Section 465IAC2-17-28. Appeal of the administrative payment and other cost based rates

   (a) A CPA may request an appeal of the department administrative review decision under section 27 of this rule by submitting a written request within fifteen (15) days of receipt of the notice specified in section 27(e) of this rule for appeal under the applicable provisions of IC 4-21.5-3-7(a).

  (b) Except as otherwise provided in this section, all provisions of IC 4-21.5-3 apply to appeals requested under subsection (a).

  (c) The following provisions of IC 4-21.5-3 do not apply to appeals under this section:

(1) IC 4-21.5-3-4.

(2) IC 4-21.5-3-6.

(3) IC 4-21.5-3-8, relating to sanctions and temporary orders.

(4) IC 4-21.5-3-14(c), relating to burden of proof.

  (d) The general counsel of the department will designate administrative law judges for purposes of appeals under this section.

  (e) In any appeal under this section the CPA has the burden of proof and the burden of persuasion to establish, by a preponderance of the evidence, that the department's decision following the administrative review is erroneous, based on a reason specified in section 27(a) of this rule.

  (f) Unless a continuance is granted under subsection (g), the assigned administrative law judge will hold an administrative hearing not more than sixty (60) days after the department receives the written request. Unless a continuance is granted as provided in this section, hearings will be scheduled and held in the order in which the appeals are assigned to the administrative law judge, taking into consideration administrative hearings requested in other pending matters and any applicable deadlines established by law or rule.

  (g) The administrative law judge may grant a continuance of the date for a hearing scheduled in accordance with subsection (f), for any of the following reasons:

(1) The petitioner files a written motion for continuance specifying the reasons for the request and alternate dates when the petitioner will be available and prepared to go forward with the hearing.

(2) The department files a written motion for continuance for good cause, determined under subsection (h).

(3) The administrative law judge orders a continuance for good cause, determined under subsection (i).

  (h) The following shall constitute good cause for granting a continuance of a scheduled hearing date requested by the department:

(1) A necessary witness, or the counsel or other necessary representative of the department, is or will be unavailable on the scheduled hearing date, for a reason or reasons that could not have been anticipated at the time the hearing was scheduled.

(2) A motion or other proceeding relating to the appeal is pending that could be dispositive of the appeal, or otherwise materially affect the course or conduct of the hearing.

(3) Any other good cause, as determined by the administrative law judge at a prehearing conference on the motion for continuance.

  (i) The following shall constitute good cause for granting a continuance of a scheduled hearing date on motion of the administrative law judge:

(1) Unanticipated congestion of the hearing calendar of the assigned administrative law judge.

(2) Unavailability of the assigned administrative law judge due to unforeseen circumstances, or a change in the judge assigned to the appeal for a reason consistent with any provision of IC 4-21.5-3.

(3) Any other good cause, as determined by the general counsel of the department or the general counsel's designee.

A continuance under this subsection shall be granted by a written order stating the reason or reasons for the continuance and entered in the record of the proceedings.

  (j) If a hearing continuance is granted under subsection (g) the administrative law judge shall promptly schedule and conduct a prehearing conference under IC 4-21.5-3-18 to address the rescheduling of the hearing and any other matters relating to expediting decision of the appeal or otherwise resolving the issues presented.

  (k) The administrative law judge may, with the consent of the parties, consolidate two (2) or more pending appeals that involve the same or substantially similar facts or issues, for purposes of a hearing and decision under this section.

  (l) Unless an extension of time is granted by the general counsel of the department for good cause stated on the record, an administrative law judge will issue a decision within ninety (90) days after completion of the hearing.

  (m) Under IC 4-21.5-3-34 and IC 4-21.5-3-35, the department may by policy provide additional procedures to facilitate the expeditious conduct and disposition of administrative appeals under this section, or informal settlement of matters that are the subject of administrative appeals, not inconsistent with the provisions of this rule and applicable provisions of IC 4-21.5-3. A copy of any written policies or procedures relating to administrative appeals to which this section applies will be provided to each party or designated representative upon receipt of an appeal submitted under this section. (Department of Child Services; 465 IAC 2-17-28; filed May 25, 2011, 1:33 p.m.: 20110622-IR-465100417FRA)