Administrative Rule Review Report  #AR10-050

Legislative Service Office

28-Jul-10

 

AGENCY:                                 Department of Health.

 

DATE SUBMITTED:                   July 22, 2010.

 

SUBJECT:                                 Chapter 21, Procedures for Informal Conference on Appeal of Agency Decision and Procedures for Formal Administrative Hearings on Appeal of Agency Decision.

 

NATURE OF RULES:                     Legislative and Procedural.

 

STATUTORY AUTHORITY:         W.S. 35-2-908 and W.S. 35-9-121.1(c).

 

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:  Procedural compliance appears to be complete. The agency advised that the rules are adopted in response to recommendation #5 in the August 21, 2009 Management Audit Committee Report.  The recommendation stated that the Office of Healthcare Licensing and Surveys (OHLS) should establish rules and policies setting forth a clear appeal process for healthcare facilities to challenge OHLS decisions.  Although the rules technically are not new rules, notice of their pending adoption was sent to the Management Audit Committee.  No comments were received. 

 

SUMMARY OF RULES:  The rules establish an informal and formal appeal process of OHLS decisions relating to the construction of healthcare facilities.

 

FINDINGS:  The rules appear to be within the scope of statutory authority.  The rules, however, lack clarity in certain aspects, including:

 

            1.         Section 2(a) states that the rules provide a procedure to challenge "adverse actions".  Sections 4, 5(a) and 6(a), however, allow appeal of any decision or comment of OHLS, not merely adverse actions.

 

            2.         Section 6(a)(ii) requires a healthcare facility to request a formal administrative hearing within 10 days of receiving notice of the adverse action.  Presumably the 10-day limit applies when an informal review is not requested, as section 5(a)(iv) allows a healthcare facility to submit an adverse or unfavorable decision to a Code authority.  Section 5(a)(viii) then allows 10 days from receipt of a decision from the Code authority to request a formal administrative hearing. 

 

            3.         Sections 5(b)(vii) and 6(b) suggest that a challenge to an OHLS decision may require the Center for Medicare and Medicaid Services (CMS) to review the same OHLS decision two times.  A review may be requested in the informal process, yet the Department must refer the matter to CMS if a formal appeal is requested.

 

STAFF RECOMMENDATION: That the Council recommend to the Governor that the Governor direct the agency to consider the above comments.  Otherwise, LSO recommends that the rules be placed on the Consent List and approved by the Council as submitted.

 

 

                                                            _______________________

                                                            Lily Sharpe

                                                            Staff Attorney

 

                                                            _______________________

                                                            Lynda G. Cook

                                                                        Staff Attorney

                                                           

LNS/