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.
DHS 122.09(2)(a) (a) Cost overruns are subject to approval by the department before they are incurred.
DHS 122.09(2)(b) (b) Approval holders shall report to the department any anticipated cost overrun.
DHS 122.09(2)(c)1.1. 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).
DHS 122.09(2)(c)2. 2. 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.
DHS 122.09(2)(d) (d) The department shall not approve an application for a project involving a cost overrun on a previously approved application:
DHS 122.09(2)(d)1. 1. If an obligation exceeding the capital expenditure maximum was incurred by the approval holder before the holder notified the department of the cost overrun;
DHS 122.09(2)(d)2. 2. If the cost overrun is based on inflation rates which exceed actual rates reported in the Engineering News Record's Building Cost Index;
DHS 122.09(2)(d)3. 3. If the cost overrun is the result of a material change in the scope or size of an approved project; or
DHS 122.09(2)(d)4. 4. If the cost overrun results in a project that would not be approved under s. DHS 122.07 (1) or (2).
DHS 122.09(3) (3)Civil forfeitures.
DHS 122.09(3)(a) (a) The department shall use the following schedule for determination of forfeitures resulting from approved cost overruns on previously approved projects:
DHS 122.09(3)(a)1. 1. 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;
DHS 122.09(3)(a)2. 2. 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
DHS 122.09(3)(a)3. 3. If a person incurs a second cost overrun on an approved project, the department shall assess a forfeiture equal to 30% of the overrun.
DHS 122.09(3)(b) (b) 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:
DHS 122.09(3)(b)1. 1. 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;
DHS 122.09(3)(b)2. 2. 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.; and
DHS 122.09(3)(b)3. 3. 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. and 2.
DHS 122.09(3)(c)1.1. The department may not approve a project subject to a forfeiture under par. (a) or (b) until the forfeiture has been paid.
DHS 122.09(3)(c)2. 2. 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.
DHS 122.09(4) (4)Repeat violations.
DHS 122.09(4)(a) (a) 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.
DHS 122.09(4)(b) (b) The department shall impose deadlines for compliance with any approval granted to a repeat violator. Failure to meet the deadlines shall result in voiding of the approval.
DHS 122.09(5) (5)Medical assistance linkage.
DHS 122.09(5)(a)1.1. Any person submitting an application under this chapter shall state in the application the medical assistance rates anticipated for the first full year of operation following completion of the project or licensure of new beds. These rates shall be the maximum allowable reimbursement granted by the department for the first full year of operation. If the medical assistance facility reimbursement formula generates per diem rates which are less than those stated in the application, the lower rates shall prevail.
DHS 122.09(5)(a)2. 2. For the purposes of rate calculations for renovation projects, the useful building life used for depreciation shall be the same as that stated in the application in s. DHS 122.07 (1) (c) 2. for calculating equivalent cost per bed. The useful life selected shall remain constant for the life of the building.
DHS 122.09(5)(b) (b) Any person submitting an application for approval of a cost overrun under sub. (2) (c) shall state the impact on medical assistance per diem rates stated in the original application. If approved, the rates in the new application shall be the medical assistance per diem rates for the first full year of operation following completion of the project or licensure of new beds.
DHS 122.09(6) (6)Transfer of approval. An approval is issued in the name of the person submitting an application. Any person who takes a partner after receiving a project approval shall retain an equal or greater financial interest in the project for the approval to remain valid. The sale, lease or donation of a nursing home before the completion or licensure of a project at that nursing home voids the approval.
DHS 122.09(7) (7)Validity of approval.
DHS 122.09(7)(a) (a) An approval is valid for one year from the date of issuance unless extended under sub. (8).
DHS 122.09(7)(b) (b) The department shall revoke an approval at the end of the period of validity of an approval if the status reports required under sub. (1) indicate that financing in an amount sufficient to complete the project has not been obtained, an obligation has not been incurred for the entire project or 20% of the approved project cost, including fees, has not been spent. An approval holder has obtained financing in an amount sufficient to complete the project when:
DHS 122.09(7)(b)1. 1. The interim or long-term mortgage has been executed by all parties, and the proceeds are available to the borrower in an amount sufficient to complete the project; or
DHS 122.09(7)(b)2. 2. The bonds have been sold, either publicly or privately, and the proceeds are available to the borrower in an amount sufficient to complete the project.
DHS 122.09(8) (8)Request for extension of project validity.
DHS 122.09(8)(a)(a) A person may request an extension of up to 6 months in the period of validity of an approval. The request shall include documentation of the following:
DHS 122.09(8)(a)1. 1. Names of all contractors, subcontractors or suppliers against whom a job action was incurred or a bankruptcy was filed;
DHS 122.09(8)(a)2. 2. Dates on which bankruptcies or strikes occurred and the resulting length of delay in project implementation, and dates on which a fire or natural disaster occurred, the extent of damage, and the resulting length of delay in project implementation; and
DHS 122.09(8)(a)3. 3. Any cost overruns anticipated as a result of the extension.
DHS 122.09(8)(b) (b) Cost overruns on projects for which an extension has been granted shall be reviewed in the manner described in s. DHS 122.06 (10).
DHS 122.09(8)(c) (c) The department may grant an extension only if the project is significantly delayed or damaged by fire or natural disaster, or if a strike against or bankruptcy of a contractor, subcontractor or major supplier previously committed to the project occurs.
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.