Current through Register Vol. 46, No. 52, December 24, 2024
(a)
Where the applicant for State aid is a voluntary agency (or proposed
incorporators of the voluntary agency to be formed) there must be an agreement
between the voluntary agency and the local governmental unit pursuant to
section
41.15
(e) of the Mental Hygiene Law.
(b) Where the application is for an HFA or
FDC mortgage loan, except in the case of FDC mortgage loans to the extent that
they are for refinancing projects already certified under this section, there
must be certification by the local governmental unit in the city or county in
which the facility is located that the project is consistent with its plan for
the provision of services for persons with developmental disabilities. In the
case of HFA mortgage loan applications, such certification must be consistent
with the provisions of section
75.19 of
the Mental Hygiene Law.
(c) An
applicant may appeal to the commissioner from the local governmental unit's
denial of the agreement or certification required in subdivisions
621.13(a) and (b)
of this section following a written request from the applicant as follows:
(1) within 30 days from the date that the
applicant has been notified of the refusal of the local governmental unit to
approve or certify; or
(2) within
30 days after the local governmental unit's failure to approve or
certify.
(d) An appeal
may be made only where the application for an agreement or certification to the
local governmental unit by the applicant does not involve the direct
expenditure of local tax levy funds.
(e) An appeal to the commissioner pursuant to
subdivision (c) of this section must be in writing with a copy to the local
governmental unit and to the local Developmental Disabilities Service Office
(see glossary, section
621.17 of this Part).
(1) The written appeal must include the
following information, if such information has been changed from that which was
provided in the applicants approved certification of need application:
(i) the details of the program which the
applicant has proposed;
(ii) the
need for the program in the community; and
(iii) a showing that the applicant has the
capacity to furnish the services. Specific detail must be shown that the
applicant would be able to provide the place, the personnel and the
organizational structure to effectuate the proposed program. The applicant must
also show that it has the financial ability to provide sufficient funds to
match State aid, where applicable.
(2) In addition, the written appeal must set
forth facts showing the following:
(i) the
applicant has submitted a written specific proposal to the local governmental
unit for the project in a timely manner; and
(ii) a copy of the decision of the local
governmental unit to refuse to agree to the proposal or sufficient facts to
show that the local governmental unit has failed to approve or certify the
applicant's project within 30 days of submittal.
(3) Upon receipt of the written request for
an appeal, OPWDD will notify the local governmental unit of this request.
(i) Within 30 days of the date of receipt of
such notification from OPWDD, the local governmental unit may reply in writing
to OPWDD regarding the applicant's request for an appeal. In its reply the
local governmental unit shall set forth the following facts:
(a) a substantial basis for its decision not
to approve or certify; or
(b) the
reason for its failure to approve or certify.
The local governmental unit shall forward a copy of its
reply, personally or by mail, to the applicant.
(ii) Every effort shall be made by OPWDD to
conciliate the applicant and the local governmental unit. Informal sessions may
be arranged for a discussion of the issues and an attempt to resolve the appeal
without further formal procedure.
(4) No later than 15 days of the date OPWDD
receives the local governmental unit's reply to the applicant's request for an
appeal, or if no reply is received, the commissioner shall:
(i) dismiss the appeal if the appeal is
clearly without merit based on the facts provided to the commissioner by the
applicant and/or the local governmental unit; or
(ii) schedule a hearing, if a substantial
basis for appeal has been presented by the applicant, and the efforts of OPWDD
at conciliation have failed.
(5) If a hearing is scheduled, it shall be
held before the commissioner at a time or times fixed by the commissioner.
(i) Written notice of the hearing shall be
given to the applicant, the local governmental unit and such other persons as
the commissioner may deem advisable.
(ii) The hearing shall not be adjudicatory in
nature and the rules applying to quasi-judicial hearings shall not apply. The
applicant, the representatives of the local governmental unit, appropriate
staff members of OPWDD and other interested individuals may present their views
to the commissioner on the merits of the appeal.
(iii) Whenever possible, the commissioner
shall designate a place in the county seat of the county from which the appeal
has arisen for the conduct of the hearing.
(6) Within 15 days after the date that the
hearing has closed, a decision shall be made by the commissioner on whether the
appeal is meritorious. The commissioner shall notify the local governmental
unit and the applicant of his decision. In every case where the appeal has been
found meritorious, the requirement for local governmental unit agreement or
certification shall be deemed to have been satisfied.
