A.
Introduction
Hearings may be initiated by either an "appellant" or by the
Department. Hearings initiated by an appellant are done so pursuant to an
appeal (sometimes referred to as a "request") for a hearing. Hearings initiated
by the Department are done so pursuant to a "notice" of hearing which is sent
to the person whose rights are at stake ("respondent"). When the Department
initiates a hearing, material concerning the hearing appears in a "notice"
prepared by the Departmental division involved. This notice is sent to the
other parties and the Division of Administrative Hearings.
When an appellant initiates a hearing, the request for the
hearing is referred to the Departmental division or other entity involved. The
Departmental division or other entity then processes the request by preparing a
"Hearing Report". Generally, the Hearing Report together with the request for
hearing is sent directly to the Division of Administrative Hearings. In certain
instances, the "Hearing Report" and request for hearing are sent to the
Commissioner. In the latter instance, the Commissioner may elect to refer the
matter to the Division of Administrative Hearings with special instructions,
usually reserving for the Commissioner final decision-making authority with
respect to that particular matter. In such cases, the Commissioner refers the
request to the Division of Administrative Hearings under an "Order of
Reference", see generally Section
VI(B)(5),
below.
B.
Appellant
Request for Hearing
1.
Communications Treated as Hearing Requests. Unless otherwise
provided by law or agency regulation, the Department will process as a hearing
request any clear expression, oral or written made by an appellant or person
lawfully acting on an appellant's behalf, to the effect that the appellant
wants a hearing.
2.
Requests
Forwarded to Appropriate Division. Any agency employee who receives a
hearing request will commit the request to writing if oral, and immediately
will forward the request to the appropriate Departmental division. This section
does not permit oral requests for hearings where a Department regulation
requires a written request pursuant to the terms of Section
VI(B)(1).
3.
Hearing Report. The division
or entity involved will complete a report on the case, which will include all
information called for on the Hearing Report form. The Hearing Report will then
be sent to the Division of Administrative Hearings, unless it should be sent to
the Office of the Commissioner pursuant to Section
VI(B)(5) below. The
Division of Administrative Hearings may send back hearing reports to the
division or other entity from which they came for necessary clarification of
issues and supplementation of material.
4.
Requirement of Hearing
Disputed. In any matter in which the involved division believes that an
adjudicatory hearing is not required by law, the division shall forward its
written reasons in support of its position, together with a hearing report, to
the Chief Administrative Hearing Officer and the appellant. The appellant shall
be informed of his/her/their right to provide written reasons as to why in the
appellant's opinion a hearing is appropriate. The Chief Administrative Hearing
Officer or designee shall make a final determination as to whether or not a
hearing is required. Provided, however, should it appear to the Chief
Administrative Hearing Officer that a determination as to whether or not a
hearing is required is dependent upon the finding of additional facts, the
Chief Administrative Hearing Officer may refer the issue to a Hearing Officer
for the purpose of holding a hearing to determine such facts.
5.
Order of Reference
a. Issuance of an Order of Reference:
(i) All hearing reports prepared by the Maine
Center for Disease Control and Prevention, the Office of MaineCare Services,
and the Office of Child and Family Services, or their successor units, shall be
sent to the Chief Administrative Hearing Officer who will consult with the
Office of the Commissioner to determine whether an Order of Reference will be
issued unless otherwise provided by law or agency rule or by direction of the
Commissioner.
(ii) Hearings
involving other Offices and Divisions: The Chief Administrative Hearing Officer
or the director of any Departmental unit, may request the Office of the
Commissioner, or the Commissioner's designee, to issue an Order of Reference
for a particular matter. In determining whether to issue an Order of Reference,
the Commissioner or the Commissioner's designee may consider the following: the
complexity of the matter, whether a substantial public interest in the subject
matter of the hearing exists, whether the matter to be reviewed is novel or
unusual, and any other consideration deemed relevant.
b. Referring the Hearing Request to the
Division of Administrative Hearings:
When the Commissioner has determined whether to issue an
Order of Reference, he/she/they will refer the hearing request to the Division
of Administrative Hearings for processing.
(1) If the Commissioner chooses to issue an
Order of Reference the Division of Administrative Hearings shall assign a
presiding officer who will prepare written findings and recommended decision as
directed by the Order of Reference.
(2) If the Commissioner chooses not to issue
an Order of Reference, the Division of Administrative Hearings shall assign a
presiding officer who will make the final decision for the agency.
c. Delegation
Any matter handled by the Commissioner under this section may
be delegated to the Chief Administrative Hearing Officer by the
Commissioner.
6.
Requests Received at the Division of Administrative Hearings. Upon
receipt of a Hearing Report or an Order of Reference, the Division of
Administrative Hearings will assign a Hearing Officer to preside and will
notify all parties of the time and place of hearing.
Where it appears that the matter should be treated pursuant
to an Order of Reference, the Division of Administrative Hearings may first
forward the case to the Office of the Commissioner for processing pursuant to
Section VI(B)(5) above.
Nothing in this section shall be construed as diminishing the
authority of a Departmental division to schedule hearings itself pursuant to
Section VI(D)(1).
7.
Notice of Hearing. The notice
of hearing shall be in a form complying with all requirements of the
Departmental program involved and will contain at least the following
information:
a. The statutory or regulatory
basis for the hearing;
b. The
purpose of the hearing;
c. The
issues to be considered at the hearing;
d. The rights of the parties, including the
rights to present evidence and arguments, subpoena witnesses, to cross-examine
opposing witnesses, be represented by legal counsel, and to have the hearing
rescheduled or continued for cause; and
e. The address and telephone of the Division
of Administrative Hearings.
8.
Manner of Hearing. The
Division of Administrative Hearings may conduct a hearing or pre-hearing
conference in person, by telephone, by videoconferencing, or by other remote
means. In determining whether to conduct a hearing or pre-hearing conference in
person or by remote means, the factors to be considered include, but are not
limited to the following:
a. Whether a party
has timely and reasonably requested that a hearing or conference be held
in-person;
b. The location of the
hearing or conference if it were to be held in-person;
c. The number of hearings that otherwise
could feasibly be scheduled at the same location as the in-person hearing or
conference;
d. The cost factors
involved to the Department, the Division of Administrative Hearings, and the
parties in holding a hearing or conference in-person as opposed to
remotely;
e. The number of
witnesses and/or exhibits required to be introduced;
f. Safety considerations for the parties and
witnesses;
g. The seasonal weather
conditions; and
h. Any other
reasonable consideration.
C.
Department Initiation of
Hearing
1.
Notice
Requirements. For certain categories of matters such as Supplemental
Nutrition Assistance Program (SNAP) Disqualifications, the Department may elect
to initiate a hearing without requiring that a person file a claim. In such
instances, the Department will initiate the hearing by completing a Notice
which will be sent to all parties and the Division of Administrative Hearings.
The person receiving the notice is referred to as the "respondent". In the
above example, the respondent may be a household in SNAP Disqualification
hearings. The notice will be in a form complying with all requirements of the
Departmental program involved and will contain at least the following
information:
a. The statutory or regulatory
basis for the hearing;
b. The
purpose of the hearing;
c. The
issues to be considered at the hearing;
d. The rights of the parties, including the
rights to present evidence and argument, subpoena witnesses, to cross-examine
opposing witnesses, be represented by legal counsel; and to have the hearing
rescheduled or continued for good cause; and
e. The name, address, and telephone number of
the Division of Administrative Hearings.
2.
Receipt of a Request at the Division
of Administrative Hearings. Upon receipt of a notice of hearing, the
Division of Administrative Hearings will assign a Hearing Officer to preside
and will notify all parties of the time, place, and/or manner of hearing. For
certain categories of hearings pursuant to Section
VI(D)(1) below, the
time, place and/or manner of hearing will already have been set by the
Departmental division involved and re-notification pursuant to this section
will not be required.
D.
Hearings Scheduled Before Referral to Division of Administrative
Hearings
1.
Prior
Agreement. Upon prior agreement between the Division of Administrative
Hearings and a Departmental division, a division may initially schedule the
time, place and/or manner of a hearing or group of hearings, before submitting
a request and written notice of hearing to the Division of Administrative
Hearings. The division involved will give all parties notice of the hearing in
conformance with Section
VI(C) above. Upon
receipt of a copy of the notice, the Division of Administrative Hearings will
appoint a Hearing Officer for each hearing or group of hearings so
scheduled.
2.
Hearing
Officer's Authority and Duties. Upon appointment, a Hearing Officer will
have full authority and duties in a hearing scheduled pursuant to Section
VI(D)(1), including
limited authority to reschedule or continue a hearing. Continuances and
rescheduling of matters must be approved by the Chief Administrative Hearing
Officer.
E.
Continuances and Rescheduling of Hearings
Any party may request a rescheduling or a continuance of a
hearing. The Division of Administrative Hearings may reschedule or continue a
hearing.
1. Grounds for granting a
request for continuance or rescheduling include but are not limited to the
following:
a. To accommodate the appearance of
a witness;
b. To implement a
party's rights regarding choice of representation at hearing;
c. To assure that a party has adequate
opportunity for preparation and presentation of evidence and
argument;
d. To assure that a party
has adequate opportunity to review, evaluate, and respond to new evidence; or
where appropriate, to require that a party review, evaluate, and respond to new
evidence;
e. To permit a party to
reconsider a previous action or decision;
f. To permit or require performance of
actions not previously taken;
g. To
secure additional time or permit or require additional activity by a party as
justice may require.
2.
Procedure for a party to a hearing to request continuances or rescheduling:
a. All requests for continuances or
rescheduling should be directed to the Division of Administrative Hearings. Any
employee of the Department who receives a communication from a party indicating
that the party needs or desires a continuance, will immediately relay the
communication to the Division of Administrative Hearings.
b. A request for a continuance or
rescheduling may be made in writing or orally.
c. Before contacting the Division of
Administrative Hearings, the party requesting the continuance must first make
reasonable attempts to contact the other party(ies) or the party(ies')
representative and to obtain an agreement on the request to continue the
hearing.
(i) When the parties agree to the
continuance or rescheduling, the Hearing Officer may grant the
motion.
(ii) Where there is no
agreement, or where the parties cannot be reached for comment, the Hearing
Officer may delay ruling on the motion until the day the hearing is scheduled;
schedule a proceeding to address the request (e.g., a conference call with the
parties or their representatives) or rule on the motion.
d. Where a request for a continuance is made
in writing, the party requesting the continuance must send a copy of the
request to the other party(ies) or the other party(ies') representative. The
request shall indicate whether the parties have agreed to the
request.
e. Except for good cause
(as defined in Section
VI(F)(3) below), all
requests for continuances and rescheduling must be made no later than 3 working
days before the scheduled date of the hearing.
f. The Hearing Officer may condition the
granting of a continuance upon the waiver by a party of applicable time
frames.
g. A Hearing Officer shall
inform all parties of all continuances or reschedulings or denials of requests
for continuances or reschedulings in a timely manner.
h. Continuances shall not be granted when the
Hearing Officer finds delay is the sole purpose for the
request.
F.
Default; Failure to Appear
1.
The Effect of Failing to Appear
a. If a party who requests a hearing fails to
appear at the hearing, the Division of Administrative Hearings will notify the
party that the request for a hearing will be dismissed because of the failure
to appear, that the decision of the action being appealed shall take effect or
remain in effect and shall advise the party of the process to reopen the
hearing (see Subsection
2 below).
b. If the Department has initiated the
hearing (or if the applicable statute otherwise provides), and the party
notified to appear fails to appear, the Hearing Officer may issue a decision on
the basis of the evidence presented at the hearing.
c. If within 10 days of receipt of the notice
(referred to in Section
VI(F)(1)(a)) or a
decision (referred to in Section
VI(F)(1)(b)), a party
submits information demonstrating good cause for failure to appear, the request
for hearing will be reinstated and a hearing scheduled unless the party has
previously failed to appear in the same matter and whose appeal was reinstated
for good cause or the applicable statute otherwise provides. If the Chief
Administrative Hearing Officer determines that the information submitted does
not demonstrate good cause, a good cause hearing will be scheduled.
d. If the party has previously failed to
appear in the same matter, failed to appear at a reinstated hearing and submits
a timely request to reinstate, a good cause hearing will be
scheduled.
2.
Good
Cause Hearing. At the good cause hearing, the party seeking
reinstatement has the burden of persuading the Hearing Officer that good cause
exists and any other party or the Department may present evidence opposing a
finding of good cause.
When scheduling a good cause hearing, the Division of
Administrative Hearings shall notify the requesting party in advance of the
advantage of bringing documentation and witnesses in support of the good cause
claim and of the possible consequences if the Hearing Officer finds against the
party on this issue.
If a Hearing Officer finds good cause, the request for a
hearing shall be immediately reinstated and the matter shall proceed to hearing
as if the party seeking reinstatement had not failed to appear. If good cause
is not found, the request for hearing is not reinstated and the decision of the
action being appealed shall take effect or remain in effect, or the decision
issued by the Hearing Officer shall take effect, as the case may be.
3.
Good Cause. The
following circumstances constitute good cause for the purposes of Section
VI(F):
a. A death or serious illness in the
family;
b. A personal injury or
illness which reasonably prevents the party from attending the
hearing;
c. An emergency or
unforeseen event which reasonably prevents the party from attending the
hearing;
d. An obligation or
responsibility which a reasonable person in the conduct of his/her/their
affairs could reasonably conclude takes precedence over attendance at the
hearing;
e. Lack of receipt of
adequate or timely notice;
f.
Excusable neglect, excusable inadvertence, or excusable mistake.
4.
Hearings held in the
absence of parties. For parties other than the Department, any
Departmental division may establish regulations, consistent with the Maine
Administrative Procedure Act, which allow for conducting a hearing in the
absence of a party as an alternative to defaulting such
party.
G.
Pre-Hearing Conference
1. Prior
to any hearing, the Hearing Officer may at the request of a party or upon the
officer's own motion confer with the parties. All parties will be notified and
given an opportunity to participate. Conferences may be held by telephone, by
video conferencing, in person, by other remote means, or may be conducted in
writing. Pre-hearing conferences are not necessary in the vast majority of
cases and will be utilized only when necessary in the interests of justice.
Pre-hearing conferences may be scheduled in a time, place and/or manner whereby
such scheduling is adequate to meet the purposes of the pre-hearing
conference.
2. Purposes of a
pre-hearing conference may include:
a. The
parties' estimate of the time required for the hearing;
b. The identification of the legal issues
likely to arise at the hearing;
c.
The development of stipulations and admissions;
d. The identification and, if possible,
agreement as to admissibility of any evidence;
e. Clarification of the issues;
f. The resolution of disputes as to evidence
requested to be produced by subpoena or otherwise;
g. Providing for and scheduling any exchange
of exhibits prior to hearing; and
h. Any other action which will aid in the
proper and fair functioning of the hearing.
3. The Hearing Officer shall ensure that the
pre-hearing conference is recorded.
H.
Access to Information/Exchange of
Exhibits and Subpoenas
1.
Access
to the Files/Exchange of Exhibits. A party shall have an adequate
opportunity prior to the hearing and at the hearing itself to examine the
contents of his/her/their case file and all documents and records to be used by
the agency at the hearing. The Department shall provide copies of relevant
portions of the case file and applicable regulations to the party or
his/her/their representative free of charge as provided below:
a. Except where provided by law or
regulation, the above subsection does not require the Department to provide
copies of all materials in a case file.
b. Upon the request of a party made to the
representative of the Division involved in the hearing at least fourteen days
prior the hearing, the Department shall provide, at least seven days prior the
hearing, copies of: all relevant regulations; and relevant portions of the
appellant's case file. Deadlines regarding the exchange of exhibits are
governed further below.
c. Unless
the Hearing Officer orders otherwise, the parties shall exchange exhibits at
least seven days prior to the hearing. The parties shall also send their
exhibits to the Hearing Officer at least seven days prior to the hearing. A
party's failure to exchange and submit his/her/their exhibits on a timely basis
may result in a continuance or the exhibits being excluded from the hearing.
2.
Subpoenas
The consent decision ordered on February 14, 1995 in the
matter of Mann v. Commissioner, Maine Department of Human
Services specifies content and procedural requirements for subpoenas
issued by DAH. See Mann v. Commissioner, Maine Department of Human
Services, No. CV-94-424, Me. Super. 1995 (February 14, 1995). A copy
of the Consent Judgment is available at
https://www.maine.gov/dhhs/about-us/administrative-hearings.
a.
Requesting Subpoena. Any
party shall be entitled as a matter of right to request a subpoena be issued in
the name of the agency to require the attendance and testimony of witnesses and
the production of any evidence relating to any issue of fact in the proceeding
subject to the following requirements:
(i) The
party requesting the subpoena shall file a written request for the subpoena
with the Chief Administrative Hearing Officer or the Division of Administrative
Hearings. The request shall contain:
(a) The
name and address of the requesting party;
(b) The name and address of the person being
subpoenaed, or other place where that person may be found, and;
(c) A brief statement as to why the testimony
or evidence of the person being subpoenaed is relevant to an issue of fact in
the proceeding.
(ii) The
Chief Administrative Hearing Officer or other person designated by the
Commissioner shall have the authority to issue the subpoena.
b.
Issuance of
Subpoena
The request shall be approved if the evidence or testimony
sought reasonably appears to be relevant to any issue of fact in the
proceeding. If a party requests the presence of a current employee of the Maine
Department of Health and Human Services and the evidence or testimony sought
reasonably appears to be relevant to any issue of fact in the proceeding, then
the Maine Department of Health and Human Services shall secure the presence of
the employee without issuance of a subpoena.
c.
Witness Fees
(i) Witnesses subpoenaed shall be paid the
same fees for attendance and travel as in civil cases before the courts. Such
fees shall be paid by the party requesting the subpoena unless exempt. The
following parties are exempt from paying fees:
Applicants for and recipients of "means tested" benefit
programs (such as but not limited to, Temporary Aid for Needy Families (TANF),
Medical Assistance, SNAP, General Assistance, Emergency Assistance, and other
programs funded by the Department under Title XX Social Services block grants)
when appealing Departmental actions affecting those benefits and recipients of
child support enforcement services from the Division of Support Enforcement and
Recovery.
When a party is exempt from paying witness fees, the
Department of Health and Human Services shall be responsible for the payment of
witness fees.
(ii) This
provision does not require the Department to pay for any additional fees of
expert witnesses.
d.
Service of the Subpoena
The party requesting the subpoena is responsible for service
of the subpoena unless the party is one of those described in Section
VI(H)(c)(i). In such
cases the Departmental Division involved in the hearing shall be responsible
for expense of service of the subpoena.
(i) Service of the subpoena may be made by a
sheriff or a deputy within the sheriff's county or another person authorized by
applicable law or regulation;
(ii)
Service of the subpoena may be made by registered or certified mail, with
restricted delivery and return receipt requested. Service of the subpoena may
also be made by first class mail. The person requesting the subpoena shall send
a copy of the subpoena, plus the witness fee check by first class mail to the
individual subpoenaed. Service by registered or certified mail shall be
complete when the registered or certified mail is delivered and the return
receipt signed or when acceptance is refused, provided that the party seeking
to complete service shall file with the Hearing Officer either the return
receipt, or if acceptance was refused, an affidavit that upon notice of such
refusal a copy of the subpoena was sent to the witness by ordinary
mail.
e.
Limit of
Subpoena. Witnesses shall be subpoenaed only within the territorial
limits of Maine and in the same manner as witnesses in civil cases before the
courts unless another manner is provided by law.
f.
Petition to Vacate Subpoena.
Any witness subpoenaed may petition for the Hearing Officer of the Division of
Administrative Hearings to vacate or modify a subpoena.
(i) The Hearing Officer shall, in an informal
manner, give the party who requested the issuance of the subpoena notice of
such petition orally or in writing. The notice shall quote the contents of the
petition and shall indicate that the party may oppose the petition orally or,
if time permits, in writing to the Hearing Officer. If time does not permit a
party to respond to the request to vacate, the hearing shall be postponed long
enough to permit the party to respond to the petition. This procedure shall not
be construed to require a hearing.
(ii) After such inquiry as the Hearing
Officer considers appropriate, the Hearing Officer may grant the petition in
whole or in part upon a finding that:
(a) The
testimony or the evidence whose production is requested does not relate with
reasonable directness to any matter in question; or
(b) The subpoena is unreasonable, oppressive,
or requires disclosure of privileged or other protected matter and no exception
or waiver applies; or
(c) The
subpoena has not been issued a reasonable period in advance of the time when
the evidence is requested; or
(d)
The testimony or other evidence sought is unduly repetitious.
Unless the Hearing Officer finds that at least one of the
above conditions exists, the Hearing Officer shall deny the petition to vacate
or modify the subpoena.
g.
Failure to Comply with
Subpoena. If any person fails to comply with a properly issued and
served subpoena, the Division of Administrative Hearings (or the party who
requested the subpoena) may petition the Superior Court for an order requiring
compliance with the terms of the subpoena. If the Superior Court issues such an
order and any person who is subject to it does not comply with it, he/she/they
will be subject to the contempt powers of the Court.
Continuances of hearings shall be liberally granted in cases
where a witness fails to attend in response to a
subpoena.
I.
Participation at the Hearing
1.
Rights of the Appellant, Respondent,
and Intervenor
The appellant, respondent, and intervenor shall have the
right to:
a. Be assisted by a
representative, of his/her/their choice;
b. Present witnesses;
c. Examine and introduce evidence from
his/her/their case record, and examine and introduce any other pertinent
Department documents;
d. Present
and establish all relevant facts and circumstances by oral testimony and
documentary evidence;
e. Advance
any pertinent arguments without undue interference;
f. Question or refute any testimony and
confront and cross-examine adverse witnesses.
2.
Department's Rights and
Responsibilities
The Department shall designate a single staff person or
contractor who may be represented by an Assistant Attorney General. The
Department's representative shall:
a.
Organize the presentation of the Department's case;
b. Submit at the hearing a complete account
of the circumstances under which it acted or failed to act;
c. Present witnesses when appropriate and,
when necessary, subpoena witnesses;
d. Ensure that the case record is present at
the hearing and that the other parties have adequate opportunity to examine it
prior to and during the hearing;
e.
Introduce into evidence material from the case record and other Department
documents which pertain to the issues raised during the hearing;
f. Present and establish all relevant facts
and circumstances by oral testimony and documentary evidence;
g. Have the right to advance any pertinent
arguments without undue interference;
h. Have the right to question and refute any
testimony and confront and cross-examine adverse witnesses;
i. Arrange for the appearance at the hearing
of representatives of other programs, if appropriate.
3.
Behavior at the Hearing
The Hearing Officer shall have full and exclusive control of
the conduct of the hearing. In cases of disorder or refusal to comply with the
rules of the hearing or orders of the Hearing Officer, the Hearing Officer
shall use reasonable means to control the hearing. Parties, representatives,
and witnesses shall not engage in bitter exchanges, vulgarities, or abuse or
make offensive or insulting comments. When such conduct occurs, the Hearing
Officer shall admonish the offender, reminding the person that such behavior
does not contribute to a fair hearing and impedes the orderly disposition of a
case. If the offense is repeated and further admonition appears fruitless, the
Hearing Officer shall exclude a disorderly person from the hearing. If the
disorderly person is a party, the party shall be warned that if the
unacceptable behavior continues the Hearing Officer shall treat the party as
having abandoned the hearing. If the party continues to engage in the
unacceptable behavior after having been warned by the Hearing Officer, the
Hearing Officer may terminate the hearing and dismiss the hearing as abandoned
by the party.
