18- 352 C.M.R. ch. 1, § 1

Current through 2024-51, December 18, 2024

Section 352-1-1 - Proceedings before the Appeal Panel and the Commission

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.

18- 352 C.M.R. ch. 1, § 1