/-/_ So`/ - :5 Original : 2552 Pennsylvania Association of Resources for People with Mental Retardation 1007 North Front Street Harrisburg, PA 17102 Phone 717-236-2374 Fax 717-236-5625 August 4, 2006 Robert E. -Robinson, Director Office of Administration Licensing Management & Research Department of Public Welfare P.O. Box 2675 Harrisburg, PA.17105-2675 RECEIVED AUG 7 2006 Hurtw,n Se,vkea ljcensing ManaperrW! and Research Re : Chapter 9003 Licensure Appeal Procedures Dear Mr. Robinson, Thank you for the opportunity to provide feedback on the Chapter 9003 Licensure Appeal Procedures. The Pennsylvania Association of Resources for People with Mental Retardation (PAR) is a statewide association whose members provide the full range of supports and services to individuals with mental retardation of all ages in over 3,800 sites in the Commonwealth in addition to numerous non-residential and in-home supports. I am writing to provide comments on the notice of proposed rulemaking and the Annex to replace Chapter 9003 Licensure/Approval Appeal Procedure with the General Rules of Administrative Practice and Procedure ("GRAPP") which was published in the Pennsylvania Bulletin on July 8, 2006. We do not believe the existing Chapter 9003 Regulations should be replaced with the provisions of the GRAPP and offer the following comments on that proposal : 1. The Chapter 9003 Licensure Appeal Regulations were developed and promulgated for the specific purpose of establishing a procedure for entities operating facilities pursuant to a certificate of compliance issued under Articles IX and X of the Public Welfare Code to appeal Departmental decisions which affect the status of that Certificate of Compliance. The entire administrative hearing process that guides challenges to changes in status of a Certificate of Compliance is set out. The Chapter 9003 Licensure Appeals Procedures establish and detail the method of appeal, the timeframe for appeal, the rights of the appellant, the steps in the appeal process, the steps in the hearing process, the manner of reaching the decision by the Hearing Officer and
PAR Comments on Chapter 9003 Licensure Appeal Procedures August 4, 2006 Page 2 of 4 optional review by the Secretary are thoroughly addressed and all relevant actions and procedures are covered. That would not be the case if the GRAPP were adopted to govern these appeals. As it names suggests, the GRAPP's provisions are general in nature and, therefore, prompted by several types of pleadings and are applied to many different types of proceedings, i.e. Applications, Informal Complaints, Formal Complaints, Orders To Show Cause, Petitions, Protests, Interventions. (See : 1 Pa. Code Chapter 35). The adoption of the GRAPP would serve to confuse the appeals procedures for those entities subject to the specific provisions Chapter 9003 Licensures Appeals Procedures rather than clarify those procedures as is stated in their preamble to the proposed rule making. It is our belief that continuing to employ the appeals procedures that were adopted and have been utilized for the specific purpose of setting forth the procedures that govern appeals from changes in status of certificates of compliance will continue to promote clarity, consistency and uniformity either in resolving licensure issues or deciding those appeals, a stated goal of the Chapter 9003 Licensure Appeal regulations. We also believe continuing to employ the Chapter 9003 Licensure Appeal regulations will also promote a higher level of consistency between how those appeals have been decided in the past and how such appeals will be decided in the future. All parties stand to benefit from an appeals system that is more predictable and whose decisions are more uniform. 2. PAR also believes that the existence of Chapter 9003 Licensure Appeal regulations is not duplicative of the provisions in the GRAPP. Our view is that simply because two different appeals procedures or processes exist does not mean that there must be duplication and, therefore, one of those processes is unnecessary. Each one may have a specific purpose to serve. PAR's perspective is that the appeals process specifically developed to apply to a specific set of appeals should be the one that governs those types of appeals. Utilizing that process will lead to more efficient and more predictable processing of those appeals than the application of general procedures that are to be utilized only in the absence of other more specific regulations. We note that our perspective on applying the existing procedures to specific limited circumstances of Chapter 9003 Licensure Appeal as preferable to application of the generalized rules of the GRAPP to such appeals is the same perspective recognized by the GRAPP itself at Section 31.1 (c) which provides "This part is not applicable to a proceeding before an agency to the extent that the Agency has promulgated inconsistent regulations on the same subject. " Consequently, we believe that the GRAPP also recognizes the purpose and value of existing, inconsistent regulations that govern proceedings before an agency and the GRAPP appropriately defers to use of those regulations. We have to ask, why would the Department call for the use of appeal regulations Page 2 of 4 Pennsylvania Association of Resources for People with Mental Retardation 1007 N. Front Street ":" Harrisburg, PA ":" 717.236.2374
PAR Comments on Chapter 9003 Licensure Appeal Procedures August 4, 2006 Page 3 of 4 which themselves recognize and defer to the Chapter 9003 Licensure Appeal regulations? 3. PAR believes that deference by the GRAPP to the existing Chapter 9003 Licensure Appeals Procedures also is appropriate because the GRAPP rules do not contemplate the specific processes that are part of a licensure action and appeal. For example, while the Chapter 9003 regulation permit appeals thirty (30) days of notification of the decision by the Department at Section 9003.6, the GRAPP contains no timeline for appeal from a departmental decision, other than at Section 35.20. That provision only applies to decisions taken by a subordinate officer under authority delegated by the agency head which may be appealed to the agency head within ten (10) days after service of notice of the action. Even if this timeline were applicable to all licensure status challenges, the timeline of ten (10) days to appeal the Departmental decision to the agency head is simply too short. The entities that operate the facilities should have a greater opportunity to consider the ramifications of the departmental decision as well as the opportunity to discuss that decision with department staff before filing a petition with the secretary in only ten (10) days time. In addition, if such challenges must routinely be forwarded to the Secretary in such a short time, what would be the role of the Bureau of Hearings and Appeals when licensure appeals must be taken so promptly to the Secretary? How would the process be administered following the appeal from an action of the staff pursuant to Section 35.20 without the opportunity to appeal the staff decision to any other forum, such as the Bureau of Hearings and Appeals, to review the matter, conduct a hearing and issue a final order? If these steps are to be taken in licensure appeals, why is the appeal directed to the Secretary and not the Bureau of Hearings and Appeals? Lastly, what would be the role of the Secretary on reconsideration at Section 35.241 if the appeal in the first instance must be sent to the Secretary for decision? PAR's position is that these questions do not need be addressed because the existing Chapter 9003 Licensure Appeals regulations should continue in effect until specific successor regulations that are intended to address licensure appeals are developed and promulgated. The GRAPP was not intended to serve that purpose and will not serve it as well as the existing Chapter 9003 Licensure Appeal regulations. The GRAPP should not be adopted for these licensure appeals. In addition, PAR notes that these are the same comments PAR supplied to the Department when this change in appeals procedures was first discussed. I enclose a copy of PAR's February 8, 2005 comments. We believe we raised some crucial questions in those comments, e.g., what is the time frame in which to file an appeal. That crucial question has not been answered either in reply to our February 8, 2005 comments or in the notice of proposed rulemaking. As a result, providers remain unable to determine when or how to exercise the rights they must have to appeal the Department's licensure actions. Page 3 of 4 Pennsylvania Association of Resources for People with Mental Retardation 1007 N. Front Street "." Harrisburg, PA "." 717.236.2374
PAR Comments on Chapter 9003 Licensure Appeal Procedures August 4, 2006 Page 4 of 4 Finally, we note that providers and their counsel must familiarize themselves with the Medical Assistance provider appeals provisions published in the Pennsylvania Bulletin on August 14, 2004. That rulemaking set forth the exclusive appeals procedures to be followed for Medical Assistance program participation and payment appeals. Consequently, providers and their counsel familiarize themselves With those appeals regulations in order to comply with their requirements in order to challenge the Department's Medical Assistance determinations. We believe that if providers must learn and comply with the requirements of those much newer appeals procedures, providers and their counsel can continue to utilize the Chapter 9003 licensure appeal regulations which have been in effect nearly thirty (30) years. Thank you for considering our comments and recommendations. questions or concerns, please do not hesitate to contact me. If you have any Sincerely, Shirley A. Walker President and CEO Page 4 of 4 Pennsylvania Association ofresources for People with Mental Retardation 1007 N. Front Street "." Harrisburg, PA 4" 717.236.2374
Robinson, Robert E (PW/AD) From : Sent : To : Cc : Subject : Laura Bennett [Laura@par.net] Friday, August 04, 2006 6 :59 PM rerobinson@state.pa.us Shirley Walker PAR Comments on Appeal Procedures Please view the attached. Thank you. Laura Bennett, Sr. Policy Analyst, Pennsylvania Association of Resources for People with Mental Retardation Ph : 717-236-2374 F : 717-.236-5625 8/7/2006
Pennsylvania Association of Resources for People with Mental Retardation February 8, 2005 1007 North Front Street Harrisburg, PA 17102 Phone 717-236-2374 Fax 717-236-5625 VIA ELECTRONIC MAIL AND HAND DELIVERY Robert E. Robinson, Director Office of Administration Licensing Management & Research Department of Public Welfare P.O. Box 2675 Harrisburg, PA 17105-2675 Re : Comments by the Pennsylvania Association of Resources for People with Mental Retardation (PAR) on Chapter 9003 Licensure Appeal Procedures Dear Mr. Robinson : I received the preamble for proposed rulemaking and the Annex to replace Chapter 9003 Licensure/Approval Procedure with the General Rules of Administrative Practice and Procedure ("GRAPP") which you mailed on January 18, 2005 for comment by PAR. PAR very much appreciates the opportunity to review the proposed rulemaking. We do not believe the existing Chapter 9003 Regulations should be replaced with the provisions of the GRAPP and offer the following comments on that proposal : 1. The Chapter 9003 Licensure Appeal Regulations were developed and promulgated for the specific purpose of establishing a procedure for entities operating facilities pursuant to a certificate of compliance issued under Articles IX and X of the Public Welfare Code to appeal Departmental decisions which affect the status of that Certificate of Compliance. The entire administrative hearing process that guides challenges to changes in status of a Certificate of Compliance is set out. The Chapter 9003 Licensure Appeals Procedures establish and detail the method of appeal, the timeframe for appeal, the rights of the appellant, the steps in the appeal process, the steps in the hearing process, the manner of reaching the decision by the Hearing Officer and optional review by the Secretary are thoroughly addressed and all relevant actions and procedures are covered. That would not be the case if the GRAPP were adopted to govern these appeals. As its name suggests, the GRAPP's provisions are general in nature and, therefore, prompted by several types of pleadings and are applied to many different types of proceedings,
PAR Comments on Chapter 9300 Licensure Appeal Procedures February 8, 2005 Page 2 of 3 i.e. Applications, Informal Complaints, Formal Complaints, Orders To Show Cause, Petitions, Protests, Interventions. See : 1 Pa. Code Chapter 35). The adoption of the GRAPP would serve to confuse the appeals procedures for those entities subject to the specific provisions Chapter 9003 Licensures Appeals Procedures rather than clarify those procedures as is stated in their preamble to the proposed rule making. It is our belief that continuing to employ the appeals procedures that were adopted and have been utilized for the specific purpose of setting forth the procedures that govern appeals from changes in status of certificates of compliance will continue to promote clarity, consistency and uniformity either in resolving licensure issues or deciding those appeals, a stated goal of the Chapter 9003 Licensure Appeal regulations. We also believe continuing to employ the Chapter 9003 Licensure Appeal regulations will also promote a higher level of consistency between how those appeals have been decided in the past and how such appeals will be decided in the future. All parties stand to benefit from an appeals system that is more predictable and whose decisions are more uniform. 2. PAR also believes that the existence of Chapter 9003 Licensure Appeal regulations is not duplicative of the provisions in the GRAPP. Our view is that simply because two different appeals procedures or processes exist does not mean that there must be duplication and, therefore, one of those processes is unnecessary. Each one may have a specific purpose to serve. PAR's perspective is that the appeals process specifically developed to apply to a specific set of appeals should be the one that governs those types of appeals. Utilizing that process will lead to more efficient and more predictable processing of those appeals than the application of general procedures that are to be utilized only in the absence of other more specific regulations. We note that our perspective on applying the existing procedures to specific limited circumstances of Chapter 9003 Licensure Appeal as preferable to application of the generalized rules of the GRAPP to such appeals is the sakne perspective recognized by the GRAPP itself at Section 31.1 (c) which provides : "This part is not applicable to a proceeding before an agency to the extent that the Agency has promulgated inconsistent regulations on the same subject. " Consequently, we believe that the GRAPP also recognizes the purpose and value of existing, inconsistent regulations that govern proceedings before an agency and the GRAPP appropriately defers to use of those regulations. We have to ask why would the Department call for the use of appeal regulations which themselves recognize and defer to the Chapter 9003 Licensure Appeal regulations? 3. PAR believes that deference by the GRAPP to the existing Chapter 9003 Licensure Appeals Procedures also is appropriate because the GRAPP rules do not contemplate the specific processes that are part of a licensure action and appeal. For example, while the Chapter 9003 regulation permit appeals thirty (30) days of notification of the decision by the Department at Section 9003.6, the GRAPP contains no timeline for appeal from a departmental decision, other than at Section 35.20. That provision only Pennsylvania Association of Resources for People with Mental Retardation 1007 N. Front Street v" Harrisburg, PA "3 717.236.2374
PAR Comments on Chapter 9300 Licensure Appeal Procedures February 8, 2005 Page 3 of 3 applies to decisions taken by a subordinate officer under authority delegated by the agency head which may be appealed to the agency head within ten (10) days after service of notice of the action. Even if this timeline were applicable to all licensure status challenges, the timeline of ten (10) days to appeal the Departmental decision to the agency head is simply too short. The entities that operate the facilities should have a greater opportunity to consider the ramifications of the departmental decision as well as the opportunity to discuss that decision with department staff before filing a petition with the secretary in only ten (10) days time. In addition, if such challenges must routinely be forwarded to the secretary in such a short time, what would be the role of the Bureau of Hearings and Appeals when licensure appeals must be taken so romptly to the Secretary? How would the process be administered following the appeal from an action of the staff pursuant to Section 35.20 without the opportunity to appeal the staff decision to any other forum, such as the Bureau of Hearings and Appeals, to review the matter, conduct a hearing and issue a final order? If these steps are to be taken in licensure appeals, why is the appeal directed to the Secretary and not the Bureau of Hearings and Appeals? Lastly, what would be the role of the Secretary on reconsideration at Section 35.241 if the appeal in the first instance must be sent to the Secretary for decision? PAR's position is that these questions do not need be addressed because the existing Chapter 9003 Licensure Appeals regulations should continue in effect until specific successor regulations that are intended to address licensure appeals are developed and promulgated. The GRAPP was not intended to serve that purpose and will not serve it as well as the existing Chapter 9003 Licensure Appeal regulations. The GRAPP should not be adopted for these licensure appeals. I hope these comments are helpful to you. We respectfully request a meeting with you to discuss our comments further. I can be reached at 717.236.2374 or by email at shirley2, ap nnet. Sincerely, Shirley Walker President and CEO cc : William D. Lenahan, Esquire Pennsylvania Association of Resources for People with Mental Retardation 1007 N. Front Street "." Harrisburg, PA ":" 717.236.2374