Wisconsin Legislature: DHS 122.07(2)(am)

2. Will be conducted in conjunction with an established independent researcher;

(e) Document that the study will measure:

1. Outcome effectiveness of the design through:

a. Quality of resident care;

b. Quality of resident life; and

c. Staff productivity; and

2. Impact of design on costs, including:

a. Operating costs; and

b. Capital costs;

(f) Document:

1. The availability and sources of funding for the research proposal; and

2. The organizational resources committed to the proposed research;

(g) Document that the cost per bed will not exceed an amount 45% over the maximum cost per bed as determined in sub. (1) (c);

(h) Agree to obtain the written consent to participate in the research from all residents participating in the research or from their guardians; and

(i) Document a 92% occupancy rate by reference to the most recent annual survey of nursing homes issued by the department.

(2) Ranking and selection process.

(a) Applications for new or redistributed beds which meet all of the criteria in sub. (1) shall be subject to the following final selection process:

1. Applications shall be ranked in the order of their proposed composite per diem rates, beginning with the lowest and ending with the highest. Rates within one percent of each other shall be considered equal for purposes of ranking. The composite per diem rate shall be calculated as follows:

a. Multiply the proposed skilled nursing facility per diem rates, exclusive of supplements, for each payment source by the percentage of projected skilled nursing facility patient days by payment source; and

b. Add all the products of the multiplication in subpar. a to obtain the composite per diem rate;

2. The department shall review the applicant’s methodology for calculation of the proposed rates for consistency with current reimbursement practices and reasonableness. An applicant whose rates are found to be inconsistent or unreasonable will be removed from the selection process;

3. The department shall approve projects in the order of their ranking until all beds allotted to a planning area are distributed;

4. The department may approve an application proposing a higher per diem rate than others undergoing concurrent review if the applicant can demonstrate that the application would substantially resolve a significant problem identified in the state health plan with respect to:

a. The existing distribution of beds in the county in which the project would be located, or in contiguous counties;

b. The need to serve a special diagnostic group of inpatients in the planning area or county in which the project would be located; or

c. The existing distribution of population within the planning area or county in which the project would be located; and

5. If the composite per diem rate for 2 or more of the applicants undergoing concurrent review is equal, the department shall approve or deny those projects as follows:

a. If the total number of beds proposed by all applicants undergoing concurrent review is less than the total number of beds available, each of the projects shall be approved; and

b. If the total number of beds proposed by all applicants undergoing concurrent review is greater than the number of beds available, applications shall be ranked on the basis of per bed cost as calculated in sub. (1) (c), beginning with the lowest and ending with the highest. The department shall then approve projects in order of this ranking until all beds available are distributed.

(am) Applications under s. DHS 122.02 (2) (a) and (c) which meet all of the criteria in subs. (1) and (1m) shall be subject to the following selection process:

1. If after removing from consideration all applications which fail to meet one or more review criteria, there remain more applications than can be approved for the beds available under s. DHS 122.04 (1) (b) 2. a., the department shall rank the remaining applications according to how each meets each applicable review criterion under subs. (1) and (1m), assigning the lowest number to the application which best meets each criterion.

2. The department shall approve applications in order beginning with the lowest score, until all available beds are allocated. If there is a tie between applications for the last available approval, the department shall rank the applications according to their scores on review criteria under sub. (1m) (b).

(at) Applications under s. DHS 122.06 (3m) which meet all of the applicable criteria in subs. (1), (1m) and (1t) shall be subject to the following selection process:

1. If after removing from consideration all applications which fail to meet one or more review criteria, there remain more applications than can be approved for the number of projects allowed under sub. (1t), the department shall rank the remaining applications according to how each meets each applicable review criterion under subs. (1), (1m) and (1t), assigning the lowest number to the application which best meets each criterion.

2. The department shall approve projects in order beginning with the lowest score, until all approvable projects are allocated. If there is a tie between applications, the department shall rank those applications based on the best research design.

(b) Applications for renovation proposals, replacement facilities and capital expenditures over $600,000 which do not affect bed capacity and which meet all criteria in sub. (1) shall be approved unless the per diem rates proposed as a result of the project are inconsistent with those of similar FDD or other nursing home projects recently approved by the department.

(d) The department may not approve new beds if this would cause the statewide bed limit to be exceeded.

History: Cr. Register, March, 1985, No. 351, eff. 4-1-85; emerg. cr. (1m) and (2) (am), eff. 1-1-87; am. (2) (a) (intro.) and 1., cr. (2) (a) 5., Register, January, 1987, No. 373, eff. 2-1-87; emerg. cr. (1m) and (2) (am), eff. 5-31-87; cr. (1m) and (2) (am), Register, October, 1987, No. 382, eff. 11-1-87; emerg. cr. (1r), eff. 10-1-88; emerg. am. (1) (c) 1. and 2. eff. 3-16-90; am. (1) (c) 1. and 2., Register, September, 1990, No. 417, eff. 10-1-90; correction in (1) (g) 1. made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1990, No. 417; am. (1) (f), (2) (a) 4. intro. and (c), cr. (1) (L), Register, January, 1991, No. 421, eff. 2-1-91; emerg. cr. (lr), eff. 5-11-93; emerg. r. and recr. (lr) (d), eff. 9-30-93; cr. (lr), Register, January, 1994, No. 457, eff. 2-1-94; emerg. cr. (1t) and (2) (at), eff. 11-29-95; cr. (1t) and (2) (at), Register, May, 1996, No. 485, eff. 6-1-96; correction in (1m) (f) 2., made under 13.93 (2m) (b) 7., Stats., Register, September, 1999, No. 525; corrections in (1) (g) 1., (1m) (b) and (1r) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637.

DHS 122.08 Hearing process.

(1) Right to a hearing. An applicant whose application is rejected may request a public hearing to review the department’s initial finding.

(2) Request for a hearing.

(a) An applicant desiring a public hearing shall file a written request for a public hearing, no later than 10 days after the issuance of the initial finding, to both the department’s division of health care financing and the department of administration’s division of hearings and appeals.

Note: The Division of Health Care Financing has been renamed the Division of Health Care Access and Accountability. The mailing address of the Department’s Division of Health Care Access and Accountability is P.O. Box 309, Madison, Wisconsin 53701 and the mailing address of the Division of Hearings and Appeals P.O. Box 7875, Madison, Wisconsin 53707.

(b) The applicant requesting the hearing shall identify the criteria at issue no later than 20 days after the issuance of the finding.

(3) Public hearing.

(a) Start of hearing process. The department shall commence the hearing process within 30 days after receiving a request under sub. (2), or 30 days following the last request in the event of a concurrent review, unless all parties to the hearing consent to an extension of this period. The hearing process shall begin upon appearance of the parties before the hearing examiner as part of a prehearing conference.

(b) Applications undergoing concurrent review. All applications undergoing concurrent review shall be considered at one hearing.

(c) Location. All public hearings and prehearing conferences shall be held in the city of Madison unless any party demonstrates that this would impose an undue hardship on that party.

(d) Legal issues. A public hearing under this subsection shall consist of a review of the department’s initial finding to approve or reject the project. The only issues in the hearing are whether the department’s initial finding was:

1. Contrary to the weight of the evidence on the record when considered as a whole;

2. Arbitrary and capricious; or

3. Contrary to law.

(e) Prehearing conference.

1. At least 14 days prior to the public hearing, a prehearing conference shall be held. The purpose of the prehearing conference shall be to consider:

a. The possibility of obtaining admissions of fact and documents which will avoid unnecessary proof; and

b. The scheduling of the submission of names of witnesses to be called and the subject matter of testimony to be presented at the hearing.

2. The hearing examiner may issue prehearing orders:

a. Directing the order of presentation;

b. Limiting evidence and the number of witnesses;

c. Requiring that evidence be presented in written form and exchanged among parties prior to the hearing; and

d. Determining whether a party as defined under s. 227.01 (6), Stats., has standing to participate in the hearing.

3. The hearing examiner shall prepare a memorandum summarizing the actions taken at the conference.

(f) Procedures for conducting the hearing.

1. Issues raised at the hearing shall be limited to the review criteria cited as grounds for disapproval in the initial finding. Criteria not identified in the initial finding are deemed met or not applicable. Evidence may be received which relates to noncontested criteria only to the extent the evidence is relevant to contested criteria.

2. Except as provided in subd. 3., evidence admitted at the hearing shall be limited to:

a. The application, supporting documents which were submitted with the application, and additional information submitted in response to the department’s requests;

b. The staff analysis, initial finding and supporting documents relied upon in making the initial finding;

c. The record of the public meeting under s. 150.35 (2), Stats., and s. DHS 122.06 (6), if any; and

d. Cross-examination of persons preparing or making statements contained in the documents under subpars. a to c.

3. Parties may be allowed to present additional evidence only to the extent the additional evidence is directly responsive to and made necessary by the evidence presented by any other party to the proceedings.

4. Persons preparing or making statements contained in the application, staff analysis, initial finding, recommendation or supporting documents shall be available for cross-examination, unless cross-examination is waived by opposing parties, and may give rebuttal testimony. Witnesses giving direct oral testimony shall be subject to cross-examination in the same manner as other witnesses.

5. Any party for the proceeding may be represented by counsel and present evidence and conduct cross-examinations subject to the provisions of subd. 2.

6. The examiner conducting the hearing may question all witnesses and take administrative notice of all judicially cognizable facts.

7. Evidence shall be duly offered and made part of the case record.

8. Any party adversely affected by a ruling may make an offer of proof which shall be made part of the record.

9. An applicant whose project is rejected has the burden of going forward.

(g) Hearing examiner duties. The hearing examiner shall:

1. Make all ruling as to evidence, testimony and official notice;

2. Set the order for examination and cross-examination of witnesses;

3. Administer oaths and affirmations;

4. Prepare written and oral summaries of cases heard;

5. Prepare a recommendation for the secretary, consisting of findings of fact, conclusions of law and a recommended course of action; and

6. Adjourn the hearing to a specific time, date and place, if appropriate.

(h) Hearing record. A stenographic record shall be made in all public hearings. If any party, including the department, wants a transcript or a portion of the transcript, that party shall make arrangements with the court reporter and shall pay whatever costs are agreed upon for making the transcript.

(i) Posthearing oral arguments and briefs.

1. Following presentation of the testimony, posthearing briefs may be filed by the applicant, the department and any interested party. Parties submitting briefs shall file copies within a reasonable time specified by the hearing officer.

2. The examiner may permit oral arguments in lieu of posthearing briefs. Any party that wishes to file a written brief shall be permitted to do so.

(j) Close of hearing. A hearing is closed when the evidentiary record is closed and any period established by the hearing officer for filing of briefs has elapsed. If the briefing period has expired and no brief of any party has been filed, the department may proceed to its final decision.