Code of Massachusetts Regulations
110 CMR - DEPARTMENT OF CHILDREN AND FAMILIES
Title 110 CMR 10.00 - Fair Hearing And Grievances
Section 10.13 - Fair Hearings - Subpoenas
Universal Citation: 110 MA Code of Regs 110.10
Current through Register 1531, September 27, 2024
(1) Department or Provider Employees.
(a) The Appellant shall be able to require
the attendance of any Department or Provider employee(s) who can provide
information relevant to the decision that the Appellant is appealing by
submitting a written request to the Hearing Officer at least 15 calendar days
before the hearing.
(b) If the
requested employee is not available to testify, written notification must be
provided to the Appellant at least five calendar days before the hearing,
indicating the identity of another employee with direct knowledge of the
challenged decision who will be present to testify at the hearing.
(c) If the employee is not available and
notice is given to the Appellant, the Appellant may request a continuance until
such time as the employee is available; however, if the Appellant requests such
continuance the time requirement for scheduling as set for in
110 CMR 10.10 shall
not apply.
(2) Other Persons.
(a)
Child victims shall not be required to testify at a Fair Hearing, unless a
compelling reason can be shown as to why the child's testimony is essential. In
no event will a child be required to testify if the testifying will harm the
child. Evidence demonstrating the harm shall be produced to the Fair Hearing
Officer.
(b) Any party to a hearing
shall have the right to subpoena witnesses and/or the production of documents
pursuant to M.G.L. c. 30A, § 12(3). The party may have the subpoena issued
in any way permitted by law or may request the Hearing Office to issue a
subpoena. Any request that the Hearing Officer issue a subpoena must be made at
least 15 calendar days prior to the scheduled hearing and must include the
person's correct name and address. Upon the request of such subpoena, the
Hearing Officer, the Director of Fair Hearings or designee may issue an Order
to Quash such subpoena if it is determined that the subpoena is being used to
intimidate, harass, is contrary to 110 CMR 10.13(2)(a), is overly burdensome or
oppressive or lacks a reasonable period of notice. If such order issues, the
Appellant may request the Hearing Officer, Director of Fair Hearings or
designee to reconsider, provided said party submits additional information
setting forth such facts as to why the subpoena should issue.
(c) In the event that a subpoena has been
issued, any party or the person subpoenaed may file a written request with the
Hearing Office to vacate or modify the subpoena pursuant to M.G.L. c. 30A,
§ 12(4). The Hearing Officer, Director of Fair Hearings or designee shall
give notice of a request to vacate or modify the subpoena to all parties either
orally or in writing. The notice shall recite the contents of the request or
summarize the request. If time does not permit a party to respond to the
request to vacate or modify the subpoena, the hearing on the merits shall be
postponed long enough to permit the party to do so. No hearing on the request
shall be required. Grounds to vacate or modify a subpoena shall include, but
not be limited to, requests that are overly burdensome, seek privileged
information, are irrelevant to the action, are unreasonable, or impose
insufficient time for the party to comply.
(d) Pursuant to M.G.L. c. 30A, § 12(5),
if any person fails to comply with a properly issued subpoena, which has not
been vacated or modified by the Hearing Office, the party requesting the
issuance of the subpoena may petition any justice of the superior court for an
order requiring compliance with the terms of the subpoena.
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