SECTION 317:2-1-7. Program Integrity Audit Appeals

  All appeals related to audits originating from Program Integrity resulting in overpayments are heard by an Administrative Law Judge (ALJ) pursuant to 56 Oklahoma Statutes (O.S.) § 1011.9.

(1)   If the Oklahoma Health Care Authority (OHCA) determines a provider received an overpayment based upon audit findings/report issued pursuant to Oklahoma Administrative Code (OAC) 317:30-3-2.1, the provider may appeal the audit findings/report. If a provider elects to appeal the audit findings/report, the provider must file its appeal with the OHCA's Legal Docket Clerk, using Form LD-2. The LD-2 must be received by the OHCA Legal Docket Clerk within thirty (30) calendar days of the date of the initial audit findings/report or within thirty (30) calendar days of the date of the reconsideration audit findings/report. The computation of time shall be calculated in accordance with OAC 317:2-1-2(a).

(2)   The provider must attach a statement to the LD-2 that specifies what findings and/or claims are being appealed, as well as all factual and legal bases for the appeal. The provider shall attach the following to the LD-2 form:

(A)   Citations for any statute or rule that the provider contends has been violated;

(B)   The provider's name, address, e-mail address, and telephone number;

(C)   The name, address, e-mail address, and telephone number of the provider's authorized representative, if any; and

(D)   The LD-2 must be signed by the provider or provider's authorized representative.

(i)   For purposes of this section, "provider" means the person or entity against whom the overpayment is sought.

(ii)   Consistent with Oklahoma rules of practice, an individual provider may appear on his/her own behalf or may be represented by an attorney licensed to practice law within the State of Oklahoma. In the case of an entity, the provider entity must be represented by an attorney licensed to practice within the State of Oklahoma. Attorneys not licensed to practice in Oklahoma must comply with 5 O.S. Art II, Sec. 5, and rules of the Oklahoma Bar Association.

(3)   A provider or the provider's authorized representative shall immediately report any change in contact information during the course of the appeal to the OHCA Legal Docket Clerk.

(4)   The OHCA, on its own initiative or upon written request of a party, may consolidate or join appeals if to do so will expedite the processing of the appeals and not adversely affect the interest of the parties.

(5)   The provider has the burden of proof to prove that the overpayment determination and the errors identified in the audit findings/report are inaccurate. The provider must prove the relief sought by a preponderance of the evidence standard, as defined by the Oklahoma Supreme Court. In adjudicating an appeal under the preponderance of the evidence standard, the ALJ will examine each piece of evidence for relevance, probative value, and credibility, to determine whether the fact to be proven is proved by the greater weight of the evidence.

(6)   Within approximately forty-five (45) days of receiving the LD-2, the Legal Docket Clerk will schedule a prehearing conference before an ALJ. This period of time is intended to provide the parties an opportunity to settle the dispute prior to the prehearing. Settlement of audit appeals is encouraged and can begin at any time of the audit appeal process between the provider and OHCA's Legal Division. If a settlement is reached, the terms shall be set out in writing and signed by both parties and/or their authorized representatives. Unless otherwise warranted, an Agreed Order setting out the terms of the settlement shall be presented to the ALJ for approval. In limited situations, a settlement may be agreed to be a confidential settlement by the parties and will not be submitted as an Agreed Order to the ALJ. In the case of confidential settlements, the Appellant shall file a motion to dismiss the appeal with prejudice which informs the ALJ that the matter has been settled and that the audit appeal is moot.

(7)   Audit appeals which are not settled will commence with a prehearing conference before the assigned ALJ as follows:

(A)   The prehearing conference shall be informal, structured by the ALJ, and not open to the public. The ALJ shall record the prehearing conference by digital recording.

(i)   Each party shall be notified of the date of the prehearing conference at least thirty (30) calendar days prior to the scheduled prehearing conference.

(ii)   Each party shall appear in person or through their authorized representative.

(iii)   Witnesses, not including a named party, shall not appear at the prehearing conference. Nor shall any witness testimony be presented at the prehearing conference.

(B)   A request for continuance of a prehearing conference can be made up to three (3) business days prior to the scheduled prehearing conference date. A lesser period of time may be permitted for good cause shown. The ALJ shall rule on the request and in no case shall a combination of continuance exceed a total of thirty (30) calendar days except for good cause shown.

(C)   Within twenty (20) days prior to the prehearing conference, the Appellant provider shall file a prehearing conference statement with the Legal Docket Clerk and provide a copy to the other party; and within ten (10) days prior to the prehearing conference, the OHCA shall file a prehearing conference statement with the docket clerk and provide a copy to the other party. Each party's prehearing conference statement shall include:

(i)   A brief statement of its case, including a list of stipulations and legal and factual issues to be heard;

(ii)   A list of any witnesses who have direct knowledge of the facts surrounding the issues of the appeal and who are expected to be called at the hearing. The list shall include a brief statement of the testimony each witness will offer;

(iii)   A list of all exhibits, together with a copy thereof, which each party intends to offer into evidence at the hearing; and

(iv)   Any requests for discovery.

(D)   At the prehearing conference, the parties shall clarify and isolate the legal and factual issues involved in the audit appeal.

(E)   Each party shall be present, on time, and prepared. Failure to do so may result in dismissal of the appeal or other sanctions unless good cause is shown. A prehearing conference shall not be continued if a party fails to be prepared to identify issues, propose witnesses, or provide exhibits, unless the ALJ finds good cause is shown.

(F)   Following the prehearing conference, the ALJ shall issue a Scheduling Order setting forth deadlines for parties to complete discovery, submit briefs as directed by the ALJ, submit prehearing motions, and other deadlines as may be needed. The ALJ should attempt to issue the Scheduling Order within two (2) weeks of the prehearing conference. Upon completion of discovery and the submission of any motions or briefs, the ALJ shall issue a Prehearing Order that shall identify all issues to be presented at the hearing; a final list of witnesses to be called by each party; a final list of exhibits to be used by each party; and the hearing date and anticipated duration of the hearing. The Prehearing Order should be filed by the ALJ no later than ten (10) days prior to the hearing.

(8)   The ALJ shall:

(A)   Limit all decisions, rulings, and orders to matters directly related to the contested overpayment determination resulting from the audit findings issued pursuant to OAC 317:30-3-2.1 and procedural matters set forth within OAC 317:2-1-7;

(B)   Hear and rule on pending requests or motions as expeditiously as possible. This includes setting filing and responsive deadlines in accordance with Title 12 of the Oklahoma Statutes and the Rules for District Courts of Oklahoma. To preserve judicial efficiency, a reply to a response to a motion shall not be filed by a party without leave of Court to do so and such permission shall not be routinely granted;

(C)   Rule on whether witnesses have knowledge of the facts at issue;

(D)   Rule on whether discovery requests and other motions and requests are relevant;

(E)   Rule on whether to grant a party's request to depose a witness. To preserve judicial efficiency, depositions shall not be routinely permitted and shall only be permitted by order of the ALJ;

(F)   Strike or deny witnesses, documents, exhibits, discovery requests, and other requests or motions which are cumulative, not relevant, not material, used as a means of harassment, unduly burdensome, or not timely filed; and

(G)   Identify and rule on the specific audit findings being appealed and to be heard at the administrative hearing.

(9)   As the purpose of the administrative process is to expedite a limited appellate review of the audit findings, the ALJ shall ensure a timely resolution of the appeal. The ALJ shall schedule a hearing within ninety (90) days of the prehearing conference. A party may request a continuance of the hearing by motion, which shall only be permitted if the ALJ finds good cause exists and neither party shall be prejudiced by the continuation.

(10)   At the hearing:

(A)   Each party shall appear in person or through their authorized representative.

(B)   All witnesses must appear in person to provide testimony.

(C)   All relevant exhibits provided with and specifically identified in each party's prehearing conference statement or final exhibit list, that have not been objected to or stricken by the ALJ, shall be deemed admissible at the hearing.

(D)   Each party shall provide a sufficient number of copies of its own exhibits at the hearing. This is in addition to any other copies of exhibits that were previously produced prior to the hearing unless otherwise ordered by the ALJ.

(E)   The hearing will be limited to one (1) day. Each side will be allowed four (4) hours to present its case-in-chief, which is inclusive of any time needed for cross-examination of witnesses by the opposing party. For good cause shown, the ALJ may increase or decrease the time limit for each party to present its case-in-chief, taking into account the time limits of the entire appeal process.

(11)   The ALJ should attempt to make the final hearing decision within 90 days from the date of the hearing. Any appeal of the final order pursuant to 12 O.S. § 951 must be filed with the District Court of Oklahoma County within thirty (30) days.

(A)   The following items shall constitute the record on appeal:

(i)   all motions and orders filed with the Legal Docket Clerk;

(ii)   all exhibits admitted during the hearing; and

(iii)   the transcripts of proceedings, if any.

(B)   It shall be the duty of the Appellant in any District Court appeal to order a written transcript of proceedings to be used on appeal. The transcript must be ordered within 30 days of the filing of an appeal in the District Court and any costs associated with the preparation of the transcript shall be borne by the Appellant.

(12)   All orders and settlements are non-precedential decisions.

(13)   The prehearing conference, the hearing, and any supplementary hearings or conferences shall be digitally recorded and closed to the public.

(14)   The record of the appeal, confidential settlements, and any audio recordings shall remain confidential.

[Source: Added at 23 Ok Reg 761, eff 3-9-06 (emergency); Added at 23 Ok Reg 2430, eff 6-25-06; Amended at 26 Ok Reg 525, eff 1-2-09 (emergency); Amended at 26 Ok Reg 2073, eff 6-25-09; Amended at 26 Ok Reg 3020, eff 7-21-09 (emergency); Amended at 27 Ok Reg 925, eff 5-13-10; Amended at 28 Ok Reg 259, eff 11-15-10 (emergency); Amended at 28 Ok Reg 1376, eff 6-25-11; Amended at 31 Ok Reg 1625, eff 9-12-14; Amended at 33 Ok Reg 785, eff 9-1-16; Amended at 36 Ok Reg 850, eff 9-1-19]