DHS 122.07(2)(am) (am) Applications under s. DHS 122.02 (2) (a) and (c) which meet all of the criteria in subs. (1) and (1m) shall be subject to the following selection process:
DHS 122.07(2)(am)1. 1. If after removing from consideration all applications which fail to meet one or more review criteria, there remain more applications than can be approved for the beds available under s. DHS 122.04 (1) (b) 2. a., the department shall rank the remaining applications according to how each meets each applicable review criterion under subs. (1) and (1m), assigning the lowest number to the application which best meets each criterion.
DHS 122.07(2)(am)2. 2. The department shall approve applications in order beginning with the lowest score, until all available beds are allocated. If there is a tie between applications for the last available approval, the department shall rank the applications according to their scores on review criteria under sub. (1m) (b).
DHS 122.07(2)(at) (at) Applications under s. DHS 122.06 (3m) which meet all of the applicable criteria in subs. (1), (1m) and (1t) shall be subject to the following selection process:
DHS 122.07(2)(at)1. 1. If after removing from consideration all applications which fail to meet one or more review criteria, there remain more applications than can be approved for the number of projects allowed under sub. (1t), the department shall rank the remaining applications according to how each meets each applicable review criterion under subs. (1), (1m) and (1t), assigning the lowest number to the application which best meets each criterion.
DHS 122.07(2)(at)2. 2. The department shall approve projects in order beginning with the lowest score, until all approvable projects are allocated. If there is a tie between applications, the department shall rank those applications based on the best research design.
DHS 122.07(2)(b) (b) Applications for renovation proposals, replacement facilities and capital expenditures over $600,000 which do not affect bed capacity and which meet all criteria in sub. (1) shall be approved unless the per diem rates proposed as a result of the project are inconsistent with those of similar FDD or other nursing home projects recently approved by the department.
DHS 122.07(2)(c) (c) In applying pars. (a) and (b), the department shall consider the comments of affected parties.
DHS 122.07(2)(d) (d) The department may not approve new beds if this would cause the statewide bed limit to be exceeded.
DHS 122.07 History History: Cr. Register, March, 1985, No. 351, eff. 4-1-85; emerg. cr. (1m) and (2) (am), eff. 1-1-87; am. (2) (a) (intro.) and 1., cr. (2) (a) 5., Register, January, 1987, No. 373, eff. 2-1-87; emerg. cr. (1m) and (2) (am), eff. 5-31-87; cr. (1m) and (2) (am), Register, October, 1987, No. 382, eff. 11-1-87; emerg. cr. (1r), eff. 10-1-88; emerg. am. (1) (c) 1. and 2. eff. 3-16-90; am. (1) (c) 1. and 2., Register, September, 1990, No. 417, eff. 10-1-90; correction in (1) (g) 1. made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1990, No. 417; am. (1) (f), (2) (a) 4. intro. and (c), cr. (1) (L), Register, January, 1991, No. 421, eff. 2-1-91; emerg. cr. (lr), eff. 5-11-93; emerg. r. and recr. (lr) (d), eff. 9-30-93; cr. (lr), Register, January, 1994, No. 457, eff. 2-1-94; emerg. cr. (1t) and (2) (at), eff. 11-29-95; cr. (1t) and (2) (at), Register, May, 1996, No. 485, eff. 6-1-96; correction in (1m) (f) 2., made under 13.93 (2m) (b) 7., Stats., Register, September, 1999, No. 525; corrections in (1) (g) 1., (1m) (b) and (1r) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637.
DHS 122.08 DHS 122.08Hearing process.
DHS 122.08(1)(1)Right to a hearing. An applicant whose application is rejected may request a public hearing to review the department's initial finding.
DHS 122.08(2) (2) Request for a hearing.
DHS 122.08(2)(a)(a) An applicant desiring a public hearing shall file a written request for a public hearing, no later than 10 days after the issuance of the initial finding, to both the department's division of health care financing and the department of administration's division of hearings and appeals.
DHS 122.08 Note Note: The Division of Health Care Financing has been renamed the Division of Health Care Access and Accountability. The mailing address of the Department's Division of Health Care Access and Accountability is P.O. Box 309, Madison, Wisconsin 53701 and the mailing address of the Division of Hearings and Appeals P.O. Box 7875, Madison, Wisconsin 53707.
DHS 122.08(2)(b) (b) The applicant requesting the hearing shall identify the criteria at issue no later than 20 days after the issuance of the finding.
DHS 122.08(3) (3) Public hearing.
DHS 122.08(3)(a)(a) Start of hearing process. The department shall commence the hearing process within 30 days after receiving a request under sub. (2), or 30 days following the last request in the event of a concurrent review, unless all parties to the hearing consent to an extension of this period. The hearing process shall begin upon appearance of the parties before the hearing examiner as part of a prehearing conference.
DHS 122.08(3)(b) (b) Applications undergoing concurrent review. All applications undergoing concurrent review shall be considered at one hearing.
DHS 122.08(3)(c) (c) Location. All public hearings and prehearing conferences shall be held in the city of Madison unless any party demonstrates that this would impose an undue hardship on that party.
DHS 122.08(3)(d) (d) Legal issues. A public hearing under this subsection shall consist of a review of the department's initial finding to approve or reject the project. The only issues in the hearing are whether the department's initial finding was:
DHS 122.08(3)(d)1. 1. Contrary to the weight of the evidence on the record when considered as a whole;
DHS 122.08(3)(d)2. 2. Arbitrary and capricious; or
DHS 122.08(3)(d)3. 3. Contrary to law.
DHS 122.08(3)(e) (e) Prehearing conference.
DHS 122.08(3)(e)1.1. At least 14 days prior to the public hearing, a prehearing conference shall be held. The purpose of the prehearing conference shall be to consider:
DHS 122.08(3)(e)1.a. a. The possibility of obtaining admissions of fact and documents which will avoid unnecessary proof; and
DHS 122.08(3)(e)1.b. b. The scheduling of the submission of names of witnesses to be called and the subject matter of testimony to be presented at the hearing.
DHS 122.08(3)(e)2. 2. The hearing examiner may issue prehearing orders:
DHS 122.08(3)(e)2.a. a. Directing the order of presentation;
DHS 122.08(3)(e)2.b. b. Limiting evidence and the number of witnesses;
DHS 122.08(3)(e)2.c. c. Requiring that evidence be presented in written form and exchanged among parties prior to the hearing; and
DHS 122.08(3)(e)2.d. d. Determining whether a party as defined under s. 227.01 (6), Stats., has standing to participate in the hearing.
DHS 122.08(3)(e)3. 3. The hearing examiner shall prepare a memorandum summarizing the actions taken at the conference.
DHS 122.08(3)(f) (f) Procedures for conducting the hearing.
DHS 122.08(3)(f)1.1. Issues raised at the hearing shall be limited to the review criteria cited as grounds for disapproval in the initial finding. Criteria not identified in the initial finding are deemed met or not applicable. Evidence may be received which relates to noncontested criteria only to the extent the evidence is relevant to contested criteria.
DHS 122.08(3)(f)2. 2. Except as provided in subd. 3., evidence admitted at the hearing shall be limited to:
DHS 122.08(3)(f)2.a. a. The application, supporting documents which were submitted with the application, and additional information submitted in response to the department's requests;
DHS 122.08(3)(f)2.b. b. The staff analysis, initial finding and supporting documents relied upon in making the initial finding;
DHS 122.08(3)(f)2.c. c. The record of the public meeting under s. 150.35 (2), Stats., and s. DHS 122.06 (6), if any; and
DHS 122.08(3)(f)2.d. d. Cross-examination of persons preparing or making statements contained in the documents under subpars. a to c.
DHS 122.08(3)(f)3. 3. Parties may be allowed to present additional evidence only to the extent the additional evidence is directly responsive to and made necessary by the evidence presented by any other party to the proceedings.
DHS 122.08(3)(f)4. 4. Persons preparing or making statements contained in the application, staff analysis, initial finding, recommendation or supporting documents shall be available for cross-examination, unless cross-examination is waived by opposing parties, and may give rebuttal testimony. Witnesses giving direct oral testimony shall be subject to cross-examination in the same manner as other witnesses.
DHS 122.08(3)(f)5. 5. Any party for the proceeding may be represented by counsel and present evidence and conduct cross-examinations subject to the provisions of subd. 2.
DHS 122.08(3)(f)6. 6. The examiner conducting the hearing may question all witnesses and take administrative notice of all judicially cognizable facts.
DHS 122.08(3)(f)7. 7. Evidence shall be duly offered and made part of the case record.
DHS 122.08(3)(f)8. 8. Any party adversely affected by a ruling may make an offer of proof which shall be made part of the record.
DHS 122.08(3)(f)9. 9. An applicant whose project is rejected has the burden of going forward.
DHS 122.08(3)(g) (g) Hearing examiner duties. The hearing examiner shall:
DHS 122.08(3)(g)1. 1. Make all ruling as to evidence, testimony and official notice;
DHS 122.08(3)(g)2. 2. Set the order for examination and cross-examination of witnesses;
DHS 122.08(3)(g)3. 3. Administer oaths and affirmations;
DHS 122.08(3)(g)4. 4. Prepare written and oral summaries of cases heard;
DHS 122.08(3)(g)5. 5. Prepare a recommendation for the secretary, consisting of findings of fact, conclusions of law and a recommended course of action; and
DHS 122.08(3)(g)6. 6. Adjourn the hearing to a specific time, date and place, if appropriate.
DHS 122.08(3)(h) (h) Hearing record. A stenographic record shall be made in all public hearings. If any party, including the department, wants a transcript or a portion of the transcript, that party shall make arrangements with the court reporter and shall pay whatever costs are agreed upon for making the transcript.
DHS 122.08(3)(i) (i) Posthearing oral arguments and briefs.
DHS 122.08(3)(i)1.1. Following presentation of the testimony, posthearing briefs may be filed by the applicant, the department and any interested party. Parties submitting briefs shall file copies within a reasonable time specified by the hearing officer.
DHS 122.08(3)(i)2. 2. The examiner may permit oral arguments in lieu of posthearing briefs. Any party that wishes to file a written brief shall be permitted to do so.
DHS 122.08(3)(j) (j) Close of hearing. A hearing is closed when the evidentiary record is closed and any period established by the hearing officer for filing of briefs has elapsed. If the briefing period has expired and no brief of any party has been filed, the department may proceed to its final decision.
DHS 122.08(3)(k) (k) Ex parte communication. The ex parte communication restriction is set forth in s. 227.50 (2), Stats., including s. s. 227.50 (1) (am) 2., Stats., shall apply to projects for which a public hearing has been requested.
DHS 122.08(3)(L) (L) Proposed decision. Unless designated by the secretary as the final decision maker, the examiner shall issue a proposed decision containing findings of fact, conclusions of law, and a recommendation for action to be taken. A copy of the proposed decision shall be served on each party. In any hearing under this section, the examiner shall establish a comment period during which the parties may submit comments pertaining to the proposed decision. At the close of the comment period, the parties' submissions shall be forwarded to the secretary or a designee of the secretary along with the proposed decision.
DHS 122.08(4) (4) Final decision.
DHS 122.08(4)(a)(a) The final decision shall then be made by the secretary or the secretary's designee. In the event a designee is chosen, all parties shall be notified.
DHS 122.08(4)(b) (b) A final decision may be issued to either approve or deny the application or to approve the application with conditions. If the proposed decision is deemed incomplete on any issue identified in the initial finding, the case may be remanded back to the examiner for the taking of further testimony.
DHS 122.08(4)(c) (c) The secretary or designee of the secretary may ask all parties to the proceedings to present oral arguments before he or she makes a final decision.
DHS 122.08(5) (5) Burden of proof. Each applicant at any hearing under this section has the burden of proving, by clear and convincing evidence, that the department's initial finding was contrary to the weight of evidence on the record when considered as a whole, arbitrary and capricious, or contrary to law.
DHS 122.08(6) (6) Rehearing.
DHS 122.08(6)(a)(a) A petition for rehearings shall meet the requirements set forth under s. 227.49, Stats. The department shall review a petition for rehearing as provided in s. 227.49, Stats.
DHS 122.08(6)(b) (b) A petition for rehearing shall set forth the particular grounds for the relief sought. Copies of the petition shall be served on all parties of record.
DHS 122.08(7) (7) Requirements for judicial review. Petitions for judicial review shall be filed in the circuit court as specified in s. 227.53 (1) (a), Stats., within 30 days after the department issues its final decision, and shall be served on the department and other parties to the proceeding.
DHS 122.08 Note Note: The scope of judicial review is as provided in s. 227.57, Stats., and the record consists of the material specified in s. 150.43, Stats.
DHS 122.08 History History: Cr. Register, March, 1985, No. 351, eff. 4-1-85; am. (1), (2), (3) (f) 1., 2. c. and 9. (5), Register, January, 1991, No. 421, eff. 2-1-91; corrections in (3) (k), (6) and (7) made under s. 13.93 (2m) (b) 1. and 7., Stats., Register, May, 1996, No. 485; correction in (3) (k) made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637; correction in (3) (k) made under s. 13.92 (4) (b) 7., Stats., Register July 2015 No. 715; correction in (3) (k) made under s. 13.92 (4) (b) 7., Stats., Register September 2015 No. 717.
DHS 122.09 DHS 122.09Enforcement.
DHS 122.09(1)(1)Reporting requirements.
DHS 122.09(1)(a)(a) Each holder of an approval shall submit to the department, on forms provided by the department, regular progress reports which describe the current status of the project. These reports shall include or shall have attached:
DHS 122.09(1)(a)1. 1. An up-to-date copy of the proposed building plans;
DHS 122.09(1)(a)2. 2. An up-to-date copy of the estimate of construction costs or copies of bids for construction costs, or both;
DHS 122.09(1)(a)3. 3. An up-to-date statement of the total project costs;
DHS 122.09(1)(a)4. 4. Up-to-date copies of current financing commitment documents, by source of funds; and
DHS 122.09(1)(a)5. 5. A narrative description of the current status of the project, specifying any material changes in project scope, cost, proposed per diem rates or design anticipated by the approval holder.
DHS 122.09(1)(b) (b) The applicant shall automatically send these status reports to the department according to the following schedule:
DHS 122.09(1)(b)1. 1. At the completion of design development drawings;
DHS 122.09(1)(b)2. 2. On receipt of bids prior to the start of construction;
DHS 122.09(1)(b)3. 3. At 6-month intervals throughout the construction period; and
DHS 122.09(1)(b)4. 4. At project completion.
DHS 122.09(1)(c) (c) If an approval holder fails to submit the required information according to the schedule in par. (b), the department shall not approve any cost overrun that is incurred or a material change in project scope from that in the original approval.
DHS 122.09(1)(d) (d) The department shall review each status report within 5 working days of submittal and issue a determination to the approval holder to proceed with the project unless the status report indicates a potential cost overrun or material change in project scope. The department shall advise the approval holder if additional review under this chapter is required.
DHS 122.09(2) (2) Cost overruns.
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.