New York Codes, Rules and Regulations
Title 10 - DEPARTMENT OF HEALTH
Chapter II - Administrative Rules and Regulations
Subchapter C - Access To Records
Part 51 - Uniform Hearing Procedures
Section 51.11 - The hearing
Universal Citation: 10 NY Comp Codes Rules and Regs ยง 51.11
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Appearances.
(1) A party may appear in person
or by an attorney. If a party appears by an attorney, service of papers shall
be made upon the attorney.
(2) Any
person appearing on behalf of a party in a representative capacity may be
required to show his authority to act in such capacity.
(3) If a party fails to appear at the
hearing, issues on which the absent party has the burden of proof may be
resolved against that party.
(4) At
any time before a report is submitted to the commissioner, or to the
appropriate board or council, the hearing officer may open a default or relieve
any party of the consequences of any default upon good cause shown.
(b) Consolidation and severance.
(1) In proceedings which involve common
questions of fact, the hearing officer, upon his own initiative or upon motion
of any party, may order a consolidation of actions or a joint hearing of any or
all issues to avoid unnecessary delay and cost.
(2) The hearing officer, to avoid prejudice
or inconvenience, may order a severance of the hearing and hear separately any
issue in the proceeding.
(c) Intervention.
(1) At any time after the institution of a
proceeding, the hearing officer may, upon a verified petition and for good
cause shown, and upon notice to the parties, permit a person to intervene as a
party, except in proceedings brought pursuant to Public Health Law, section
230.
(2) The petition of any person desiring to
intervene as a party shall state with precision and particularity:
(i) the petitioner's interest in the matter
at issue;
(ii) the nature of the
evidence petitioner intends to present and the names of witnesses, if
any;
(iii) the nature of the
argument petitioner intends to make; and
(iv) any other reason that petitioner should
be allowed to intervene.
(d) Conduct of hearing and evidence.
(1) Each witness shall be sworn or given an
affirmation.
(2) The rules of
evidence need not be observed.
(3)
Each party shall have the right to present evidence and to cross-examine
witnesses.
(4) Official notice may
be taken of all facts of which judicial notice could be taken and of other
facts within the specialized knowledge of the department.
(5) All evidence, including records,
documents and memoranda in the possession of the department of which it desires
to avail itself, shall be offered and made a part of the record. All such
documentary evidence may be received in the form of copies or excerpts, or by
incorporation by reference. In case of incorporation by reference, the
materials so incorporated shall be available for examination by the parties
before being received in evidence.
(6) The department has the burden of proof
and of going forward in all enforcement cases. The petitioner/applicant has the
burden of proof and of going forward in all other cases.
(7) In administrative proceedings relating to
violation of Public Health Law, section
2803-d, the hearing officer may not
compel the disclosure of the identity of the person who made the report or any
person who provided information in an investigation of any such
report.
(8) Complaints relating to
matters governed by Public Health Law, section
230 may not be introduced into evidence by
either party and their production may not be required by the hearing officer
even if the complainant is a witness.
(9) In matters governed by Public Health Law,
section
230, a hearing may proceed if at least two
members of the hearing committee are present. At the conclusion of the hearing
each member shall affirm that he or she has read and considered evidence
introduced at and transcripts of any hearing days at which he or she was not
present.
(10) Claims that an
administrative hearing has been unreasonably delayed shall be raised only
pursuant to this section and claims of unreasonable delay not permitted by this
section shall not be entertained in a hearing.
(i) Claims of unreasonable delay occurring
after hearing is requested or noticed. Any claim that a hearing has been
delayed unreasonably shall be treated as an affirmative defense pursuant to
section
51.5
of this Part or otherwise as part of the claimant's case and shall be argued as
part of the claimant's case. The burden of proving and the burden of going
forward on the issue of unreasonable delay shall be on the claimant.
(a) In reviewing a claim of unreasonable
delay, the hearing officer shall first calculate the time period that has
elapsed between the date the hearing was requested or noticed, whichever is
earlier, and the first day of hearing (the "time period"). For purposes of this
section, the time period for cases brought pursuant to Public Health Law,
section
2803-d or 230, or Subpart 60-1 of this
Title, shall be from the date the hearing was noticed to the first day of
hearing.
(b) If the time period is
one year or less, the claim of unreasonable delay shall be denied.
(c) If the time period is more than one year,
the claimant shall then have the burden of showing that the claimant has been
handicapped significantly and irreparably in mounting a case or defense by the
time period. A mere assertion of handicap shall not suffice.
(d) If the claimant meets such burden, the
hearing officer must then determine whether the time period is unreasonable
under the circumstances. In making that determination, the hearing officer
shall weigh at least the following factors:
(1) whether there is a causal relationship
between the conduct of the department and the time period, and whether the
conduct of the claimant was responsible in whole or in part for the time
period;
(2) the public policy
sought to be effected through the administrative action which is the subject of
the administrative hearing;
(3) the
availability of department resources to pursue the case consistent with other
department responsibilities.
(e) The hearing officer shall include in the
report to the decisionmaker any findings, conclusions and recommendations with
respect to unreasonable delay. The report shall also include findings,
conclusions and recommendations that will allow the decisionmaker to dispose of
the case if the decisionmaker does not follow the recommendation for dismissal
on the basis of unreasonable delay.
(ii) Claims of unreasonable delay occurring
before hearing is requested or noticed.
(a)
Claimant may make a record in connection with a claim of an unreasonable delay
by the department occurring prior to a request for, or notice of, a hearing
that has resulted in substantial prejudice to the claimant's defense due to the
passage of time. The department may make a record in opposition to such a
claim. A separate hearing on this issue shall not be provided.
(b) Neither a hearing officer nor, in a case
of alleged professional misconduct, a hearing committee, shall consider,
sustain or reject a claim of unreasonable delay occurring before a hearing is
requested or noticed. After a final determination has been rendered, in the
event that such determination is adverse to the claimant, and the claimant
wishes to pursue the claim of an unreasonable delay occurring prior to a
hearing request or notice, the claimant may do so in a proceeding pursuant to
article 78 of the CPLR.
(e) Record.
(1) A verbatim record of the proceedings
shall be made by whatever means the department deems appropriate.
(2) The record of the hearing shall include:
the notice of hearing, statement of charges, if any, answer and any other
responsive pleadings; motions and requests submitted, and rulings thereon; the
transcript or recording of the testimony taken at the hearing; exhibits;
stipulations, if any; a statement of matters officially noticed, except matters
so obvious that a statement of them would serve no useful purpose; briefs or
objections as may have been submitted and filed in connection with the hearing
and any decision, determination, opinion, order or report rendered.
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