Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This amendment adds provisions for
hearings-related documents to be submitted by email and revises representation
rights in section (2), the time period for scheduling hearings in section (3),
the statutory reference in section (7), and the process for conducting hearings
in section (10).
PUBLISHER'S NOTE: The secretary of state has
determined that publication of the entire text of the material that is
incorporated by reference as a portion of this rule would be unduly cumbersome
or expensive. This material as incorporated by reference in this rule shall be
maintained by the agency at its headquarters and shall be made available to the
public for inspection and copying at no more than the actual cost of
reproduction. This note applies only to the reference material. The entire text
of the rule is printed here.
(1) Requests for hearings shall be submitted
in the following manner:
(A) All requests for
hearings shall be made in writing by the appellant or their attorney to the
hearings administrator within twenty (20) calendar days from the date of the
final determination letter as set out in
9 CSR
10-5.200(6)(D). The request may be
hand-delivered or sent by mail, email, or facsimile.
1. A request for hearing filed by hand
delivery or mail is considered received on the date received by the office of
the hearings administrator. Mailed requests shall be sent to the Office of
Hearings Administrator, Department of Mental Health, 1706 East Elm St., PO Box
687, Jefferson City, MO 65102.
2. A
request for hearing filed by email or facsimile is considered received at the
time the office of the hearings administrator receives the request, provided
that the original of the document is sent to the office of the hearings
administrator and received within ten (10) calendar days of the email or fax.
If a request arrives by email or fax after 5 p.m., Central Time, and before 12
a.m., Central Time, or on a Saturday, Sunday, or legal holiday, it is
considered filed on the next working day. Requests filed by facsimile shall be
sent to the office of hearings administrator's designated line specified in the
information provided to the appellant by the department. Requests filed by
email shall be sent to the office of hearings administrator's designated email
address included with the information provided to the appellant by the
department.
A. The time controlling when a
facsimile arrives at the office of the hearings administrator is the office of
the hearings administrator's facsimile machine journal. The time controlling
when an email arrives at the office of the hearings administrator is the
timestamp in the original message.
B. The person filing by email or facsimile
bears the risk of loss in transmission, non-receipt, or illegibility. If the
request for hearing is not received or is materially illegible, the request is
not considered filed and is totally null and void for all purposes; and
(B) The
request for a hearing shall set out the appellant's name, current address,
telephone number, and email address and that of their attorney, if applicable;
the decision being appealed, the date of the decision, and the name of the
person making the decision and a brief statement of the appellant's reason for
appealing the decision.
(2) Appellants may represent themselves and
handle their own cases, but shall have the right to retain representation by a
Missouri-licensed attorney. A party to an appeal cannot be represented by
anyone other than a duly licensed attorney, with the exception of
representation by an advocate, parent, or legal guardian as provided in
9 CSR
45-2.020 or internal Department Operating Regulation
4.470 (effective/published June 22, 2022), Department Operating Regulation
4.533 (ef-fective/published June 22, 2022), or Department Operating Regulation
4.563 (effective/published June 23, 2021), hereby incorporated by reference and
made a part of this rule, published by and available from the Department of
Mental Health, 1706 E. Elm St., Jefferson City, MO 65101, (573) 751-4122. This
rule does not incorporate any subsequent amendments or changes to these
regulations. If either party is represented by an attorney, the attorney shall
promptly notify the office of hearings administrator and enter their
appearance.
(3) When a hearing has
been requested, the hearings administrator shall schedule the hearing within
the time period required by regulations after receiving the request for
hearing, but may delay the hearing for good cause shown.
(4) The hearings administrator may schedule a
pre-hearing conference with the parties. The hearings administrator may meet
(in person, via telephone, or video conference) with the parties and their
representatives at a pre-hearing conference to determine the facts at issue. At
the pre-hearing conference, the parties may stipulate to mutually agreed
matters or the appeal may be resolved by agreement of the parties. All parties
are required to provide the hearings administrator with a current address,
telephone number, and email address. If the appellant fails to provide the
hearings administrator with a current address, phone number, or email address
and cannot be reached to schedule a pre-hearing conference or fails to
participate in a prehearing conference after receiving written notice of the
date and time of the conference, it shall be deemed that the appellant no
longer wishes to proceed with the appeal and is withdrawing the
appeal.
(5) The hearings
administrator shall send written notice of hearing and prehearing dates to the
parties and representatives no less than ten (10) calendar days before the
scheduled date for such hearing, unless there is good cause to shorten the
period to provide notice.
(6) The
hearings administrator may grant continuances for good cause. A continuance
must be requested no later than seventy two (72) hours, excluding Saturdays,
Sundays, and legal holidays, prior to the scheduled date and time of the
hearing or prehearing. Absent exigent circumstances, requests for continuances
received less than seventy two (72) hours prior to the hearing or prehearing
shall not be considered.
(7)
Requests for subpoena shall be governed by the following requirements:
(A) A request for a subpoena for attendance
at depositions or hearings shall be made in writing and specify the name of the
persons, the address(es) where the person can be served with the subpoena, the
deposition or hearing location, and the time the person is expected to appear
at the deposition or hearing location;
(B) A request for a subpoena duces tecum
shall be made in writing and specify the name of the person, the address(es)
where the person can be served with the subpoena, the documents the person is
to provide, a statement of what is intended to be proved by the documents,
where they should bring the documents, and a date when the documents are to be
provided;
(C) All subpoena requests
shall be sent by mail, fax, or email to the hearings administrator and opposing
party at least five (5) working days before the hearing or deposition, unless
there is good cause to shorten the period to request the subpoena;
(D) Any motions to quash a subpoena must be
sent to the hearings administrator within three (3) working days of receiving
the subpoena request;
(E) If no
objection is sustained to a subpoena request, the hearings administrator shall
prepare the subpoena and send the subpoena to the party who requested it. It is
the responsibility of the person who requested the subpoena to have it served.
Service of the subpoena is to be effected in accordance with section
536.077, RSMo; and
(F) If a subpoena for a witness was not
requested in accordance with this rule, good cause will not be found to
continue the hearing for that witness's failure to appear.
(8) The appellant or his/her attorney may
request copies of any documents referred to in the decision letter from the
attorney representing the department. If the documents involve protected health
information, the attorney shall request a protective order from the hearings
administrator. The protective order shall provide that no documents containing
protected health information shall be released to anyone except the appellant
or his/her attorney, and the appellant or his/her attorney shall return any
documents provided to him or her before the end of the hearing.
(9) All parties who are represented by an
attorney shall submit a proposed order with every motion or request that is
filed or presented to the hearings administrator.
(10) The hearing shall be conducted according
to the following procedures:
(A) The hearing
shall be conducted by video conferencing unless the appellant files a written
request for an in-person hearing. All in-person hearings will be conducted at
the facility where the decision was made, unless the hearings administrator
finds good cause to hold the hearing in another place;
(B) If the appellant or their attorney does
not appear at the hearing and does not call the facility or the hearings
administrator to provide notification of an exigent circumstance requiring a
continuance within thirty (30) minutes of the time set out in the notice, it
shall be deemed that the appellant no longer wishes to proceed with the appeal
and is withdrawing the appeal;
(C)
At the beginning of the hearing, the hearings administrator shall state the
reason for the hearing and outline the hearing procedure;
(D) Both parties shall be given the
opportunity to present opening statements. The department shall present its
witnesses and exhibits first, then the appellant shall present their witnesses
and exhibits. The department shall have the burden of proof by a preponderance
of the evidence. Both parties shall be given the opportunity to present closing
statements;
(E) All witnesses shall
be sworn or affirmed. All witnesses are subject to cross examination;
(F) The hearings administrator, at the
request of either party or on their own motion, may order the witnesses to be
separated so as to preclude any witness, other than the parties, from hearing
the testimony of other witnesses. When requested by the appellant, only one (1)
person in addition to counsel may remain in the room to represent the
department;
(G) The formal rules
of evidence shall not apply at these hearings. Parties may introduce any
relevant evidence at the discretion of the hearings administrator;
(H) In all cases of allegations of abuse,
neglect, or misuse of funds/property, the attorney representing the department
shall offer the investigative report into evidence at the administrative
hearing. In accordance with section
630.167.3(1),
RSMo, the investigative report shall be
admitted into evidence;
(I) The
hearings administrator may exclude evidence that is purely
cumulative;
(J) The hearings
administrator may take administrative notice of department rules, department
operating regulations, and facility policies without the necessity of an offer
into evidence; and
(K) The hearing
shall be recorded. After the hearings administrator issues their decision, a
copy of the recording shall be made available to either party upon request. The
department will not transcribe the recording from aural to written form. The
cost of a transcription shall be borne by the requesting party.
(11) All requests shall be in
writing and directed to the attention of the hearings administrator and copied
to the other party. This includes such matters as requests for continuances,
documents, recordings, remote witness testimony, subpoenas, protective orders,
and copies of decision. Requests may be mailed to the office of the hearings
administrator at 1706 East Elm St., PO Box 687, Jefferson City, MO 65102 or
faxed or emailed as specified in the information provided to the appellant by
the department.
(12) The hearings
administrator's decision is final and is subject to judicial review in
accordance with sections
536.100
to
536.140,
RSMo. A motion for attorney's fees, if any, shall be filed with the office of
the hearings administrator within thirty (30) calendar days of the date of the
decision. The filing of a petition for judicial review does not stay the thirty
(30) day filing requirement.
*Original authority: 630.050, RSMo 1980, amended 1993,
1995, 2008 and 630.167, RSMo 1980, amended 1985, 1990, 1993, 1996, 1998, 2003,
2007, 2008.
