10-144 C.M.R. ch. 1, § V - THE HEARING OFFICER

A. Qualifications

The Department will appoint to preside at any hearing only an individual:

1. who is fair and unbiased, and who has no personal or financial interest, direct or indirect, in the hearing or its outcome, and

2. who has not been involved directly or indirectly in the action or failure to act which is the subject matter of the hearing.

B. Ex parte Communications

1. Communication prohibited. In any adjudicatory proceedings, no agency members authorized to take final action or presiding officers designated by the agency to make findings of fact and conclusions of law may communicate directly or indirectly in connection with any issue of fact, law, or procedure, with any party or other persons legally interested in the outcome of the proceeding, except upon notice and opportunity for all parties to participate. When sending documents to the Hearing Officer, a party to a hearing must also send copies of the documents to all other parties.

2. Communication permitted. This section shall not prohibit the Commissioner or Chief Administrative Hearing Officer or any designated Hearing Officer from:

a. Communicating in any respect with other members of the agency or other presiding officers; or

b. Having the aid or advice of those members of his/her/their own agency staff, counsel or consultants retained by the agency who have not participated and will not participate in the adjudicatory proceeding in an advocate capacity.

c. Requesting from the agency any relevant rules, regulations, policy, or procedure that are available upon request to any member of the public.

d. Handling of pre-hearing motions where staff in the Division of Administrative Hearings receive pre-hearing motions, and contact the parties:

(i) to ascertain their position regarding the motion filed by the other party, if the party who filed the motion has been unable or has failed to do so; and

(ii) to schedule or reschedule hearings or conferences.

C. Recusal of the Hearing Officer

1. If a party files a timely charge of bias, prejudice or personal or financial interest, either direct or indirect, the Hearing Officer shall promptly determine whether it would be appropriate to recuse him/her/their--self from the hearing, said determination to be made a part of the record.

2. A Hearing Officer may also decide to recuse him/her/their-self absent a charge from a party if the Hearing Officer determines that he/she/they cannot under the circumstances be fair, impartial, and unbiased; said determination and its basis shall be made upon the record or following consultation with the Chief Administrative Hearing Officer.

D. Role of the Hearing Officer

1. The Hearing Officer shall have the following duties:

a. To administer oaths or affirmations to all witnesses in all hearings;

b. To rule on the admissibility of evidence;

c. To regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing evidence, briefs, or other submissions;

d. To assist all those present in making a full and free statement of the facts in order to discover all issues which may govern the outcome of the case, and to ascertain the rights of the parties;

e. To ensure an orderly presentation of the evidence;

f. To ensure that all parties have a full opportunity to present their claims orally or in writing and to secure witnesses and evidence to establish their claims;

g. To ensure that a complete record is made of the hearing;

h. To render a fair, independent (i.e. without deference to the decision under appeal), and impartial decision (or recommendation if such is required) resolving all material issues, based upon the evidence presented at the hearing and in accordance with law.

2. The Hearing Officer shall have the following powers:

a. To limit attendance at the hearing to the extent required to comply with law, including sequestration of witnesses;

b. To change the date, time, manner, or place of the hearing on his/her/their own motion or at the request of any party, upon due notice to the parties;

c. To require parties to specify issues and to encourage parties to enter into stipulations regarding undisputed facts;

d. To regulate the presentation of evidence and the participation of the parties for the purpose of ensuring an adequate and comprehensive record of the proceedings;

e. To examine witnesses and ensure that relevant evidence is secured and introduced;

f. To continue the hearing to a subsequent time to permit either party to produce additional relevant evidence, witnesses, or other materials or undertake other activities pursuant to these regulations;

g. To rule on any requests that may be made during the hearing;

h. At his/her/their discretion, to request written briefs to be submitted both before and after the hearing;

i. To take official notice of facts pursuant to Section VII(9);

j. To determine the credibility of witnesses and to decide what weight is to be given to their testimony;

k. To order, where relevant and useful, and authorized by federal or state statutes or regulations, an independent medical assessment or professional evaluation from a source mutually satisfactory to the applicant or recipient and the Department;

l. To correct or amend the record in accordance with Section (VIII)(D);

m. To reopen the hearing in accordance with Section (VIII)(C); and

n. To sanction parties in accordance with Section (VI)(I).

Notes

10-144 C.M.R. ch. 1, § V