Code of Maine Rules
18 - DEPARTMENT OF ADMINISTRATIVE AND FINANCIAL SERVICES
352 - STATE EMPLOYEE HEALTH COMMISSION
Chapter 1 - RULES OF PRACTICE GOVERNING ADJUDICATORY PROCEEDINGS OF THE STATE EMPLOYEE HEALTH COMMISSION
Section 352-1-1 - Proceedings before the Appeal Panel and the Commission
Universal Citation: 18 ME Code Rules ยง 352-1-1
Current through 2024-38, September 18, 2024
A. Notice
(1) Notice of the right to appeal a
determination made pursuant 5 MRSA, subsection286 appeal panel and/or the
Commission shall be given as follows: By regular mail to the person or persons
whose legal rights, duties, or privileges are at issue, sufficiently in advance
of the hearing date to afford an adequate opportunity to prepare and submit
evidence and argument and to request a hearing if so desired.
(2) All notices of hearing shall contain the
following:
a. A statement of legal authority
and jurisdiction under which the proceeding is being conducted;
b. A reference to the particular substantive
issue;
c. A short and plain
statement of the nature and purpose of the proceeding and of the matters
asserted;
d. A statement of the
time and place of hearing;
e. A
statement of the manner and time within which evidence and argument may be
submitted to the agency for consideration;
f. A statement advising the parties that the
Commission or appeal panel may schedule a telephone hearing in lieu of
in-person proceedings If either party demonstrates that a telephone hearing may
expedite the process or prevent undue hardship.
(3) Notice of appeal rights must state the
place and manner of taking an appeal and the period within which an appeal may
be taken. As to the Commission, notice of appeal rights shall state that the
Commission is not required to hold a hearing and that it is the burden of the
interested party to show a need for such a hearing.
B. Disposition without full hearing.
(1) The Commission or the appeal panel may
make informal disposition of any adjudicatory proceeding by default when any
party fails to appear at the scheduled hearing, provided notice of the
consequences of such failure to appear has been given said party. Any such
default may be set aside by the Commission or appeal panel for good cause
show.
(2) The Commission or appeal
panel may limit the issue to be heard or vary any procedure prescribed by
Commission rule or the administrative procedures act if the parties and the
Commission or appeal panel agree to such limitation or variation, or if no
prejudice to any party will result.
C. Exparte Communications: Separation of Functions
(1) In any adjudicatory proceeding,
no Commission or appeal panel member authorized to take final action or to make
findings of act and conclusions of law shall communicate directly or
indirectly, in connection with any issue of fact, law or procedure, with any
person except upon notice and opportunity for all parties to
participate.
(2) This subsection
shall not prohibit any commission or appeal panel member or other presiding
officer described above from:
a. Communicating
in any respect with other members of the Commission or appeal panel;
or
b. Having the aid or advice of
those members of his/her own agency staff, counsel or consultants retained by
the agency who have not participated and will not participate in the Commission
or appeal tribunal proceeding in an advocate capacity.
D. Opportunity to be heard
(1) The opportunity for hearing shall be
afforded without undue delay.
(2)
Unless limited by stipulation under subsection (B) (2) or unless otherwise
limited by the Commission or appeal panel to prevent repetition or unreasonable
delay in proceedings, every party shall have the right to present evidence and
arguments on all issues, and at any hearing to call and examine witnesses and
to make oral cross-examination of any person present and testifying.
E. Evidence
(1) The Commission and appeal panel need not
observe the rules of evidence observed by the courts, but shall observe the
rules of privilege recognized by law.
(2) Evidence shall be submitted if it is the
kind of evidence upon which reasonable persons are accustomed to rely in the
conduct of serious affairs. The commission or appeal panel may exclude
irrelevant or unduly repetitious evidence.
(3) All witnesses shall make affirmation of
truthful testimony.
(4) Subject to
these requirements, the commission and appeal panel may, for the purposes of
expediting adjudicatory proceedings, require the prefiling of all or part of
the testimony of any witness in written form. Every such witness shall be
subject to oral cross-examination.
(5) Generally sworn written evidence shall
not be admitted unless the author is available for cross examination or subject
to subpoena. The Commission or appeal panel may, however, accept sworn written
evidence without the necessity of the author being present if no prejudice
would result to the other party.
F. Official Notice
(1) The Commission and/or the appeal panel
may take official notice of any facts of which judicial notice could be taken,
and in addition may take official notice of general, technical or scientific
matters within their specialized knowledge and of statutes, regulations and
non-confidential agency records. Parties shall be notified of the material so
noticed, and they shall be afforded an opportunity to contest the substance or
materiality of the facts noticed,
(2) Facts officially noticed shall be
included and indicated as such in the record.
(3) Notwithstanding the foregoing, the
Commission and/or the appeal panel way utilize their experience, technical
competence and specialized knowledge in the evaluation of the evidence
presented to them.
G. Record
(1) in all adjudicatory proceedings
the Commission and/or the appeal panel shall make a record consisting of the
following:
a. All applications, pleadings,
motions, preliminary and interlocutory rulings and orders;
b. Evidence received or considered;
c. A statement of facts officially
noted;
d. Offers of proof,
objections and rulings thereon;
e.
Proposed findings and exceptions, if any;
f. The recommended decision, opinion or
report, if any, by the presiding officer;
g. The decision of the Commission or the
appeal panel; and
h. All staff
memoranda submitted to the members of the Commission or the appeal panel by
staff in connection with their consideration of the case, except memoranda of
counsel to the Commission or the appeal panel.
(2) The Commission and/or the appeal panel
shall record all hearings in a form susceptible to transcription. Portions of
the record as required and specified in subsection (G) (1) way be included in
the recording The Commission and/or the appeal panel shall transcribe the
recording when necessary for the prosecution of an appeal.
(3) All material, including record, reports
and documents in possession of the Commission or the appeal panel, of which it
desires to avail itself as evidence in making a decision, shall be offered and
made part of the record and no other factual information or evidence shall be
considered in rendering a decision.
(4) Documentary evidence may be incorporated
in the record by reference when materials so incorporated are made available
for examination by the parties before being received in evidence.
(5) orders for supplying information from the
records of the Commission or the Bureau:
a.
Orders for supplying information from the records of the Commission or the
Bureau to interested parties to the extent necessary for a proper hearing on
the issues involved in a claim shall be issued only upon application therefore,
setting forth the reasons therefore. All applications for information from the
records of the Commission or the Bureau shall state as nearly as possible the
nature of the information desired.
b. In all cases where application to supply
an interested party with information from records of the Commission or the
Bureau is granted, other interested parties shall be furnished with a copy of
such information.
H. Subpoena
(1) In any adjudicatory proceedings, any
party shall be entitled as of right to the issuance of a subpoena in the name
of the State Employee Health Commission to require the attendance and testimony
of witnesses and the production of any evidence relating to any issue of fact
in the proceeding.
(2) Authorized
subpoenas shall be issued in accordance with. the following:
a. The form of the subpoena, shall adhere,
insofar as practicable, to the form used in all cases before the court.
Witnesses shall be subpoenaed only within the territorial limits and in the
same manner as witnesses in civil cases before the courts, unless another
territory or manner is provided by law.
b. Witnesses subpoenaed for any hearing
before any appeal panel or the Commission shall be paid witness and mileage
fees by the Commission in accordance with the following schedule, except that
no attendance or mileage fee shall be due or payable when a subpoena is issued
to compel a carrier or contracted managed care representative to appear and
produce records and reports for the purpose of making a determination as to
liability or for the purpose of completing routing reports as provided under
the Maine employment security law: $10.00 for each day's attendance and 20
cents for each mile's travel going and returning home.
c. The subpoena shall show on its face the
name and address of the party at whose request it was issued.
d. Any witness subpoenaed may petition the
Commission or appeal panel to vacate or modify a subpoena in its name. The
Commission or appeal panel shall give prompt notice to the party who requested
issuance of the subpoena. After such investigation as the Commission or the
appeal panel considers appropriate, it may grant the petition in whole or in
part upon a finding that the testimony or the evidence whose production is
required does not relate with reasonable directness to any matter in question,
or that a subpoena for the attendance of a witness or the production of
evidence is unreasonable or oppressive or had not been issued a reasonable
period in advance of the time when the evidence is requested.
e. Pursuant to Title 5 M.R.S.A.
Section9060(1) (D) failure to comply with a subpoena lawfully issued and not
revoked or modified shall be punishable by a fine of not less than $5,000, or
by imprisonment not to exceed 30 days, or both.
I. Decisions
(1) Every decision of the Commission and/or
appeal panel made at the conclusion of an adjudicatory proceeding shall include
findings of fact sufficient to apprise the parties and any interested member of
the public of the basis for the decision. A copy of the decision shall be
delivered or promptly mailed to each party to the proceeding or his
representative of record. Written notice of the party's rights to review or
appeal of the decision to the Commission or review of the decision by the
courts, as the case may be, and of the action required and the time within
which such action must be taken in order to exercise the right of review or
appeal, shall be given to each party with the decision.
(2) The Commission and appeals panel shall
maintain a record of the vote of each member of the Commission with respect to
the Commission or appeals panel decision.
J. Presiding-officers
(1) Whenever a Commission member or appeal
panel or hearing examiner is disqualified or it becomes impracticable for him
to continue the hearing, the remaining Commission members or another appeal
panel hearing examiner may continue with the hearing; provided that, if it is
shown prejudice to any party will thereby result; the remaining
Commission-members or substitute appeal panel bearing examiner shall commence
the hearing anew.
(2) It shall be
the duty of the Commission and appeal panel members to:
a. Administer oaths and
affirmations;
b. Rule on the
admissibility of evidence;
c.
Regulate the course of the hearing, set the time and place for continued
hearings, and fix the time for filing of evidence, briefs and other written
submissions, and
d. Take other
action authorized by statute or Commission rule.
(3) In the event that the Commission or the
appeal panel prepare any report or proposed findings, the report or findings
shall be provided to each party and an opportunity shall be provided for
response or exceptions to be filed by each party.
(4) Hearings shall be conducted in an
impartial manner. Upon the filing in good faith by a party of a timely charge
of bias or of personal or financial interest, direct or indirect, of a
Commission member or appeal panel or hearing officer in the proceeding
requesting that that person disqualify himself, that person shall determine the
matter as a part of the record.
K. Representation before the Commission and appeal panel
(1) Any individual may appear for
himself in any proceeding before any appeal panel and/or the Commission. Any
partnership may be represented by any of its members-or a duly authorized
representative.
(2) Any interested
party may be represented by an attorney-at-law who is admitted to practice
before the highest court of this State or the highest court of any state or
territory of the United States, or by an authorized agent.
(3) The Commission or an appeal panel may, in
its discretion, refuse to allow any person to represent others in any
proceeding before it who persists in unethical conduct or who intentionally and
repeatedly fails to observe the provisions of Maine law or regulations and
proper instructions of the Commission.
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