CHAPTER Mhp 200
PRACTICE AND PROCEDURE
PART Mhp 201
PURPOSE
Mhp
201.01 Purpose. The board conducts various proceedings for
the purpose of acquiring sufficient information to make fair and reasoned decisions
on matters within its statutory jurisdiction, including decisions on
applications for licensure and communications of
alleged misconduct filed against licensees.
The purpose of these rules shall be construed to secure the just,
efficient and accurate resolution of all board action.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11; ss by #10745, eff
12-16-14
PART Mhp 202
DEFINITIONS
Mhp
202.01 Definitions. The following terms shall have the meaning
indicated when used in this chapter:
(a) "Adjudicative proceeding" means
‘adjudicative proceeding’ as defined as
in RSA 541-A:1 (I).
(b) “Administrative Prosecutions Unit (APU)”
means the administrative prosecutions unit of the attorney general’s office.
(c) “Board investigator” means a board member who
is responsible for overseeing the activities of the professional conduct
investigators.
(d) “Communication of alleged misconduct” means a
written statement received by the board suggesting professional misconduct of a
licensee under RSA 330-A:27, II or Mhp 500.
(e) "Complaint" means a communication
of alleged misconduct containing information that, as the board shall
determine, if true, could violate ethical codes, administrative rules or the
law.
(f) “Consent decree” means a final and binding
order that is issued by agreement of all parties.
(g) “Corrective action” means a settlement
agreement between the board and a licensee whereby the licensee agrees to make
certain changes in his or her practice including but not limited to:
(1) Remedial supervision;
(2) Additional clinical education units;
(3) License restrictions; and
(4) Psychological evaluation.
(h) "Data" means all information
relevant to the investigation, included but not limited to:
(1) Oral or written descriptions;
(2) Reports;
(3) Maps;
(4) Charts;
(5) Drawings;
(6) Photographs;
(7) Audio or video recordings;
(8) Computer programs; or
(9) Computer printouts.
(i) “Disciplinary proceeding” means an
adjudicative proceeding commenced by the board for the purpose of examining a
complaint against a licensee.
(j) "File" means to place a document in
the actual possession of the board.
(k)
“Hearing counsel” means an individual appointed by the board to prosecute
licensee misconduct allegations and denials of applications for licensure to
the board.
(l) “Investigation” means a gathering of data by
the board concerning matters within its jurisdiction.
(m) “Letter of concern” means a written letter
from the board drawing the licensee’s attention to specific acts or omissions
that could place the licensee at risk of future disciplinary action. A letter of concern is non-disciplinary and
is sent to the licensee following a communication of alleged misconduct,
complaint and/or investigation.
(n) “Mediation” means an informal, confidential
process facilitated by a qualified neutral party, and intended to resolve
conflicts by agreement.
(o) "Motion" means any request by a
party to an existing proceeding for an order or relief relating to that
proceeding.
(p) "Order" means a document issued by the
board:
(1) Establishing procedures to be followed in an
adjudicative or nonadjudicative proceeding;
(2) Granting or denying a petition or motion;
(3) Requiring a person to do, or to abstain from
doing, something; or
(4) Determining a person's rights to a license or
other privilege established by RSA 330-A.
(q) "Petition" means any request to the
board seeking an order or any other action for relief, but does not include a
license application or a motion.
(r) "Presiding officer" means the board
member or other individual to whom the board has delegated authority to preside
over some or all aspects of an adjudicative or other proceeding.
(s) “Professional Conduct Investigator (PCI)”
means a trained licensed mental health practitioner who, as an agent of the
board, under the guidance of the board investigator discovers facts and makes
reports to the board.
(t) “Report of Investigation” (ROI)” means report
of information, facts and data gathered for the board.
(u)
"Rulemaking" means the statutory procedures for formulating
agency rules set forth in RSA 541-A:3.
(v)
“Settlement agreement” means a written order of the board acknowledging
consent of the licensee to enter stipulated facts and imposing disciplinary actions
consented to by the licensee to resolve certain allegations of licensee
misconduct.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11; ss by #10745, eff
12-16-14 (formerly Mhp 201.02)
PART Mhp
203 APPEARANCES BEFORE BOARD
Mhp 203.01 Appearances and Representation.
(a)
A party or the party’s representative shall file an appearance that
includes the following information:
(1) A brief identification of the matter;
(2) A statement as to whether or not the
representative is an attorney and if so, whether the attorney is licensed to
practice in
(3) The party or representative’s daytime address
and telephone number.
(b)
Any changes to the information in (a) above shall be timely filed with
the board, in writing.
(c) The board shall, after providing notice and
opportunity for hearing, prohibit an individual from acting as a representative
upon a finding that the individual has repeatedly violated rules or orders of
the board, willfully disrupted board proceedings, or made material
misrepresentations to the board or a party in a board proceeding.
(d) Any prohibition issued under (c), above,
shall apply only to the board’s proceedings.
(e) Nothing in this section shall be construed to
permit the unauthorized practice of law.
Source.
(See Revision Note at chapter heading
for Psy 100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11; ss by #10745, eff
12-16-14 (from Mhp 202.01)
PART Mhp 204
TIME PERIODS
Mhp
204.01 Computation of Time. Any time period specified in this chapter
shall begin with the day following the act, event, or default, and shall
include the last day of the period, unless it is Saturday, Sunday, or state
legal holiday, in which event the period shall run until the end of the next
day which is not a Saturday, Sunday, or state legal holiday. When the period prescribed or allowed is less
than 7 days, intermediate Saturdays, Sundays, and state legal holidays shall be
excluded from the computation.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11; ss by #10745, eff
12-16-14 (from Mhp 203.01)
Mhp
204.02 Change in Allowed Times and
Granting Continuances. Except where
a time period is fixed by statute, the board shall, upon motion or upon its own
initiative, enlarge or shorten the time provided for the filing of any
document, or advance or postpone the time set for any oral hearing, prehearing
conference, or other activity, and grant further continuances if it would be
more likely to promote the fair, accurate and efficient resolution of the
issues pending before the board than would adherence to a particular rule or
procedure.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11; ss by #10745, eff
12-16-14 (formerly Mhp 203.02)
Mhp
204.03 Limitations. Except in the case of an unforeseeable
emergency, a motion to change time shall not be filed within 7 days of the
event in question.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11; ss by #10745, eff
12-16-14 (formerly Mhp 203.03)
PART Mhp 205
FILING AND SERVICE OF DOCUMENTS
Mhp
205.01 Filing of Documents with the
Board.
(a) A document shall be considered filed when it
is actually received at the board's office in
(b) A document, which is facially in violation of
the board’s rules, shall not be accepted for filing. Such submissions shall be returned to the
sender without prejudice to subsequent acceptance if the deficiencies are
corrected and the document is refiled within any applicable time period.
(c) All correspondence, filings or communications
intended for the board shall be addressed to the board’s office in care of its
administrative assistant.
(d) All petitions, motions, exhibits, memoranda
or other documents filed in connection with a request for board action shall be
filed with an original and 10 copies unless the board directs otherwise.
(e) Notwithstanding (d) above, only a single copy
shall be filed of:
(1) Transmittal letters;
(2) Requests for public information;
(3) License applications; and
(4) A communication of alleged misconduct against
licensees.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11; ss by #10745, eff
12-16-14 (from Mhp 204.01)
Mhp 205.02 Subscription and Veracity of Documents.
(a)
All communications of alleged misconduct, petitions, motions and replies
filed with the board shall be signed by the proponent of the document or, if
the party appears by a representative, by the representative.
(b) Licensure applications shall be signed only
by the applicant.
(c) The signature on a document filed with the
board shall constitute a certification that:
(1) The signer has read the document;
(2) The signer is authorized to file it;
(3) To the best of the signer's knowledge,
information, and belief, there are good grounds to support it; and
(4) The document has not been filed for purposes
of delay or harassment.
(d) With respect to communications of alleged
misconduct, the signer shall indicate whether the conduct complained of is
alleged to have occurred as a result of or in connection with litigation and
whether the litigation is still pending.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11 (formerly Mhp 205.03); ss by #10745, eff 12-16-14 (from Mhp 204.02)
Mhp
205.03 Service of Documents.
(a) Communications of alleged misconduct against
licensees shall be filed with the board in accordance with Mhp 503.02.
(b) The board shall notify the licensee of said
filing unless such information would jeopardize:
(1) The safety of a party; or
(2) The process of a criminal investigation.
(c) Applications, petitions for rulemaking and
petitions for declaratory rulings shall be filed with the board without service
upon other persons.
(d) All objections, motions, replies, memoranda,
exhibits or other documents filed in connection with a request for board action
shall be served by the proponent upon all parties or persons who have filed
appearances with the board to be heard on a matter by:
(1) Depositing a copy of the document in the
United States Mail, first class postage prepaid, addressed to the last address
given to the board by the person being served, no later than the day the
document is filed with the board; or
(2) Delivering a copy of the document in hand on
or before the date it is filed with the board.
(e) Notices, orders, decisions or other documents
issued by the board in connection with requests for board action shall be
served by the board upon all parties or their representatives on a matter by:
(1) Depositing a copy of the document, first
class postage prepaid, in the United States Mail, addressed to the most
recent address given to the board by the
party being served; or
(2) Delivering a copy of the document in hand to
the party.
(f) When a party’s representative has filed an
appearance, service shall be upon the representative.
(g) Except for exhibits distributed at a
prehearing conference or hearing, every document filed with the board, shall be
accompanied by a certificate of service, signed by the person making service,
attesting to the method and date of service, and the persons served.
Source. # 10745, eff 12-16-14 (from Mhp 204.03)
PART Mhp
206 PETITIONS AND MOTIONS
Mhp 206.01 Petitions.
(a)
Applications for licensure shall not be considered petitions.
(b) Petitions shall contain:
(1) The name and address of the petitioner;
(2) The name and address of the petitioner’s
representative, if any;
(3) A concise statement of the facts which warrant
the relief requested from the board;
(4) A description of the specific relief
requested from the board;
(5) A citation to any statutes, rules, orders, or
other authority which entitles the petition to the relief requested; and
(6) A signature and date as required by Mhp
205.02(a).
(c) In situations in which a petition is served
upon a third person, a reply to that petition shall contain:
(1) The name and address of the respondent;
(2) The name and address of the representative of
the respondent, if any;
(3) A statement admitting or denying, or stating
that the respondent lacks sufficient knowledge to admit or deny each fact
alleged in the petition pursuant to Mhp 206.01(b)(3);
(4) A statement admitting or denying the
authority identified by the petitioner pursuant to Mhp 206.01(b)(5);
(5) A concise statement of any additional or
different facts which warrant the board acting in the manner requested by the
respondent;
(6) A citation to any statutes, rules, orders or
other authority, not identified in the petition, having bearing upon the
subject matter of the petition;
(7) A description of the action which the
respondent wishes the board to take; and
(8) The signature and date required by Mhp
205.02(a).
(d) Replies shall be filed within 10 days from
the date of the petition unless otherwise ordered by the board.
(e) Any fact contained in the petition which is
not denied in the reply, shall be deemed admitted by the respondent. A statement that the respondent lacks sufficient
knowledge to admit or deny shall be treated as a denial. The petitioner shall be presumed to deny all
allegations in the reply, and no response shall be permitted to the reply.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-B, eff 1-25-11 (formerly Mhp 210.01);
ss by #10745, eff 12-16-14 (from Mhp
205.01)
Mhp 206.02 Motions and Objections.
(a)
Motions and objections shall be in writing unless the nature of the
relief requested requires oral presentation upon short notice.
(b) All motions shall state clearly and concisely
in separately numbered paragraphs:
(1) The purpose of the motion;
(2) The relief sought by the motion;
(3) The statutes, rules, orders, or other
authority authorizing the relief sought by the motion;
(4) The facts claimed to constitute grounds for
the relief requested by the motion; and
(5) The signature and dated required by Mhp
205.02(a).
(c) Objections to motions shall state clearly and
concisely:
(1) The objection or defense of the party filing the objection to any fact
or request in the motion, set forth in separate paragraphs numbered identically
to the paragraphs in the original motion;
(2) The action which the party filing the
objection wishes the board to take on the motion;
(3) The statutes, rules, orders, or other
authority relief upon in defense of the motion;
(4) Any facts which are additional to or
different from the facts stated in the motion; and
(5) The signature and date required by Mhp
205.02(a).
(d) Motions shall be decided upon the writings
submitted. Repetitious motions shall not
be submitted.
(e) Objections to motions shall be filed within
10 days after the filing of the motion.
Failure to object to a motion within the time allowed shall constitute a
waiver of objection to the motion.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-B, eff 1-25-11 (formerly Mhp 210.02);
ss by #10745, eff 12-16-14 (from Mhp
205.02)
PART Mhp 207
NONADJUDICATORY INVESTIGATIONS
Mhp
207.01 Informal Investigations.
(a) Notwithstanding any other provision of this
title, the board, within the limits of its authority, and acting through its
members, officers and employees, or through independent contractors, shall make inquiry of any person and otherwise gather data,
and prepare reports describing the data obtained whenever:
(1) It receives data which leads it to believe
that a violation of any statute administered by the board, or of any rule of
the board, or code of ethics has
occurred, or is likely to occur; or
(2) It desires to obtain data for any other
lawful purpose.
(b) Informal investigations shall include all techniques and methods for gathering
information which are appropriate to the circumstances of the case, including:
(1) Requests for additional information from the
complainant;
(2) Requests for a release of relevant records
belonging to or under the control of the petitioner; and
(3) Face-to-face meetings with potential
witnesses and interested persons.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11 (formerly Mhp 206.02); ss by #10745, eff 12-16-14 (from Mhp 206.01)
Mhp
207.02 Formal Investigations.
(a) Formal investigations shall be commenced for
the purpose of obtaining documents, recording testimony, and otherwise
gathering data relevant to matters within the board’s jurisdiction when the
board believes this technique would be more effective than an informal
investigation.
(b) Formal investigations shall be commenced by
the issuance of an order of investigation containing:
(1) The statutory or regulatory authority for the
investigation;
(2) The identity of the persons, or class of
persons, which are the subject of the investigation;
(3) The general nature of the conduct being
investigated;
(4) Any statutes or rules, which include codes of
ethics and the client’s bill of rights, alleged to have been, or about to be
violated;
(5) The identity of the investigating officer or
committee;
(6) The date upon
which the investigating officer shall report his or her findings and
recommendations to the board;
(7) Any special authority conferred upon the
investigating officer, including the authority to issue subpoenas on behalf of
the board; and
(8) Other provisions relevant to the issues under
investigation and the time, place and manner in which the investigation is to
be conducted.
Source. (See Revision Note at
chapter heading for Psy 100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-B, eff 1-25-11 (formerly Mhp 210.02); ss by #10745, eff 12-16-14 (from Mhp 206.02)
PART Mhp
208 ADJUDICATIVE PROCEEDINGS
Mhp 208.01 Commencement of Proceedings.
(a)
The board shall commence an adjudicative proceeding by issuing a notice
of hearing to the parties at least 15 days before the first scheduled hearing
date or first prehearing conference.
(b)
The notice commencing an adjudicative proceeding shall:
(1) Specify the time, place and nature of any
hearing;
(2) Summarize the subject matter of the
proceeding and identify the issues to be resolved;
(3) Specify the legislative authority for the
proposed action and identify any applicable board regulations;
(4) Specify the date by which, and the address
where, appearances or motions by parties or representatives shall be filed;
(5) Specify the date, time, and location of an
initial prehearing conference or dates for an oral hearing;
(6) Identify the presiding officer for the
proceeding if other than the chairperson of the board;
(7) Identify any special procedures to be
followed;
(8) Identify any confidentiality requirements
applicable to the preceding;
(9) Specify that each party has the right to have
an attorney represent him or her at the party’s own expense;
(10) Contain such other information or attachments
as are warranted by the circumstances of the case, including, but not limited
to:
a. Orders consolidating or severing issues in
the proceeding with other proceedings;
b. Orders directing the production or exchange
of documents; and
(11) A
stenographic recording of the hearing shall be taken and preserved.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11 (formerly Mhp 207.01); ss by #10745, eff 12-16-14 (from Mhp 207.01)
Mhp
208.02 Methods of Proceeding -
Generally.
(a) If the parties agree, the board shall proceed
as follows:
(1) Where facts material to the subject matter of
the proceeding are in dispute but personal observation of the witnesses or the
immediate opportunity for cross-examination of witnesses is not required, the
proceeding shall, to that extent, consist of the submission of affidavits and
memoranda; and
(2) Where no facts material to the subject matter
of the proceeding are in dispute the proceeding shall, to that extent, be
limited to the submission of memoranda which argue the conclusions the parties
wish the board to draw from the undisputed facts.
(b) If the parties do not agree to one of the
methods of proceeding in (a) above, the matter shall proceed to an adjudicatory
hearing.
(c) Oral argument, other than a brief opening and
closing statement shall be permitted when requested in a written motion, which
demonstrates a substantial need for such a procedure. Written argument in the form of legal briefs
or memorandum shall be permitted subject to such filing schedules as the board
shall direct by oral or written order.
(d) The presiding officer shall schedule
supplemental argument or hearing, or to otherwise reopen the record at any time
prior to the issuance of a final order in a proceeding.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11 (formerly Mhp 207.02); ss by #10745, eff 12-16-14 (from Mhp 207.02)
Mhp
208.03 Intervention.
(a) Motions to intervene shall state with
particularity:
(1) The petitioner's interest in the subject
matter of the hearing;
(2) Why the interests of the parties and the
orderly and prompt conduct of the proceeding would not be impaired; and
(3) Any other reasons why the petitioner should
be permitted to intervene.
(b) Motions to intervene shall be granted if the
board finds the petitioner has a substantial interest in the proceeding, the
petitioner requested intervention in accordance with these rules, and if
granting intervention will not prejudice a party or unduly delay the board’s
proceedings.
(c) Once granted leave to intervene, an
intervener shall take the proceeding as he or she finds it and no portion of
the proceeding shall be repeated because of the fact of intervention.
Source. (See Revision Note at
chapter heading for Psy 100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A, eff
1-25-11 (formerly Mhp 207.03)
Mhp
208.04 Consolidation. Adjudicative proceedings, which involve the
same, or substantially related issues, shall be consolidated for hearing or
decision, or both, when fairness, accuracy and efficiency would be served by
such an action. Consolidation shall be
ordered in response to a timely motion from a party or on the board’s own
initiative.
Source. #10745,
eff 12-16-14 (from Mhp 207.04)
Mhp
208.05 Severance. The board shall sever one or more issues from
a proceeding and dispose of those issues in another proceeding if it finds
doing so would materially promote the fairness, accuracy and efficiency of the
proceeding. Severance may be ordered in
response to a timely motion from a party or on the board’s own initiative.
Source. #10745,
eff 12-16-14 (from Mhp 207.05)
Mhp
208.06 Continuances.
(a) Any party or intervenor may make an oral or
written motion that a hearing be delayed
or continued to a later date or time.
(b) A motion for a delay or a continuance shall
be granted if the presiding officer determines that there is good cause to do
so.
(c) Good cause shall include:
(1) The unavailability of parties, intervenors,
representatives of parties or intervenors, or witnesses necessary to conduct
the hearing;
(2) The likelihood that a settlement will make
the hearing or its continuation unnecessary; and
(3) Any other circumstances that demonstrate that
a delay or continuance would assist in resolving the case fairly.
(d) If the later date, time and place are known
when the hearing is being delayed or continued, the information shall be stated
on the record. If the later date, time
and place are not known at that time, the presiding officer shall as soon as
practicable issue a written scheduling order stating the date, time and place
of the delayed or continued hearing.
Source. #10745,
eff 12-16-14 (from Mhp 207.06)
Mhp
208.07 Prehearing Conferences.
(a) At any time following the commencement of an
adjudicative proceeding, the presiding officer, upon motion, or upon his or her
own initiative, shall request the parties to attend one or more prehearing
conference when such a conference would aid in the disposition of the
proceeding.
(b) Matters which can be addressed at a
prehearing conference shall include:
(1) The distribution of exhibits and written
testimony, if any, to the parties;
(2) Opportunities and procedures for
simplification of the issues;
(3) Possible amendments to the pleadings;
(4) Opportunities and procedures for settlement;
(5) Possible admissions of fact and authentication
of documents to avoid unnecessary proof;
(6) Possible limitations on the number of
witnesses and possible limitations on the scheduling of witnesses;
(7) Possible changes to the standard procedures
which would otherwise govern the proceeding; and
(8) Other matters which might contribute to the
prompt and orderly conduct of the proceeding.
(c) If any person requests a transcript of the
recording of a hearing, the board shall:
(1) Cause a transcript to be prepared; and
(2) Upon receipt of payment for the cost of the
transcription, provide a copy of the transcript to the person making the
request.
Source. #10745,
eff 12-16-14 (from Mhp 207.07)
Mhp
208.08 Discovery and Disclosure.
(a) The board shall provide for the disclosure of
any investigative report or other unprivileged information in the possession of
the board, which is reasonably related to the subject matter of the proceeding.
(b) Parties shall attempt to agree among
themselves concerning the mutual exchange of relevant information. If these efforts prove unsuccessful, a party
wishing to initiate discovery against another party, shall, by motion, seek
leave to do so and shall identify the exact type of discovery requested.
(c) Discovery shall be ordered when the parties
cannot adequately address specific relevant factual issues at the time fixed
for the presentation of evidence, and addressing these issues at a subsequent
time would place the requesting party at a material disadvantage.
(d) At least 14 days before the hearing the
parties and any intervenor shall provide to the other parties and intervenors:
(1) A list of all witnesses to be called at the
hearing together with a brief summary of their testimony;
(2) A list of all documents and exhibits to be
offered as evidence at the hearing; and
(3) A copy of each document or exhibit.
Source. #10745,
eff 12-16-14 (from Mhp 207.08)
Mhp 208.09 Subpoenas.
(a) Subpoenas for the attendance of witnesses or
the production of evidence in investigations or adjudicative proceedings shall
be issued upon the order of the board or pursuant to authority delegated by the
board to its staff or to a committee by specific resolution or order, or by
rule.
(b) In adjudicative proceedings, a party
requesting the board to authorize a subpoena shall attach a copy of the
proposed subpoena to its motion. If the
motion is granted, the requesting party shall be responsible for the service of
the subpoena and payment of any applicable witness fee and mileage expenses.
(c) Motions to quash or modify a subpoena shall
be entertained from the person to whom the subpoena is directed, if filed
within 7 days after service of the subpoena, or one day before the date
specified in the subpoena for compliance therewith, whichever is later. If the board denies the motion to quash or
modify, in whole or in part, the person to whom the subpoena is directed shall
comply with the subpoena or any modification thereof, within the balance of
time prescribed in the subpoena or within 3 days from the date of the board’s
order, whichever is later, unless the board expressly provides additional time
to comply.
(d) The board shall grant a motion for a subpoena
or quash a subpoena providing there is a preponderance of evidence to support
the motion.
(e) Should a person fail to comply with a
subpoena issued pursuant to this section, the board shall take one or more of the following actions:
(1) Impose sanctions specific to any pending
proceeding or investigation, including, but not limited to, entry of a default
judgment as to some or all of the pending issues which is adverse to the
noncompliant party;
(2) Institute a separate investigation against
any non-compliant individual who is subject to the board’s jurisdiction;
(3) Continue with the proceeding and defer all,
or part, of the subpoena enforcement issues; or
(4) Determine there was just cause for the
failure to comply with the subpoena. Including
just cause shall include:
a. Illness;
b. Accident;
c. Death of a family member; and
d. Other circumstances beyond the control of the
party.
Source. #10745,
eff 12-16-14 (from Mhp 207.09)
Mhp
208.10 Evidence.
(a) Receipt of evidence shall be governed by the
provisions of RSA 541-A:33.
(b) The evidentiary privileges recognized by the
law of
(c) All data which will reasonably assist the
board arrive at the truth shall be admissible.
(d) Oral testimony shall be allowed unless the
board, upon a finding that written evidence would be more efficient and would
not result in material prejudice, orders that some or all of the evidence be
submitted in written form.
(e) If the board officially notices a fact, it
shall so state, and permit any party, upon timely request, the opportunity to
show the contrary.
(f) Witnesses appearing before the board shall
testify under oath or affirmation.
Source. #10745,
eff 12-16-14 (from Mhp 207.10)
Mhp 208.11 Inquiry by Presiding Officer or Board Members. The presiding officer, board members or board
advisors recognized by the presiding officer shall make such inquiry of
witnesses, parties or counsel, as they believe necessary to develop a sound
record for decision.
Source. #10745,
eff 12-16-14 (from Mhp 207.11)
Mhp 208.12 Burden of Proof.
(a) The party asserting the affirmative of a
proposition shall have the burden of proving the truth of that proposition by a
preponderance of the evidence.
(b) Without limiting the generality of paragraph
(a), above all moving parties and all petitioners shall have the burden of
persuading the board that their motion or petition should be granted.
Source.
#10745,
eff 12-16-14 (from Mhp 207.12)
Mhp
208.13 Failure of a Party to Attend
or Participate in the Hearing.
(a) A party shall be in default if the party:
(1) Has the overall burden of proof;
(2) Has been given notice in accordance with Mhp 208.01
(a); and
(3) Fails to attend the hearing.
(b) If a party is in default under (a) above, the
matter shall be dismissed unless there is just cause shown for failure to
attend. Just cause shall include
illness, accident, the death of a family member, or other circumstance beyond
the control of the party.
(c) If a party who does not have the overall
burden of proof fails to attend the hearing after having been given notice in
accordance with Mhp 207.01(a), the testimony and evidence of any other parties
or intervenors shall be received and evaluated.
Source. #10745,
eff 12-16-14 (from Mhp 207.13)
Mhp
208.14 Proposed Findings of Fact and
Conclusions of Law.
(a) Parties may submit proposed findings of fact
or conclusions of law which shall be set forth in separately numbered
paragraphs.
(b) The presiding officer shall direct any party
to submit proposed findings of fact or conclusions of law if the presiding
officer finds such a submission will clarify the pertinent facts or identify
the applicable law. If such an order is issued, individual rulings upon such
proposed findings or conclusions shall be included as part of any proposed or
final decision or order issued.
Source. #10745,
eff 12-16-14 (from Mhp 207.14)
Mhp
208.15 Decisions.
(a) A presiding officer shall not participate in
making a decision unless he or she personally heard the testimony in the case,
unless the matter’s disposition does not depend on the credibility of any
witness and the record provides a reasonable basis for evaluating the
testimony.
(b) All board members deciding the case shall be
in attendance for all of the parties’ testimony, and any other testimony on the
issue of credibility, in order to effectively assess the issue of credibility.
Source. #10745,
eff 12-16-14 (from Mhp 207.15)
Mhp 208.16 Motion for Reconsideration or Rehearing.
(a)
Final adjudicative orders of the board, and orders denying petitions for
declaratory rulings or rulemaking, shall take effect on the date they are
served upon the parties pursuant to Mhp 204.03 (d).
(b)
Motions for reconsideration or rehearing shall be filed within 30 days
after service of a final adjudicative order.
The motion shall state, with particular clarity, points of law or fact
that the board has overlooked or misapprehended and shall contain such argument
in support of the motion as the movant desires to present.
(c) No answer to a motion for reconsideration
shall be required, but any answer or objection filed shall be delivered to the
board within 10 days following notification of the motion to reconsider.
(d) The filing of a motion for reconsideration
shall not stay any order of the board unless, upon specific written request,
the board has ordered such a stay.
Source. #10745,
eff 12-16-14 (from Mhp 207.16)
Mhp
208.17 Reconsideration on the Board’s
Own Motion. Within the time frame
specified in Mhp 208.16 (b), the board, on its own motion may reconsider,
revise or reverse any final order. No
reconsideration by the board shall occur unless the board finds that a relevant
rule, point of law or fact has been overlooked or misapprehended. If, upon reconsideration, the board takes
action based upon the existing record, prior notice shall not be given to the
parties. If further argument or data
should be considered before making such an order, the board shall provide the
parties with notice and an opportunity to be heard before any final revision is
made in the board’s previous order.
Source. #10745,
eff 12-16-14 (from Mhp 207.17)
Mhp
208.18 Records of Decisions. The board shall keep a final decision in its
records for at least 5 years following its dates of issuance, unless the
director of the division of records management and archives of the department
of state sets a different retention period pursuant to rules adopted under RSA
5:40.
Source. #10745,
eff 12-16-14 (from Mhp 207.18)
Mhp
208.19 Stay of Board Orders.
(a) Board actions shall be stayed only in
response to a specific motion requesting a stay or by the board acting on its
own motion.
(b) A motion for stay shall be considered only if
it is filed within the time period for requesting reconsideration specified by
Mhp 208.16 (b), and shall demonstrate good cause sufficient to warrant the stay
of an action by the New Hampshire Superior Court.
(c) A stay of board action shall be specifically
requested. The mere filing of a motion
for reconsideration shall not operate as a stay of any order, but a motion for
stay may be combined with a motion for reconsideration.
Source. #10745,
eff 12-16-14 (from Mhp 207.19)
PART Mhp 209
PRESIDING OFFICER, WITHDRAWAL AND WAIVER OF RULES
Mhp
209.01 Presiding Officer,
Appointment: Authority.
(a) A presiding officer shall as necessary:
(1) Regulate and control the course of a hearing;
(2) Facilitate an informal resolution of the
subject matter of the hearing;
(3) Administer oaths and affirmations;
(4) Request the board to issue subpoenas to
compel the attendance of witnesses at hearings or the production of documents,
if so authorized by law;
(5) Receive relevant evidence at hearings and exclude
irrelevant, immaterial or unduly repetitious evidence;
(6) Rule on procedural requests, including
adjournments or postponements, at the request of a party or on the presiding
officer’s own motion;
(7) Question any person who testifies;
(8) Cause a complete record of any hearing to be
made, as specified in RSA 541-A:31, III (f); and
(9) Take any other action consistent with
applicable statutes, rules and case law necessary to conduct the hearing and
complete the record in a fair and timely manner.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11 (formerly Mhp 211.01); ss by #10745, eff 12-16-14 (from Mhp 208.01)
Mhp 209.02 Withdrawal of Presiding Officer.
(a)
Upon his or her own initiative or upon the motion of any party, a
presiding officer shall, for good cause withdraw from any hearing.
(b) Good cause shall exist if a presiding officer
or agency official:
(1) Has a direct interest in the outcome of a
proceeding, including, but not limited to, a financial or family relationship
with any party;
(2) Has made statements or engaged in behavior,
other than voting upon matters relevant to the case, which objectively
demonstrates that he or she has prejudged the facts of a case; or
(3) Personally believes that he or she cannot
fairly judge the facts of a case.
(c) Mere knowledge of the issues, the parties or
any witness shall not constitute good cause for withdrawal.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11 (formerly Mhp 211.02); ss by #10745, eff 12-16-14 (from Mhp 208.02)
Mhp
209.03 Waiver or Suspension of Rules
by Presiding Officer. The presiding
officer, upon his or her own initiative or upon the motion of any party, shall
suspend or waive any requirement or limitation imposed by this chapter upon
reasonable notice to affected persons when the proposed waiver or suspension
appears to be lawful, and would be more likely to promote the fair, accurate
and efficient resolution of issues pending before the board than would
adherence to a particular rule or procedure.
Source. #9853-A,
eff 1-25-11 (formerly Mhp 211.03); ss by #10745, eff 12-16-14 (from Mhp 208.03)
PART Mhp 210
RULEMAKING
Mhp
210.01 Procedure For Adopting Rules. A board rule, or any amendment or repeal
thereof, shall be governed by RSA 541-A.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-10
New. #9853-A,
eff 1-25-11; ss by #10745, eff
12-16-14 (from Mhp 209.01)
Mhp
210.02 Petition for Rulemaking. A request for the commencement of a
proceeding to adopt, amend, or repeal a rule shall be submitted in the form of
a petition which contains the following information:
(a) A statement of the petitioner's interest in
the proposed rulemaking action;
(b) The text of the proposed rule or a statement
of the particular results intended by the petitioner to flow from the
implementation of the proposed rule;
(c) If the petitioner proposes to amend or repeal
an existing rule, an identification of the particular rule sought to be amended
or repealed; and
(d) Any data or argument the petitioner believes
would be useful to the board in deciding whether to commence a rulemaking
proceeding.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-11
New. #9853-A,
eff 1-25-11; ss by #10745,
eff 12-16-14 (from Mhp 209.02)
Mhp
210.03 Disposition of Petition for
Rulemaking.
(a) Within 30 days of the submission of a
petition, the board shall either deny the petition by written order, stating
its reasons for the denial, or shall initiate rulemaking proceedings, by
written order, in response to the petition and in accordance with Mhp 210.04.
(b) Any denial shall be based upon a finding by
the board that:
(1) The petition for rule or amendment or repeal
of an existing rule would not be consistent with established standards of
practice of the board;
(2) The board lacks rulemaking authority over the
issues in the petition; or
(3)
The petition is contrary to legislative
intent.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-11
New. #9853-A,
eff 1-25-11; ss by #10745,
eff 12-16-14 (from Mhp 209.03)
Mhp
210.04 Commencement of Rulemaking
Proceeding. The board shall commence
a rulemaking proceeding by following the procedures set forth in RSA 541-A:3 et
seq.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-11
New. #9853-A,
eff 1-25-11; ss by #10745,
eff 12-16-14 (from Mhp 209.04)
PART
Mhp 211 PUBLIC COMMENT HEARINGS
Mhp 211.01 Purpose. The purpose of this part is to provide
uniform procedures for the conduct of public comment hearings held pursuant to
RSA 541-A:11.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-11
New. #9853-A,
eff 1-25-11 (formerly Mhp 212.01); ss by #10745, eff 12-16-14 (from Mhp 210.01)
Mhp 211.02 Public Access and Participation.
(a) Public comment hearings shall be open to the
public, and members of the public shall be entitled to testify, subject to the
limitations of Mhp 211.03.
(b)
People who wish to testify shall be asked to write on the speaker’s
list:
(1) Their full names and addresses; and
(2) The names and addresses of organizations,
entities or other persons whom they represent, if any.
(c) Written comments, which may be submitted in
lieu of or in addition to oral testimony, shall be accepted for 10 days after
the adjournment of a hearing or after the adjournment of a postponed or continued
hearing.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-11
New. #9853-A,
eff 1-25-11 (formerly Mhp 212.02); ss by #10745, eff 12-16-14 (from Mhp 210.02)
Mhp
211.03 Limitations on Public
Participation. The board’s chair or
other person designated by the board to preside over a hearing shall:
(a)
Refuse to recognize for speaking or revoke the recognition of any person
who:
(1) Speaks or acts in an abusive or disruptive
manner;
(2) Fails to keep comments relevant to the
proposed rules that are the subject matter of the hearing; or
(3) Restates more than once what he or she has
already stated; and
(b) Limit presentations on behalf of the same
organization or entity to no more than 3 provided that all those representing
such organization or entity may enter their names and addresses into the record
as supporting the position of the organization or entity.
Source. #10745, eff 12-16-14
(from Mhp 210.03)
Mhp
211.04 Conduct of Public Comment
Hearings.
(a) Public comment hearings shall be attended by
a quorum of the board.
(b) Public comment hearings shall be presided
over by the board chair or a board member knowledgeable in the subject area of
the proposed rules who has been designated by the board to preside over the
hearing.
(c) The chair or other person presiding over a
hearing shall:
(1) Call the hearing to order;
(2) Identify the proposed rules that are the
subject matter of the hearing and provide copies of them upon request;
(3) Cause a recording of the hearing to be made;
(4) Recognize those who wish to be heard;
(5) If necessary, establish limits pursuant to
Mhp 211.03;
(6) If necessary to permit the hearing to go
forward in an orderly manner, effect the removal of a person who speaks or acts
in a manner that is personally abusive or otherwise disrupts the hearing;
(7) If necessary, postpone or move the hearing;
and
(8) Adjourn or continue the hearing.
(d) A hearing shall be postponed in accordance
with RSA 541-A:11, IV when:
(1) The weather is so inclement that it is
reasonable to conclude that people wishing to attend the hearing will be unable
to do so;
(2) The board chair or other person designated by
the board to preside over the hearing is ill or unavoidably absent;
(3) Postponement will facilitate greater
participation by the public; or
(4) The board chair or other person designated by
the board to preside over the hearing finds there is other good cause to do so.
(e) A hearing shall be moved to another location
in accordance with RSA 541-A:11, V when the original location is not able to
accommodate the number of people who wish to attend the hearing.
(f) A hearing shall be continued past the
scheduled time or to another date in accordance with RSA 541-A:11, III when:
(1) The time available is not sufficient to give
each person who wishes to speak a reasonable opportunity to do so; or
(2) The capacity of the room in which the hearing
is to be held does not accommodate the number of people who wish to attend and
it is not possible to move the hearing to another location.
Source. #10745, eff 12-16-14
(from Mhp 210.04)
PART Mhp 212
DECLARATORY RULINGS
Mhp
212.01 Petitions for Declaratory
Rulings.
(a) Any interested person may request a
declaratory ruling from the board on how a statute, rule or order applies to a
specific situation.
(b) The request pursuant to (a) above shall be
made by filing a petition with the board, which contains:
(1) The exact ruling being requested;
(2) Each statutory and
factual basis for the ruling, set forth in separately numbered paragraphs,
including
(3) Any supporting
affidavits or memoranda of law; and
(4) The name and address of the petitioner.
Source. (See Revision Note at chapter heading for Psy
100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-11
New. #9853-B, eff 1-25-11 (formerly 213.01); ss by #10745,
eff 12-16-14 (from Mhp 211.01)
Mhp
212.02 Action on Petitions for
Declaratory Rulings.
(a) The board shall issue a declaratory ruling,
in writing, within 60 days of receipt of a petition.
(b) A copy of each declaratory ruling shall be:
(1) Filed with the director of legislative
services;
(2) Sent to the petitioner by first class mail;
and
(3) Filed with the board.
Source. #10745, eff 12-16-14
(from Mhp 211.02)
PART Mhp 213
WAIVER OF SUBSTANTIVE RULES
Mhp
213.01 Petitions for Waiver.
(a) The board shall entertain petitions to waive
or suspend any rule upon the filing of an original and 10 copies of a petition
pursuant to Mhp 206.01(b) which clearly identifies the rule in question and
sets forth specific facts and arguments which support the requested waiver.
(b) Petitions for waivers of substantive rules
shall address:
(1) Whether adherence to the rule would cause the
petitioner hardship;
(2) Whether the requested waiver is necessary
because of any neglect or misfeasance on the part of the petitioner;
(3) Whether waiver of the rule would injure third
persons; and
(4) Other good cause for waiving the rule.
(c) If examination of the petition reveals that
other persons would be substantially affected by the proposed relief, the board
shall require service of the petition on such persons and advise them of their
right to reply to the petition pursuant to Mhp 206.01(c).
(d) The petitioner shall provide such further
information or participate in such evidentiary or other proceedings as shall be
ordered by the board after reviewing the petition and any replies received.
(e) The board shall initiate a waiver of a
substantive rule upon its own motion by providing affected parties with notice
and an opportunity to be heard, and issuing an order which finds that good
cause has been shown.
(f) For the purposes of this section, good cause
shall be deemed to exist if, at a minimum, the petitioner has demonstrated
that:
(1) Adherence to the rule would cause the
petitioner hardship;
(2) Waiver of the rule would be consistent with
the statutes and rules of the board;
(3) Waiver of the rule would not injure third
persons; and
(4)
Waiver is necessary due to factors outside the control of the
petitioner.
Source. (See Revision
Note at chapter heading for Psy 100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff
1-10-02, EXPIRED: 1-10-11
New.
#9853-B, eff 1-25-11; ss by #10745, eff
12-16-14 (from Mhp 212.01)
PART Mhp 214
EXPLANATION OF ADOPTED RULES
Mhp
214.01 Requests for Explanation of
Adopted Rules. Any interested person
may, within 30 days of the final adoption of a rule, request a written
explanation of that rule by making a written request to the board including:
(a) The name and address of the individual making
the request: or
(b) If the request is that of an organization or
other entity, the name and address of such organization or entity and the name
and address of the representative authorized by the organization or entity to
make the request.
Source. (See Revision Note at
chapter heading for Psy 100) #5675, eff 7-22-93, EXPIRED: 7-22-99
New. #7624, eff 1-10-02, EXPIRED: 1-10-11
New. #9853-B, eff 1-25-11; ss by #10745, eff 12-16-14
(from Mhp 213.01)
Mhp
214.02 Contents of Explanation. The board shall, within 90 days of receiving
a request in accordance with Mhp 214.01, provide a written response which:
(a) Concisely states the meaning of the rule
adopted;
(b) Concisely states the principal reasons for
and against the adoption of the rule in its final form; and
(c) States, if the board did so, why the board
overruled any arguments and considerations presented against the rule.
Source. #9853-B, eff 1-25-11; ss by #10745,
eff 12-16-14 (from Mhp 213.02)
APPENDIX
Rule |
|
|
|
Mhp 201.01 – 202 |
RSA 330-A:28, RSA 330-A:29
and RSA 541-A:16, I(b) |
Mhp 203 |
RSA 541-A:30-a, III (b) |
Mhp 204 |
RSA 541-A:30-a, III (f) |
Mhp 205 |
RSA 541-A:30-a, III (a) |
Mhp 205.01 – 205.02 |
RSA 330-A:29 and RSA 541-A:16, I (b) |
Mhp 206.01 – 206.02 |
RSA 330-A:29
and RSA 541-A:16, I (b) |
Mhp 207 |
RSA 541-A:16, I (b)(2) |
Mhp 207.01 – 207.02 |
RSA 330-A:28, I |
Mhp 208 |
RSA 541-A:16, I (b)(2) |
Mhp 209 |
RSA 330-A:29 and RSA 541-A:16, I (b) |
Mhp 210 |
RSA 330-A:10 and RSA 541-A:16, I (b)(3) |
Mhp 210.01 –
210.02 |
RSA 541-A:16, I (d) |
Mhp 210.03 –
210.04 |
RSA 330-A:28, I |
Mhp 211.01 – 211.02 |
RSA 541-A:16, I (d) |
Mhp 211.03 – 211.04 |
RSA 330-A:28, I |
Mhp 212 |
RSA 541-A:22, IV |
Mhp 212.01 |
RSA 541-A:16, I (d) |
Mhp 212.02 |
RSA 541-A:16, I (c) |
Mhp 213 |
RSA 541-A:22, IV |
Mhp 214 |
RSA 541-A:16, I(d) |