Compilation of Rules and Regulations of the State of Georgia
Department 274 - DEPARTMENT OF COMMUNITY HEALTH CERTIFICATE OF NEED APPEAL PANEL
Chapter 274-1 - ADMINISTRATION
Rule 274-1-.10 - Conduct of Initial Administrative Appeal Hearing

(1) The initial administrative hearing shall be conducted as a full evidentiary hearing in accordance with Chapter 13 of Title 50, the Georgia Administrative Procedure Act, relating to contested cases, except as otherwise specified in O.C.G.A. § 31-6-44 or these Rules. In addition to being filed via the Department's web portal where required by Rule 274-1-.01(5), all documents submitted to the hearing officer, another party or an attorney of record pursuant to this rule may be submitted via either regular mail or electronic mail, unless otherwise directed by the hearing officer.

(2) Subject to the prior approval of the hearing officer, all files, working papers, studies, notes and other writings or information used by the Department in making its decision shall be public records and available to the parties, and the hearing officer may permit each party to exercise such reasonable rights of pre-hearing discovery of such information used by the parties as will expedite the hearing. Answers to such a request for discovery shall be served within ten (10) business days of the date the request was received. A request for discovery of information not included in items (a) through (f) below shall be made to the hearing officer. Any party may, upon written request to another party, discover the following items as a matter of right:

(3) At least ten (10) business days prior to commencement of the initial administrative hearing, each party shall submit to the hearing officer and to each attorney of record or party not represented by an attorney a brief summary of the facts and legal contentions on which the party's case is based. The summary shall not exceed eight (8) double-spaced pages in length.

(4) At the discretion of the Hearing Officer, each party to an initial administrative hearing may be required to submit, along with and at the time of the summary of facts and legal contentions referenced in subsection (3) above, the written direct testimony of the primary health planning expert witness it intends to present at the hearing along with any exhibits which correspond to the direct expert witness testimony. This written material shall be submitted to the hearing officer and to each attorney of record or party not represented by an attorney. This written material shall be used by the Department as an official copy for the administrative hearing record. The written direct testimony of any expert witness and the corresponding exhibits submitted pursuant to this rule shall be tendered in lieu of direct live testimony of a party's expert witness at the initial administrative hearing. The expert witness of any party shall be subject to live cross examination and redirect examination at the initial administrative hearing. The expert witness shall be tendered as an expert by the party who submitted written direct testimony of the expert witness prior to any cross-examination. An expert witness may also be subject to voir dire with regard to their qualification as an expert by any party at the discretion of the hearing officer. The written direct testimony and corresponding exhibits are not subject to the eight (8) double-spaced page limit referenced in subsection (3) above.

(5) Any party to an initial administrative hearing who intends to submit updates of studies previously submitted to the Department prior to its decision shall submit such updates, along with any supporting documentation, in written form at the same time as the summary of facts and legal contentions referenced in subsection (3) above. The updated studies, if any, shall be submitted to the hearing officer and to each attorney of record or party not represented by an attorney. The updates and supporting documentation are not subject to the eight (8) double-spaced page limit referenced in subsection (3) above.

(6) In the event the Hearing Officer requires written direct testimony of a primary health planning expert to be filed pursuant to subsection (4) above, at least five (5) business days prior to commencement of the initial administrative hearing, each party shall submit to the hearing officer and to each attorney of record or party not represented by an attorney objections to the admissibility of proposed expert testimony, documents, exhibits, and updated studies referenced in subsections (3), (4), and (5) above.

(7) Appellants or Applicants shall proceed first with their cases before the hearing officer in the order determined by the hearing officer; and the Department, if a party, shall proceed last. Any interveners shall proceed in an order determined by the hearing officer.

(8) The burden of proof shall be on the Appellant.

(9) All evidence shall be presented at the initial administrative appeal hearing conducted by the appointed hearing officer.

(10) In addition to evidence submitted to the Department, a party may present any additional relevant evidence to the appeal panel hearing officer reviewing the decision of the Department if the evidence was not reasonably available to the party presenting the evidence at the time of the Department's review. The burden of proof as to whether the evidence was reasonably available shall be on the party attempting to introduce the new evidence.

(11) A party or intervener may present any relevant evidence on all issues raised by the hearing officer or any party to the hearing or revealed during discovery and shall not be limited to evidence or information presented to the Department prior to its decision, except that an applicant may not present a new need study or analysis responsive to the general need consideration or service-specific need formula that is substantially different from any such study or analysis submitted to the Department prior to its decision and that could have reasonably been available for submission. The hearing officer shall consider the latest data available, including updates of studies previously submitted, in deciding whether an application is consistent with the applicable consideration or rules. The hearing officer shall consider the applicable considerations and rules in effect on the date the appeal is filed, even if the provisions of those considerations or rules were changed after the Department's decision.

(12) Initial administrative appeal hearings shall be conducted in such a manner as to conclude in a reasonable period of time. Any continuance or delays should be as brief as possible and shall only be granted for good cause shown. The hearing officer shall be vested with the authority to set reasonable time limits in advance of or during the hearing for the presentation of each party's case, subject to extension for good cause shown.

(13) The hearing officer shall make such rulings as may be required for the conduct of the hearing and shall have the authority to do the following in addition to any other rights granted by O.C.G.A. §50-13., the Georgia Administrative Procedure Act, which are not otherwise inconsistent with these Rules: administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof; regulate the course of the hearing; set the time and place for continued hearings; fix the time for filing motions and briefs; dispose of motions to dismiss for lack of jurisdiction over the subject matter or parties or for any other grounds; dispose of motions to amend or to intervene; provide for the taking of testimony by deposition or interrogatory; and reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the hearing officer. The hearing officer may order such conferences with counsel for the parties, or the parties themselves if they are not represented by counsel, either prior to or during the hearing, as may facilitate determination of questions of evidence and other questions of law and expedite the hearing.