us-hi-regs-official-5c00793d1988e6cbd80415b38a313b6c8c450559723b14436f22e114488801d5•11-185
11-185
us-hi-regs-official-5c00793d1988e6cbd80415b38a313b6c8c450559723b14436f22e114488801d511-185Regulation
.. State Health Planning and Development Agency's Rules Adopting Chapter 185 of Title 11, Administrative Rules January 9, 1981 SUMMARY 1. Chapter 185 of Title 11, Administrative Rules, entitled "Rules of Practice and Procedure," is adopted.
.. 6\7: £~ 0£ NVr l8.
TITLE 11 DEPARTMENT OF HEALTH STATE OF HAWAII STATE HEALTH PL&"lliING AND DEVELOPMENT AGENCY ' CHAPTER 185 RULES OF PRACTICE AND PROCEDURE Subchapter 1 Sec. 11-185-1 Sec. 11-185-2 Sec. 11-185-3 Sec. 11-185-4 Sec. 11-185-5 Sec. 11-185-6 Sec. 11-185-7 Sec. 11-185-8 Sec. 11-185-9 Sec. 11-185-10 Sec. 11-185-11 Sec. 11-185-12 Sec. 11-185-13 Sec. 11-185-14 Sec. 11-185-15 Sec. 11-185-16 Sec. 11-185-17 Sec. 11-185-18 Sec. 11-185-19 Subchapter 2 Sec. 11-185-30 Sec. 11-185-31 Sec. 11-185-32 Sec. 11-185-33 Sec. 11-185-34 Sec. 11-185-35 Sec. 11-185-36 General Provisions Scope Definitions Construction of rules Computation of time Additional time after notification by mail Extension of time Agency's address Agency's business hours Time and place of filing documents Method of filing documents Number of copies filed Date of filing Format of documents Agency's official records Retention of documents Inspection of public records Copies of public records Request for information Appearance before the agency Public Hearing Public hearing Hearing officer Disqualification of hearing officer Intervention Continuance of public hearing Limitation on testimony Fee for public hearing 185-1
Subchapter 3 Sec. 11-185-50 Sec. 11-185-51 Sec. 11-185-52 Sec. 11-185-53 Sec. 11-185-54 Sec. 11-185-55 Sec. 11-185-56 Subchapter 4 Sec. 11-185-70 Sec. 11-185-71 Sec. 11-185-72 Sec. 11-185-73 Sec. 11-185-74 Sec. 11-185-75 Sec. 11-185-76 Sec. 11-185-77 Subchapter 5 Sec. 11-185-'-'90 Petition to Adopt, Amend, or Repeal Rule Petition for adoption, amendment, or repeal of rule Form of petition Number of copies filed Dismissal of petition Written notification of petition Action on petition Action on age~cy's motion Declaratory Order Petition for declaratory order Form of petition Number of copies filed Dismissal of petition Public hearing on petition Action on petition Refusal to issue declaratory order Declaratory order on agency's motion Miscellaneous Provisions Severability SUBCH.l\PTER 1 GENER..l\L PROVISIONS Sec. 11-185-1 Scope. The rules in this chapter govern the practice and procedure before the state health planning and development agency. The rules in this chapter are applicable to chapters 186 through 189 of this title. The rules in this chapter are adopted by the State~ursHcrrtg~q chapter 91, Hawaii Revised Statutes. [Eff~rtB u~ l ~I ] (Auth: HRS Sec. 91- 2) ( Imp : HRS Sec . 91- 2) Sec. 11-185-2 D"efinitions. When used in a rule of the agency, unless the context clearly requires otherwise: "Administrator" means the administrator or the acting administrator . of the state health planning and development agency. 185-2
Sec. 1.-18 5-4 "Agency" means the state health planning and development agency established in chapter 323D, Hawaii Revised Statutes. "Annual implementation plan" means the annual implementation plan established pursuant to chapter 323D, Hawaii Revised Statutes. "Person" means an individual or a natural person, a trust or estate, a society, a firm, an assembly, a partnership, a corporation, a professional corporation, an association, the State, any political subdivision of the State, a county, a state agency or any instrumentality of the State, or a county agency or any instrumentality of a county. "Secretary" means the secretary of the United States Department of Health and Human Services. "State health plan" means the state health plan established pursuant to chapter 323D, Hawaii Revised Statutes. [Eff. FER O9 1Q81 ] (Auth: HRS Sec. 91-2) (Imp: HRS ~ec. 9r-2) Sec. 11-185-3 Construction of rules. (a) The caption of a rule of the agency is for reference only and is not to be construed in any way as a part of the rule. (b) Words used in the present tense in a rule of the agency include the future tense. (c) The singular number in a rule of the agency includes the plural; the plural number includes the singular. (d) The word "may" in a rule of the agency is permissive. ( e) The word "shal~' 9 iI?r--iA- 1rule of the agency is mandatory. [Eff -FE 8 U lj~ ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-2) Sec. 11-185-4 Computation of time. In comput- ing any · period of time prescribed . or allowed by a rule of the agency, by an order of the agency, or by any applicable statute, the period of time begins with the day following the act, event, or default. The last day of the period shall be included unless it is a Saturday, Sunday, or a holiday, in which event the period runs until the next day which is not a Saturday, Sunday, or holiday. When the period of time prescribed or allowed is seven days or less, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. As used in this 185-3
~ec . .L..L-.Ll:l::>-4 section, "holiday" means any day designated as such pursuant to section 8-1, Hawaii Revised Statutes. [Eff. F~~ 0919Al ] (Auth: HRS Sec. 91-2) (Imp: ttRS Sec. ~ -2) Sec. 11-185-5 Additional time after notification by mail. Whenever any person in a proceeding held under the agency's rules has the right or is required to do some act within a prescribed period of time after the agency provides notification to the person by mail, two d~ ~hatl 9e added to _the prescribed time. [Eff. Ft.jj u~ ~81 ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-2) Sec. 11-185-6 Extension of time. Notwithstanding any rule of the agency to the contrary, whenever any person has the right or is required to do some act within a period of time prescribed or allowed by a rule of the agency or by an order of the agency, the agency may in its discretion and upon such terms or conditions as the agency deems proper extend the period or permit the act to be done after the expira- tion of the period, where the agency determines that the person's failure to act before the expiration of the period i~ clearly excusable under the circumstances. [Eff. Fl="R O~ 1981 ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec: 91-2) Sec. 11-185-7 Agency's address. The agency's office is located at Room 205, 600 Kapiolani 3oulevard, Honolulu, Hawaii or such other address at which the agency's office may be located from time to time. The agency's mailing address is Post Office Box 3378, Honolulu, Hawaii 96801. (Eff. J:'f:"8 0 9 1os:q ] (Auth: HRS Sec. 91-2) (Imp: BRS Sec. 9':t'-2) Sec. 11-185-8 Agency's business hours. The agency's office shall be open from 7:45 a.m. to 4:30 p ..m. of each weekday unless otherwise provided by statute or executive order. [Eff -F~ 8 0 9 19R1 ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-21 Sec. 11-185-9 Ti:me a-nd place of filing docUI!'.ents. All documents, including applications, written com- ments on applications, requests for opinion, submittals, correspondence, information, reports, memoranda, and any other papers required· or permitted to be filed with the agency, the statewide council, a subarea 185-4
. 11-185-14 council, or any committee thereof, in any proceeding shall be filed at the agency's office within the time limit, if any, prescribed by statute, ~μl,e ot t~Kl agency, or order of the agency. [Ef f. rt 8 \J u l~t5 (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-2) Sec. 11-185-10 Method of filing documents. Any person may file a document with the agency by hand delivering the document to the agency's office or by mailing the document to the agency's mailing address. If the document is mailed, the correct postage shall beyrepaid by the addresser. [Eff.F[BO9T981 ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-2) Sec. 11-185-11 Number of copies filed. Except as otherwise provided by any other rule of the agency or an order of the agency, only the original of each document shall be filed with the agency. [Eff. FERO 9 1981 ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec. ~l-2) Sec. 11-185-12 Date of filing. The agency shall promptly affix the date and time of receipt to the original of each document received by the agency. The date on which the agency receives the document spill R~ deemed the date of filing. [Eff -FEB U u 19t) I ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-2) Sec. 11-185-13 Format of documents. Each document filed with the agency by any person shall include the person's name and mailing address. The document shall be signed in ink by the person or the person's authorized agent or attorney. The signa- ture of the person signing the document constitutes a certification that the person has read the document; that to the best of the person's knowledge, informa- tion, and belief, every statement contained in the document is true and no statement is misleading; and that the document is not interposed for delay. Each document s~aAl be plainly legible. [Eff. FEB V91981 ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-2) Sec. 11-185-14 Agency's official records. The administrator of the agency shall be responsible for 185-5
Sec. 11-185-14 the custody and maintenance of the agency's official records. The agency's official records shall include the files and records of the statewide council, the subarea councils, and any committee thereof. The agency's official records shall include decisions, orders, opinions, rules, approved forms, applications filed with the agency, written comments on the appli- cations submitted to the agency, the statewide council, a subarea council, or any committee thereof, papers, correspondence, minutes of public meetings, transcripts of testimony, and any exhibits filed in proceedings. [Eff. FER U~ 1981 ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec . ~ 1- 2 ) Sec. 11-185-15 Retention of documents. All documents filed with - or presented to the agency, the statewide council, a subarea council, or any committee thereof shall be retaine·d in the agency's official records for the period required by law. The agency may permit the withdrawal of an original document upon submission of a properly authenticated copy to replace the original document. [Eff. FER O~ 1981 (Auth:· HRS Sec. 91-2 .) (Imp: HRS Sec. '9'1-2J Sec. 11-185-16 Inspection of public records. The agency's public records, as defined in chapter 92, Hawaii Revised Statutes, including all applications filed with the agency, all written comments on the applications submitted to the agency, the state- wide council, a subarea council, or any committee thereof, and all written materials pertinent to any agency review, shall be available for inspection by any person, in the manner provided in chapter 92, Hawaii Revised Statutes, unless the records are accorded COR~~~~~ial treatment pursuant to law. (Eff. FEB v~ I~~, ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-2) Sec. 11-185-17 Copies of public records. The agency shall furnish copies of the agency's public records to any person upon payment of the statutory fee; provided that payment of the statutory fee shall not be requi.red of any department or agency of the state ~overwi1~nt or a county government. [Eff. t-EB U;:J 1981 ] (Auth: HRS Sec. 9-1-2) (Imp: HRS Sec. 91-2) 185-6
<. 11-185-32 Sec. 11-185-18 Request for information. Any person may request information on any matter relating to the agency by inquiring during regular business hours at the agency's office or by sub~~tting 1 a 081 written request to the agency. [Eff. t- t 8 \.i ~ .J (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-2) Sec. 11-185-19 Appearance before the agency. In any proceeding before the agency, any person may appear in his or her own behalf . or the person may be represented by or with an attorney or another person designated as a representative. If a person is represented by an attorney, the attorney shall be licensed to practice law by the Supreme Court of Hawaii. The agency may at any time require any person who is appearing in a representative capacity to show his 0 ~r tx~ authority to act in that capacity. [Eff. FEB 'j 1~tsl ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec. 91-2) • SUBCHAPTER 2 PUBLIC HEARING Sec. 11-185-30 Public hearing. At any public hearing held by the agency, any person shall have the right to present oral or written arguments and evidence relevant to the matter which is the subject of the hearing. Any person may conduct reasonable questioning of persons who make factual allegations relevant to the matter which is the subject of the hearing. [Eff. FEB C9 1981 ] (Auth: HRS Sec. 323D-62) (Imp: HRS Sec. 323D-12) Sec. 11-185-31 Hearing officer. The agency shall designate the hearing officer who shall preside at the public hearing. The hearing officer shall have authority to take any and all actions necessary to the orderctY.. a~f just conduct of the hearing. [Eff. FEB UJ 19ts ] (Auth: HRS Sec. 323D-62) (Imp: HRS Sec. 323D-12) Sec. 11-185-32 Disqualification of hearing officer. (a) No hearing officer shall preside at any public hearing relating to any matter in which the hearing officer, the hearing officer's spouse, or the hearing officer's child has (or within the 185-7
twelve months preceding the hearing, had) any substan- tial ownership, directorship, officership, employment, prospective employment for which negotiations have begun, medical staff, fiduciary, contractual, creditor, debtor, consultative, pecuniary, or business interest. (b) Where any other conflict of interest exists, the hearing officer shall be disqualified from pre- siding at the public hearing. The provisions of chapter 84, Hawaii Revised Statutes, and the decisions, advisory opinions, and informal advisory opinions of the state ethics commission shall serve as guidelines in determining whether a conflict of interest exists. [Eff. FER O9 1Q81 ] (Auth: HRS Sec. 323D-62) (Imp: HRS Sec. ~23D-11) Sec. 11-185-33 Intervention. (a) Any person not a party to the public hearing may seek to become a party by filing a motion for leave to intervene. The motion shall state the grounds upon which the person claims to have an interest in the proceeding. At least ten days before the hearing, the person shall file the motion with the agency and shall serve the motion upon all parties or their attorneys. Except for good cause shown, the hearing officer shall disregard any motion that is not timely filed and served. (b) The hearing officer may permit intervention if the hearing officer determines: (1) That the person seeking to become a party may be bound by the decision to be issued in the proceeding or has a property or financial interest that may not be adequately represented by existing parties; and (2) That intervention will not unduly broaden the issues or delay the public hearing. (c) The hearing officer may permit intervention to such extent and upon such terms as the hearing officer may deem proper. [Eff. FEA O9 1081 l (Auth: HRS Sec. 323D-62) (Imp: l:!F.S Sel:r. 323D-12) Sec. 11-185-34 Continuance of public hearing. The public hearing shall be held at the time and place set in the notice of hearing, but for good cause shown the hearing officer may at such time and place con- tinue the hearing from day to day or adjourn the hearing to a later date or to a different place without 185-8
~. 11-185-52
notice other than the announcement thereof at the
hearing. (Eff.Fl='A U81981 ] (Auth: HRS Sec.
323D-62) (Imp: 1I~S Sec. 323D-12)
Sec. 11-185-35 Limitation on·testimony. To avoid
unnecessary cumulative evidence at the public hearing,
the hearing officer may limit the time for witnesses
to testify upon a particular issue.
(Eff.crg () Q 10~1 ] (Auth: HRS Sec. 323D-62)
HRS sec-. 3~3b-lt) (Imp:
Sec. 11-185-36 Fee for public hearing. The
agency shall not impose any fee for the public hearing.
(~ff. Fr A O9 19A1 ] (Auth: HRS Sec. 323D-62)
{Imp: &RS Sec. j23D-12)
SUBCHAPTER 3
PETITION TO ADOPT, AMEND, OR REPEAL RULE
Sec. 11-185-50 Petition for adoption, amendment,
or repeal of rule. Any interested person may file with
the agency a petition requesting the agency to adopt,
amend, or repeal any rule. [Eff. f:" ~ 8 0 9 1QQ '/ ]
(Auth: HRS Sec. 91-6) (Imp: HR~ ~ec. ~l~
Sec. 11-185-51 Form of petition. The petition
requesting the agency to adopt, amend, or repeal any
rule shall be in writing and shall include:
(1)
(2)
(3)
(4)
( 5)
( 6)
The petitioner's name, mailing address, and
telephone number;
The petitioner's signature or the signature
of the petitioner's authorized representa-
tive or attorney;
A statement of the nature of the petitioner's
interest;
A draft or substance of the proposed rule or
amendment or a designation of the rule
sought to ~e repealed;
A statement of the reason or reasons in
support of the proposed rule, amendment, or
repeal; and
Any other information
petition. [Eff. FEB
HRS Sec. 93.-6) (Imp: 5elevant to the
9 19 81 ] (Au th :
HRS Sec. 91-6)
Sec. 11-185-52 Number of copies filed. The
petitioner shall file with the agency the original
185-9and ten copies of t~e petition requesting the agency to
adopt, amend, or repeal any rule. [Eff{i:-8 081981 ]
(Auth: HRS Sec. 91-6) (Imp: HRS Sec. 9!-6)
Sec. 11-185-53 Dismissal of petition. The agency
may dismiss any petition requesting the agency to adopt,
amend, or repeal any rule that fails to comply with the
requirements of section 11-185-51.
[Eff. C'J:'8 Q9 1981 ] (Auth: HRS Sec. 91-6) (Imp:
HRS sed-: 9I-6)
Sec. 11-185-54 Written notification·of oetition.
At the agency's discretion anaupon wr1tten notice to
the petitioner, the agency may provide written notification
of the petition requesting the agency to adopt, amend, or
repeal any rule to any person or persons for review and
recommendations on the petition.
[Eff. FEB U9 1981 ] (Auth: HRS Sec. 91-6) (Imp:
HRS Sec. 91-6)
Sec. 11-185-55 Action on petition. Within thirty
days after the petition requesting · the agency to adopt,
amend, or repeal any rule is filed, the agency shall
file a written ruling denying the petition and stating
the agency's reason or reasons for the denial or the
agency shall initiate proceedings in accordance with
chapter 91, Hawaii Revised Statutes, for the adoption,
amendment, or repeal of the rule. In either event, the
agency shall send written notification of the agency's
action to the petitioner by certified mail, return
receipt requested. [Eff. FJ:A U~ 1981 ] (Auth: HRS
Sec. 91-6) (Imp: HRS Sec. ~t-6)
Sec. 11-185-56 Action on agency's motion.
Nothing in this chapter shall operate to prevent the
agency, on its own motion, from acting on any matter
disclosed in any petition requesting th~~~eJil\CrY 1
t.o
81 adopt, amend, or repeal any rule .. [Eff rt tj U ~ ~
(Auth: HRS Sec. 91-6) (Imp: H~S Sec. 91-6)
SUBCHAPTER 4
DECLARATORY ORDER
Sec. 11-185-70 Petition for declaratory order.
Any interested person may file with the agency a
petition for a declaratory qrder as to the applica-
185-10sr - 11-18 5-14 bility of any statutory provision administered by the agency or of an,r, rule or order of the agency. [Eff. FEB v ·0 1~81 ] (Auth: HRS Sec. 91-8) (Imp: HRS Sec. 91-8) Sec. 11-185-71 Form of petition. The petition for a declaratory order shall be in writing and shall include: (1) ( 2) ( 3) (4) (5) (6) The petitioner's name, mailing address, and telephone number; The petitioner's signature or the signature of the peti tione.r' s authorized representa- tive or attorney; A designation of the specific statutory pro- vision, rule, or order in question, together with a statement of the controversy or uncer- tainty involved; A statement of the petitioner's interest in the subject matter, including the reason or reasons for submission of the petition; A statement of the petitioner's position or contention; and A memorandum of authorities containing a full discussion of reasons and legal authorities in support of the petitioner's position or contention. [Eff. rFB O9 1981 ] (Auth: HRS, Sec. 91-8) (Imp: HRS Sec. 91-8) Sec. 11-185-72 Number of petitioner shall file with the ten copies of the petition for [Eff. FEB O9 1981 ] (Au th = copies filed. The agency the original and a declaratory order. HRS Sec. 91-8) (Imp: HRS Sec. 91-8) Sec. 11-185-73 Dismissal of petition. The agency may dismiss any petition for a declaratory order that fails to comply with the requirements of section 11-185-71. [Eff. J:"FB O9 19A1 ] (Auth: HRS Sec. 91-8) (Imp: HRS Sec. 91-ff') Sec. 11-185-74 Public hearing on petition. There is no right to a public hearing on the petition for a declaratory order. At its discretion, the agency may hold a public hearing on the petition before the agenc~Ftvesoi~gwritten ruling on the petition. [Eff. t!j VJ l~f I ] (Auth: HRS Sec. 91-8) (Imp: HRS Sec. 91-8) 185-11
Seo .. 11-185-75 Sec. 11-185-75 Action on petition. Within forty- five days after the petition for a declaratory order is filed, the agency shall file a written ruling on the petition. The ruling shall deny the petition, stating the agency's reason or reasons for the denial, or the ruling shall be a declaratory order on the matters in the petition. The agency shall send the ruling to the petiti,9μ~rrPM ~fified mail, return receipt requested. [Eff. t-tlj U~ l~O ] (Auth: HRS Sec. 91-8) (Imp: HRS Sec. 91-8) Sec. 11-185-76 Refusal to issue declaratory order. The agency may, for good cause, refuse to issue a declaratory order. Good cause includes, but is not limited to, a finding by the agency that: (1) The question is speculative or purely hypothetical and does not involve existing facts or facts that can reasonably be expected to exist in the near future; (2) The petitioner's interest is not of the type that would give the petitioner standing to maintain an action if the petitioner were to seek judicial relief; (3) The issuance of the declaratory order may adversely affect the interests of the agency or any of its employees in litigation that is pending or may reasonably be expected to arise; or (4) The matter is not within the jurisdiction of the agency. [Eff. f 1=' 8 Oa 1001 1 (Auth: HRS Sec. 91-8 (Imp~ · HRS Sec. 91-8) Sec. 11-185-77 Declaratory order on agency's motion. Nothing in this chapter shall operate to prevent the agency, on its own motion, from issuing a declaratory or~er to termir,.at~ ~ i 6O-tt"-1-q:-fversy or to remove uncertainty. [Ef f. t- t t5 V v ljtj ] (Auth: HRS Sec. 91-8) (Imp: HRS Sec. 91-8) SUBCHAPTER 5 MISCELLANEOUS PROVISIONS Sec. 11-185-90 Severability. If any provision of this chapter, or the application thereof to any person or circumstance is held invalid, the invalidity does 185-12
11-185-90 not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisi9.ns ~f this chapter are severable. [Eff. FEB V ~ 1j81 ] (Auth: HRS Sec. 91-2) (Imp: HRS Sec . 91- 2 ) 185-13
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.. \\\\ \ r The State Health Planning and Development Agency authorized the adoption of Chapter 185 of Title 11, Administrative Rules, on January 9, 1981 following public hearings held on Oahu on December 10, 1980, on Kauai on December 10, 1980, on Maui on December 9, 1980, and on Hawaii on December 8, 1980, after public notice was published in The Honolulu Advertiser on November 15, 1980, in The Garden Island on November 19, 1980, in The Maui News on November 17, 1980, and in The Hawaii Tribune-Herald on November 17, 1980. Chapter 185 of Title 11, Administrative Rules, shall take effect ten days after filing with the Office of the Lieutenant Governor. APPROVED AS TO FORM: \ eputy Attorney General '\'' SWENSON inistrator ate Health Planning and evelopment Agency APPROVED: G RGE R. ARIYOSHI GOVERNOR STATE OF HAWAII
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