10-144-1 Me. Code R. § VI

Current through 2024-51, December 18, 2024

Section 144-1-VI - HEARING PROCESS

A.Introduction

Hearings may be initiated by either an "appellant" or by the Department. Hearings initiated by an appellant are done so pursuant to an appeal (sometimes referred to as a "request") for a hearing. Hearings initiated by the Department are done so pursuant to a "notice" of hearing which is sent to the person whose rights are at stake ("respondent"). When the Department initiates a hearing, material concerning the hearing appears in a "notice" prepared by the Departmental division involved. This notice is sent to the other parties and the Division of Administrative Hearings.

When an appellant initiates a hearing, the request for the hearing is referred to the Departmental division or other entity involved. The Departmental division or other entity then processes the request by preparing a "Hearing Report". Generally, the Hearing Report together with the request for hearing is sent directly to the Division of Administrative Hearings. In certain instances, the "Hearing Report" and request for hearing are sent to the Commissioner. In the latter instance, the Commissioner may elect to refer the matter to the Division of Administrative Hearings with special instructions, usually reserving for the Commissioner final decision-making authority with respect to that particular matter. In such cases, the Commissioner refers the request to the Division of Administrative Hearings under an "Order of Reference", see generally Section VI(B)(5), below.

B.Appellant Request for Hearing

1.Communications Treated as Hearing Requests. Unless otherwise provided by law or agency regulation, the Department will process as a hearing request any clear expression, oral or written made by an appellant or person lawfully acting on an appellant's behalf, to the effect that the appellant wants a hearing.

2.Requests Forwarded to Appropriate Division. Any agency employee who receives a hearing request will commit the request to writing if oral, and immediately will forward the request to the appropriate Departmental division. This section does not permit oral requests for hearings where a Department regulation requires a written request pursuant to the terms of Section VI(B)(1).

3.Hearing Report. The division or entity involved will complete a report on the case, which will include all information called for on the Hearing Report form. The Hearing Report will then be sent to the Division of Administrative Hearings, unless it should be sent to the Office of the Commissioner pursuant to Section VI(B)(5) below. The Division of Administrative Hearings may send back hearing reports to the division or other entity from which they came for necessary clarification of issues and supplementation of material.

4.Requirement of Hearing Disputed. In any matter in which the involved division believes that an adjudicatory hearing is not required by law, the division shall forward its written reasons in support of its position, together with a hearing report, to the Chief Administrative Hearing Officer and the appellant. The appellant shall be informed of his/her/their right to provide written reasons as to why in the appellant's opinion a hearing is appropriate. The Chief Administrative Hearing Officer or designee shall make a final determination as to whether or not a hearing is required. Provided, however, should it appear to the Chief Administrative Hearing Officer that a determination as to whether or not a hearing is required is dependent upon the finding of additional facts, the Chief Administrative Hearing Officer may refer the issue to a Hearing Officer for the purpose of holding a hearing to determine such facts.

5.Order of Reference

a. Issuance of an Order of Reference:

(i) All hearing reports prepared by the Maine Center for Disease Control and Prevention, the Office of MaineCare Services, and the Office of Child and Family Services, or their successor units, shall be sent to the Chief Administrative Hearing Officer who will consult with the Office of the Commissioner to determine whether an Order of Reference will be issued unless otherwise provided by law or agency rule or by direction of the Commissioner.

(ii) Hearings involving other Offices and Divisions: The Chief Administrative Hearing Officer or the director of any Departmental unit, may request the Office of the Commissioner, or the Commissioner's designee, to issue an Order of Reference for a particular matter. In determining whether to issue an Order of Reference, the Commissioner or the Commissioner's designee may consider the following: the complexity of the matter, whether a substantial public interest in the subject matter of the hearing exists, whether the matter to be reviewed is novel or unusual, and any other consideration deemed relevant.

b. Referring the Hearing Request to the Division of Administrative Hearings:

When the Commissioner has determined whether to issue an Order of Reference, he/she/they will refer the hearing request to the Division of Administrative Hearings for processing.

(1) If the Commissioner chooses to issue an Order of Reference the Division of Administrative Hearings shall assign a presiding officer who will prepare written findings and recommended decision as directed by the Order of Reference.

(2) If the Commissioner chooses not to issue an Order of Reference, the Division of Administrative Hearings shall assign a presiding officer who will make the final decision for the agency.

c. Delegation

Any matter handled by the Commissioner under this section may be delegated to the Chief Administrative Hearing Officer by the Commissioner.

6.Requests Received at the Division of Administrative Hearings. Upon receipt of a Hearing Report or an Order of Reference, the Division of Administrative Hearings will assign a Hearing Officer to preside and will notify all parties of the time and place of hearing.

Where it appears that the matter should be treated pursuant to an Order of Reference, the Division of Administrative Hearings may first forward the case to the Office of the Commissioner for processing pursuant to Section VI(B)(5) above.

Nothing in this section shall be construed as diminishing the authority of a Departmental division to schedule hearings itself pursuant to Section VI(D)(1).

7.Notice of Hearing. The notice of hearing shall be in a form complying with all requirements of the Departmental program involved and will contain at least the following information:

a. The statutory or regulatory basis for the hearing;

b. The purpose of the hearing;

c. The issues to be considered at the hearing;

d. The rights of the parties, including the rights to present evidence and arguments, subpoena witnesses, to cross-examine opposing witnesses, be represented by legal counsel, and to have the hearing rescheduled or continued for cause; and

e. The address and telephone of the Division of Administrative Hearings.

8.Manner of Hearing. The Division of Administrative Hearings may conduct a hearing or pre-hearing conference in person, by telephone, by videoconferencing, or by other remote means. In determining whether to conduct a hearing or pre-hearing conference in person or by remote means, the factors to be considered include, but are not limited to the following:

a. Whether a party has timely and reasonably requested that a hearing or conference be held in-person;

b. The location of the hearing or conference if it were to be held in-person;

c. The number of hearings that otherwise could feasibly be scheduled at the same location as the in-person hearing or conference;

d. The cost factors involved to the Department, the Division of Administrative Hearings, and the parties in holding a hearing or conference in-person as opposed to remotely;

e. The number of witnesses and/or exhibits required to be introduced;

f. Safety considerations for the parties and witnesses;

g. The seasonal weather conditions; and

h. Any other reasonable consideration.

C.Department Initiation of Hearing

1.Notice Requirements. For certain categories of matters such as Supplemental Nutrition Assistance Program (SNAP) Disqualifications, the Department may elect to initiate a hearing without requiring that a person file a claim. In such instances, the Department will initiate the hearing by completing a Notice which will be sent to all parties and the Division of Administrative Hearings. The person receiving the notice is referred to as the "respondent". In the above example, the respondent may be a household in SNAP Disqualification hearings. The notice will be in a form complying with all requirements of the Departmental program involved and will contain at least the following information:

a. The statutory or regulatory basis for the hearing;

b. The purpose of the hearing;

c. The issues to be considered at the hearing;

d. The rights of the parties, including the rights to present evidence and argument, subpoena witnesses, to cross-examine opposing witnesses, be represented by legal counsel; and to have the hearing rescheduled or continued for good cause; and

e. The name, address, and telephone number of the Division of Administrative Hearings.

2.Receipt of a Request at the Division of Administrative Hearings. Upon receipt of a notice of hearing, the Division of Administrative Hearings will assign a Hearing Officer to preside and will notify all parties of the time, place, and/or manner of hearing. For certain categories of hearings pursuant to Section VI(D)(1) below, the time, place and/or manner of hearing will already have been set by the Departmental division involved and re-notification pursuant to this section will not be required.

D.Hearings Scheduled Before Referral to Division of Administrative Hearings

1.Prior Agreement. Upon prior agreement between the Division of Administrative Hearings and a Departmental division, a division may initially schedule the time, place and/or manner of a hearing or group of hearings, before submitting a request and written notice of hearing to the Division of Administrative Hearings. The division involved will give all parties notice of the hearing in conformance with Section VI(C) above. Upon receipt of a copy of the notice, the Division of Administrative Hearings will appoint a Hearing Officer for each hearing or group of hearings so scheduled.

2.Hearing Officer's Authority and Duties. Upon appointment, a Hearing Officer will have full authority and duties in a hearing scheduled pursuant to Section VI(D)(1), including limited authority to reschedule or continue a hearing. Continuances and rescheduling of matters must be approved by the Chief Administrative Hearing Officer.

E.Continuances and Rescheduling of Hearings

Any party may request a rescheduling or a continuance of a hearing. The Division of Administrative Hearings may reschedule or continue a hearing.

1. Grounds for granting a request for continuance or rescheduling include but are not limited to the following:

a. To accommodate the appearance of a witness;

b. To implement a party's rights regarding choice of representation at hearing;

c. To assure that a party has adequate opportunity for preparation and presentation of evidence and argument;

d. To assure that a party has adequate opportunity to review, evaluate, and respond to new evidence; or where appropriate, to require that a party review, evaluate, and respond to new evidence;

e. To permit a party to reconsider a previous action or decision;

f. To permit or require performance of actions not previously taken;

g. To secure additional time or permit or require additional activity by a party as justice may require.

2. Procedure for a party to a hearing to request continuances or rescheduling:

a. All requests for continuances or rescheduling should be directed to the Division of Administrative Hearings. Any employee of the Department who receives a communication from a party indicating that the party needs or desires a continuance, will immediately relay the communication to the Division of Administrative Hearings.

b. A request for a continuance or rescheduling may be made in writing or orally.

c. Before contacting the Division of Administrative Hearings, the party requesting the continuance must first make reasonable attempts to contact the other party(ies) or the party(ies') representative and to obtain an agreement on the request to continue the hearing.

(i) When the parties agree to the continuance or rescheduling, the Hearing Officer may grant the motion.

(ii) Where there is no agreement, or where the parties cannot be reached for comment, the Hearing Officer may delay ruling on the motion until the day the hearing is scheduled; schedule a proceeding to address the request (e.g., a conference call with the parties or their representatives) or rule on the motion.

d. Where a request for a continuance is made in writing, the party requesting the continuance must send a copy of the request to the other party(ies) or the other party(ies') representative. The request shall indicate whether the parties have agreed to the request.

e. Except for good cause (as defined in Section VI(F)(3) below), all requests for continuances and rescheduling must be made no later than 3 working days before the scheduled date of the hearing.

f. The Hearing Officer may condition the granting of a continuance upon the waiver by a party of applicable time frames.

g. A Hearing Officer shall inform all parties of all continuances or reschedulings or denials of requests for continuances or reschedulings in a timely manner.

h. Continuances shall not be granted when the Hearing Officer finds delay is the sole purpose for the request.

F.Default; Failure to Appear

1.The Effect of Failing to Appear

a. If a party who requests a hearing fails to appear at the hearing, the Division of Administrative Hearings will notify the party that the request for a hearing will be dismissed because of the failure to appear, that the decision of the action being appealed shall take effect or remain in effect and shall advise the party of the process to reopen the hearing (see Subsection 2 below).

b. If the Department has initiated the hearing (or if the applicable statute otherwise provides), and the party notified to appear fails to appear, the Hearing Officer may issue a decision on the basis of the evidence presented at the hearing.

c. If within 10 days of receipt of the notice (referred to in Section VI(F)(1)(a)) or a decision (referred to in Section VI(F)(1)(b)), a party submits information demonstrating good cause for failure to appear, the request for hearing will be reinstated and a hearing scheduled unless the party has previously failed to appear in the same matter and whose appeal was reinstated for good cause or the applicable statute otherwise provides. If the Chief Administrative Hearing Officer determines that the information submitted does not demonstrate good cause, a good cause hearing will be scheduled.

d. If the party has previously failed to appear in the same matter, failed to appear at a reinstated hearing and submits a timely request to reinstate, a good cause hearing will be scheduled.

2.Good Cause Hearing. At the good cause hearing, the party seeking reinstatement has the burden of persuading the Hearing Officer that good cause exists and any other party or the Department may present evidence opposing a finding of good cause.

When scheduling a good cause hearing, the Division of Administrative Hearings shall notify the requesting party in advance of the advantage of bringing documentation and witnesses in support of the good cause claim and of the possible consequences if the Hearing Officer finds against the party on this issue.

If a Hearing Officer finds good cause, the request for a hearing shall be immediately reinstated and the matter shall proceed to hearing as if the party seeking reinstatement had not failed to appear. If good cause is not found, the request for hearing is not reinstated and the decision of the action being appealed shall take effect or remain in effect, or the decision issued by the Hearing Officer shall take effect, as the case may be.

3.Good Cause. The following circumstances constitute good cause for the purposes of Section VI(F):

a. A death or serious illness in the family;

b. A personal injury or illness which reasonably prevents the party from attending the hearing;

c. An emergency or unforeseen event which reasonably prevents the party from attending the hearing;

d. An obligation or responsibility which a reasonable person in the conduct of his/her/their affairs could reasonably conclude takes precedence over attendance at the hearing;

e. Lack of receipt of adequate or timely notice;

f. Excusable neglect, excusable inadvertence, or excusable mistake.

4.Hearings held in the absence of parties. For parties other than the Department, any Departmental division may establish regulations, consistent with the Maine Administrative Procedure Act, which allow for conducting a hearing in the absence of a party as an alternative to defaulting such party.

G.Pre-Hearing Conference

1. Prior to any hearing, the Hearing Officer may at the request of a party or upon the officer's own motion confer with the parties. All parties will be notified and given an opportunity to participate. Conferences may be held by telephone, by video conferencing, in person, by other remote means, or may be conducted in writing. Pre-hearing conferences are not necessary in the vast majority of cases and will be utilized only when necessary in the interests of justice. Pre-hearing conferences may be scheduled in a time, place and/or manner whereby such scheduling is adequate to meet the purposes of the pre-hearing conference.

2. Purposes of a pre-hearing conference may include:

a. The parties' estimate of the time required for the hearing;

b. The identification of the legal issues likely to arise at the hearing;

c. The development of stipulations and admissions;

d. The identification and, if possible, agreement as to admissibility of any evidence;

e. Clarification of the issues;

f. The resolution of disputes as to evidence requested to be produced by subpoena or otherwise;

g. Providing for and scheduling any exchange of exhibits prior to hearing; and

h. Any other action which will aid in the proper and fair functioning of the hearing.

3. The Hearing Officer shall ensure that the pre-hearing conference is recorded.

H.Access to Information/Exchange of Exhibits and Subpoenas

1.Access to the Files/Exchange of Exhibits. A party shall have an adequate opportunity prior to the hearing and at the hearing itself to examine the contents of his/her/their case file and all documents and records to be used by the agency at the hearing. The Department shall provide copies of relevant portions of the case file and applicable regulations to the party or his/her/their representative free of charge as provided below:

a. Except where provided by law or regulation, the above subsection does not require the Department to provide copies of all materials in a case file.

b. Upon the request of a party made to the representative of the Division involved in the hearing at least fourteen days prior the hearing, the Department shall provide, at least seven days prior the hearing, copies of: all relevant regulations; and relevant portions of the appellant's case file. Deadlines regarding the exchange of exhibits are governed further below.

c. Unless the Hearing Officer orders otherwise, the parties shall exchange exhibits at least seven days prior to the hearing. The parties shall also send their exhibits to the Hearing Officer at least seven days prior to the hearing. A party's failure to exchange and submit his/her/their exhibits on a timely basis may result in a continuance or the exhibits being excluded from the hearing.

2.Subpoenas

The consent decision ordered on February 14, 1995 in the matter of Mann v. Commissioner, Maine Department of Human Services specifies content and procedural requirements for subpoenas issued by DAH. See Mann v. Commissioner, Maine Department of Human Services, No. CV-94-424, Me. Super. 1995 (February 14, 1995). A copy of the Consent Judgment is available at https://www.maine.gov/dhhs/about-us/administrative-hearings.

a.Requesting Subpoena. Any party shall be entitled as a matter of right to request a subpoena be issued in the name of the agency to require the attendance and testimony of witnesses and the production of any evidence relating to any issue of fact in the proceeding subject to the following requirements:

(i) The party requesting the subpoena shall file a written request for the subpoena with the Chief Administrative Hearing Officer or the Division of Administrative Hearings. The request shall contain:

(a) The name and address of the requesting party;

(b) The name and address of the person being subpoenaed, or other place where that person may be found, and;

(c) A brief statement as to why the testimony or evidence of the person being subpoenaed is relevant to an issue of fact in the proceeding.

(ii) The Chief Administrative Hearing Officer or other person designated by the Commissioner shall have the authority to issue the subpoena.

b.Issuance of Subpoena

The request shall be approved if the evidence or testimony sought reasonably appears to be relevant to any issue of fact in the proceeding. If a party requests the presence of a current employee of the Maine Department of Health and Human Services and the evidence or testimony sought reasonably appears to be relevant to any issue of fact in the proceeding, then the Maine Department of Health and Human Services shall secure the presence of the employee without issuance of a subpoena.

c.Witness Fees

(i) Witnesses subpoenaed shall be paid the same fees for attendance and travel as in civil cases before the courts. Such fees shall be paid by the party requesting the subpoena unless exempt. The following parties are exempt from paying fees:

Applicants for and recipients of "means tested" benefit programs (such as but not limited to, Temporary Aid for Needy Families (TANF), Medical Assistance, SNAP, General Assistance, Emergency Assistance, and other programs funded by the Department under Title XX Social Services block grants) when appealing Departmental actions affecting those benefits and recipients of child support enforcement services from the Division of Support Enforcement and Recovery.

When a party is exempt from paying witness fees, the Department of Health and Human Services shall be responsible for the payment of witness fees.

(ii) This provision does not require the Department to pay for any additional fees of expert witnesses.

d.Service of the Subpoena

The party requesting the subpoena is responsible for service of the subpoena unless the party is one of those described in Section VI(H)(c)(i). In such cases the Departmental Division involved in the hearing shall be responsible for expense of service of the subpoena.

(i) Service of the subpoena may be made by a sheriff or a deputy within the sheriff's county or another person authorized by applicable law or regulation;

(ii) Service of the subpoena may be made by registered or certified mail, with restricted delivery and return receipt requested. Service of the subpoena may also be made by first class mail. The person requesting the subpoena shall send a copy of the subpoena, plus the witness fee check by first class mail to the individual subpoenaed. Service by registered or certified mail shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused, provided that the party seeking to complete service shall file with the Hearing Officer either the return receipt, or if acceptance was refused, an affidavit that upon notice of such refusal a copy of the subpoena was sent to the witness by ordinary mail.

e.Limit of Subpoena. Witnesses shall be subpoenaed only within the territorial limits of Maine and in the same manner as witnesses in civil cases before the courts unless another manner is provided by law.

f.Petition to Vacate Subpoena. Any witness subpoenaed may petition for the Hearing Officer of the Division of Administrative Hearings to vacate or modify a subpoena.

(i) The Hearing Officer shall, in an informal manner, give the party who requested the issuance of the subpoena notice of such petition orally or in writing. The notice shall quote the contents of the petition and shall indicate that the party may oppose the petition orally or, if time permits, in writing to the Hearing Officer. If time does not permit a party to respond to the request to vacate, the hearing shall be postponed long enough to permit the party to respond to the petition. This procedure shall not be construed to require a hearing.

(ii) After such inquiry as the Hearing Officer considers appropriate, the Hearing Officer may grant the petition in whole or in part upon a finding that:

(a) The testimony or the evidence whose production is requested does not relate with reasonable directness to any matter in question; or

(b) The subpoena is unreasonable, oppressive, or requires disclosure of privileged or other protected matter and no exception or waiver applies; or

(c) The subpoena has not been issued a reasonable period in advance of the time when the evidence is requested; or

(d) The testimony or other evidence sought is unduly repetitious.

Unless the Hearing Officer finds that at least one of the above conditions exists, the Hearing Officer shall deny the petition to vacate or modify the subpoena.

g.Failure to Comply with Subpoena. If any person fails to comply with a properly issued and served subpoena, the Division of Administrative Hearings (or the party who requested the subpoena) may petition the Superior Court for an order requiring compliance with the terms of the subpoena. If the Superior Court issues such an order and any person who is subject to it does not comply with it, he/she/they will be subject to the contempt powers of the Court.

Continuances of hearings shall be liberally granted in cases where a witness fails to attend in response to a subpoena.

I.Participation at the Hearing

1.Rights of the Appellant, Respondent, and Intervenor

The appellant, respondent, and intervenor shall have the right to:

a. Be assisted by a representative, of his/her/their choice;

b. Present witnesses;

c. Examine and introduce evidence from his/her/their case record, and examine and introduce any other pertinent Department documents;

d. Present and establish all relevant facts and circumstances by oral testimony and documentary evidence;

e. Advance any pertinent arguments without undue interference;

f. Question or refute any testimony and confront and cross-examine adverse witnesses.

2.Department's Rights and Responsibilities

The Department shall designate a single staff person or contractor who may be represented by an Assistant Attorney General. The Department's representative shall:

a. Organize the presentation of the Department's case;

b. Submit at the hearing a complete account of the circumstances under which it acted or failed to act;

c. Present witnesses when appropriate and, when necessary, subpoena witnesses;

d. Ensure that the case record is present at the hearing and that the other parties have adequate opportunity to examine it prior to and during the hearing;

e. Introduce into evidence material from the case record and other Department documents which pertain to the issues raised during the hearing;

f. Present and establish all relevant facts and circumstances by oral testimony and documentary evidence;

g. Have the right to advance any pertinent arguments without undue interference;

h. Have the right to question and refute any testimony and confront and cross-examine adverse witnesses;

i. Arrange for the appearance at the hearing of representatives of other programs, if appropriate.

3.Behavior at the Hearing

The Hearing Officer shall have full and exclusive control of the conduct of the hearing. In cases of disorder or refusal to comply with the rules of the hearing or orders of the Hearing Officer, the Hearing Officer shall use reasonable means to control the hearing. Parties, representatives, and witnesses shall not engage in bitter exchanges, vulgarities, or abuse or make offensive or insulting comments. When such conduct occurs, the Hearing Officer shall admonish the offender, reminding the person that such behavior does not contribute to a fair hearing and impedes the orderly disposition of a case. If the offense is repeated and further admonition appears fruitless, the Hearing Officer shall exclude a disorderly person from the hearing. If the disorderly person is a party, the party shall be warned that if the unacceptable behavior continues the Hearing Officer shall treat the party as having abandoned the hearing. If the party continues to engage in the unacceptable behavior after having been warned by the Hearing Officer, the Hearing Officer may terminate the hearing and dismiss the hearing as abandoned by the party.

10-144 C.M.R. ch. 1, § VI