Mont. Admin. R. 37.5.322 - HEARING OFFICER, POWERS, AND DUTIES
(1) A
hearing shall be conducted by an impartial individual appointed or hired by the
department as hearing officer who has had no direct involvement in the initial
determination of the adverse action.
(2) The hearing officer may:
(a) require the furnishing of such
information, the attendance of witnesses, depositions upon oral examination or
written questions, written interrogatories, and the production of such books,
records, papers, documents, and other objects as may be necessary and proper
for purposes of the hearing. For this purpose, the hearing officer may, and
upon request of any party to a hearing, shall issue subpoenas for witnesses or
subpoenas duces tecum;
(b) except
in a hearing to which the department is not a party, order the department or,
where appropriate, the local office to pay witness fees, mileage and other
actual and necessary expenses as provided under the Rules of Civil Procedure
for district courts of the state of Montana of a witness subpoenaed at the
request of a claimant if, in the judgment of the hearing officer, the testimony
of that witness is essential to the claimant's case;
(c) disqualify himself at any time on the
filing of a timely and sufficient affidavit of personal bias or other
disqualification;
(d) direct the
parties to appear and confer in a prehearing conference to consider definition
and simplification of the issues or other matters to aid in the orderly and
efficient conduct of the hearing;
(e) allow, for good cause shown, a third
party to represent a claimant as an authorized representative in those
instances where written authorization of the claimant is not
obtainable;
(f) grant a continuance
at the request of a party for good cause shown or with the consent of all
parties;
(g) take judicial notice
of state and federal laws and regulations and facts within the general
knowledge of the public;
(h) grant
summary judgment according to the provisions of Rule 56, Montana Rules of Civil
Procedure; and
(i) require a party
to comply with reasonable and appropriate orders or requests not in conflict
with these rules and necessary to assure the orderly conduct of prehearing and
hearing procedures or to avoid unnecessary proceedings or expense.
(3) A hearing officer shall:
(a) administer oaths and
affirmations:
(b) ensure that all
relevant issues are considered;
(c)
request, receive and make part of the record all evidence determined necessary
to decide the relevant issues;
(d)
regulate the conduct of the hearing consistent with due process to ensure an
orderly hearing;
(e) prepare a
proposal for decision consisting of proposed findings of fact, conclusions of
law and a recommended order deciding the case based on the evidence and the
testimony contained in the hearing record.
(4) In provider hearings, if a motion is
filed, or as otherwise ordered by the hearing officer in a particular claimant
hearing, the following rules apply to motions:
(a) Upon filing of a motion or within five
days thereafter, the moving party must state the reasons. The statement may be
accompanied by appropriate supporting documents. Within ten days thereafter,
the adverse party must file an answer statement which also may be accompanied
by appropriate supporting documents. Within ten days thereafter movant may file
a reply brief or other appropriate responsive documents.
(b) Failure to file a statement required
under (4)(a) may subject the motion to summary ruling. Failure to file a
statement within five days by the moving party shall be deemed an admission
that the motion is without merit. Failure to file an answer statement within
ten days by an adverse party shall be deemed an admission that the motion is
well taken. Reply statements by movants are optional and failure to file will
not subject a motion to summary ruling. The hearing officer may grant
extensions of these filing time limits.
(c) The hearing officer may order oral
argument with or without request of a party.
(d) Unless oral argument is ordered, the
motion is deemed submitted at the expiration of any applicable time limit
without supporting briefs having been filed. If oral argument is ordered, the
motion will be deemed submitted at the close of argument unless the hearing
officer orders additional briefs in which case the motion will be deemed
submitted as of the date designated as the time for filing the final
brief.
(5) For purposes
of this rule, time computation shall be governed by Rule 6(a), Montana Rules of
Civil Procedure.
Notes
53-2-201, 53-2-606, 53-4-212, 53-6-113, 53-7-102, MCA; IMP, 53-2-201, MCA;
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