PROPOSED RULEMAKING
DEPARTMENT OF
PUBLIC WELFARE
[55 PA. CODE CHS. 20, 1181, 2380, 2390,
3130, 3140, 3270, 3280, 3290, 3680, 3700,
6400 AND 6500]
Licensure/Approval Appeal Procedure
[36 Pa.B. 3539]
[Saturday, July 8, 2006]The Department of Public Welfare (Department), under the authority of 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and Articles IX and X of the Public Welfare Code (code) (62 P. S. §§ 901--922 and 1001--1087), proposes to amend Chapters 20, 1181, 2380, 2390, 3130, 3140, 3270, 3280, 3290, 3680, 3700, 6400 and 6500 to read as set forth in Annex A.
Purpose of the Proposed Rulemaking
The purpose of this proposed rulemaking is to replace the uncodified regulation at 7 Pa.B. 3266 (November 5, 1977), Chapter 9003 (relating to licensure/approval appeal procedure), with 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) (GRAPP) for facilities and agencies certified by the Department.
The proposed rulemaking is needed to update and simplify the certification appeal process in the Department. The uncodified regulation at 7 Pa.B. 3266 is unnecessary and duplicative of GRAPP. GRAPP is entirely adequate for certification appeals. The Department has already begun a chapter-by-chapter replacement of the uncodified regulation at 7 Pa.B. 3266 with GRAPP in §§ 2600.12 and 3800.12 (relating to appeals).
Background
In comparing the uncodified regulation at 7 Pa.B. 3266 to the GRAPP, there are some notable differences. Among them is the fact that the uncodified regulation at 7 Pa.B. 3266 is largely unknown to the private bar, whereas the GRAPP is well known.
The regulation at 7 Pa.B. 3266 has been replaced already in some Department regulations, such as Chapters 2600 and 3800 (relating to personal care homes; and child residential and day treatment facilities). Therefore, there are currently differing appeal procedures within the types of facilities certified by the Department. GRAPP would provide consistency in the appeal process by having one uniform set of appeal procedures for certification appeals.
GRAPP gives a provider agency 10 days to appeal in 1 Pa. Code § 35.20 (relating to appeals from actions of the staff), whereas § 9003.6 (relating to time limit on right of appeal) of the regulation at 7 Pa.B 3266 gives a provider agency 30 days to appeal.
GRAPP does not specify a time frame in which the appeal is to be sent to the Department's Bureau of Hearings and Appeals (Bureau), whereas § 9003.11.B (relating to steps in the appeal process) of the regulation at 7 Pa.B. 3266 requires the appeal to be delivered to the Bureau in 3 days.
Section 9003.11.F of the uncodified regulation at 7 Pa.B. 3266 indicates that the hearing should be scheduled within 90 days after the appeal has been taken, whereas GRAPP does not specify a time frame. However, neither regulation requires a decision within any specified time period.
Section 9003.13.1.C.3 (relating to decision of the hearing officer) of the uncodified regulation at 7 Pa.B. 3266 gives the Department the authority to close a facility for reasons unrelated to licensure/approval, whereas the GRAPP does not give the Department this authority. Therefore, GRAPP provides greater protection to service providers from arbitrary action by the Department.
However, the uncodified regulation at 7 Pa.B. 3266 and the GRAPP have many similarities. Both regulations include the provider's right to appeal, provide for the conduct of hearings and making decisions and provide for the same rules of evidence. In addition, the list of appealable decisions is substantially the same in both regulations.
Requirements
This proposed rulemaking replaces the uncodified regulation at 7 Pa.B. 3266 with GRAPP for all facilities and agencies certified by the Department.
The following is a summary of specific changes to the affected sections.
Section 20.2 (relating to applicability), as it applies to family day care homes, is amended by replacing the uncodified regulation at 7 Pa.B. 3266 with GRAPP.
The following sections are amended by replacing the uncodified regulation at 7 Pa.B. 3266 with GRAPP: §§ 20.82, 1181.561, 2380.12, 2390.12, 3130.82, 3140.17, 3270.12, 3280.12, 3290.13, 3680.14, 3700.72, 6400.12 and 6500.13 and Chapter 1181, Appendix N.
Affected Individuals and Organizations
Agencies and facilities receiving certification under Chapter 20 are: adult training facilities certified under Chapter 2380; vocational facilities certified under Chapter 2390; county children and youth social service programs certified under Chapter 3130 and Chapter 3140; child day care centers certified under Chapter 3270; group child day care homes certified under Chapter 3280; family day care homes certified under Chapter 3290; private children and youth social service agencies certified under Chapter 3680; foster family care agencies certified under Chapter 3700; psychiatric outpatient clinics under Chapter 5200; partial hospitalization under Chapter 5210; private psychiatric hospitals under Chapter 5300; community residential rehabilitation services for the mentally ill under Chapter 5310; requirements for long-term structured residence licensure under Chapter 5320; community homes for individuals with mental retardation certified under Chapter 6400; family living homes certified under Chapter 6500; and intermediate care facilities for the mentally retarded under Chapter 6600.
Although not all of the previous chapters are being amended in this proposed rulemaking, the Department finds that the previous facilities are within the scope of Chapter 20 since they are certified under Article IX or Article X of the code. See § 20.2(a). The Department proposes to amend the chapters which specifically refer to either Chapter 9003 or Chapter 30 (which was reservedfor the codification of Chapter 9003). Upon final adoption, the appeal procedures for Chapters 5200, 5210, 5300, 5310, 5320 and 6600 will be subject to GRAPP under § 20.82 (relating to written request for appeal).
Accomplishments and Benefits
GRAPP is the officially codified and recognized practice and procedures for administrative agencies within the Commonwealth. There are currently unequal and differing appeal procedures within the types of facilities certified by the Department. GRAPP time frames would provide consistency in the appeal process across all Department-certified human service programs. The uncodified regulation at 7 Pa.B. 3266 has been superseded already in some Departmental regulations previously noted. Currently, attorneys for appellants providing multiple types of human services would have to be versed in both the uncodified regulation at 7 Pa.B. 3266 and GRAPP to represent their clients' best interest.
The existence of a special certification appeal regulation imposes an unnecessary burden on appellants' counsel because its applicability is limited to some, but not all, of the Department's certification appeals. Since most attorneys experienced in administrative law will have familiarity with GRAPP, but not the uncodified regulation at 7 Pa.B. 3266, considerations of efficiency and fairness to appellants imply that the consistency achieved by repeal of the uncodified regulation at 7 Pa.B. 3266 is in the public interest.
Fiscal Impact
The proposed rulemaking will save provider agencies and county agencies attorney's fees, since their attorneys will not have to familiarize themselves with the uncodified regulation at 7 Pa.B. 3266 and, instead, will be able to rely upon GRAPP.
The Department will no longer have to individually copy and mail out the regulation at 7 Pa.B. 3266 to providers, increasing efficiency through a decrease in printing and mailing costs, because GRAPP is codified and generally available.
There will be no fiscal impact on the general public anticipated as a result of this proposed rulemaking.
Paperwork Requirements
There will be a reduction in paperwork by eliminating the printing and mailing of the uncodified regulation at 7 Pa.B. 3266.
Effective Date
This proposed rulemaking will be effective 30 calendar days after final-form publication in the Pennsylvania Bulletin.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to Robert Robinson, Director, Human Services Licensing Management and Research, Box 2675 Health and Welfare Building, Harrisburg, PA 17105, rerobinson@ state.pa.us within 30-calendar days after the date of publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference Regulation No. 14-504 when submitting comments.
Persons with a disability who require an auxiliary aid or service may submit comments by using the AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 20, 2006, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
ESTELLE B. RICHMAN,
SecretaryFiscal Note: 14-504. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 55. PUBLIC WELFARE
PART I. DEPARTMENT OF PUBLIC WELFARE
Subpart C. LICENSING/APPROVAL
CHAPTER 20. LICENSURE OR APPROVAL OF FACILITIES AND AGENCIES
GENERAL PROVISIONS § 20.2. Applicability
* * * * * (b) This chapter does not apply to family day care homes that are registered under the authority of Article X of the Public Welfare Code [(62 P. S. §§ 1001--1080], except for appeals as provided in § 20.82 (relating to written request for appeal).
* * * * *
APPEALS § 20.82. Written request for appeal.
The legal entity may appeal a Departmental decision specified in § 20.81 (relating to decisions that may be appealed) under 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and [§ 9003 of the DPW Manual to be codified at Chapter 30 (relating to licensure or approval appeal procedures)] 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
PART III. MEDICAL ASSISTANCE MANUAL
CHAPTER 1181. NURSING FACILITY CARE
Subchapter D. NURSING HOME REFORM--STATEMENT OF POLICY
APPEALS OF ADVERSE DETERMINATIONS § 1181.561. Process to appeal adverse determinations in the preadmission screening program.
* * * * * [(e) The Department is planning to recodify its regulations to consolidate all regulations with respect to hearings and appeals in a new Chapter 30 (relating to licensure or approval appeal procedures). The appeals process for adverse determinations in the OBRA-87 preadmission screening process will be consolidated as part of that recodification. In the meantime, while the sources of hearing authority may be different for Program beneficiaries and others, the Department will administer the appeals process for both groups using the procedural model in Chapter 275 to assure uniformity and expedite the adjudications.]
APPENDIX N. RIGHT TO APPEAL AND
FAIR HEARING* * * * * II. STATE APPEALS PROCESS FOR TRANSFERS AND DISCHARGES
* * * * * [The Department is planning to recodify its regulations to consolidate all regulations with respect to hearings and appeals in 55 Pa. Code Chapter 30. In the meantime, while the sources of hearing authority may be different for Program beneficiaries and others, the Department shall administer the appeals process for both groups using the procedural model in Chapter 275, in order to assure uniformity and expedite the adjudications.]
* * * * *
PART IV. ADULT SERVICES MANUAL
Subpart D. NONRESIDENTIAL AGENCIES/FACILITIES/SERVICES
CHAPTER 2380. ADULT TRAINING FACILITIES
GENERAL REQUIREMENTS § 2380.12. Appeals.
Appeals related to the Department's approval or licensure shall be made in accordance with 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law) and [Chapter 9003 of the Department of Public Welfare's Manual (relating to Licensure/Approval Appeal Procedure), published at 7 Pa.B. 3267 (November 5, 1977), to be codified at Chapter 30] 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
CHAPTER 2390. VOCATIONAL FACILITIES
GENERAL REQUIREMENTS § 2390.12. Appeals.
Appeals related to the Department's approval or licensure shall be made under 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and [Chapter 9003 of the Public Welfare Manual published at 7 Pa.B. 3264 (November 5, 1977) to be codified at Chapter 30 (relating to licensure or approval appeal procedures)] 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
PART V. CHILDREN, YOUTH AND FAMILIES MANUAL
Subpart C. ADMINISTRATION AND FISCAL MANAGEMENT
ARTICLE II. COUNTY-ADMINISTERED SERVICES
CHAPTER 3130. ADMINISTRATION OF COUNTY CHILDREN AND YOUTH SOCIAL SERVICE PROGRAMS
REQUIREMENTS FOR FOSTER CARE PROGRAMS AND CHILD CARE FACILITIES OPERATED BY A COUNTY AGENCY § 3130.82. Appeals.
[(a)] The county agency has the right to appeal the Department's decisions related to licensure or approval under [Chapter 9003 of the Public Welfare Manual published at 7 Pa.B. 3264 (November 5, 1977) to be codified at Chapter 30 (relating to licensure or approval appeal procedures)] 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
[(b) To appeal the Department's decision, the county agency shall file a written appeal with the Director, Office of Hearings and Appeals, Department of Public Welfare, Post Office Box 2675, Harrisburg, Pennsylvania 17105.
(c) The appeal shall be postmarked no later than 30 calendar days following the date of notice regarding the agency's licensure or approval status.]
CHAPTER 3140. PLANNING AND FINANCIAL REIMBURSEMENT REQUIREMENTS FOR COUNTY CHILDREN AND YOUTH SOCIAL SERVICE PROGRAMS
Subchapter A. PRELIMINARY PROVISIONS
PLAN REQUIREMENTS § 3140.17. Review of county plans and budgets.
* * * * * (e) The county may appeal the Department's determination reached in accordance with subsection (c) under 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and [Chapters 30 and] Chapter 275 (relating to [appeal and fair hearing; and] appeal and fair hearing and administrative disqualification hearings).
Subpart D. NONRESIDENTIAL AGENCIES, FACILITIES AND SERVICES
ARTICLE I. LICENSING/APPROVAL
CHAPTER 3270. CHILD DAY CARE CENTERS
GENERAL REQUIREMENTS § 3270.12. Appeals.
(a) Appeals related to the Department's approval or licensure decisions shall be made under [Chapter 9003 of the Public Welfare Manual published at 7 Pa.B. 3264 (November 5, 1977) to be codified at Chapter 30 (relating to licensure/approval/appeal procedures)] 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
* * * * *
CHAPTER 3280. GROUP CHILD DAY CARE HOMES
GENERAL REQUIREMENTS § 3280.12. Appeals.
(a) Appeals related to the Department's approval or licensure decisions shall be made under [Chapter 9003 of the Public Welfare Manual published at 7 Pa.B. 3264 (November 5, 1977) to be codified at Chapter 30 (relating to the licensure/approval/appeal procedures)] 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
* * * * *
CHAPTER 3290. FAMILY CHILD DAY CARE HOMES
GENERAL REQUIREMENTS § 3290.13. Appeals.
(a) Appeals related to the Department's registration decisions shall be made under [Chapter 9003 of the Public Welfare Manual published at 7 Pa.B. 3264 (November 5, 1977) to be codified at Chapter 30 (relating to licensure or approval appeal procedures)] 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
* * * * *
Subpart E. RESIDENTIAL AGENCIES, FACILITIES AND SERVICES
ARTICLE I. LICENSING/APPROVAL
CHAPTER 3680. ADMINISTRATION OF PRIVATE CHILDREN AND YOUTH SOCIAL SERVICES AGENCY
GENERAL RESPONSIBILITIES OF THE LEGAL ENTITY § 3680.14. Appeals.
(a) The legal entity has the right to appeal the Department's decisions related to licensure or approval under [Chapter 9003 of the Public Welfare Manual published at 7 Pa.B. 3264 (November 5, 1977) to be codified at Chapter 30 (relating to licensure or approval appeal procedures)] 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
* * * * *
CHAPTER 3700. FOSTER FAMILY CARE AGENCY
REQUIREMENTS FOR FFCA APPROVAL OF FOSTER FAMILIES § 3700.72. Foster family approval appeals.
* * * * * (b) Foster parents who wish to appeal an FFCA decision to disapprove or provisionally approve the foster family shall submit to the FFCA a written appeal[,postmarked no later than 15 calendar days from the date of the written notice]. The appeals are subject to [Title 9003 of the DPW Manual to be codified at Chapter 30 (relating to licensure or approval appeal procedures)] 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
* * * * *
PART VIII. MENTAL RETARDATION MANUAL
Subpart E. RESIDENTIAL AGENCIES/FACILITIES/SERVICES
ARTICLE I. LICENSING/APPROVAL
CHAPTER 6400. COMMUNITY HOMES FOR INDIVIDUALS WITH MENTAL RETARDATION
GENERAL REQUIREMENTS § 6400.12. Appeals.
Appeals related to the Department's licensure shall be made in accordance with 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law) and [Chapter 9003 of the Public Welfare Manual published at 7 Pa.B. 3264 (November 5, 1977) to be codified at Chapter 30 (relating to licensure or approval appeal procedures)] 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
CHAPTER 6500. FAMILY LIVING HOMES
GENERAL REQUIREMENTS § 6500.13. Appeals.
Appeals related to the Department's licensure or waiver decisions shall be made in accordance with 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law) and [Chapter 9003 of the Public Welfare Manual published at 7 Pa.B. 3264 (November 5, 1977) to be codified at Chapter 30 (relating to licensure or approval appeal procedures)] 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
[Pa.B. Doc. No. 06-1268. Filed for public inspection July 7, 2006, 9:00 a.m.]
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