Current through Register Vol. 54, No. 12, March 23, 2024
The designated planning agency will grant to an applicant
an opportunity for a fair hearing with respect to the findings and
recommendations of the designated planning agency. The procedures for a fair
hearing shall be as follows:
(1)
Request for hearing. Requests for hearing shall conform with
the following:
(i) Requests for hearing shall
be made in writing to the designated planning agency within 30 days after the
applicant receives notice of the designated planning agency's findings and
recommendations. The request for hearing shall be in the form of a pleading. It
shall indicate which of the issues specified in this subsection the applicant
wishes to raise and shall set forth the facts and the law upon which the
applicant relies. A mere general assertion that the capital expenditure is
consistent with standards, criteria or plans or that the designated planning
agency committed prejudicial error, or the like, will not be considered as
complying with this subsection. The Hearing Officer may strike a portion of a
request for hearing which does not comply with this subsection, or, in the
alternative, may permit the applicant to make its request more specific. In the
latter event, the hearing shall be commenced within 30 days of the filing of
the amended request for hearing.
(ii) Subparagraph (i) supplements 1 Pa. Code
§
35.17 (relating to petitions
generally).
(2)
Commencement and procedure. Commencement and procedure shall
conform with the following:
(i) The hearing
shall be commenced within 30 days after receipt of the request described in
subsection (c)(1) (or later, at the option of the person requesting the
hearing), and shall be conducted in accordance with the regulations contained
in this subsection and 1 Pa. Code Part II (relating to general rules of
administrative practice and procedure); provided that, whenever the general
rules of administrative practice and procedure are inconsistent with this
subsection, the latter shall control.
(ii) The following provisions of the general
rules of administrative practice and procedure are inapplicable to hearings
held under this subsection: 1 Pa. Code §§
35.190,
35.201-35.203,
35.211-35.214,
35.221,
35.225,
35.226,
35.231-35.233,
35.241 and
35.251 (relating to appeals to
agency head from rulings of presiding officers; certification of record without
proposed report; proceedings in which proposed reports are prepared;
unavailability of presiding officer; exception to proposed reports; briefs and
argument in absence of proposed report; decisions; reopening of record;
application for rehearing or reconsideration; and reports of
compliance).
(3)
Hearing officer. Hearing officers shall conform with the
following:
(i) Hearings shall be conducted by
an agency or person, other than the designated planning agency, as the Governor
designates for that purpose; provided, that no agency which or person who has
taken part in a prior consideration of or action upon the proposed capital
expenditure may conduct the hearing.
(ii) Subparagraph (i) supersedes 1 Pa. Code
§
35.123 (relating to conduct of
hearings).
(4)
Open to the public. The hearing shall be open to the public
and shall be publicized through local newspapers and public information
channels.
(5)
Testimony
from the public. Testimony from the public shall conform with the
following:
(i) The person proposing the
capital expenditure, the other agency described §
301.4(i)(iii)
(relating to designation; review of proposed capital expenditures) and other
interested parties, including members of the public and representatives of
consumers of health services, shall be permitted to give testimony and present
arguments at the hearing without formally intervening. Reference should be made
to 1 Pa. Code §§
35.27-35.32 (relating to intervention).
The testimony and arguments shall be presented after the testimony of the
designated planning agency, the applicant, and any intervening parties has been
heard but may be presented, at the discretion of the Hearing Officer, at any
other convenient time. When the testimony is presented, parties may
cross-examine the witness.
(ii)
Subparagraph (i) supplements 1 Pa. Code §§
35.27-35.32 and
35.125(b)
(relating to order of procedure).
(6)
Scope of the fair
hearing. The scope of the fair hearing shall be as follows:
(i) Hearings shall be limited to the
following issues the applicant raises:
(A)
Whether the findings and recommendations of the designated planning agency are
supported by substantial evidence.
(B) Whether there was a violation of the
constitutional or statutory rights of the applicant or a prejudicial procedural
error in the review of the proposed capital expenditure.
(ii) The following issues may not be
considered at a hearing:
(A) The correctness,
adequacy or appropriateness of the standards, criteria or plans against which
the proposed expenditure was measured.
(B) Whether the proposed expenditure is
subject to review by the designated planning agency.
(iii) Subparagraphs (i) and (ii) supplements
1 Pa. Code §
35.162 (relating to reception and
ruling on evidence).
(7)
Burden of going forward; burden of proof. Procedures shall be
as follows:
(i) Unless the Hearing Officer,
for good cause, orders otherwise, the designated planning agency will proceed
first with its case, followed by the applicant's case; nevertheless, the burden
of proof shall be on the applicant, and the findings and recommendations of the
designated planning agency shall be sustained unless unsupported by substantial
evidence or unless the applicant establishes that it was the victim of a
violation of law or a prejudicial procedural error.
(ii) Subparagraph (i) supersedes 1 Pa. Code
§
35.125(a)
(relating to order of procedure).
(8)
Record from below.
Records shall conform with the following:
(i)
The Hearing Officer shall admit, if offered, the following documents as
constituting the record of the designated planning agency's decision:
(A) The complete application for the proposed
capital expenditure.
(B) The
standards, criteria or plans against which the proposed expenditure was
measured by the designated planning agency and by any agency consulted by the
designated planning agency.
(C) The
findings and recommendations of the designated planning agency and of any
agency consulted by the designated planning agency.
(D) Minutes, transcripts or other records of
a public hearing or public meeting held by the designated planning agency or an
agency consulted by the designated planning agency at which hearing or meeting
the proposed expenditure was considered.
(E) Other documentary evidence considered by
the designated planning agency, or an agency consulted by the designated
planning agency, in making its findings and recommendations.
(ii) Paragraph (8) shall not be
construed so as to deprive a party of the opportunity to offer additional
documentary or oral evidence relevant to an issue raised in the
hearing.
(iii) Subparagraph (ii)
supplements 1 Pa. Code §§ 35.125(d) and 35.162.
(9)
Record of the fair
hearing. A record of the proceedings shall be kept in accordance with
the requirements of applicable State law and copies of the record together with
copies of documents received in evidence, shall be available to the public for
inspection and copying: provided, that a person who requests copies of the
material may be required to bear the costs thereof.
(10)
Conclusion of the
hearing. Conclusion of the hearing shall conform with the following:
(i) Hearings shall conclude on the last day
fixed by the Hearing Officer for the submission of a brief. The Hearing Officer
shall notify all parties, in writing or on the record, of the day on which the
hearing will conclude and of any changes thereto.
(ii) Subparagraph (i) supplements 1 Pa. Code
§
35.191 (relating to proceedings in
which briefs are to be filed).
(11)
Notification of
decision. As soon as practicable, but not more than 45 days after the
conclusion of a hearing, the Hearing Officer shall notify the person who
requested the hearing, the designated planning agency, the other agencies
described in §
301.4(1)(iii) who
participated in the hearing, and other interested parties at the discretion of
the Hearing Officer of his decision and the reasons therefor. The decision
shall be publicized through local newspapers and public information channels.
In the event that the Hearing Officer fails to provide notice as required in
this section within 45 days after the conclusion of a hearing, the failure to
provide notice shall have the effect of a recommendation of approval to the
Secretary of HHS.
(12)
Disposition of the record. Disposition of the record shall
conform with the following:
(i) After
rendering his decision, the Hearing Officer shall transmit the record of the
hearing to the designated planning agency.
(ii) The provisions of subparagraph (i)
supplement the provisions of 1 Pa. Code §
35.133 (relating to copies of
transcripts).
(13)
Role of the fair hearing decision. A decision of a Hearing
Officer arrived at in accordance with this subsection shall, to the extent that
it reverses or revises the findings or recommendations of the designated
planning agency, supersede the findings and recommendations of the designated
planning agency; provided, that where judicial review of the decision is
obtained, the final decision of the reviewing court to the extent that it
modifies the findings and recommendation of the designated planning agency,
shall to such extent supersede the findings and recommendation of the
designated planning agency.
(14)
Further action. To the extent that any decision of a Hearing
Officer under this subsection requires that the designated planning agency take
further action, the action shall be completed by the date the Hearing Officer
specifies. Failure by the designated planning agency to complete the action by
the date shall have the effect of a recommendation of approval of the proposed
capital expenditure.