New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIV - Office for People With Developmental Disabilities
Part 602 - Uniform Hearing Procedures
Section 602.9 - Second level rate and fee appeal procedure

Universal Citation: 14 NY Comp Codes Rules and Regs § 602.9

Current through Register Vol. 47, No. 12, March 26, 2025

(a) Applicability.

(1) Where a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling. This Part shall apply to and be controlling in all second level appeals of the following decisions pursuant to the Mental Hygiene Law and/or regulations issued pursuant thereto:
(i) Decisions on first level appeals to rates for intermediate care facilities for persons with developmental disabilities pursuant to section 681.2(d) of this Title.

(ii) Decisions on first level appeals to rates for specialty hospitals pursuant to section 680.12(e) of this Title.

(iii) Decisions on first level appeals to fees and rent appeals for community residences pursuant to section 686.13 of this Title.

(2) At the conclusion of the first level appeal process, the OPWDD shall notify the provider of any proposed revised rate, fee, or rent, or denial of same. The OPWDD shall inform the provider that, for any given rate or fee period, it may either accept the proposed revised rate, fee or rent or request a second level appeal in the event that the proposed revised rate, fee or rent fails to grant some or all of the relief requested in the first level appeal. In the event that a second level appeal is requested and the commissioner determines that no second level appeal issues are presented by a provider's request for a second level appeal, the proposed revised rate, fee or rent shall become final and shall be certified by the commissioner and forwarded to the State Division of the Budget for approval and subsequent payment. In the event that a second level appeal is requested and the commissioner determines that second level appeal issues are presented by a provider's request for a second level appeal, the proposed revised rate, fee or rent for the rate or fee period being appealed shall be without further force or effect and shall not be considered by the hearing officer or the commissioner in determining the second level appeal.

(3) If the OPWDD approves the revision to any rate, fee or rent at the conclusion of the first or second level of appeal, and if the State Division of the Budget fails to approve such revision, the provider shall have no further right to administrative review pursuant to this section.

(b) Request for second level appeal.

(1) The OPWDD's denial of the first level appeal of any or all of the relief requested in the appeals provided for in paragraph (a)(2) of this section shall be final, unless the provider requests a second level appeal to the commissioner in writing within 30 days of service of notification of denial or proposed revised rate.

(2) The request shall include: a copy of the office's notice to the provider on the first level appeal; a statement of the factual issues involved; a detailed statement and documentation of the provider's position as to each identified issue; the name and a current address of the person to be notified or communicated with for service of notice and other papers and, if the provider is represented by an attorney, the name and address of that attorney.

(c) Determination of appealable factual issues.

(1) Unless otherwise agreed to by all parties to the proceeding, the issues to be decided in the second level appeal shall be limited to those grounds of appeal and those specific items of expense which were the subject to the first level appeal. Any request for the inclusion of new material shall be denial unless the commissioner finds, after notice to the division of the office responsible for the first level appeal decision, and after giving that division 30 days to comment, compelling reasons for its omission during the first level appeal.

(2) Upon receipt of a request for a second level appeal, the commissioner shall review the request and identify those issues which have been appealed within the limits imposed by paragraph (b)(1) of this section, and those which raise issues of fact. A copy of the request for an appeal and the commissioner's preliminary identification of the issues shall be sent to the parties.

(3) The appeal shall be considered withdrawn by the provider 90 days after the provider's receipt of the commissioner's preliminary identification of the issues, unless the provider takes one of the following three actions:
(i) submits for the commissioner's approval a proposed settlement, as agreed to between the provider and the division of the office which decided the first level appeal; or

(ii) advises the commissioner that it intends to proceed with the appeal; or

(iii) advises the commissioner that the provider and the division of the office which decided the first level appeal have agreed to an extension of time. In that event, the appeal shall be considered withdrawn by the provider 90 days after the commissioner has been advised of the agreement, unless the provider again takes one of the three actions set forth in this paragraph.

(4) If the provider and the division of the office which decided the first level appeal agree to a proposed settlement of the identified issues for some, but not all of the rate or fee periods for which a second level appeal has been requested, such a settlement shall be submitted to the commissioner for approval, and the provider may proceed on the remaining rate or fee periods according to the procedures set forth in subparagraph (3)(ii) or (iii) of this subdivision. A rate or fee revised by OPWDD pursuant to an appeal shall not be considered final unless and until approved by the Division of the Budget.

(5) Upon notice that the provider wishes to proceed with the appeal, the commissioner shall send a proposed statement of issues to all parties. The parties shall have 30 days to reply and raise objections to the commissioner's inclusion, exclusion or statement of any issue.

(6) The commissioner shall, after the conclusion of the time provided for in paragraph (5) of this subdivision, determine whether a factual appealable issue is in dispute. If further information is needed to make the determination of whether there is an appealable factual issue, the commissioner shall direct the parties to provide the necessary information.

(7) If the commissioner determines there is no factual appealable issue, he or she shall deny the request for a second level appeal and notify the provider of such denial. There shall be no further administrative review of this determination.

(8) If the commissioner determines that there are factual appealable issue(s), the commissioner shall issue to the parties a notice of the second level appeal and a statement of the issue(s) to be decided. The notice of the second level appeal shall include a statement of the legal authority and jurisdiction under which the proceeding is to be held and a reference to the particular sections of the statutes and regulations at issue, if any. The parties shall also be advised of the name and address of the hearing officer appointed to hear the appeal.

(d) Burden of proof.

(1) In second level ICF/DD, specialty hospital, and community residence rate and fee appeals, the burden of proof shall be on the facility to demonstrate that the rate or fee requested in the second level appeal is necessary to meet the costs which must be incurred by an efficiently and economically operated facility of the same class of operating certificate. A facility is efficiently and economically operated when the funds requested are necessary:
(i) to operate the facility in compliance with all applicable State and Federal laws and regulations;

(ii) to provide necessary services in conformance with the total number of persons actually receiving services plus justified vacancies, up to the number of persons designated by the facility's operating certificate; and

(iii) when compliance with State and Federal laws and regulations by the provision of necessary services cannot be achieved in a more economic fashion.

(2) In second level rent appeals, the burden of proof shall be on the community residence to present sufficient evidence to demonstrate that an individual who has been admitted to the community residence is not able to pay the rent charged him or her.

(e) Development of written record.

(1) The provider and the OPWDD shall each participate in developing a written record consisting of relevant documents and statements for the hearing officer.

(2) Within 30 days after receiving the statement of issues, the provider shall submit the following to the hearing officer and a copy to the OPWDD:
(i) The documents supporting the appeal tabbed and organized chronologically and accompanied by an indexed list identifying each document. The provider shall include only those documents which are relevant to the issues in the case.

(ii) A written brief of the provider's argument concerning why the rate or fee requested is necessary to meet the costs which must be incurred by an efficiently and economically operated facility of the same class of operating certificate or why an individual is not able to pay the rent charged him or her.

(3) New evidence. When a provider wishes to submit new or additional facts expert opinions for review which were not part of the first level appeal, that provider must make a written request to the hearing officer. Such request shall include, in detail, the nature of the evidence and the reasons the evidence was not submitted for or considered at the first level appeal. A copy of the request shall be served on all other parties to the proceeding. A provider may introduce such evidence only after the hearing officer, in his or her discretion, grants the request after giving other parties 10 days to file written objections.

(4) Within 30 days after receiving the provider's submission under paragraph (2) of this subdivision, the OPWDD shall submit the following to the hearing officer and a copy to the provider:
(i) Any documents supporting the OPWDD's position, organized and indexed as indicated under paragraph (2) of this subdivision. The OPWDD shall avoid submitting duplicates of documents submitted by the provider.

(ii) A written brief responding to the provider's brief and stating the OPWDD's position.

(5) Reply briefs.
(i) Within 15 days after receiving the OPWDD's submission, the provider may submit a reply. The provider shall avoid repeating arguments already made.

(ii) Within 15 days after receiving the provider's reply brief, the OPWDD may submit a reply. The OPWDD shall avoid repeating arguments already made.

(6) All briefing shall end upon the expiration of the time limit provided for in subparagraph (4)(ii) of this subdivision unless, in the hearing officer's discretion, additional briefing is necessary to clarify any issues or material facts in order that the hearing officer may make a prompt and informed decision.

(7) The hearing officer may extend any of the time frames in this section.

(f) The hearing officer.

In addition to the authority vested in the hearing officer in section 602.2(h) of this Part, the hearing officer, at any time during the second level appeal, may remand all or part of the case back to the division of the office that decided the first level appeal.

(g) Stipulations and consent orders.

(1) The parties shall stipulate, to the fullest extent possible, to all issues which are relevant to the pending controversy. Included in matters required to be stipulated are all facts, all documents and papers or contents or aspects thereof, and all evidence which fairly should not be in dispute. Where the truth or authenticity of facts or evidence claimed to be relevant by one party is not disputed, an objection on the ground of materiality or relevance may be noted by any other party but is not to be regarded as just cause for refusal to stipulate. The requirement of stipulation applies under this section without regard to where the burden of proof may lie with respect to the controversies involved.

(2) At any time prior to the issuance of the commissioner's determination, the parties may enter into a stipulation for the resolution of any or all issues to which they had not previously stipulated.

(3) The commissioner may issue a consent order upon agreement or stipulation of the parties. A consent order shall have the same force and effect as the commissioner's determination issued after a second level appeal.

(h) Request for a hearing.

(1) The hearing officer will approve a request for an evidentiary hearing only if the hearing officer determines there is a need for expert testimony or other evidence which cannot or should not be presented in documentation, including the cross-examination of the author of any affidavit or other material attached to any party's submission(s) pursuant to subdivisions (c) and (e) of this section.

(2) If any party, believes an evidentiary hearing is appropriate, that party should specifically request one at the earliest possible time, setting forth the name of any proposed witness, his or her curriculum vitae, a synopsis of proposed testimony, including copies of any documents, pictures, etc., intended to be introduced and the reasons why such matters cannot or should not be presented in documentation.

(i) Hearing procedures.

(1) If an evidentiary hearing is granted by the hearing officer, the hearing officer shall issue a notice of hearing and statement of issues for the hearing in a format approved by the commissioner. In addition to the requirements of section 602.2(e) of this Part, such notice of hearing shall include a list of witnesses giving testimony.

(2) Notice of the hearing shall be served on the parties at least 10 days prior to the hearing date.

(3) Conduct of the evidentiary hearing and evidence. In addition to the requirements of section 602.2(k)(4) of this Part, the following shall apply:
(i) The party requesting the evidentiary hearing shall present its case first.

(ii) A party may introduce an exhibit at the hearing only after explaining to the satisfaction of the hearing officer why the exhibit was not submitted prior to the hearing.

(iii) The hearing officer may require any party to submit written statements of any witness(es) to the hearing officer and the opposing party at least 10 days prior to the hearing so that the hearing will be concerned with objections to the statement or parts thereof, cross-examination and rebuttal. The hearing officer may rule inadmissible any direct testimony not included in the written statements.

(j) The record before the hearing officer.

The record shall include: the provider's first level appeal request; the request for a second level appeal; the letter appointing the hearing officer; notice of the second level appeal; the statement of the issues; legal briefs, memoranda of law and supporting documentation; stipulations, if any; motions and requests submitted and rulings thereon; reports or transcripts of conferences, if made; if a hearing is held, the notice of hearing and statement of issues for the hearing, the transcript or recording of the testimony taken at the hearing and the exhibits; any written material which may have been submitted and filed in connection with the second level appeal; and any decision, determination, or order rendered.

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