordance with R.S. 40:2009.11, 40:2009.23, 40:2199 and 40:2199.1.