Pennsylvania Code & Bulletin
COMMONWEALTH OF PENNSYLVANIA

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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 51 Pa.B. 6892 (October 30, 2021).

28 Pa. Code § 301.7. Fair hearing.

§ 301.7. Fair hearing.

 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.

     (ii)   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.



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