N.H. Admin. Code § Emp 202.01

Current through Register No. 45, November 7, 2024

Section Emp 202.01 - Appeal to and Hearing by Appeal Tribunal

(a) An appeal to an appeal tribunal from a certifying officer's determination shall be in writing and filed in any office of the department within 14 calendar days from the date of mailing of said determination. The commissioner shall extend the time for filing pursuant to RSA 282-A:48 if he finds sufficient grounds which shall include illness, accident, the death of a family member, or similar problem beyond the control of the claimant, to justify or excuse a delay in filing.

(b) Notice of an appeal shall immediately be sent by e-mail notice pursuant to Emp 405.01, Emp 405.03, or Emp 405.05, or by first class mail to the other interested parties and third party administrators or other representatives, and an appeal tribunal chairman shall by e-mail notice pursuant to Emp 405.01, Emp 405.03, or Emp 405.05, or by first class mail send notice of the time and place of hearing to all interested parties and third party administrators or other representatives. The notice shall advise parties that they may be represented by an attorney or other authorized representative of their choosing and that free or low cost assistance may be available.

(c) The appeal shall be heard at the earliest possible date, but not earlier than the eighth calendar day after notice of the hearing has been sent by e-mail notice pursuant to Emp 405.01, Emp 405.03, or Emp 405.05, or by first class mail to the interested parties, third party administrators, or other representatives unless the commissioner finds:

(1) The interested parties, or their third party administrators, or other representatives have either:

a. Agreed in writing to less than 8 calendar days of notice; or

b. Agreed on the record while under oath to less than 8 calendar days of notice;

(2) The holding of an earlier hearing is not likely to result in the absence of witnesses or evidence which would otherwise be available;

(3) The holding of an earlier hearing will serve justice and efficiency; and

(4) The holding of an earlier hearing will not adversely affect the appeal tribunal's ability to efficiently manage the docket.

(d) The interested parties shall be present and ready with all witnesses and evidence, and shall be prepared to dispose of all issues relating to entitlement to benefits, at the scheduled place and time.

(e) To the extent possible the appeal shall set forth the grounds upon which it is claimed that the certifying officer's determination is incorrect. However, any issue relevant to claims shall be considered at the hearing, except where the jurisdiction of the appeal tribunal is limited upon further hearing when reopening is ordered by the commissioner.

(f) All department records used at the hearing shall be produced and identified at the hearing by the chairman, reviewed by the tribunal and may be examined by the parties. Records, other than department records, shall be admitted only when in the judgment of the chairman such are duly authenticated.

(g) The chairman of an appeal tribunal shall determine all questions as to the admissibility of evidence. All members of the tribunal may examine a witness. The chairman shall swear all witnesses or obtain their affirmation. The chairman shall determine the procedure and shall, for no longer than 30 days except with the approval of the commissioner, continue, adjourn or postpone a hearing.

(h) A hearing shall be continued, adjourned or postponed for up to 30 days by the chairman or longer than 30 days with the approval of the commissioner if the chairman or, if necessary, the commissioner find that continuance, adjournment or postponement are required for:

(1) A prehearing conference;

(2) Proper notice to an interested party;

(3) Obtaining the presence of a witness;

(4) Avoiding fraud or mistake;

(5) Providing due process; or

(6) Similar reasons.

(i) If a party wishes to submit evidence after the close of a hearing, the party shall submit a request to the appeal tribunal with notice to the other parties. The tribunal shall give notice of the request to the other parties of their right to object to the taking of the evidence and to refute the evidence. Where further hearing is ordered, notice of place and time shall be as in (b) above.

(j) The tribunal shall grant a request for the submission of evidence after the close of the hearing if it finds that acceptance of the evidence would:

(1) Avoid fraud or mistake;

(2) Provide due process;

(3) Result in the submission of evidence which is newly discovered and which was not available to the affected party upon reasonable search at the time of the hearing; or

(4) Similar reasons.

(k) A chairman shall determine after examination whether to accept sworn or affirmed stipulations of the interested parties as to all the facts in a case or in addition or in lieu thereof, to require oral sworn or affirmed testimony. Request for permission to file stipulation shall be made to the chairman not less than 3 calendar days prior to the scheduled hearing, otherwise the hearing will proceed as scheduled.

(l) A chairman shall deny access to a hearing or to the use and benefits of an appeal tribunal to an individual, interested parties excepted, for conduct which constitutes:

(1) Fraud;

(2) Neglect of duty;

(3) Disorderly, unruly or willfully contemptuous conduct at a hearing;

(4) Intentional or repeated failure to observe the New Hampshire unemployment compensation law; or

(5) The acceptance of fees in excess of those allowed by the commissioner.

(m) Where action as provided in Emp 202.01(1) is limited to one appeal, notice of denial of access shall be given orally by the chairman, but where the action taken affects more than one appeal such notice shall be in writing and sent by e-mail notice pursuant to Emp 405.01, e-mail notice pursuant to Emp 405.03, or by first class mail to the individual affected.

(n) Where a claim or question involved therein is referred to an appeal tribunal as provided in RSA 282-A:47 such shall be treated as an appeal case, to the extent applicable, under this rule.

(o) Except where a chairman sits alone the decision of the appeal tribunal upon an appeal shall be determined by a majority vote. However, the minority may file a written dissent setting forth the reasons therefor.

(p) Any party may be represented by counsel or other representative, but such person appearing on behalf of a party, except for a claims representative providing assistance pursuant to RSA 282-A:134, shall first file a letter announcing the fact of representation at the earliest date practical and shall send a copy of such letter to all parties. Parties shall retain counsel at their own expense and requests for appointment of counsel shall not be entertained. No fee shall be charged for representing an individual seeking benefits without prior approval pursuant to RSA 282-A:158 and Emp 204.

(q) The appeal tribunal chairperson, upon motion, or upon his or her own initiative, shall if justified by the facts, the complexity of issues, the presence of one or more of the items listed at Emp 202.01(r), or similar factors, direct all interested parties to attend one or more prehearing conference to aid in the disposition of the proceeding.

(r) Subjects to be considered at a prehearing conference may be:

(1) Opportunities and procedures for settlement if appropriate;

(2) Opportunities and procedures for simplification and limitation of the issues;

(3) Possible amendments to the pleadings;

(4) Possible admissions of fact and of documents to avoid unnecessary proof;

(5) Possible limitations on the number of witnesses;

(6) Possible changes to the standard procedures which would otherwise govern the proceeding;

(7) The distribution of written testimony, if any, and exhibits to the parties;

(8) Possible consolidation of the examination of witnesses by the parties; and

(9) Any other matters which might contribute to the prompt and orderly conduct of the proceeding.

(s) The appeal tribunal shall cause prehearing conferences to be recorded unless all parties wish to discuss possible settlement off the record. Matters decided at a prehearing conference shall be reflected in an appropriate order.

(t) Subpoenas for the attendance of witnesses or the production of evidence shall be issued pursuant to RSA 282-A:124 upon a showing that:

(1) The testimony or evidence is necessary, relevant and non-repetitive; and

(2) The witness or evidence cannot be voluntarily obtained.

(u) Whenever it shall appear to the appeal tribunal, upon motion or its own initiative, that 2 or more proceedings involve substantially similar or substantially related issues, the appeal tribunal shall, as fairness and efficiency permit, consolidate those proceedings for hearing, or decision, or both.

(v) Testimony in interstate appeals by parties located out of state shall be by telephone or video conference unless otherwise ordered due to the request of the party or parties located out of state, the presence in the state of all parties or similar reasons. If the party or parties located out of state will be testifying by telephone, testimony by parties located within the state may give testimony either by telephone, video conference or in person.

(w) Testimony in intrastate appeals shall be in person, or by video conference that shall allow parties to view and hear witnesses as testimony is being presented and to cross-examine, subject to (x) and (y) below.

(x) Testimony in intrastate appeals shall be by telephone only if:

(1) All parties have been given opportunity to object;

(2) No party has objected;

(3) There is not a question of credibility for which there is no direct evidence other than the demeanor of one or more witnesses; and

(4) Presence at an in-person or video conference hearing would be difficult for one or more parties due to:

a. Illness or disability;

b. Prohibitive distance;

c. Lack of transportation; or

d. Similar reasons.

(y) Ability to submit testimony by telephone or by video conference shall be contingent on availability of the necessary services and equipment.

(z) Whenever it is clear to the appeal tribunal that a certifying officer's determination was issued without notice to all interested parties or all issues were not addressed and such issues cannot be adequately or efficiently initially resolved in the context of the appeal tribunal hearing, the appeal tribunal shall vacate all or part of the certifying officer decision and remand those portions to the certifying officer's unit for further action or decision.

N.H. Admin. Code § Emp 202.01

#2234, eff 1-1-83; amd by #2490, eff 10-1-83; ss by #2930, eff 12-21-84; amd by #3154, eff 12-2-85; ss by #5141, eff 5-6-91; ss by #6504, INTERIM, eff 5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97 , EXPIRED: 9-2-05

New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06

New. #8626-A eff 5-6-06; ss by #9526, eff 8-17-09

The amended version of this section by New Hampshire Register Volume 34, Number 41, eff.9/22/2014 is not yet available.