(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]