§ 301.9. Determination by the Secretary of HHS.
(a) This section issued by the Department of Health imposes no legal obligation on the Secretary of HHS. It restates the Federal regulation found at 42 CFR 100.108 (relating to determination by the Secretary). Reference should be made to the Federal regulation.
(b) Except as provided in subsection (c), if the Secretary of HHS determines that the designated planning agency has not been given timely notice of intention to make a capital expenditure in accordance with § 301.6 (relating to procedures for agency review) or that the designated planning agency has, in accordance with the requirements of section 1122 of the act (42 U.S.C.A. § 1320a-1) and this chapter, submitted to the Secretary of HHS its findings that the expenditure is not consistent with the standards, criteria or plans described in § 301.4(2) (relating to designation; review of proposed capital expenditures) then for a period the Secretary of HHS deems necessary to effectuate the purpose of section 1122 of the act, the Secretary of HHS will, in determining the Federal payments to be made under Titles V, XVIII and XIX of the act (42 U.S.C.A. § § 701—709, 1395—1395zz and 1396—1396ff) to the health care facility or health maintenance organization, exclude expenses related to the capital expenditure.
(c) Notwithstanding the provisions of subsection (b), if the Secretary of HHS, after submitting the matters involved to the National Advisory Health Council on Comprehensive Health Planning Programs and after taking into consideration the recommendations of the designated planning agency and the other agency described in § 301.4 (2)(i) with respect to the expenditure, determines that an exclusion of expenses related to a capital expenditure of a health care facility or health maintenance organization would discourage the operation or expansion of the facility or organization or of any facility of the organization which has demonstrated to his satisfaction proof of capability to provide comprehensive health care services efficiently, effectively and economically or would otherwise be inconsistent with the effective organization and delivery of health services or the effective administration of Titles V, XVIII or XIX of the act (42 U.S.C.A. § § 701—709, 1395—1395zz and 1396—1396ff), the Secretary of HHS will include the expenses in Federal payments under such titles.
(d) Upon making a determination under this section, the Secretary of HHS will promptly notify the person proposing a capital expenditure, the designated planning agency and the other agency described in § 301.4 (2)(i) with which the designated planning agency has consulted of the determination and the basis for the determination.
(e) A person dissatisfied with a determination by the Secretary of HHS under section 1122 of the act or this chapter with respect to a particular capital expenditure may, within 6 months following the date of the determination, request the Secretary of HHS to reconsider the determination.
(1) The request for reconsideration shall be in writing, shall be addressed to the Secretary of HHS or to an officer or employe of HHS to whom the Secretary of HHS has delegated responsibility to receive requests, and shall set forth the grounds based upon the record of the proceedings and issues of law upon which reconsideration is requested.
(2) Reconsideration will be based upon the record of the proceedings, which shall consist of the findings; the recommendation and supporting materials submitted to the Secretary of HHS by the designated planning agency, including the findings and recommendations of other agencies, which relate to the findings and recommendations involved; the record of the hearing provided by the designated planning agency, if any, and of judicial proceedings; the materials submitted in connection with the request; and the comments as the Secretary of HHS may request from the designated planning agency.
(3) Notice of a reconsidered determination under this subsection shall be sent to the designated planning agency and the person requesting such reconsideration.
(f) A determination by the Secretary of HHS is, under section 1122 of the act (42 U.S.C.A. § 1320a-1), not subject to administrative or judicial review.
Source The provisions of this § 301.9 amended through October 26, 1979, effective October 27, 1979, 9 Pa.B. 4164.
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