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:
The possibility of obtaining admissions of fact and documents which will avoid unnecessary proof; and
The scheduling of the submission of names of witnesses to be called and the subject matter of testimony to be presented at the hearing.
Requiring that evidence be presented in written form and exchanged among parties prior to the hearing; and
The hearing examiner shall prepare a memorandum summarizing the actions taken at the conference.
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.
Except as provided in subd. 3.
, evidence admitted at the hearing shall be limited to:
The application, supporting documents which were submitted with the application, and additional information submitted in response to the department's requests;
The staff analysis, initial finding and supporting documents relied upon in making the initial finding;
Cross-examination of persons preparing or making statements contained in the documents under subpars. a to c.
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.
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.
Any party for the proceeding may be represented by counsel and present evidence and conduct cross-examinations subject to the provisions of subd. 2.
The examiner conducting the hearing may question all witnesses and take administrative notice of all judicially cognizable facts.
Any party adversely affected by a ruling may make an offer of proof which shall be made part of the record.
An applicant whose project is rejected has the burden of going forward.
Prepare a recommendation for the secretary, consisting of findings of fact, conclusions of law and a recommended course of action; and
Adjourn the hearing to a specific time, date and place, if appropriate.
(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.
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.
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.
(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.
(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.
(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.
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.
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.
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.
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.
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
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.
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
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
DHS 122.08 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
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:
An up-to-date copy of the estimate of construction costs or copies of bids for construction costs, or both;
Up-to-date copies of current financing commitment documents, by source of funds; and
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.
The applicant shall automatically send these status reports to the department according to the following schedule:
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.
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.
Cost overruns are subject to approval by the department before they are incurred.
Approval holders shall report to the department any anticipated cost overrun.
An approval holder who identified a cost overrun on an approved project shall submit another application for review in the manner described in s. DHS 122.06 (10)
The original approval is not affected by the submission of an application involving a cost overrun on a previously approved application. If the department approves the overrun, the original approval shall be amended accordingly. If the department does not approve the overrun, the original approval shall be unchanged.
The department shall not approve an application for a project involving a cost overrun on a previously approved application:
If an obligation exceeding the capital expenditure maximum was incurred by the approval holder before the holder notified the department of the cost overrun;
If the cost overrun is based on inflation rates which exceed actual rates reported in the Engineering News Record's
Building Cost Index;
If the cost overrun is the result of a material change in the scope or size of an approved project; or
The department shall use the following schedule for determination of forfeitures resulting from approved cost overruns on previously approved projects:
A cost overrun resulting from the actual inflation rate which exceeds the rate projected in the approved application or is less than 10% of the approved project cost or $300,000, whichever is greater, shall be subject to a forfeiture equal to 10% of the overrun;
A cost overrun which is more than 10% or more of the project cost or $300,000, whichever is greater, shall be subject to a forfeiture equal to 15% of the overrun; and
If a person incurs a second cost overrun on an approved project, the department shall assess a forfeiture equal to 30% of the overrun.
Where a project is subsequently approved after being initiated without departmental approval, the person operating the project shall be subject to a single forfeiture using the following schedule:
For an expenditure greater than $600,000 but no more than $660,000, the person operating the project shall pay a forfeiture equal to 10% of the expenditure exceeding $600,000;
For an expenditure greater than $660,000 but no more than $900,000, the person operating the project shall pay a forfeiture equal to 15% of the expenditure exceeding $660,000, plus the dollar amount specified in subd. 1.
For an expenditure greater than $900,000, the person operating the project shall pay a forfeiture equal to 50% of the expenditure exceeding $900,000, plus the dollar amounts specified in subds. 1.
The department may not approve a project subject to a forfeiture under par. (a)
until the forfeiture has been paid.
The department may not subsequently approve a project which was initiated without departmental approval and which involved construction of space designed to be utilized for a future FDD or other nursing home or to increase the bed capacity of a FDD or other nursing home.
The department shall reject an application for approval of a project from any person who has incurred 2 penalties under this chapter within a 5-year period, except for penalties assessed for cost overruns caused by the actual inflation rate exceeding the inflation rate stated in the original application or caused by code corrections mandated by the department as part of an approved plan of correction issued after the original approval.