12 PROPOSED ADMINISTRATIVE RULES

 

SOAHR 2010-019

DEPARTMENT OF LABOR AND ECONOMIC GROWTH STATE OFFICE OF ADMINISTRATIVE HEARINGS AND RULES

CERTIFICATE OF NEED HEARING PROCEDURES

Proposed draft August 16, 2010

 

These rules become effective immediately upon filing with the Secretary of State unless adopted under sections 33, 44, or 45a(6) of 1969 PA 306. Rules adopted under these sections become effective 7 days after filing with the Secretary of State.

 

(By the authority conferred on the State Office of Administrative Hearings and Rules by Executive Order 2005-1, MCL 445.2021).

 

R 325.9505, R 325.9507, R 325.9511, R 325.9513, R 325.9515, R 325.9519, R 325.9521 and R

325.9523, are rescinded from the Michigan Administrative Code, and R 325.9571, R 325.9572, R 325.9573, R 325.9574, R 325.9575, R 325.9576, R 325.9577, R 325.9578, R 325.9579 and R 325.9580

are added to the Code as follows:

 

R 325.9505 Service of documents. Rescinded.

  Rule 505. Unless otherwise specified, service of a document upon any party  be made by personal delivery or by mailing, by registered, certified, or first-class mail, to the last known address of the party or the authorized representative of a party as indicated on the records of the department. Proof of service be filed with the department.

 

R 325.9507 Pleadings. Rescinded.

 Rule 507. All pleadings, including a request for a hearing, contain the certificate of need application number as part of the caption and the case number, if assigned. All pleadings may also be  filed electronically in a mutually agreed upon media.

 

R 325.9511 Authorization and assignment of hearing officers. Rescinded.

 Rule 511. The department may designate and authorize hearing officers.

 

R 325.9513 Adjournment.  Rescinded.

Rule 513. A party may request an adjournment of a scheduled hearing by motion to the hearing officer assigned to conduct the hearing. The hearing officer  not rule on the request until all other parties have had an opportunity to be heard on the request. However, if all parties agree to the adjournment, then the hearing officer may be advised of the agreement by telephone and may rule on the request immediately.

 

R 325.9515 Hearing officer; conduct of hearing.  Rescinded.

 Rule 515. (1) The hearing officer govern the conduct of a hearing and the order of presentation of arguments and evidence.

  (2) Upon his or her own motion or that of a party, the hearing officer, for good cause, may order that issues be severed and briefed or argued separately.

 

 

  (3) Sections 71 to 87 of Act No. 306 of the Public Acts of 1969, as amended, being §§24.271 to 24.287 of the Michigan Compiled Laws,  govern the hearings.

  (4) Upon written request by a party, the hearing officer may issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence.

  (5) Unless the bureau determined that the applicant demonstrated a need for the proposed project section 22225(1) of the code, the scope of the hearing  be limited to demonstrating compliance with section 22225(1) of the code. If the applicant has demonstrated compliance with section 22225(1) of the code, then the scope of the hearing may involve demonstrating compliance with section 22225(2) of the code.

 

R 325.9519 Preliminary motions; prehearing conference.  Rescinded.

 Rule 519. (1) Not less than days before the date set for the first hearing in the notice, all preliminary motions  be filed, unless the hearing officer, for good cause shown, permits the filing of such motions at a later date.

  (2) On the date set for the hearing in the notice, the hearing officer  first hear all pending preliminary motions. Thereafter, all motions are to be made and heard at the discretion of the hearing officer.

Motions of a procedural nature  be decided by the hearing officer as they are made. Motions of a substantive or dispositive nature be taken under advisement and decided as part of the hearing officer's proposal for decision.

  (3) On the date set for the hearing in the notice, after hearing all pending preliminary motions, if any, the hearing officer  hold a prehearing conference as provided for in these rules.

 

R 325.9521 Interrogatories; depositions.  Rescinded.

Rule 521. (1) Upon stipulation of all of the parties to a case, written interrogatories or requests for admissions may be served on a party in the same manner as in a nonjury civil case in circuit court.

  (2) . Before taking a deposition, the hearing officer find that it is impractical or impossible to have a witness testify at the hearing. When depositions are permitted, they  be taken in the same manner as in a nonjury civil case in circuit court.

 

R 325.9523 Testimony.  Rescinded.

Rule 523. Upon the request of a party and for good cause shown, the hearing officer may allow the direct testimony of a witness being presented on behalf of the requesting party to be submitted in written form, together with any exhibits to be sponsored by the witness, before hearing. Such direct testimony be sworn and notarized, and be in question and answer form. The direct testimony of each witness so submitted  be made a separate exhibit, and the name and address of the witness, together with the caption of the case,  appear on the cover sheet. The exhibit  be served on all parties on a date set by the hearing officer, but not less than days before its introduction at the hearing. Each witness is required to be present at the hearing to introduce his or her written testimony as an exhibit and for cross- examination at such date, time, and place as directed by the hearing officer. In any case, and upon request therefore, a party  have the right, notwithstanding any provision of this rule, to have any witness on the party's behalf present the party's direct testimony orally before the hearing officer.

 

R 325.9571 Hearings.

Rule 571. (1) The hearing shall commence within 90 days from the date that the department received the request for a hearing, unless waived in writing by the parties. Not less than 10 days before the date set in the notice, the state office of administrative hearings and rules shall serve notice of the hearing upon the person who filed the request for a hearing, the assistant attorney

 

 

general assigned to represent the department, and all other persons on whom the request for a hearing is required to be served. The first hearing day shall be used as a prehearing conference and may be used for hearing preliminary motions.

(2) If more than 1 request for a hearing is filed with respect to the same bureau decision, the hearings shall be consolidated and shall be heard and decided as a single hearing. A party shall not be severed from a hearing on a comparative review.

 

R 325.9572 Papers filed in proceeding; formal requirements.

Rule 572. (1) A request for a hearing shall be titled "In the matter of (name of appellant or appellants)."  This caption shall appear at the upper left side of the first page of each filed pleading or document other than an exhibit.

(2) The first page of a pleading or document, other than an exhibit,  shall show the case number, if assigned, at its upper right side opposite the caption.

 

R 325.9573 Service of documents.

Rule 573. Unless otherwise specified, service of a document upon any party shall be made by personal delivery or by mailing, by registered, certified, or first-class mail, to the last known address of the party or the authorized representative of a party as indicated on the records of the department. Proof of service shall be filed with the department.

 

R 325.9574  Pleadings.

Rule 574. All pleadings, including a request for a hearing, shall contain the certificate of need application number as part of the caption and the case number, if assigned. All pleadings may also be filed electronically in a mutually agreed upon media.

 

R 325.9575 Adjournment.

Rule 575. A party may request an adjournment of a scheduled hearing by motion to the administrative law judge assigned to conduct the hearing. The administrative law judge shall not rule on the request until all other parties have had an opportunity to be heard on the request.

However, if all parties agree to the adjournment, then the administrative law judge may be advised of the agreement by telephone and may rule on the request immediately.

 

R 325.9576  Administrative law judge; conduct of hearing.

Rule 576. (1) The administrative law judge shall govern the conduct of a hearing and the order of presentation of arguments and evidence.

(2)   Upon his or her own motion or that of a party, the administrative law judge, for good cause, may order that issues be severed and briefed or argued separately.

(3)   Sections 71 to 87 of 1969 PA 306, MCL 24.271 to MCL 24.287 apply to the hearings.

(4)   Upon written request by a party, the administrative law judge may issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence.

(5)   Unless the bureau determined that the applicant demonstrated a need for the proposed project under MCL 333.22225(1), the scope of the hearing shall be limited to demonstrating compliance with MCL 333.22225(1). If the applicant has demonstrated compliance with MCL 333.22225(1), then the scope of the hearing may involve demonstrating compliance with section MCL 333.22225(2).

 

 

R 325.9577  Preliminary motions; prehearing conference.

Rule 577. (1) Not less than 5 days before the date set for the first hearing in the notice, all preliminary motions shall be filed, unless the administrative law judge, for good cause shown, permits the filing of such motions at a later date.

(2)  On the date set for the hearing in the notice, the administrative law judge shall first hear all pending preliminary motions. Thereafter, all motions are to be made and heard at the discretion of the administrative law judge. Motions of a procedural nature shall be decided by the administrative law judge as they are made. Motions of a substantive or dispositive nature shall be taken under advisement and decided as part of the administrative law judge’s proposal for decision.

(3)  On the date set for the hearing in the notice, after hearing all pending preliminary motions, if any, the administrative law judge shall hold a prehearing conference.

 

R 325.9578  Interrogatories; depositions.

Rule 578. (1) Upon stipulation of all of the parties to a case, written interrogatories or requests for admissions may be served on a party in the same manner as in a nonjury civil case in circuit court.

(2) The taking of any deposition shall have approval of the administrative law judge and can only be taken for purposes of obtaining testimony to use at a hearing. Before taking a deposition, the administrative law judge shall find that it is impractical or impossible to have a witness testify at the hearing. When depositions are permitted, they shall be taken in the same manner as in a nonjury civil case in circuit court.

 

R 325.9579 Testimony.

Rule 579. Upon the request of a party and for good cause shown, the administrative law judge may allow the direct testimony of a witness being presented on behalf of the requesting party to be submitted in written form, together with any exhibits to be sponsored by the witness, before hearing. Such direct testimony shall be sworn and notarized and be in question and answer form. The direct testimony of each witness so submitted shall be made a separate exhibit, and the name and address of the witness, together with the caption of the case, shall appear on the cover sheet.

The exhibit shall be served on all parties on a date set by the administrative law judge, but not less than 5 days before its introduction at the hearing. Each witness shall be present at the hearing to introduce his or her written testimony as an exhibit and for cross-examination at the date, time, and place directed by the administrative law judge. In any case, and upon request, a party has the right, notwithstanding any provision of this rule, to have any witness on the party's behalf present the party's direct testimony orally before the administrative law judge.

 

R 325.9580  Issuance of final decision by department director.

Rule 580. After the conclusion of a hearing, the state office of administrative hearings and rules shall deliver, to the director, the official case file and the administrative law judge’s proposal for decision. The administrative law judge shall serve the proposal for decision upon the parties by first-class or certified mail or by personal service. Each party has 20 days from the date of service of the proposal for decision to file exceptions or present written arguments to the director.

Exceptions and written arguments shall be served on all parties, who will have 10 days to file their replies to the exceptions with the director and serve the replies on the parties.