11-185

TITLE 11

DEPARTMENT OF HEALTH

STATE OF HAWAII

STATE HEALTH PLANNING AND DEVELOPMENT AGENCY

ChAPTER 185

RULES OF PRACTICE AND PROCEDURE

Subchapter 1 GeneralProvisions

Sec. 11-185-1 Scope Sec. 11-185-2 Definitions Sec. 11-185-3 Construction of rules Sec. 11-185-4 Computation oftime Sec. 11-185-5 Additional time after notification by mail Sec. 11-185-6 Extension oftime Sec. 11-185-7 Agency’s address Sec. 11-185-8 Agency’s business hours Sec. 11-185-9 Time and place of filing documents Sec. 11-185-10 Method offiling documents Sec. 11-185-11 Number of copies filed Sec. 11-185-12 Date of filing Sec. 11-185-13 Format of documents Sec. 11-185-14 Agency’s official records Sec. 11-185-15 Retention of documents Sec. 11-185-16 Inspection ofpublic records Sec. 11-185-17 Copies ofpublic records Sec. 11-185-18 Request for information Sec. 11-185-19 Appearance before the agency

Subchapter 2 Public Hearing

Sec. 11-185-30 Public hearing Sec. 11-185-31 Hearing officer Sec. 11-185-32 Disqualification of hearing officer Sec. 11-185-33 Intervention Sec. 11-185-34 Continuance ofpublic hearing Sec. 11-185-35 Limitation on testimony Sec. 11-185-36 Fee for public hearing

Subchapter 3 Petition to Adopt, Amend, orRepeal Rule

Sec. 11-185-50 Petition for adoption, amendment, or repeal ofrule Sec. 11-185-51 Form ofpetition Sec. 11-185-52 Number of copies filed Sec. 11-185-53 Dismissal of petition Sec. 11-185-54 Written notification ofpetition Sec. 11-185-55 Action on petition Sec. 11-185-56 Action on agency’s motion

Subchapter4 Declaratory Order

Sec. 11-185-70 Petition for declaratory order Sec. 11-185-71 Form ofpetition Sec. 11-185-72 Number of copies filed Sec. 11-185-73 Dismissal of petition Sec. 11-185-74 Public hearing on petition Sec. 11-185-75 Action on petition Sec. 11-185-76 Reflisal to issue declaratory order Sec. 11-185-77 Declaratory order on agency’s motion

Subchapter S Miscellaneous Provisions

Sec. 11-185-90 Severability

SUBCHAPTER 1

GENERAL 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 though 189 ofthis title. The rules in this chapter are adopted by the State pursuant to chapter 91, Hawaii Revised Statutes. [Eff. FEB 09 1981] (Auth: fiRS Sec 91-2) (Imp: FIRS Sec. 91-2)

Sec. 11-185-2 Definitions. When used in a rule of the agency, unless the context clearly requires otherwise: “Administrator” means the administrator orthe acting administrator of the statehealth planning and development agency. “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 ofthe State, a county, a state agency or any instrumentality ofthe State, or a county agency or any instrumentality ofa county.

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“Secretary” means the secretary ofthe United States Department ofHealth and Human Services. “State health plan” means the state health plan established pursuant to chapter 323D, Hawaii Revised Statutes. [Elf.FEB 09 1981] (Auth: fiRS Sec. 9 1-2) (Imp: fiRS Sec. 9 1-2)

Sec. 11-185-3 Construction ofrules. (a) The caption ofa rule ofthe agency is for reference only and is not to be construed in any way as a part ofthe rule. (b) Words used in the present tense in a rule ofthe agency include the fhture tense. (c) The singular number in a rule ofthe agency includes the plural; theplural number includes the singular. (d) The word “may” in a rule ofthe agency is permissive. (e) The word “shall” in a rule ofthe agency is mandatory. [Eff.FEB 09 198 1I(Auth: HRS Sec. 9 1-2) (Imp: fiRS Sec. 9 1-2)

Sec. 11-185-4 Computation oftime. In computing any period oftime prescribed orallowed by a rule ofthe agency, by an order ofthe agency, or by any applicable statute, the period oftime begins with the day following the act, event, or default. The last day ofthe period shall be included unless it is a Saturday, Sunday, or a holiday, in which event the period runs untilthe next day which is not a Saturday, Sunday, or holiday. When the period oftime prescribed or allowed is seven days or less, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. As used in this section, “holiday” means any day designated as such pursuant to section 8-1, Hawaii Revised Statutes. [Elf.FEB 09 1981] (Auth: fiRS Sec. 91- 2) (Imp: fiRS Sec. 91-2)

Sec. 11-185-5 Additional time after notificationby 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 oftime after the agency provides notification to the person by mail, two days shall be added to the prescribed time. [Elf.FEB 09 1981] (Auth: IIRS Sec. 9 1-2) (Imp: fiRS Sec. 91-2)

Sec. 11-185-6 Extension oftime. Notwithstanding any rule ofthe agency to the contrary, whenever any person has the right or is required to do some act within a period oftime prescribed or allowed by a rule ofthe agency or by an order ofthe 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 afterthe expiration ofthe period, where the agency determines that the person’s failure to act before the expiration oftheperiod is clearly excusable under the circumstances. [Elf.FEB 09 1981] (Auth: fiRS 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 Boulevard, 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. [Elf.FEB 09 1981] (Auth: HRS Sec. 91-2) (Imp: fiRS Sec. 91-2)

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. ofeachweekday unless otherwise provided by statute or executive order. [Eff FEB 09 1981] (Auth: IIRS Sec. 9 1-2) (Imp: IIRS Sec. 9 1-2)

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Sec. 11-185-9 Time and place offiling documents. All documents, including applications, written comments on applications, request for opinion, submittals, correspondence, information, reports, memoranda, and any other papers required orpermitted to be filedwith the agency, the statewide council, a subarea council, or any committee thereof, in any proceeding shall be filed at the agency’ office within thetime limit, ifany, prescribed by statute, rule ofthe agency, or order ofthe agency. [Elf.FEB 09 1981] (Auth: fiRS Sec. 9 1-2) (Imp: HRS Sec. 9 1-2)

Sec. 11-185-10 Method offiling 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. Ifthe document is mailed, the correct postage shall be prepaid by the addresser. [Elf.FEB 09 1981] Auth: fiRS Sec. 91-2) (Imp: IIRS Sec. 91-2)

Sec. 11-185-11 Number ofcopies filed. Except as otherwise provided by any other rule ofthe agency or an order ofthe agency, only the original of eachdocument shall be filed with the agency. [Eff FEB 09 1981] (Auth: IIRS Sec. 9 1-2) (Imp: fiRS Sec. 9 1-2)

Sec. 11-185-12 Date offiling. The agency shall promptly affix the date and time of receipt to the original ofeach document received by the agency. The date on whichthe agency receives the document shall be deemed the date offiling. [Elf.FEB 09 1981] (Auth: FIRS Sec.91-2) (Imp: fiRS Sec. 9 1-2)

Sec. 11-185-13 Format ofdocuments. 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 signature ofthe person signing the document constitutes a certification that theperson has read the document; that to the best of the person’s knowledge, information, and belief, every statement contained in the document is true and no statementis misleading; and that the document is not interposed for delay. Each document shall be plainly legible. [Elf.FEB 09 1981] (Auth: fiRS Sec. 9 1-2) (Imp: fiRS Sec. 91-2)

Sec. 11-185-14 Agency’s official records. The administrator ofthe agency shall be responsible for the custody and maintenance ofthe agency’s official records. The agency’s official records shall include the files and records ofthe statewide council, the subarea councils, and any committee thereof The agency’s official records shall include decisions, order, opinions, rules, approved forms, applications filed with the agency, written comments on the applications submitted to the agency, the statewide council, a subarea council, or any committee thereof, papers, correspondence, minutes ofpublic meetings, transcripts oftestimony, and any exhibits filed in proceedings. [Elf.FEB 09 1981] (Auth: IIRS Sec. 91-2) (Imp: HRS Sec. 91-2)

Sec. 11-185-15 Retention ofdocuments. All documents filed with or presented to the agency, the statewide council, a subarea council, or any committee thereofshall be retained in the agency’s official records for the period required by law. The agency may permit the withdrawal ofan original document upon submission ofa properly authenticated copy to replace the original document. [Elf.FEB 09 1981] (Auth: fiRS Sec. 91-2) (Imp: fiRS Sec. 91-2)

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Sec. 11-185-16 Inspection ofpublic 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 statewide council, a subarea council, or any committee thereof, and all written material pertinent to any agency review, shall be available for inspection by any person, in the mannerprovided in chapter 92, Hawaii Revised Statutes, unless the records are accorded confidential treatment pursuant to law. [Eff FEB 09 1981] (Auth: IIRS Sec. 9 1-2) (Imp: HRS Sec. 9 1-2)

Sec. 11-185-17 Copies ofpublic records. The agency shall fbrish copies ofthe agency’s public records to any person upon payment ofthe statutory fee; provided that payment ofthe statutory fee shall not be required ofany department or agency ofthe state government or a county government. [Elf.FEB 09 1981] (Auth: HRS Sec. 9 1-2) (Imp: JIRS Sec. 9 1-2)

Sec. 11-185-18 Requestfor 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 submitting a written request to the agency. [Elf.FEB 09 1981] (Auth: HRS Sec. 91- 2) (Imp: fiRS Sec. 9 1-2)

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 anotherperson designated as arepresentative. Ifa person is represented by an attorney, the attorney shall be licensed to practice law by the Supreme Court ofHawaii. The agency may at any time require any person who is appearing in a representative capacity to show his or her authority to act in that capacity. [Elf.FEB 09 1981] (Auth: HRS Sec. 9 1-2) (Imp: IIRS 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 orwritten arguments and evidence relevant to the matter which is the subject ofthe hearing. Any person may conduct reasonable questioning of persons who make factual allegations relevant to the matter which is the subject ofthehearing. [Elf.FEB 09 1981] (Auth: fiRS Sec. 323D-62) (Imp: fiRS Sec. 323D-12)

Sec. 11-185-31 Hearing officer. The agency shall designate the hearing officer who shall preside at thepublic hearing. The hearing officer shall have authority to take any and all actions necessary to the orderly and just conduct ofthe hearing. [Elf.FEB 09 1981] (Auth: HRS Sec. 323D-62) (Imp: fiRS Sec. 323D-12)

Sec. 11-185-32 Disqualification ofhearing officer. (a) No hearing officer shall preside at any public hearing relating to any matter in whichthe hearing officer, the hearing officer’s spouse, or the hearing officer’s child has (or within the twelve months preceding the hearing, had) any substantial ownership, directorship, officership, employment, prospective

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employment for which negotiations have begun, medical stalf, fiduciary, contractual, creditor, debtor, consultative, pecuniary, or business interest. (b) Where any other conflict ofinterest exists, the hearing officer shall be disqualified from presiding at the public hearing. The provisions ofchapter 84, Hawaii Revised Statutes, and the decisions, advisory opinions, and informal advisory opinions ofthe state ethics commission shall serve as guidelines in determining whether a conflict ofinterest exists. [Elf. FEB 09 1981] (Auth: HRS Sec. 323D-62) (Imp: HRS Sec. 323D-12)

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 groundsupon whichthe person claims to have an interest in the proceeding. At leastten days before thehearing, the person shall file the motion with the agency and shall serve the motion upon all parties ortheir attorneys. Except for good cause shown, the hearing officer shall disregard any motion that is nottimely filed and served. (b) The hearing officer may permit intervention ifthe 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 orfinancial interest that may not be adequately represented by existing parties; and (2) That interventionwill not unduly broadenthe issues or delay the public hearing. (c) The hearing officer may permit interventionto suchextent and upon suchterms as the hearing officer may deem proper. [Eff FEB 09 1981] (Auth: HRS Sec. 323D-62) (Imp: HRS Sec. 323D-12)

Sec. 11-185-34 Continuance ofpublic hearin2. The public hearing shall be held at the time and place set in the notice ofhearing, but for good cause shown the hearing officer may at suchtime and place continue the hearing from day to day or adjourn the hearing to a later date or to a dilferent place without notice other than the announcement thereofat the hearing. [Elf.FEB 09 1981] (Auth: LIRS Sec. 323D-62) (Imp: IHRS Sec. 323D-12)

Sec. 11-185-35 Limitation on testimony. To avoid unnecessary cumulative evidence at thepublic hearing, the hearing officer may limit the time for witnesses to testify upon at particularissue. [Elf.FEB 09 1981] (Auth: JIRS Sec. 323D-62) (Imp: HRS Sec. 323D-12)

Sec. 11-185-36 Fee for public hearing. The agency shall not impose any fee for the public hearing. [Elf.FEB 09 1981] (Auth: HRS Sec. 323D-62) (Imp: HRS Sec. 323D-12)

SUBCHAPTER 3 PETiTION TO ADOPT, AMEND, OR REPEAL RULE

Sec. 11-185-50 Petition for adoption. amendment, or repeal ofrule. Any interested person may file with the agency a petition requesting the agency to adopt,

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amend, or repeal any rule. [Elf.FEB 09 1981] (Auth: HRS Sec. 91-6) (Imp: FIRS Sec. 91-6)

Sec. 11-185-51 Form ofpetition. The petition requesting the agency to adopt, amend, or repeal any rule shall be in writing and shall include: (1) The petitioner’s name, mailing address, and telephone number; (2) The petitioner’s signature or the signature ofthe petitioner’s authorized representative or attorney; (3) A statement ofthe nature ofthe petitioner’s interest; (4) A draft or substance ofthe proposed rule or amendment or a designation of therule sought to be repealed; (5) A statement ofthe reason or reasons in support ofthe proposed rule, amendment, or repeal; and (6) Any other information relevantto the petition. [Elf.FEB 09 1981] (Auth: HRS Sec. 91-6) (Imp: fIRS Sec. 91-6)

Sec. 11-185-52 Number ofcopies filed. The petitioner shall file with the agency the original and ten copies ofthe petition requesting the agency to adopt, amend, or repeal any rule. [Elf.FEB 09 1981] (Auth: IIRS Sec. 9 1-6) (Imp: IIRS Sec. 91-6)

Sec. 11-185-53 Dismissal ofpetition. The agency may dismiss any petition requesting the agency to adopt, amend, or repeal any rule that fails to comply with therequirements ofsection 11-185-51. [Elf.FEB 09 1981] (Auth: IIRS Sec. 9 1-6) (Imp: HRS Sec. 9 1-6)

Sec. 11-185-54 Written notification ofpetition. At the agency’s discretion and uponwritten notice to the petitioner, the agency may provide written notification ofthe petition requesting the agency to adopt, amend, or repeal any rule to any person or persons for review and recommendations on the petition. [Elf.FEB 09 1981] (Auth: FIRS Sec. 91-6) (Imp: fIRS 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 awritten ruling denying the petitionand stating the agency’s reasonor reasons for the denial orthe 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 ofthe agency’s actionto the petitionerby certified mail, return receipt requested. [Elf.FEB 09 1981] (Auth: fIRS Sec. 91-6) (Imp: fIRS Sec. 91-6)

Sec. 11-185-56 Action on agency’s motion. Nothing in this chapter shall operate to preventthe agency, on its own motion, from acting on any matter disclosed in any petition requesting the agency to adopt, amend, or repeal any rule. [Elf.FEB 09 1981] (Auth: fIRS Sec. 91-6) (Imp: fIRS Sec. 91-6)

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SUBCHAPTER 4 DECLARATORY ORDER

Sec. 11-185-70 Petition for declaratory order. Any interested person may file with the agency a petitionfor a declaratory order as to the applicability ofany statutory provision administered by the agency or ofany rule or order ofthe agency. [Elf. FEB 09 1981] (Auth: IIRS Sec. 91-8) (Imp: IIRS Sec. 91-8)

Sec. 11-185-71 Form ofpetition. The petition for a declaratory order shall be in writing and shall include: (1) The petitioner’s name, mailing address, and telephone number; (2) The petitioner’s signatureor the signature ofthe petitioner’s authorized representation or attorney; (3) A designation ofthe specific statutory provision, rule, or order in question, together with a statement ofthe controversy oruncertainty involved; (4) A statement ofthe petitioner’s interest in the subject matter, including the reason or reasonsfor submission ofthe petition; (5) A statement ofthe petitioner’s position or contention; and (6) A memorandum ofauthorities containing a full discussion ofreasons and legal authorities in support ofthe petitioner’s position or contention. [Elf. FEB 09 1981] (Auth: IIRS Sec. 91-8) (Imp: IIRS Sec. 91-8)

Sec. 11-185-72 Number ofcopies filed. The petitioner shall file with the agency the original and ten copies ofthe petition for a declaratory order. [Elf. FEB 09 1981] (Auth: IIRS Sec. 91-8) (Imp: fIRS Sec. 91-8)

Sec. 11-185-73 Dismissal ofpetition. The agency may dismiss any petition for a declaratory order that fails to comply with the requirements of section 11- 185-71. [Elf.FEB 09 1981] (Auth: JIRS Sec. 91-8) (Imp: fIRS Sec. 91-8)

Sec. 11-185-74 Public hearing on petition. There is no right to a public hearing on the petitionfor a declaratory order. At its discretion, the agency may hold a public hearing on the petitionbefore the agency files its writtenruling on the petition. [Elf.FEB 09 1981] (Auth: IIRS Sec. 91-8) (Imp: fIRS Sec. 91-8)

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 orreasons 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 petitioner by certified mail, returned receipt requested. [Elf.FEB 09 1981] (Auth: fIRS Sec 9 1-8) (Imp: fIRS Sec. 9 1-8)

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Sec. 11-185-76 Refusalto issue declaratory order. The agency may, for good cause, refuse to issue a declaratory order. Good cause includes, but is not limited to, afinding by the agency that: (1) The question is speculative orpurely 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 ofthetype that would give the petitioner standing to maintain an action ifthe petitioner were to seekjudicial relief, (3) The issuance ofthe declaratory order may adversely alfect the interests of the agency or any ofits employees in litigationthat is pending or may reasonably be expected to arise; or (4) The matter is not within the jurisdiction ofthe agency. [Elf. FEB 09 1981] (Auth: IIRS Sec. 91-8) (Imp: FIRS Sec. 91-8)

Sec. 11-185-77 Declaratory order on agency’s motion. Nothing in this chapter shall operate to preventthe agency, on its own motion, from issuing a declaratory order to terminate a controversy or to remove uncertainty. [Eff FEB 09 1981] (Auth: JIRS Sec. 91-8) (Imp: JIRS Sec. 9 1-8)

SUBCHAPTER S

MISCELLANEOUS PROVISIONS

Sec. 11-185-90 Severablility. If any provision ofthis chapter, or the applicationthereofto any person or circumstance is held invalid, the invalidity does not alfect other provisions or applications ofthe chapter which can be given elfectwithout the invalid provision or application, and to this end the provisions ofthis chapter are severable. [Elf. FEB 09 1981] (Auth: FIRS Sec. 91-2) (Imp: FIRS Sec. 91-2)

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The State Health Planning and Development Agency authorized the adoption ofChapter 185 ofTitle 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 ofTitle 11, Administrative Rules, shall take elfect ten days after filing with the Office ofthe Lieutenant Governor.

Is! James L.Swenson JAMES L. SWENSON Administrator State HealthPlanning and Development Agency

APPROVED:

Is! George R.Ariyoshi GEORGE R. ARIYOSfIL GOVERNOR STATE OF HAWAII

Dated: Jan. 26. 1981

APPROVED AS TO FORM:

Is! John PeterUehara Deputy Attorney General

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