14 CRR-NY 621.13NY-CRR
14 CRR-NY 621.13
14 CRR-NY 621.13
621.13 Local governmental unit agreement/certification related to State aid, Housing Finance Agency mortgage loans, and Facilities Development Corporation mortgage loans.
(a) Where the applicant for State aid is a voluntary agency (or proposed incorporators of the voluntary agency to be formed) there must be an agreement between the voluntary agency and the local governmental unit pursuant to section 41.15(e) of the Mental Hygiene Law.
(b) Where the application is for an HFA or FDC mortgage loan, except in the case of FDC mortgage loans to the extent that they are for refinancing projects already certified under this section, there must be certification by the local governmental unit in the city or county in which the facility is located that the project is consistent with its plan for the provision of services for persons with developmental disabilities. In the case of HFA mortgage loan applications, such certification must be consistent with the provisions of section 75.19 of the Mental Hygiene Law.
(c) An applicant may appeal to the commissioner from the local governmental unit's denial of the agreement or certification required in subdivisions 621.13(a) and (b) of this section following a written request from the applicant as follows:
(1) within 30 days from the date that the applicant has been notified of the refusal of the local governmental unit to approve or certify; or
(2) within 30 days after the local governmental unit's failure to approve or certify.
(d) An appeal may be made only where the application for an agreement or certification to the local governmental unit by the applicant does not involve the direct expenditure of local tax levy funds.
(e) An appeal to the commissioner pursuant to subdivision (c) of this section must be in writing with a copy to the local governmental unit and to the local Developmental Disabilities Service Office (see glossary, section 621.17 of this Part).
(1) The written appeal must include the following information, if such information has been changed from that which was provided in the applicants approved certification of need application:
(i) the details of the program which the applicant has proposed;
(ii) the need for the program in the community; and
(iii) a showing that the applicant has the capacity to furnish the services. Specific detail must be shown that the applicant would be able to provide the place, the personnel and the organizational structure to effectuate the proposed program. The applicant must also show that it has the financial ability to provide sufficient funds to match State aid, where applicable.
(2) In addition, the written appeal must set forth facts showing the following:
(i) the applicant has submitted a written specific proposal to the local governmental unit for the project in a timely manner; and
(ii) a copy of the decision of the local governmental unit to refuse to agree to the proposal or sufficient facts to show that the local governmental unit has failed to approve or certify the applicant's project within 30 days of submittal.
(3) Upon receipt of the written request for an appeal, OPWDD will notify the local governmental unit of this request.
(i) Within 30 days of the date of receipt of such notification from OPWDD, the local governmental unit may reply in writing to OPWDD regarding the applicant's request for an appeal. In its reply the local governmental unit shall set forth the following facts:
(a) a substantial basis for its decision not to approve or certify; or
(b) the reason for its failure to approve or certify.
The local governmental unit shall forward a copy of its reply, personally or by mail, to the applicant.
(ii) Every effort shall be made by OPWDD to conciliate the applicant and the local governmental unit. Informal sessions may be arranged for a discussion of the issues and an attempt to resolve the appeal without further formal procedure.
(4) No later than 15 days of the date OPWDD receives the local governmental unit's reply to the applicant's request for an appeal, or if no reply is received, the commissioner shall:
(i) dismiss the appeal if the appeal is clearly without merit based on the facts provided to the commissioner by the applicant and/or the local governmental unit; or
(ii) schedule a hearing, if a substantial basis for appeal has been presented by the applicant, and the efforts of OPWDD at conciliation have failed.
(5) If a hearing is scheduled, it shall be held before the commissioner at a time or times fixed by the commissioner.
(i) Written notice of the hearing shall be given to the applicant, the local governmental unit and such other persons as the commissioner may deem advisable.
(ii) The hearing shall not be adjudicatory in nature and the rules applying to quasi-judicial hearings shall not apply. The applicant, the representatives of the local governmental unit, appropriate staff members of OPWDD and other interested individuals may present their views to the commissioner on the merits of the appeal.
(iii) Whenever possible, the commissioner shall designate a place in the county seat of the county from which the appeal has arisen for the conduct of the hearing.
(6) Within 15 days after the date that the hearing has closed, a decision shall be made by the commissioner on whether the appeal is meritorious. The commissioner shall notify the local governmental unit and the applicant of his decision. In every case where the appeal has been found meritorious, the requirement for local governmental unit agreement or certification shall be deemed to have been satisfied.
14 CRR-NY 621.13
Current through June 30, 2021
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