(a) The State Commissioner of Health may consider only those applications for revisions of certified rates which are based on:

1. (1) six-month cost reports filed pursuant to subdivision (e) of section 86-5.2 of this Subpart. Such rate shall become effective on the first day of the six-month period referred to in section 86-5.2(f) of this Subpart;
2. (2) errors made by the department in the rate calculation process and errors in data submitted by a medical facility which have been brought to the attention of the commissioner within the time limits prescribed in section 86-5.13 of this Subpart;
3. (3) significant increases in the overall operating costs of the LTHHCP resulting from the implementation of additional programs, staff or services specifically mandated for the program by the commissioner;
4. (4) requests for waivers of any provisions of this Subpart for which waivers may be granted by the commissioner as prescribed in specific sections; and
5. (5) changes in the method of providing services which result in a lower overall cost for the services provided.

(b) An application by a LTHHCP for review of a certified rate is to be submitted on forms provided by the department and shall set forth the basis for the appeal and the issues of fact. Documentation shall accompany the application, where appropriate, and the department may request such additional documentation as determined necessary. An application based on error shall be submitted within the time limit set forth in section 86-5.13 of this Subpart. The commissioner shall act upon properly documented applications for rate appeals within one year of the end of the 120-day period referred to in section 86-5.13(a) of this Subpart or the receipt of the applications, whichever date is later. In the event the department requests additional documentation, the one-year time limit shall be extended for a mutually agreed upon time period for receipt of the documentation established by the commissioner in conjunction with the LTHHCP. The deadline will be set according to the nature and quantity of documentation necessary.

1. (1) The affirmation or revision of the rate upon such staff review shall be final, unless within 30 days of its receipt a hearing is requested, by registered or certified mail, before a rate review officer on forms supplied by the department. The request shall contain a statement of the factual issues to be resolved. The facility may submit memoranda on legal issues which it deems relevant to the appeal.
2. (2) Where the rate review officer determines that there is not factual issue, the request for a hearing shall be denied and the facility notified of such determination. No administrative appeals shall be available from this determination. The rate review officer, where he/she determines that there is factual issue, shall issue a notice of hearing establishing the date, time and place of the hearing and setting forth the factual issues as determined by the officer. The hearing shall be held in conformity with the provisions of Public Health Law, section 12-a, and the State Administrative Procedure Act.
3. (3) The recommendation of the rate review officer shall be submitted to the Commissioner of Health for final approval or disapproval and recertification of the rate where appropriate.

(d) In reviewing appeals for revisions to certified rates, the commissioner may refuse to accept or consider an appeal from a LTHHCP:

1. (1) providing an unacceptable level of care as determined after review by the State Hospital Review and Planning Council;
2. (2) operated by the same management when it is determined by the department that this management is providing an unacceptable level of care as determined after review by the State Hospital Review and Planning Council in one of its facilities;
3. (3) where it has been determined by the commissioner that the operation is being conducted by a person or persons not properly established in accordance with the Public Health Law; or

4. (4) where a fine or penalty has been imposed on the facility and such fine or penalty has not been paid.

   In such instances, the provisions of subdivision (c) of this section shall not be effective until the date the appeal is accepted by the commissioner.