6 Pa. Code § 22.95 - Formal appeals and hearings
(a)
Right to a formal hearing. If an applicant/claimant who has
filed an appeal under §
22.93 (relating to filing an
appeal) disagrees with the Department's letter ruling, the applicant/claimant
is entitled to a formal hearing on the complaint.
(b)
Notification of the
Department. If the appellant wishes to pursue an appeal to a formal
hearing, the appellant shall notify the Department in writing within 15
calendar days of the date of the letter ruling that the letter ruling is not
accepted and a formal hearing is requested.
(c)
Appointment of a hearing
examiner.
(1) When the Department
receives a request for a formal hearing as provided for under subsections (a)
and (b) the Secretary or the Secretary's designee will appoint a hearing
examiner to preside over the formal hearing.
(2) It shall be the responsibility of the
appointed hearing examiner to schedule the hearing and conduct it in accordance
with this chapter and 1 Pa. Code Part II (relating to general rules of
administrative practice and procedure).
(d)
Scheduling formal
hearings.
(1)
General
provisions.
(i) The hearing examiner
shall notify the appellant and the Department of the date, time and location of
the hearing at least 10 days prior to the selected date. This notification
shall include clear instructions relative to the appellant's opportunity to
have the hearing conducted by way of a telephone conference call, or face to
face, as provided for in subsection (e). This subparagraph supersedes 1 Pa.
Code §35.105 (relating to notice of
nonrulemaking proceedings).
(ii) A
prehearing conference may be held at the discretion of the hearing examiner.
This subparagraph is identical to 1 Pa. Code §35.111 (relating to conferences to
adjust, settle or expedite proceedings).
(iii) The hearing examiner shall complete the
hearing within 45 days of receipt of the assignment at the time the appointment
as hearing examiner is made.
(2)
Continuances.
(i) Hearings shall commence on the first day
scheduled and continuances may not be granted by the hearing examiner except
for good cause shown. A hearing examiner may only grant a second continuance in
extraordinary circumstances.
(ii)
Requests for a continuance shall be made in writing to the hearing examiner and
the Department.
(iii) The appellant
requesting a continuance shall first consult the Department to seek agreement
to the request. The request shall then indicate whether the request is
unopposed.
(iv) The Department's
objections, if any, to a request for continuance shall be in writing and
delivered to the hearing examiner and the appellant or the appellant's
representative. Objections shall be made immediately upon receipt of
notification of a request for a continuance.
(v) The period of a continuance granted to an
appellant may not be counted as part of the 45-day period required in
subsection (d)(1)(iii) to complete an assigned hearing.
(vi) Paragraph (2) supersedes 1 Pa. Code
§31.15(6) (relating
to extension of time).
(3)
Failure to appear at
hearing.
(i) If the appellant or the
appellant's representative fails to appear at the scheduled hearing without
good cause, as determined by the hearing examiner, the complaint shall be
deemed abandoned and shall be dismissed with prejudice.
(ii) If the Department fails to appear at the
hearings without good cause as determined by the hearing examiner, the hearing
shall proceed in absentia.
(iii) If
neither the appellant nor the Department or their representatives appear at the
hearing, the hearing examiner will reschedule the hearing.
(e)
Two hearing procedure
options.
(1) The Department will
provide appellants desiring formal hearings with the opportunity of having
their hearings conducted by way of a telephone conference call. This
opportunity will be provided in writing with the hearing examiner's
notification of the date, time and location of a scheduled hearing, and will
include clear instructions to the appellant for taking advantage of this
opportunity to avoid the time and travel to appear at a special hearing
location.
(2) Appellants who do not
wish to take advantage of the telephone conference call procedure may elect to
have a face-to-face hearing at one of several locations selected by the
Department. The hearing examiner's scheduling notification will include
instructions for electing a face-to-face hearing.
(3) This subsection supersedes 1 Pa. Code
§35.123 (relating to conduct of
hearings).
(f)
Purpose of formal hearings. The purpose of a hearing includes
all of the following:
(1) To give both the
appellant and the Department an opportunity to present testimony, witnesses and
documentary evidence relevant to the issue in question.
(2) To give both the appellant and the
Department an opportunity to cross examine the opposing party's
witnesses.
(3) To assure that
documents and records presented or referred to during the course of the hearing
are made part of the hearing transcript.
(4) To give the appellant an opportunity to
review pertinent evidence on which the adverse action was based. This may be
done at the prehearing conference, if one is held.
(g)
Hearing authority.
(1) The hearing authority is the
Secretary.
(2) The Secretary will
delegate to the hearing examiner the authority necessary to conduct the hearing
proceedings and to perform the following functions:
(i) Determine the facts.
(ii) Determine the appropriate regulations
that apply.
(iii) Interpret a
regulation when the regulation is ambiguous.
(iv) Interpret a directive of the Department
when the directive is ambiguous.
(v) Apply the facts to the law to determine
the correct result.
(vi) Recommend
that the Secretary adopt the result.
(3) The hearing examiner's recommendation
shall be submitted to the Secretary or the Secretary's designee within 30 days
of the conclusion of the hearing.
(4) Hearing examiners may not invalidate or
modify a Departmental regulation.
(5) Subsection (g) supplements 1 Pa. Code
§ 35.187.
(h)
Decision of the Secretary.
(1) The recommendation of the hearing
examiner shall be reviewed by the Secretary or the Secretary's
designee.
(2) After a
recommendation has been proposed by the hearing examiner, appellants will not
be afforded an opportunity to submit oral or written statements of their
position to the Secretary or the Secretary's designee.
(3) Findings of fact made by the hearing
examiner are subject to review and reversal by the Secretary. The Secretary or
the Secretary's designee may return the case to the hearing examiner for
further findings of fact.
(4) The
Secretary or the Secretary's designee will issue an opinion and order as soon
as possible after receiving the final recommendation of the hearing
examiner.
Notes
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