(a) General.
This Section
sets forth the policies and procedures for appealing decisions made
by OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors adversely affecting
the rights and liabilities of CHAMPUS beneficiaries, CHAMPUS participating
providers, and providers denied the status of authorized provider
under CHAMPUS. An appeal under CHAMPUS is an administrative review
of program determinations made under the provisions of law and regulation.
An appeal cannot challenge the propriety, equity, or legality of
any provision of law or regulation.
(1) Initial determination.
(i) Notice of initial determination and right
to appeal.
(A) OCHAMPUS, OCHAMPUSEUR,
and CHAMPUS contractors shall mail notices of initial determinations
to the affected provider or CHAMPUS beneficiary (or representative)
at the last known address. For beneficiaries who are under 18 years
of age or who are incompetent, a notice issued to the parent, guardian,
or other representative, under established CHAMPUS procedures, constitutes
notice to the beneficiary.
(B) CHAMPUS
contractors and OCHAMPUSEUR shall notify a provider of an initial
determination on a claim only if the provider participated in the
claim.
(C) (See Sec. 199.7
of this part.) CHAMPUS peer review organizations shall notify providers
and fiscal intermediaries of a denial determination on a claim.
(D) Notice
of an initial determination on a claim processed by a CHAMPUS contractor
or OCHAMPUSEUR normally will be made on a CHAMPUS Explanation of
Benefits (CEOB) form.
(E) Each notice of
an initial determination on a request for benefit authorization,
a request by a provider for approval as an authorized CHAMPUS provider,
or a decision to disqualify or exclude a provider as an authorized
provider under CHAMPUS shall state the reason for the determination
and the underlying facts supporting the determination.
(F) In
any case when the initial determination is adverse to the beneficiary
or participating provider, or to the provider seeking approval as
an authorized CHAMPUS provider, the notice shall include a statement
of the beneficiary’s or provider’s right to appeal the determination.
The procedure for filing the appeal also shall be explained.
(ii) Effect
of initial determination.
(A) The initial determination is final unless appealed
in accordance with this chapter, or unless the initial determination
is reopened by the TRICARE Management Activity, the CHAMPUS contractor,
or the CHAMPUS peer review organization.
(B)
An
initial determination involving a CHAMPUS beneficiary entitled to
Medicare Part A, who is enrolled in Medicare Part B, may be appealed
by the beneficiary or their provider under this section of this
Part only when the claimed services or supplies are payable by CHAMPUS
and are not payable under Medicare. Both Medicare and CHAMPUS offer
an appeal process when a claim for healthcare services or supplies
is denied and most healthcare services and supplies are a benefit
payable under both Medicare and CHAMPUS. In order to avoid confusion
on the part of beneficiaries and providers and to expedite the appeal
process, services and supplies denied payment by Medicare will not
be considered for coverage by CHAMPUS if the Medicare denial of
payment is appealable under Medicare. Because such claims are not
considered for payment by CHAMPUS, there can be no CHAMPUS appeal. If,
however, a Medicare claim or appeal results in some payment by Medicare,
the services and supplies paid by Medicare will be considered for
payment by CHAMPUS. In that situation, any decision to deny CHAMPUS
payment will be appealable under this section. The following examples
of CHAMPUS appealable issues involving Medicare-eligible CHAMPUS
beneficiaries are illustrative; they are not all-inclusive.
(1) If Medicare processes a claim for a healthcare
service or supply that is a Medicare benefit and the claim is denied
by Medicare for a patient-specific reason, the claim is appealable
through the Medicare appeal process. The Medicare decision will
be final if the claim is denied by Medicare. The claimed services
or supplies will not be considered for CHAMPUS payment and there
is no CHAMPUS appeal of the CHAMPUS decision denying the claim.
(2) If Medicare processes a claim for a healthcare
service or supply that is a Medicare benefit and the claim is paid,
either on initial submission or as a result of a Medicare appeal
decision, the claim will be submitted to CHAMPUS for processing
as a second payer to Medicare. If CHAMPUS denies payment of the
claim, the Medicare-eligible beneficiary or their provider have
the same appeal rights as other CHAMPUS beneficiaries and their
providers under this section.
(3) If Medicare processes a claim and the
claim is denied by Medicare because it is not a healthcare service
or supply that is a benefit under Medicare, the claim is submitted
to CHAMPUS. CHAMPUS will process the claim under this Part 199 as
primary payer (or as secondary payer if another double coverage
plan exists). If any part of the claim is denied, the Medicare-eligible
beneficiary and their provider will have the same appeal rights
as other CHAMPUS beneficiaries and their providers under this section.
(2) Participation
in an appeal.
Participation
in an appeal is limited to any party to the initial determination,
including CHAMPUS, and authorized representatives of the parties.
Any party to the initial determination, except CHAMPUS, may appeal
an adverse determination. The appealing party is the party who actually
files the appeal.
(i) Parties to the initial determination.
For purposes
of the CHAMPUS appeals and hearing procedures, the following are
not parties to an initial determination and are not entitled to administrative
review under this section.
(A) A provider disqualified
or excluded as an authorized provider under CHAMPUS based on a determination
of abuse or fraudulent practices or procedures under another Federal
or federally funded program is not a party to the CHAMPUS action
and may not appeal under this section.
(B) A
beneficiary who has an interest in receiving care or has received
care from a particular provider cannot be an appealing party regarding
the exclusion, suspension, or termination of the provider under
Sec. 199.9 of this part.
(C) A sponsor or parent of a beneficiary under 18
years of age or guardian or an incompetent beneficiary is not a
party to the initial determination and may not serve as the appealing
party, although such persons may represent the appealing party in
an appeal.
(D) A third party, such as an insurance company,
is not a party to the initial determination and is not entitled
to appeal even though it may have an indirect interest in the initial
determination.
(E) A nonparticipating provider is not a party to
the initial determination and may not appeal.
(ii) Representative.
Any party
to the initial determination may appoint a representative to act
on behalf of the party in connection with an appeal. Generally,
the parent of a minor beneficiary and the legally appointed guardian
of an incompetent beneficiary shall be presumed to have been appointed representative
without specific designation by the beneficiary. The custodial parent
or legal guardian (appointed by a cognizant court) of a minor beneficiary
may initiate an appeal based on the above presumption. However,
should a minor beneficiary turn 18 years of age during the course
of an appeal, then any further requests to appeal on behalf of the
beneficiary must be from the beneficiary or pursuant to the written
authorization of the beneficiary appointing a representative. For
example, if the beneficiary is 17 years of age and the sponsor (who
is a custodial parent) requests a formal review, absent written
objection by the minor beneficiary, the sponsor is presumed to be
acting on behalf of the minor beneficiary. Following the issuance
of the formal review, the sponsor requests a hearing; however if,
at the time of the request for a hearing, the beneficiary is 18
years of age or older, the request must either be by the beneficiary
or the beneficiary must appoint a representative. The sponsor, in
this example, could not pursue the request for hearing without being
appointed by the beneficiary as the beneficiary’s representative.
(A) The
representative shall have the same authority as the party to the
appeal and notice given to the representative shall constitute notice
required to be given to the party under this part.
(B) To
avoid possible conflicts of interest, an officer or employee of
the United States, such as an employee or member of a Uniformed
Service, including an employee or staff member of a Uniformed Service
legal office, or a CHAMPUS advisor, subject to the exceptions in
18 U.S.C. 205, is not eligible to serve as a representative. An
exception usually is made for an employee or member of a Uniformed Service
who represents an immediate family member. In addition, the Director,
OCHAMPUS, or designee, may appoint an officer or employee of the
United States as the CHAMPUS representative at a hearing.
(3) Burden of proof.
The burden
of proof is on the appealing party to establish affirmatively by substantial
evidence the appealing party’s entitlement under law and this part
to the authorization of CHAMPUS benefits, approval of authorized
CHAMPUS provider status, or removal of sanctions imposed under Sec.
199.9 of this part. If a presumption exists under the provisions
of this part or information constitutes prima facie evidence
under the provisions of this part, the appealing party must produce evidence
reasonably sufficient to rebut the presumption or prima facie evidence
as part of the appealing party’s burden of proof. CHAMPUS shall
not pay any part of the cost or fee, including attorney fees, associated
with producing or submitting evidence in support of an appeal.
(4) Evidence in appeal and hearing cases.
Any relevant
evidence may be used in the administrative appeal and hearing process
if it is the type of evidence on which reasonable persons are accustomed
to rely in the conduct of serious affairs, regardless of the existence
of any common law or statutory rule that might make improper the
admission of such evidence over objection in civil or criminal courts.
(5) Late filing.
If a
request for reconsideration, formal review, or hearings is filed
after the time permitted in this section, written notice shall be
issued denying the request. Late filing may be permitted only if
the appealing party reasonably can demonstrate to the satisfaction
of the Director, OCHAMPUS, or a designee, that the timely filing
of the request was not feasible due to extraordinary circumstances
over which the appealing party had no practical control. Each request
for an exception to the filing requirement will be considered on
its own merits. The decision of the Director, OCHAMPUS, or a designee,
on the request for an exception to the filing requirement shall
be final.
(6) Appealable issue.
An appealable issue is required in order
for an adverse determination to be appealed under the provisions
of this section. Examples of issues that are not appealable under
this section include:
(i) A dispute regarding a requirement of the law
or regulation.
(ii) The
amount of the CHAMPUS-determined allowable cost or charge, since
the methodology for determining allowable costs or charges is established
by this part.
(iii) The establishment
of diagnosis-related groups (DRGs), or the methodology for the classification of
inpatient discharges within the DRGs, or the weighting factors that
reflect the relative hospital resources used with respect to discharges
within each DRG, since each of these is established by this part.
(iv) Certain
other issues on the basis that the authority for the initial determination
is not vested in CHAMPUS. Such issues include but are not limited
to the following examples:
(A) Determination of
a person’s eligibility as a CHAMPUS beneficiary is the responsibility
of the appropriate Uniformed Service. Although OCHAMPUS, OCHAMPUSEUR,
and CHAMPUS contractors must make determinations concerning a beneficiary’s
eligibility in order to ensure proper disbursement of appropriated
funds on each CHAMPUS claim processed, ultimate responsibility for resolving
a beneficiary’s eligibility rests with the Uniformed Services. Accordingly,
disputed question of fact concerning a beneficiary’s eligibility
will not be considered an appealable issue under the provisions
of this section, but shall be resolved in accordance with Sec. 199.3
of this part.
(B) Similarly,
decisions relating to the issuance of a Nonavailability Statement
(DD Form 1251) in each case are made by the Uniformed Services.
Disputes over the need for a Nonavailability Statement or a refusal
to issue a Nonavailability Statement are not appealable under this
section. The one exception is when a dispute arises over whether
the facts of the case demonstrate a medical emergency for which
a Nonavailability Statement is not required. Denial of payment in
this one situation is an appealable issue.
(C) Any sanction, including
the period of the sanction, imposed under Sec. 199.9 of this part
which is based solely on a provider’s exclusion or suspension by
another agency of the Federal Government, a state, or a local licensing
authority is not appealable under this section. The provider must
exhaust administrative appeal rights offered by the other agency
that made the initial determination to exclude or suspend the provider.
Similarly, any sanction imposed under Sec. 199.9 which is based
solely on a criminal conviction or civil judgment against the provider
is not appealable under this section. If the sanction imposed under
Sec. 199.9 is not based solely on the provider’s criminal conviction
or civil judgment or on the provider’s exclusion or suspension by
another agency of the Federal Government, a state, or a local licensing
authority, that portion of the CHAMPUS administrative determination
which is in addition to the criminal conviction/civil judgment or
exclusion/suspension by the other agency may be appealed under this
section.
(v) A decision by the Director, OCHAMPUS, or a designee,
as a suspending official when the decision is final under the provisions
of Sec. 199.9(h)(1)(iv)(A).
(7) Amount in dispute.
An amount in dispute is required for an
adverse determination to be appealed under the provisions of this
section, except as set forth below.
(i) The amount in dispute
is calculated as the amount of money CHAMPUS would pay if the services and
supplies involved in dispute were determined to be authorized CHAMPUS
benefits. Examples of amounts of money that are excluded by the
Regulation from CHAMPUS payments for authorized benefits include,
but are not limited to:
(A) Amounts in excess of the CHAMPUS-determined
allowable charge or cost.
(B) The beneficiary’s CHAMPUS deductible and cost-share
amounts.
(C) Amounts that the CHAMPUS beneficiary, or parent,
guardian, or other responsible person has no legal obligation to
pay.
(D) Amounts
excluded under the provisions of Sec. 199.8 of this part.
(ii) The
amount of dispute for appeals involving a denial of a request for
authorization in advance of obtaining care shall be the estimated
allowable charge or cost for the services requested.
(iii) There is no requirement
for an amount in dispute when the appealable issue involves a denial
of a provider’s request for approval as an authorized CHAMPUS provider
or the determination to exclude, suspend, or terminate a provider’s
authorized CHAMPUS provider status.
(iv) Individual
claims may be combined to meet the required amount in dispute if
all of the following exist:
(A) The claims involve the same beneficiary.
(B) The claims involve
the same issue.
(C) At least one of
the claims so combined has had a reconsideration decision issued
by OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer review organization.
Note: A
request for administrative review under this appeal process which
involves a dispute regarding a requirement of law or regulation
(paragraph (a)(6)(i) of this section) or does not involve a sufficient amount
in dispute (paragraph (a)(7) of this section) may not be rejected
at the reconsideration level of appeal. However, an appeal shall
involve an appealable issue and sufficient amount in dispute under these
paragraphs to be granted a formal review or hearing.
(8) Levels of appeal.
The sequence
and procedures of a CHAMPUS appeal vary, depending on whether the
initial determination was made by OCHAMPUS, OCHAMPUSEUR, a CHAMPUS
contractor, or a CHAMPUS peer review organization.
(i) Appeal levels for initial determination made
by OCHAMPUSEUR, CHAMPUS contractor, or CHAMPUS peer review organization.
(A) Reconsideration
by OCHAMPUSEUR, CHAMPUS contractor, or CHAMPUS peer review organization.
(B) Formal review by
OCHAMPUS (except for CHAMPUS peer review organization reconsiderations).
(C) Hearing.
(ii) Appeal levels
for initial determination made by OCHAMPUS.
(A) Reconsideration
by OCHAMPUSEUR or CHAMPUS contractor.
(B) Formal
review by OCHAMPUS except (1) initial determinations involving the
suspension of claims processing where the Director, OCHAMPUS, or
a designee, determines that additional proceedings are necessary
as to disputed material facts and the suspending official’s decision
is not final under the provisions of Sec. 199.9(h) (1)(iv)(A) or
(2) initial determinations involving the sanctioning (exclusion, suspension,
or termination) of CHAMPUS providers. Initial determinations involving
these matters shall be appealed directly to the hearing level.
(C) Hearing.
(9) Appeal decision.
An appeal
decision at any level may address all pertinent issues which arise under
the appeal or are otherwise presented by the information in the
case record (for example, the entire episode of care in the appeal),
and shall not be limited to addressing the specific issue appealed by
a party. In the case of sanctions imposed under Sec. 199.9, the
final decision may affirm, increase or reduce the sanction period
imposed by CHAMPUS, or otherwise modify or reverse the imposition
of the sanction.
(b) Reconsideration.
Any party to
the initial determination made by the CHAMPUS contractor, or a CHAMPUS
peer review organization may request reconsideration.
(1) Requesting a
reconsideration--
(i) Written request
required.
The request
must be in writing, shall state the specific matter in dispute,
and shall include a copy of the notice of initial determination
(such as the CEOB form) made by OCHAMPUSEUR, the CHAMPUS contractor,
or the CHAMPUS peer review organization.
(ii) Where to file.
The request
shall be submitted to the office that made the initial determination
(i.e., OCHAMPUSEUR, the CHAMPUS contractor, or the CHAMPUS peer
review organization) or any other CHAMPUS contractor designated
in the notice of initial determination.
(iii) Allowed time
to file.
The request
must be mailed within 90 days after the date of the notice of initial
determination.
(iv) Official filing
date.
A request
for a reconsideration shall be deemed filed on the date it is mailed and
postmarked. If the request does not have a postmark, it shall be
deemed filed on the date received by OCHAMPUSEUR, the CHAMPUS contractor
or the CHAMPUS peer review organization.
(2) The reconsideration process.
The purpose
of the reconsideration is to determine whether the initial determination
was made in accordance with law, regulation, policies, and guidelines
in effect at the time the care was provided or requested, or at
the time of the initial determination and/or reconsideration decision
involving a provider request for approval as an authorized provider
under CHAMPUS. The reconsideration is performed by a member of the
OCHAMPUSEUR, CHAMPUS contractor, or CHAMPUS peer review organization
staff who was not involved in making the initial determination and
is a thorough and independent review of the case. The reconsideration
is based on the information submitted that led to the initial determination,
plus any additional information that the appealing party may submit
or OCHAMPUSEUR, the CHAMPUS contractor, or CHAMPUS peer review organization
may obtain.
(3) Timeliness of reconsideration determination.
OCHAMPUSEUR,
the CHAMPUS contractor, or CHAMPUS peer review organization normally
shall issue its reconsideration determination no later than 60 days
from the date of receipt of the request for reconsideration by OCHAMPUSEUR,
the CHAMPUS contractor, or the CHAMPUS peer review organization.
(4) Notice of reconsideration
determination.
OCHAMPUSEUR,
the CHAMPUS contractor, or the CHAMPUS peer review organization
shall issue a written notice of the reconsideration determination
to the appealing party at his or her last known address. The notice
of the reconsideration must contain the following elements:
(i) A statement of
the issues or issue under appeal.
(ii) The provisions
of law, regulation, policies, and guidelines that apply to the issue
or issues under appeal.
(iii) A discussion
of the original and additional information that is relevant to the
issue or issues under appeal.
(iv) Whether the reconsideration
upholds the initial determination or reverses it, in whole or in
part, and the rationale for the action.
(v) A statement of
the right to appeal further in any case when the reconsideration
determination is less than fully favorable to the appealing party
and the amount in dispute is $50 or more.
(5) Effect of reconsideration determination.
The reconsideration
determination is final if either of the following exist:
(i) The amount in dispute
is less than $50.
(ii) Appeal rights have been offered, but a request
for formal review is not received by OCHAMPUS within 60 days of
the date of the notice of the reconsideration determination.
(c)
Formal review.
Except as explained
in this paragraph, any party to an initial determination made by
OCHAMPUS, or a reconsideration determination made by the CHAMPUS
contractor, may request a formal review by OCHAMPUS if the party
is dissatisfied with the initial or reconsideration determination
unless the initial or reconsideration determination is final under
paragraph (b)(5) of this section; involves the sanctioning of a
provider by the exclusion, suspension or termination of authorized
provider status; involves a written decision issued pursuant to
Sec. 199.9(h)(1)(iv)(A) regarding the temporary suspension of claims
processing; or involves a reconsideration determination by a CHAMPUS
peer review organization. A hearing, but not a formal review level
of appeal, may be available to a party to an initial determination
involving the sanctioning of a provider or to a party to a written
decision involving a temporary suspension of claims processing.
A beneficiary (or an authorized representative of a beneficiary),
but not a provider (except as provided in Sec. 199.15), may request
a hearing, but not a formal review, of a reconsideration determination
made by a CHAMPUS peer review organization.
(1) Requesting a
formal review.
(i) Written request
required.
The request
must be in writing, shall state the specific matter in dispute,
shall include copies of the written determination (notice of reconsideration
determination or OCHAMPUS initial determination) being appealed,
and shall include any additional information or documents not submitted
previously.
(ii) Where to file.
The request
shall be submitted to the Chief, Office of Appeals and Hearings, TRICARE
Management Activity, 16401 East Centretech Parkway, Aurora, Colorado
80011-9066.
(iii) Allowed time
to file.
The request
shall be mailed within 60 days after the date of the notice of the reconsideration
determination or OCHAMPUS initial determination being appealed.
(iv) Official filing
date.
A request
for a formal review shall be deemed filed on the date it is mailed
and postmarked. If the request does not have a postmark, it shall
be deemed filed on the date received by OCHAMPUS.
(2) The formal review
process.
The purpose
of the formal review is to determine whether the initial determination
or reconsideration determination was made in accordance with law,
regulation, policies, and guidelines in effect at the time the care
was provided or requested or at the time of the initial determination,
reconsideration, or formal review decision involving a provider
request for approval as an authorized CHAMPUS provider. The formal
review is performed by the Chief, Office of Appeals and Hearings,
OCHAMPUS, or a designee, and is a thorough review of the case. The
formal review determination shall be based on the information, upon
which the initial determination and/or reconsideration determination
was based, and any additional information the appealing party may submit
or OCHAMPUS may obtain.
(3) Timeliness of formal review determination.
The Chief,
Office of Appeals and Hearings, OCHAMPUS, or a designee normally
shall issue the formal review determination no later than 90 days
from the date of receipt of the request for formal review by the
OCHAMPUS.
(4) Notice of formal review determination.
The Chief,
Office of Appeals and Hearings, OCHAMPUS, or a designee shall issue
a written notice of the formal review determination to the appealing
party at his or her last known address. The notice of the formal
review determination must contain the following elements:
(i) A statement of
the issue or issues under appeal.
(ii) The provisions
of law, regulation, policies, and guidelines that apply to the issue
or issues under appeal.
(iii) A discussion
of the original and additional information that is relevant to the
issue or issues under appeal.
(iv) Whether the formal
review upholds the prior determination or determinations or reverses
the prior determination or determinations in whole or in part and
the rationale for the action.
(v) A statement of
the right to request a hearing in any case when the formal review
determination is less than fully favorable, the issue is appealable,
and the amount in dispute is $300 or more.
(5) Effect of formal review determination.
The formal review
determination is final if one or more of the following exist:
(i) The issue is not
appealable. (See paragraph (a)(6) of this section.)
(ii) The amount in
dispute is less than $300. (See paragraph (a)(7) of this section.)
(iii) Appeal rights
have been offered but a request for hearing is not received by OCHAMPUS
within 60 days of the date of the notice of the formal review determination.
(d)
Hearing.
Any party to
the initial determination may request a hearing if the party is
dissatisfied with the formal review determination and the formal
review determination is not final under the provisions of paragraph
(c)(5), of this section, or the initial determination involves the
sanctioning of a provider under Sec. 199.9 of this part and involves
an appealable issue.
(1) Requesting a hearing--
(i) Written request required.
The request shall be in writing,
state the specific matter in dispute, include a copy of the appropriate
initial determination or formal review determination being appealed,
and include any additional information or documents not submitted previously.
(ii) Where to file.
The request
shall be submitted to the Chief, Appeals and Hearings, OCHAMPUS, Aurora,
Colorado 80045-6900.
(iii) Allowed time
to file.
The request
shall be mailed within 60 days after the date of the notice of the initial
determination or formal review determination being appealed.
(iv) Official filing
date.
A request
for hearing shall be deemed filed on the date it is mailed and postmarked.
If a request for hearing does not have a postmark, it shall be deemed
filed on the day received by OCHAMPUS.
(2) Hearing process.
A hearing
is an administrative proceeding in which facts relevant to the appealable
issue(s) in the case are presented and evaluated in relation to
applicable law, regulation, policies, and guidelines in effect at
the time the care in dispute was provided or requested; at the time of
the initial determination, formal review determination, or hearing
decision involving a provider request for approval under CHAMPUS
as an authorized provider; or at the time of the act or event which
is the basis for the imposition of sanctions under this part. A
hearing, except for an appeal involving a provider sanction, generally
shall be conducted as a nonadversary, administrative proceeding.
However, an authorized party to any hearing, including CHAMPUS,
may submit additional evidence or testimony relevant to the appealable
issue(s) and may appoint a representative, including legal counsel,
to participate in the hearing process.
(3) Timeliness of
hearing.
(i) Except
as otherwise provided in this section, within 60 days following receipt
of a request for hearing, the Director, OCHAMPUS, or a designee,
normally will appoint a hearing officer to hear the appeal. Copies
of all records in the possession of OCHAMPUS that are pertinent
to the matter to be heard or that formed the basis of the formal
review determination shall be provided to the hearing officer and,
upon request, to the appealing party.
(ii) The
hearing officer, except as otherwise provided in this Section, normally
shall have 60 days from the date of written notice of assignment
to review the file, schedule and hold the hearing, and issue a recommended
decision to the Director, OCHAMPUS, or designee.
(iii) The
Director, OCHAMPUS, or designee, may delay the case assignment to
the hearing officer if additional information is needed that cannot
be obtained and included in the record within the time period specified
above. The appealing party will be notified in writing of the delay
resulting from the request for additional information. The Director,
OCHAMPUS, or a designee, in such circumstances, will assign the
case to a hearing officer within 30 days of receipt of all such
additional information, or within 60 days of receipt of the request
for hearing, whichever shall occur last.
(iv) The
hearing officer may delay submitting the recommended decision if,
at the close of the hearing, any party to the hearing requests that
the record remain open for submission of additional information.
In such circumstances, the hearing officer will have 30 days following
receipt of all such additional information including comments from
the other parties to the hearing concerning the additional information
to submit the recommended decision to the Director, OCHAMPUS, or
a designee.
(4) Representation at a hearing.
Any party
to the hearing may appoint a representative to act on behalf of
the party at the hearing, unless such person currently is disqualified
or suspended from acting in another Federal administrative proceeding,
or unless otherwise prohibited by law, this part, or any other DoD
regulation (see paragraph (a)(2)(ii) of this section). A hearing
officer may refuse to allow any person to represent a party at the
hearing when such person engages in unethical, disruptive, or contemptuous
conduct, or intentionally fails to comply with proper instructions
or requests of the hearing officer, or the provisions of this part.
The representative shall have the same authority as the appealing
party and notice given to the representative shall constitute notice
required to be given to the appealing party.
(5) Consolidation
of proceedings.
The Director, OCHAMPUS, or a designee,
may consolidate any number of proceedings for hearing when the facts
and circumstances are similar and no substantial right of an appealing
party will be prejudiced.
(6) Authority of the hearing officer.
The hearing
officer in exercising the authority to conduct a hearing under this
part will be bound by 10 U.S.C. chapter 55 and this part. The hearing
officer in addressing substantive, appealable issues shall be bound
by policy manuals, instructions, procedures, and other guidelines
issued by the ASD(HA), or a designee, or by the Director, OCHAMPUS,
or a designee, in effect for the period in which the matter in dispute
arose. A hearing officer may not establish or amend policy, procedures,
instructions, or guidelines. However, the hearing officer may recommend
reconsideration of the policy, procedures, instructions or guidelines
by the ASD(HA), or a designee, when the final decision is issued
in the case.
(7) Disqualification of hearing officer.
A hearing
officer voluntarily shall disqualify himself or herself and withdraw
from any proceeding in which the hearing officer cannot give fair
or impartial hearing, or in which there is a conflict of interest.
A party to the hearing may request the disqualification of a hearing
officer by filing a statement detailing the reasons the party believes
that a fair and impartial hearing cannot be given or that a conflict
of interest exists. Such request immediately shall be sent by the
appealing party or the hearing officer to the Director, OCHAMPUS,
or a designee, who shall investigate the allegations and advise
the complaining party of the decision in writing. A copy of such decision
also shall be mailed to all other parties to the hearing. If the
Director, OCHAMPUS, or a designee, reassigns the case to another
hearing officer, no investigation shall be required.
(8) Notice and scheduling
of hearing.
The hearing
officer shall issue by certified mail, when practicable, a written
notice to the parties to the hearing of the time and place for the
hearing. Such notice shall be mailed at least 15 days before the
scheduled date of the hearing. The notice shall contain sufficient
information about the hearing procedure, including the party’s right
to representation, to allow for effective preparation. The notice
also shall advise the appealing party of the right to request a
copy of the record before the hearing. Additionally, the notice
shall advise the appealing party of his or her responsibility to
furnish the hearing officer, no later than 7 days before the scheduled
date of the hearing, a list of all witnesses who will testify and
a copy of all additional information to be presented at the hearing.
The time and place of the hearing shall be determined by the hearing
officer, who shall select a reasonable time and location mutually
convenient to the appealing party and OCHAMPUS.
(9) Dismissal of
request for hearing.
(i) By application
of appealing party.
A request for hearing may be dismissed
by the Director, OCHAMPUS, or a designee, at any time before the
mailing of the final decision, upon the application of the appealing
party. A request for dismissal must be in writing and filed with
the Chief, Appeals and Hearings, OCHAMPUS, or the hearing officer.
When dismissal is requested, the formal review determination in
the case shall be deemed final, unless the dismissal is vacated
in accordance with paragraph (d)(9)(v) of this section.
(ii) By stipulation
of the parties to the hearing.
A request for a hearing may be dismissed
by the Director, OCHAMPUS, or a designee, at any time before to
the mailing of notice of the final decision under a stipulation
agreement between the appealing party and OCHAMPUS. When dismissal
is entered under a stipulation, the formal review decision shall
be deemed final, unless the dismissal is vacated in accordance with
paragraph (d)(9)(v) of this section.
(iii) By abandonment.
The Director,
OCHAMPUS, or a designee, may dismiss a request for hearing upon
abandonment by the appealing party.
(A) An
appealing party shall be deemed to have abandoned a request for
hearing, other than when personal appearance is waived in accordance
with Sec. 199.10(d)(11)(xii), if neither the appealing party nor
an appointed representative appears at the time and place fixed
for the hearing and if, within 10 days after the mailing of a notice
by certified mail to the appealing party by the hearing officer
to show cause, such party does not show good and sufficient cause
for such failure to appear and failure to notify the hearing officer
before the time fixed for hearing that an appearance could not be
made.
(B) An appealing party
shall be deemed to have abandoned a request for hearing if, before assignment
of the case to the hearing officer, OCHAMPUS is unable to locate
either the appealing party or an appointed representative.
(C) An
appealing party shall be deemed to have abandoned a request for
hearing if the appealing party fails to prosecute the appeal. Failure
to prosecute the appeal includes, but is not limited to, an appealing
party’s failure to provide information reasonably requested by OCHAMPUS
or the hearing officer for consideration in the appeal.
(D) If
the Director, OCHAMPUS, or a designee, dismisses the request for
hearing because of abandonment, the formal review determination
in the case shall be deemed to be final, unless the dismissal is
vacated in accordance with paragraph (d)(9)(v) of this section.
(iv) For cause.
The Director,
OCHAMPUS, or a designee, may dismiss for cause a request for hearing either
entirely or as to any stated issue. If the Director, OCHAMPUS, or
a designee, dismisses a hearing request for cause, the formal review
determination in the case shall be deemed to be final, unless the dismissal
is vacated in accordance with paragraph (d)(9)(v) of this section.
A dismissal for cause may be issued under any of the following circumstances:
(A) When the appealing
party requesting the hearing is not a proper party under paragraph
(a)(2)(i) of this section, or does not otherwise have a right to
participate in a hearing.
(B) When the appealing party who filed the hearing
request dies, and there is no information before the Director, OCHAMPUS,
or a designee, showing that a party to the initial determination
who is not an appealing party may be prejudiced by the formal review
determination.
(C) When the issue is not appealable (see Sec. 199.10(a)(6)).
(D) When the amount
in dispute is less than $300 (see Sec. 199.10(a)(7)).
(E) When all appealable
issues have been resolved in favor of the appealing party.
(v) Vacation of dismissal.
Dismissal of a request for hearing may
be vacated by the Director, OCHAMPUS, or a designee, upon written
request of the appealing party, if the request is received within
6 months of the date of the notice of dismissal mailed to the last
known address of the party requesting the hearing.
(10) Preparation
for hearing.
(i) Prehearing statement
of contentions.
The hearing officer may on reasonable
notice require a party to the hearing to submit a written statement
of contentions and reasons. The written statement shall be provided
to all parties to the hearing before the hearing takes place.
(ii) Discovery.
Upon
the written request of a party to the initial determination (including OCHAMPUS)
and for good cause shown, the hearing officer will allow that party
to inspect and copy all documents, unless privileged, relevant to
issues in the proceeding that are in the possession or control of
the other party participating in the appeal. The written request
shall state clearly what information and documents are required
for inspection and the relevance of the documents to the issues
in the proceeding. Depositions, interrogatories, requests for admissions,
and other forms of prehearing discovery are generally not authorized
and the Department of Defense does not have subpoena authority for
purposes of administrative hearings under this Section. If the hearing
officer finds that good cause exists for taking a deposition or
interrogatory, the expense shall be assessed to the requesting party,
with copies furnished to the hearing officer and the other party
or parties to the hearing.
(iii) Witnesses and
evidence.
All parties
to a hearing are responsible for producing, at each party’s expense,
meaning without reimbursement of payment by CHAMPUS, witnesses and
other evidence in their own behalf, and for furnishing copies of
any such documentary evidence to the hearing officer and other party
or parties to the hearing. The Department of Defense is not authorized
to subpoena witnesses or records. The hearing officer may issue
invitations and requests to individuals to appear and testify without
cost to the Government, so that the full facts in the case may be
presented.
(11) Conduct of hearing.
(i) Right to open
hearing.
Because
of the personal nature of the matters to be considered, hearings
normally shall be closed to the public. However, the appealing party
may request an open hearing. If this occurs, the hearing shall be
open except when protection of other legitimate Government purposes
dictates closing certain portions of the hearing.
(ii) Right to examine
parties to the hearing and their witnesses.
Each party to the hearing shall
have the right to produce and examine witnesses, to introduce exhibits,
to question opposing witnesses on any matter relevant to the issue
even though the matter was not covered in the direct examination,
to impeach any witness regardless of which party to the hearing
first called the witness to testify, and to rebut any evidence presented.
Except for those witnesses employed by OCHAMPUS at the time of the hearing,
or records in the possession of OCHAMPUS, a party to a hearing shall
be responsible, that is to say no payment or reimbursement shall
be made by CHAMPUS for the cost or fee associated with producing
witnesses or other evidence in the party’s own behalf, or for furnishing
copies of documentary evidence to the hearing officer and other
party or parties to the hearing.
(iii) Taking of evidence.
The hearing
officer shall control the taking of evidence in a manner best suited
ascertain the facts and safeguard the rights of the parties to the
hearing. Before taking evidence, the hearing officer shall identify
and state the issues in dispute on the record and the order in which evidence
will be received.
(iv) Questioning
and admission of evidence.
A hearing officer may question any
witness and shall admit any relevant evidence. Evidence that is
irrelevant or unduly repetitious shall be excluded.
(v) Relevant evidence.
Any relevant
evidence shall be admitted, unless unduly repetitious, if it is
the type of evidence on which responsible persons are accustomed
to rely in the conduct of serious affairs, regardless of the existence
of any common law or statutory rule that might make improper the admission
of such evidence over objection in civil or criminal actions.
(vi) CHAMPUS determination
first.
The basis
of the CHAMPUS determinations shall be presented to the hearing
officer first. The appealing party shall then be given the opportunity
to establish affirmatively why this determination is held to be
in error.
(vii) Testimony.
Testimony
shall be taken only on oath, affirmation, or penalty of perjury.
(viii) Oral argument
and briefs.
At the
request of any party to the hearing made before the close of the hearing,
the hearing officer shall grant oral argument. If written argument
is requested, it shall be granted, and the parties to the hearing
shall be advised as to the time and manner within which such argument
is to be filed. The hearing officer may require any party to the
hearing to submit written memoranda pertaining to any or all issues
raised in the hearing.
(ix) Continuance
of hearing.
A hearing
officer may continue a hearing to another time or place on his or
her own motion or, upon showing of good cause, at the request of
any party. Written notice of the time and place of the continued
hearing, except as otherwise provided here, shall be in accordance with
this part. When a continuance is ordered during a hearing, oral
notice of the time and place of the continued hearing may be given
to each party to the hearing who is present at the hearing.
(x) Continuance for
additional evidence.
If
the hearing officer determines, after a hearing has begun, that
additional evidence is necessary for the proper determination of
the case, the following procedures may be invoked:
(A) Continue hearing.
The hearing may be continued to a later
date in accordance with Sec. 199.10(d)(11)(ix), above.
(B) Closed hearing.
The hearing
may be closed, but the record held open in order to permit the introduction
of additional evidence. Any evidence submitted after the close of
the hearing shall be made available to all parties to the hearing,
and all parties to the hearing shall have the opportunity for comment.
The hearing officer may reopen the hearing if any portion of the
additional evidence makes further hearing desirable. Notice thereof
shall be given in accordance with paragraph (d)(8) of this section.
(xi) Transcript of
hearing.
A verbatim
taped record of the hearing shall be made and shall become a permanent
part of the record. Upon request, the appealing party shall be furnished
a duplicate copy of the tape. A typed transcript of the testimony
will be made only when determined to be necessary by OCHAMPUS. If
a typed transcript is made, the appealing party shall be furnished
a copy without charge. Corrections shall be allowed in the typed
transcript by the hearing officer solely for the purpose of conforming
the transcript to the actual testimony.
(xii) Waiver of right
to appear and present evidence.
If all parties waive their right
to appear before the hearing officer for presenting evidence and
contentions personally or by representation, it will not be necessary
for the hearing officer to give notice of, or to conduct a formal
hearing. A waiver of the right to appear must be in writing and
filed with the hearing officer or the Chief, Appeals and Hearings, OCHAMPUS.
Such waiver may be withdrawn by the party by written notice received
by the hearing officer or Chief, Appeals and Hearings, no later
than 7 days before the scheduled hearing or the mailing of notice
of the final decision, whichever occurs first. For purposes of this
Section, failure of a party to appear personally or by representation
after filing written notice of waiver, will not be cause for finding of
abandonment and the hearing officer shall make the recommended decision
on the basis of all evidence of record.
(12) Recommended
decision.
At the
conclusion of the hearing and after the record has been closed, the
matter shall be taken under consideration by the hearing officer.
Within the time frames previously set forth in this Section, the
hearing officer shall submit to the Director, OCHAMPUS, or a designee,
a written recommended decision containing a statement of findings
and a statement of reasons based on the evidence adduced at the
hearing and otherwise included in the hearing record.
(i) Statement of findings.
A statement of findings is a clear and
concise statement of fact evidenced in the record or conclusions
that readily can be deduced from the evidence of record. Each finding must
be supported by substantial evidence that is defined as such evidence
as a reasonable mind can accept as adequate to support a conclusion.
(ii) Statement of
reasons.
A reason is
a clear and concise statement of law, regulation, policies, or guidelines
relating to the statement of findings that provides the basis for
the recommended decision.
(e) Final decision.
(1) Director, OCHAMPUS.
The recommended
decision shall be reviewed by the Director, OCHAMPUS, or a designee,
who shall adopt or reject the recommended decision or refer the recommended
decision for review by the Assistant Secretary of Defense (Health
Affairs). The Director, OCHAMPUS, or designee, normally will take
action with regard to the recommended decision within 90 days of
receipt of the recommended decision or receipt of the revised recommended
decision following a remand order to the Hearing Officer.
(i) Final action.
If the
Director, OCHAMPUS, or a designee, concurs in the recommended decision,
no further agency action is required and the recommended decision,
as adopted by the Director, OCHAMPUS, is the final agency decision
in the appeal. In the case of rejection, the Director, OCHAMPUS,
or a designee, shall state the reason for disagreement with the
recommended decision and the underlying facts supporting such disagreement.
In these circumstances, the Director, OCHAMPUS, or a designee, may
have a final decision prepared based on the record, or may remand
the matter to the Hearing Officer for appropriate action. In the
latter instance, the Hearing Officer shall take appropriate action
and submit a new recommended decision within 60 days of receipt
of the remand order. The decision by the Director, OCHAMPUS, or
a designee, concerning a case arising under the procedures of this
section, shall be the final agency decision and the final decision
shall be sent by certified mail to the appealing party or parties.
A final agency decision under paragraph (e)(1) of this section will
not be relied on, used, or cited as precedent by the Department
of Defense in the administration of CHAMPUS.
(ii) Referral for
review by ASD(HA).
The Director, OCHAMPUS, or a designee,
may refer a hearing case to the Assistant Secretary of Defense (Health
Affairs) when the hearing involves the resolution of CHAMPUS policy
and issuance of a final decision which may be relied on, used, or
cited as precedent in the administration of CHAMPUS. In such a circumstance,
the Director, OCHAMPUS, or a designee, shall forward the recommended
decision, together with the recommendation of the Director, OCHAMPUS, or
a designee, regarding disposition of the hearing case.
(2) ASD(HA).
The ASD(HA),
or a designee, after reviewing a case arising under the procedures
of this section may issue a final decision based on the record in
the hearing case or remand the case to the Director, OCHAMPUS, or
a designee, for appropriate action. A decision issued by the ASD(HA),
or a designee, shall be the final agency decision in the appeal
and a copy of the final decision shall be sent by certified mail
to the appealing party or parties. A final decision of the ASD(HA),
or a designee, issued under this paragraph (e)(2) may be relied
on, used, or cited as precedent in the administration of CHAMPUS.
[51
FR 24008, Jul 1, 1986, as amended at 52 FR 33007, Sep 1, 1987; 54
FR 25255, Jun 14, 1989; 55 FR 43341, Nov 16, 1990; 56 FR 59880,
Nov 26, 1991; 66 FR 40607, Aug 3, 2001; 68 FR 11973, Mar 13, 2003; 68
FR 23033, Apr 30, 2003; 68 FR 32362, May 30, 2003; 69 FR 6920, Feb
12, 2004]