Request By:
Mr. Jeffrey L. Newman
Executive Vice President
Medical Personnel Pool of Kentuckiana, Inc.
Professional Towers, Suite 275
4010 Dupont Circle
Louisville, Kentucky 40207
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: K. Gail Leeco, Assistant Attorney General
You have asked for an opinion concerning proper procedures on the denial of a certificate of need application by the Kentucky Health Facilities and Health Services Certificate of Need and Licensure Board.
Your first question concerns the regulation 902 KAR 20:125(3)(2), relating to notice as to decisions of the board. The regulation states:
The board shall give notice in writing to applicants whose applications have been tentatively denied stating the reasons therefor. Such denial shall become final unless the applicant makes application to the board for a hearing within ten (10) days after service of such notice.
You ask whether the regulation refers to a denial on any level prior to the final determination of the Certificate of Need and Licensure Board. It does not. It refers only to "denials" issued by the "board", not to the recommendations, whether of approval or disapproval, made by the regional health planning council or the state comprehensive health planning council which have previously reviewed the application.
Your second question concerns 902 KAR 20:125(6), relating to appeals of decisions of the Board. The regulation states:
All decisions revoking suspending, probating, or denying licenses, certificates of need or applications shall be made by the board and shall be recorded in the minutes of the board. The secretary of the board shall notify, by registered or certified United States mail postage prepaid, the applicant or licensee of the decision of the board, which decision shall become final and conclusive thirty (30) days after notice thereof is given as above provided.
You ask whether the regulation gives you the right to an appeal to the Board within 30 days of the decision denying your certificate of need. It does not. An appeal to the Board itself must be taken within 10 days of the decision, as 402 KAR 20.125(3)(2) provides. If no appeal is taken to the Board within this time, the Board's decision is "final." However, the applicant then has an additional 30 days within which to file an appeal of the Board's decision in Franklin Circuit Court or the county within which the applicant resides, under KRS 216.465. If no appeal is taken to the court within this time, the decision is "final and conclusive."
Applying the timetable in the statute and regulations to your application, we find that the appeal periods to the Board and to the Court had expired on September 15, 1979. You received written notice of the decision of the Board denying your application by certified mail on August 6, 1979. The notice specifically stated that you had 10 days from receipt of the notice within which to request a hearing. The 10-day appeal period to the Board expired on August 16, 1979. Your August 21, 1979 letter to the Board was received after the expiration of this period and, therefore, you were not entitled to a Board hearing on the denial of your application. The 30-day appeal period to the court expired on September 15, 1979. Your September 20, 1979 letter to our office seeking to clarify the appeal procedure was received after the expiration of the time within which you could appeal to the court. Because the appeal period to the Board and to the Court has expired, the only avenue open to you to gain approval of your application is resubmission of the application after development of additional supportive information or when revisions of regional and state plans indicate a need for another home health agency in your area.
Lastly, you ask whether any regulation exists requiring that an application be given automatic approval if not acted on within 90 days. There is no such state regulation. Regulation 902 KAR 20:005(3)(8) does provide, "Applications shall be reviewed and acted upon within appropriate time limits as established by the certificate of need and licensure board." However, no 90-day time limit is set out and no sanction of automatic approval is given where the board fails to comply with its own time limits.