Section 1200-13-19-.10 - COMMENCEMENT OF CONTESTED CASE PROCEEDINGS(1) The appellant or his representative may request an appeal or a hearing by any clear expression, oral, written, or through other commonly available electronic means.(2) Upon determination that an appeal or a request for a hearing contains a valid factual dispute, the Agency will issue a notice of hearing as defined in this chapter. The notice of hearing must:(a) Contain a statement of the date, time, place, and nature of the hearing;(b) Inform the appellant of the right to be represented by counsel or another authorized person of his choice;(c) Contain a statement of the legal authority and jurisdiction under which the hearing will be held, including references to the specific statutes and rules involved;(d) Contain instructions to the appellant to notify the Agency if he requires a change in the schedule;(e) Provide a short and plain statement of the matters asserted and define the issues and refer to detailed statements of the matters involved, if available;(f) Provide information about hearing procedures, including the right to present written evidence and testimony and to bring witnesses and members of his family to the hearing.(g) Inform the appellant of his right to inspect the Agency file regarding the matter under appeal and to copy from the file.(3) Service of Notice of Hearing.(a) The Agency will provide the appellant or his representative with a copy of the notice of hearing by delivering it to the party electronically; by U.S. Mail; by certified mail; FedEx, UPS, or equivalent carrier; or by personal service. The notice will be sent a minimum of ten (10) days in advance of the date of the hearing. Delivery is presumed within five (5) days if sent by regular mail; the day following for expedited or overnighted delivery; the same day for electronic delivery and personal service.(b) Service of the notice of hearing will be made at the address required to be kept current by the applicant or recipient with the Agency by T.C.A. §§ 71-5-106(l) and 110(c)(1), and at the address provided with the request for hearing, if different from the address on file with the Agency. The Agency must use the best address known to it, whether provided directly by the applicant or recipient or obtained indirectly.(c) If there is a motion for default and there is no indication of actual service on a party, in determining whether to grant the default the Administrative Judge must consider the following: 1. Whether any other attempts at actual service were made;2. Whether and to what extent actual service is feasible in any given case;3. What attempts were made to make contact with the party electronically, by telephone, by regular mail, or otherwise; and4. Whether the Agency has actual knowledge or reason to know that the party may be located at an address other than the address to which the notice was mailed.(4) Supplemented Notice. In the event it is impractical or impossible to include every element required for notice in the notice of hearing, elements such as the time and place of the hearing may be supplemented in a later written notice.(5) Filing of Documents. When a contested case is commenced in which an Administrative Judge will be conducting the proceedings, the Agency will provide all the papers that make up the notice of hearing and all pleadings, motions, and objections, formal or otherwise, that have been provided to or generated by the Agency. Legible copies may be filed in lieu of originals.(6) Answer. The party may respond to the issues set out in the notice or other original pleading by filing a written answer with the Agency in which the party may: (a) Object to the notice upon the ground that it does not state acts or omissions upon which the Agency may proceed;(b) Object on the basis of lack of jurisdiction over the subject matter;(c) Object on the basis of lack of jurisdiction over the person;(d) Object on the basis of insufficiency of the notice;(e) Object on the basis of insufficiency of service of the notice;(f) Object on the basis of failure to join an indispensable party;(g) Generally deny all the allegations contained in the notice or state that he is without knowledge as to each and every allegation, both of which shall be deemed a general denial of all charges;(h) Admit in part or deny in part allegations in the notice and elaborate on or explain relevant issues of fact in a manner that will simplify the ultimate issues; and(i) Assert any available defense.(7) Amendment to Notice. The notice or other original pleading may be amended within two (2) weeks from service of the notice and before an answer is filed, unless it is shown that undue prejudice will result from this amendment. Otherwise the notice or other original pleading may only be amended by written consent of the parties or by leave of the Administrative Judge, and leave shall be freely given when justice so requires. No amendment to the notice may introduce a new statutory or regulatory basis for denial or termination of enrollment without original service and running of times applicable to service of the original notice. The Administrative Judge shall not grant a continuance to amend the notice or original pleading if it would prejudice the right to a hearing and Initial Order within any mandatory time frames.(8) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they will be treated as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time; but failure to amend for this reason does not affect the result of the determination of these issues. If evidence is objected to at the hearing on the ground that it is not within the issues in the pleadings, the Administrative Judge may allow the pleadings to be amended unless the objecting party shows that the admission of such evidence would prejudice his defense. The Administrative Judge may grant a continuance to enable the objecting party to have reasonable notice of the amendments. However, when the individual is not represented by counsel, the burden is on the Administrative Judge to rule on whether to allow additional evidence and the need for continuances to enable the party additional time to address the new grounds.(9) Pre-hearing Conference. (a) In any action set for hearing the Administrative Judge, upon his own motion or upon motion of a party or qualified representative, may direct the parties to appear before him for a conference to consider:1. The simplification of issues;2. The necessity or desirability of amendments to the pleadings;3. The possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;4. The limitation of the number of expert witnesses; or5. Other matters that may aid in the disposition of the action.(b) The Administrative Judge will enter an order reciting the action taken at the conference, the amendments allowed to the pleadings, the agreements made by the parties to the matters considered, and limiting the issues for hearing to those not disposed of by the admissions or agreements of the parties. When entered such order controls the subsequent course of the action, unless modified at the hearing to prevent manifest injustice.(c) If a pre-hearing conference is not held, the Administrative Judge may issue a pre-hearing order, based on the pleadings, to regulate the conduct of the proceedings.Tenn. Comp. R. & Regs. 1200-13-19-.10
Adopted effective May 6, 2015.Authority: T.C.A. §§ 4-5-208, 71-5-105 and 71-5-112; 42 U.S.C. §§ 1396 a(a)(3), (5), (8); 42 C.F.R. 431 Subpart E and 42 C.F.R. § 435.912.