28 CA ADC § 1010
28 CCR s 1010
Cal. Admin. Code tit. 28, s 1010
CALIFORNIA CODE OF REGULATIONS
TITLE 28. MANAGED HEALTH CARE
DIVISION 1. THE DEPARTMENT OF MANAGED HEALTH CARE
CHAPTER 1. DEPARTMENT ADMINISTRATION
ARTICLE 2. ADMINISTRATION
This database is current through 06/09/06, Register 2006, No. 23.
s 1010. Consumer Participation Program.
(a) Intent and Regulatory Purpose.
The purpose of this regulation is to establish the Department's
substantive and procedural process and criteria, in accordance with
section 1348.9 of the Health & Safety Code for determining discretionary
awards, if any, of reasonable advocacy and witness fees to Participants on
the basis that the Participant Represent the Interests of Consumers in a
Proceeding, and has made Substantial Contribution to the Department in its
deliberations. Nothing in this article shall be construed to prohibit any
person from participating in a Proceeding if that person does not seek
compensation pursuant to this article.
(b) Definitions.
For purposes of this section, the following definitions shall apply:
(1) "Advocacy Fee" means expenses, incurred for in-house advocates or
billed, by a Participant for the services of an advocate in the
proceeding. An advocate need not be an attorney. Advocacy fees shall not
exceed market rates as defined in this section.
(2) "Compensation" means payment for all or part of the amount requested
by a Participant for advocacy fees and witness fees in any proceeding
relating to the adoption of any regulation or to an order or decision,
including a decision not to adopt a regulation, made by the Director.
(3) "Market Rate" means, with respect to advocacy and witness fees, the
prevailing rate for comparable services in the private sector in the Los
Angeles and San Francisco Bay Areas at the time of the Director's decision
awarding compensation to a Participant for attorney advocates,
non-attorney advocates, or experts with similar experience, skill and
ability. Billing rates shall not exceed the Market Rate.
(4) "Participant" means a person whose Request for Finding of Eligibility
to Participate, filed under subsection (c) or Petition to Participate,
filed under subsection (d) below, has been granted by the Director.
(5) "Proceeding" or "Administrative Proceeding" mean an administrative
decision-making process of the Department of Managed Health Care that
results in the adoption of a regulation, or in an order or decision of the
Director that has the potential to impact a significant number of
enrollees. For purposes of this Article, "order or decision made by the
Director" shall include a decision not to adopt a regulation or take an
action and shall not include resolution of individual grievances,
complaints, or cases.
(6) "Represents the Interests of Consumers" means that the person or
organization has a record of advocacy on behalf of health care consumers
in administrative or legislative proceedings. A party which represents, in
whole or in part, any entity regulated by the Department shall not be
eligible for compensation.
(7) "Submit to the Director" means to send material electronically to The
Director, at dmhc.ca.gov., or, for entities that do not have access to
e-mail, by mail to The Director, Department of Managed Health Care, 980
9th Street, Suite 500, Sacramento, CA 95814.
(8) "Substantial Contribution" means that the Participant significantly
assisted the Department in its deliberations by presenting relevant
issues, evidence, or arguments which were helpful, and seriously
considered, and the Participant's involvement resulted in more relevant,
credible, and non-frivolous information being available to the Director.
(9) "Verified" means executing a statement stating that the facts
contained in the Request for Finding of Eligibility to receive an award of
compensation are true and correct, to the best of their knowledge.
(10) "Witness Fees" means expenses, incurred or billed, by a Participant
for the services of an expert witness in the proceeding. Witness fees
shall not exceed market rates as defined in this section.
(c) Request for Finding of Eligibility to Participate and Seek
Compensation.
(1) A person who intends to seek an award under this article shall submit
to the Director a Request for Finding of Eligibility to Participate and
Seek Compensation, giving notice that it represents the interests of
consumers and of its intent to claim compensation. The request shall be
verified, and may be submitted at any time independent of the pendency of
a proceeding in which the person seeks to participate.
(2) The request shall contain:
a. The petitioner's name, mailing address, telephone number, and e-mail
address, if any.
b. A showing that the petitioner Represents the Interests of Consumers,
including a description of its experience in advocating on behalf of
health care consumers in administrative or legislative proceedings.
c. For petitioners that are organizations, the following information about
the organization:
1. Names, addresses, and titles of the members of the organization's
governing body,
2. A description of the organization's general purposes, size, and
structure,
3. Whether the organization is a nonprofit organization, and
4. Under what statute the organization is incorporated.
(3) Within 30 days of the receipt of the Request for Finding of
Eligibility to Participate, the Director shall rule on the requestor's
eligibility to participate and to seek an award of compensation. If the
Director finds that the requestor has met the requirements for
eligibility, the Director shall grant the request. A finding of
eligibility to seek compensation shall be valid in any proceeding in which
a Participant's involvement commences within two years of the finding of
eligibility so long as the Participant still Represents the Interests of
Consumers.
(4) A person found eligible to participate and seek compensation shall
promptly disclose to the Department any material changes in the
information submitted in its request.
(d) Procedure for Petition to Participate.
(1) Periodically, the Director may identify regulatory proceedings in
which he or she believes consumer participation would be helpful and
anticipates that fees may be awarded. Nothing in this subsection shall be
construed as limiting compensation only to those proceedings on the
Director's list, if any. A person desiring to participate in a proceeding
and seek an award of fees under this subsection shall submit
electronically to the Director a Petition to Participate, as described in
this subdivision. The request shall be submitted no later than the end of
the public comment period or the date of the first public hearing in the
proceeding in which the proposed Participant seeks to become involved,
whichever is later. For orders or decisions, the request shall be
submitted within ten working days after the order or decision becomes
final.
(2) The Petition to Participate shall contain the following:
a. The petitioner's name, mailing address, telephone number, and e-mail
address, if any.
b. An identification of the proceeding in which the petitioner seeks to
participate.
c. A clear and concise statement of the petitioner's interest in the
proceeding explaining why participation is needed.
d. A statement adopting or amending the information submitted in support
of the request for a determination of eligibility to participate and seek
compensation, or, if there has been no prior submission, a showing of
eligibility to participate on the basis that the petitioner Represents the
Interests of Consumers as set forth in subpart c of this section.
e. An estimate of the fees to be sought.
(3) Approval of a Petition to Participate shall not guarantee the payment
of the dollar amounts set forth in the estimate, or any amount whatever.
(4) Within 30 days of the receipt of a completed Petition to Participate,
the Director shall rule on whether the Petition to Participate shall be
granted. The petition may be denied if the Director determines that he or
she elects not to award compensation to any participants in that
proceeding, or that the petition does not meet the requirements of this
regulation or the governing statute.
(5) An amended estimate shall be submitted as soon as possible when the
Participant learns that the total estimated amount substantially
increases. The Director may approve or disapprove of an amended amount.
(e) Procedure for Applying For An Award Of Fees.
(1) Following the issuance of a final regulation, order or decision by the
Director in the proceeding, a Participant who has been found to be
eligible for an award of compensation may submit within 60 days an
application for an award of advocacy and witness fees. A Participant who
makes a Substantial Contribution may be eligible for full compensation.
(2) The application for an award of compensation shall be submitted
electronically to the designated departmental hearing officer and shall
include:
a. A detailed, itemized description of the advocacy and witness services
for which the Participant seeks compensation;
b. Legible time and/or billing records, created contemporaneously when the
work was performed, which show the date and the exact amount of time spent
on each specific task; and
c. A description of the ways in which the Participant's involvement made a
Substantial Contribution to the proceeding as defined in subpart (b)(8),
supported by specific citations to the record, Participant's testimony,
cross-examination, arguments, briefs, letters, motions, discovery, or any
other appropriate evidence.
(3) As used in this subdivision, the phrase "exact amount of time spent"
refers either to quarters (15 minutes) of an hour for attorneys, or to
thirty (30) minute increments for non-attorney advocates. The phrase "each
specific task," refers to activities including, but not limited to:
a. Telephone calls or meetings/conferences, identifying the parties
participating in the telephone call, meeting or conference and the subject
matter discussed;
b. Legal pleadings or research, or other research, identifying the
pleading or research and the subject matter;
c. Letters, correspondence or memoranda, identifying the parties and the
subject matter; and,
d. Attendance at hearings, specifying when the hearing occurred, subject
matter of the hearing and the names of witnesses who appeared at the
hearing, if any.
(4) Within 30 days after submission of the request, which will be posted
on the Department's web site, the Department or any other person
participating in the proceeding may file an objection to the request,
which must be submitted to the Department and sent to the claiming
Participant.
(5) If any person participating in the proceeding questions the Market
Rates or reasonableness of any amount set forth in an application for an
award of compensation, it shall disclose, in a verified declaration in
support of its memorandum, the fees and rates which it anticipates will
be, and which have been, billed or incurred for its advocates and
witnesses in connection with the proceeding.
(6) The hearing officer may request additional information or
documentation from the Participant to clarify or substantiate the claim,
and, if considered necessary by the hearing officer, may request
additional memoranda, and/or audit the records and books of the
Participant to the extent necessary to verify the basis for the amount
claimed in seeking the award.
(7) The hearing officer shall issue a written decision that determines
whether or not the Participant has made a substantial contribution to the
proceeding; and, if so, shall determine the amount of compensation to be
paid, which may be all or part of the amount claimed. The decision will be
posted promptly on the Department's web site and will be sent,
electronically or by mail, as appropriate, to all parties who participated
in the hearing.
(8) Within 30 days after posting and sending of the decision by the
hearing officer, a Participant who is dissatisfied with that decision may
appeal to the Director for review of the hearing officer's decision. The
notice of appeal should state the relief which the Participant is seeking
and the reasons why the decision by the hearing officer should be modified
or changed. The Director may request additional briefing if the Director
deems that would be helpful in reaching a decision. The review shall be of
the written record and limited to whether the hearing officer's decision
constituted an abuse of discretion. The Director's decision is final and
there is no further administrative remedy.
Note: Authority cited: Sections 1341 and 1344, Health and Safety Code.
Reference: Section 1348.9, Health and Safety Code.
HISTORY
1. New section filed 6-20-2003; operative 7-20-2003 (Register 2003, No.
25).
28 CA ADC s 1010
END OF DOCUMENT
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