CHAPTER Mid 200  PROCEDURAL RULES

 

PART Mid 201  DEFINITIONS

 

Mid 201.01  Definitions.

 

(a)  “Adjudicative proceeding” means “adjudicative proceeding” as defined in RSA 541-A:1, I., namely “the procedure to be followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-A: 36.”

 

(b)  “Appearance" means a written notification to the council that a party, an intervenor or the representative of a party or intervenor intends to actively participate in an adjudicative proceeding.

 

(c)  "Contested case" means "contested case" as defined in RSA 541-A:1, IV, namely, "a proceeding in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after notice and an opportunity for hearing."

 

(d)  "Council" means "council" as defined in RSA 326-D:2, II, namely, "the midwifery council established in RSA 326-D:3".

 

(e)  “Declaratory ruling" means, pursuant to RSA 541-A:1, V, a ruling by the council as to the specific applicability of any statutory provision or of any rule or order of the council.

 

(f)  "Intervenor" means a person without the status of a party but participating in an adjudicative proceeding to the extent permitted by the presiding officer acting pursuant to RSA 541-A:32.

 

(g)  "Motion" means a request to the presiding officer for an order or ruling directing some act to be done in favor of the proponent of the motion, including a statement of justification or reasons for the request.

 

(h)  "Order" means, pursuant to RSA 541-A:1, XI, the whole or part of the council’s final disposition of a matter other than a rule, but not including the council’s decision to initiate, postpone, investigate or process any matter, or to issue a complaint or citation.

 

(i)  "Party" means "party" as defined by RSA 541-A:1, XII, namely, "each person or agency named or admitted as a party, or properly seeking and entitled as a right to be admitted as a party."

 

(j)  "Person" means any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character other than the council.

 

(k)  "Presiding officer" means, pursuant to RSA 541-A:1, XIV, that individual to whom the council has delegated the authority to preside over a proceeding, if any, otherwise it means the chair of the council.

 

(l)  "Proof by a preponderance of the evidence" means a demonstration by admissible evidence that a fact or legal conclusion is more probably true than not.

 

(m)  “Public comment hearing” means a proceeding held pursuant to RSA 541-A:11.

 

(n)  "Record" means, in a contested case, the materials set forth in RSA 541-A:31, VI.

 

(o)  “Rulemaking petition” means a petition made pursuant to RSA 541-A:4, I.

 

Source.  #8842, eff 3-13-07

 

PART Mid 202  DISPUTE RESOLUTION AND CONSTRUCTION OF RULES

 

Mid 202.01  Principles of Dispute Resolution.  The council shall resolve by agreement or by a decision all disputes about non-criminal matters within the scope of RSA 326-D and the administrative rules implementing that statute.

 

Source.  #8842, eff 3-13-07

 

Mid 202.02  Construction of Rules.  Mid 204-Mid 213 shall be construed to secure the just, accurate and efficient resolution of all disputes.

 

Source.  #8842, eff 3-13-07

 

Mid 202.03  Right to a Hearing.  Any person having a dispute with the council shall be entitled to a hearing of the dispute if:

 

(a)  The legal rights, duties or privileges of that person will be determined in the course of deciding the outcome of the dispute; and

 

(b)  Constitutional, statutory or case law requires the council to hold a hearing before determination of those rights, duties or privileges.

 

Source.  #8842, eff 3-13-07

 

PART Mid 203  COMPLAINTS OF MISCONDUCT

 

Mid 203.01  Procedures for Submission and Processing of Complaints of Misconduct.

 

(a)  Individuals wishing to complain of misconduct by a midwife certified by the council shall submit to the council a written complaint including the information described in (b) below. 

 

(b)  The complaint shall include:

 

(1)  The name and address of the complainant;

 

(2)  If the complaint is made on behalf of another person, the name of that person and the relationship of that person to the complainant;

 

(3)  The date of the complaint;

 

(4)  The name of the midwife complained against;

 

(5)  If known, the business address and telephone number of the midwife complained against;

 

(6)  A detailed description of the treatment, action, or event complained about;

 

(7)  The beginning and ending dates of the treatment, action, or event being complained about; and

 

(8)  As attachments, copies, but not originals, of any documents which relate to the complaint.

 

(c)  Within 30 calendar days the council shall review the complaint and decide whether to dismiss the complaint or to begin an investigation of the allegations in the complaint.

 

(d)  The council shall mail a copy of any complaint it has not dismissed to the midwife complained against.

 

(e)  The council shall dismiss the complaint in a written notice to the complainant when:

 

(1)  The council has no authority to regulate the actions or omissions complained about; or

 

(2)  There is nothing in the complaint to suggest that the actions or omissions complained of may have constituted misconduct under RSA 326-D, the rules or an order of the council, or any statute within the authority of the council to enforce.

 

Source.  #8841, eff 3-13-07, EXPIRED: 3-13-15

 

New.  #11094, INTERIM, eff 5-12-16, EXPIRED: 11-8-16

 

New.  #12039, eff 11-10-16; ss by #12939-A, eff 12-10-19

 

PART Mid 204  CONDUCT OF HEARINGS BY PRESIDING OFFICER; WAIVER OF RULES

 

Mid 204.01  Presiding Officer.

 

(a)  Hearings shall be conducted by a presiding officer designated by the council.

 

(b)  The presiding officer shall as necessary:

 

(1)  Regulate and control the course of the hearing;

 

(2)  Facilitate settlement of the dispute that is the subject of the hearing;

 

(3)  Administer oaths and affirmations;

 

(4)  Request that the council issue subpoenas to compel the attendance of witnesses or the production of documents or records;

 

(5)  Receive relevant evidence and exclude irrelevant, immaterial or unduly repetitious evidence;

 

(6)  Rule on procedural requests at the request of a party or intervenor or on the presiding officer's own motion;

 

(7)  Question anyone who testifies to the extent required to make a full and fair record;

 

(8)  Arrange for recording the hearing as specified in RSA 541-A:31, VII; 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.  #8842, eff 3-13-07

 

Mid 204.02  Withdrawal of Presiding Officer.

 

(a)  Upon his or her own initiative or upon the motion of any party or intervenor, the presiding officer shall withdraw from any adjudicative proceeding for good cause.

 

(b)  Good cause shall exist if the presiding officer:

 

(1)  Has a direct interest in the outcome of the matter, including but not limited to, a financial or family relationship with any party or intervenor;

 

(2)  Has made statements or engaged in behavior which objectively demonstrates that he or she has prejudged the facts of the case; or

 

(3)  Personally believes that he or she cannot fairly judge the facts of the case.

 

(c)  Mere knowledge of the issues or acquaintance with any party, intervenor or witness shall not constitute good cause for withdrawal.

 

Source.  #8842, eff 3-13-07

 

Mid 204.03  Waiver or Suspension of Rules by Presiding Officer.  The presiding officer, upon the motion of any party or intervenor, or on his or her own initiative, shall suspend or waive any requirement or limitation imposed by this chapter when the suspension or waiver:

 

(a)  Appears to be lawful; and

 

(b)  Is more likely to promote the just, accurate and efficient resolution of the pending dispute than would adherence to the particular requirement or procedure.

 

Source.  #8842, eff 3-13-07

 

PART Mid 205  TIME PERIODS

 

Mid 205.01  Computation of Time.

 

(a)  Unless otherwise specified, the unit of time for time periods referenced in this chapter shall be calendar days.

 

(b)  Computation of any period of time referred to in this chapter shall begin with the day after the action which sets the time period in motion, and shall include the last day of the period so computed.

 

(c)  If the last day of the period so computed falls on a Saturday, Sunday or a legal holiday, then the time period shall be extended to include the first business day following the Saturday, Sunday or legal holiday.

 

Source.  #8842, eff 3-13-07

 

PART Mid 206  FILING, FORMAT AND DELIVERY OF DOCUMENTS

 

Mid 206.01  Date of Issuance or Filing.

 

(a)  All written documents governed by this chapter shall be rebuttably presumed to have been issued on the date noted on the document.

 

(b)  All written documents governed by this chapter shall be rebuttably presumed to have been filed with the council on the date of receipt, as evidenced by a date placed on the document by the council or its staff in the normal course of business.

 

Source.  #8842, eff 3-13-07

 

Mid 206.02  Format of Documents.

 

(a)  All correspondence, pleadings, motions or other documents filed shall:

 

(1)  Include the title and docket number of the case, if known;

 

(2)  Be typewritten or clearly printed on durable paper 8 1/2 by 11 inches in size;

 

(3)  Be signed by the proponent of the document, or, if the proponent appears by a representative, by the representative; and

 

(4)  Include a statement certifying that a copy of the document has been delivered to all parties and intervenors in compliance with Mid 206.03.

 

(b)  The signature of a party or intervenor or the representative of the party or the intervenor on a document filed with the council shall constitute 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 and sufficient grounds to support it; and

 

(4)  The document has not been filed for purposes of delay.

 

Source.  #8842, eff 3-13-07

 

Mid 206.03  Delivery of Documents.

 

(a)  Copies of all motions, exhibits, memoranda, or other documents filed by any party or intervenor shall be delivered by that party or intervenor to the council and to all other parties and intervenors.

 

(b)  All notices, orders, decisions or other documents issued by the presiding officer or the council shall be delivered to all parties and intervenors.

 

(c)  Delivery of documents shall be made either in hand or by depositing into the United States mail a copy of the document in an envelope bearing:

 

(1)  The name of the person intended to receive the document;

 

(2)  The full address, including zip code, last provided to the board by such person; and

 

(3)  Prepaid first class postage.

 

(d)  When a party or intervenor appears by a representative, delivery of a document to the party's or intervenor’s representative either in hand or at the address stated on the appearance filed by the representative shall constitute delivery to the party or intervenor.

 

Source.  #8842, eff 3-13-07

 

PART Mid 207  MOTIONS AND OBJECTIONS

 

Mid 207.01  Motions; Objections to Motions; Ruling on Motions.

 

(a) Motions shall be in written form and filed with the presiding officer, unless made in response to a matter asserted for the first time at a hearing or based on information that was not received in time to prepare a written motion.

 

(b)  Oral motions and any oral objections to such motions shall be recorded in full in the record of the hearing. If the presiding officer finds that the motion requires additional information in order to be fully and fairly considered, the presiding officer shall direct the proponent to submit the motion in writing and provide supporting information.

 

(c)  Except as otherwise provided in this chapter, objections to written motions shall be filed within 10 days of the date of the motion.

 

(d)  Failure by an opposing party or an intervenor to object to a motion shall not in and of itself constitute grounds for granting the motion.

 

(e)  When necessary to obtain information or clarify an issue relating to the proceedings, the presiding officer shall hold a hearing on the motion.

 

(f)  The presiding officer shall rule upon a motion after full consideration of all objections and applicable law.

 

Source.  #8842, eff 3-13-07

 

PART Mid 208  COMMENCEMENT OF ADJUDICATIVE PROCEEDINGS; APPEARANCES; PRE-HEARING CONFERENCES; RECORDING THE HEARING

 

Mid 208.01  Commencement of  Adjudicative Proceedings.

 

(a)  An adjudicative proceeding shall be commenced by:

 

(1)  An order of the council giving the parties the notice specified in (b) below; and

 

(2)  In the case of a proceeding relating to the council’s emergency suspension of a certificate, the notice specified in (b) below together with the order issued pursuant to Mid 208.02 (a).

 

(b)  The notice of hearing shall contain:

 

(1)  The names and addresses of the parties;

 

(2)  A statement of the nature of the hearing;

 

(3)  A short and plain statement of the issues presented;

 

(4)  A reference to the applicable statutes and rules;

 

(5)  A statement of the legal authority under which the hearing is to be held;

 

(6)  The time and place of the hearing and of any pre-hearing conference;

 

(7)  A statement that each party has the right to have representation by an attorney at the party’s own expense;

 

(8)  The name of the presiding officer, if known;

 

(9)  In the case of a hearing not related to the council's emergency suspension of a license, the statement that:

 

a.  A midwife certified by the council has the right to have the council provide a certified shorthand court reporter at the midwife’s expense; and

 

b.  The request for a certified shorthand court reporter shall be submitted in writing at least 10 days before the beginning of the hearing; and

 

(10)  In the case of a hearing related to the council's emergency suspension of a license pursuant to Mid 208.02, the statement that the council shall provide a certified shorthand court reporter at the council’s expense.

 

Source.  #8842, eff 3-13-07

 

Mid 208.02  Procedure for Emergency Suspension of Licenses. 

 

(a)  Upon a finding that public health, safety or welfare requires emergency action, the council shall immediately and prior to a hearing suspend a certificate by issuing a written order of suspension incorporating the finding.

 

(b)  The council shall commence a hearing no later than 10 working days after the issuance of an order pursuant to (a) above.

 

(c)  Unless the 10-day deadline in (b) above is expressly waived by the midwife, the failure of the council to meet the deadline shall result in the automatic vacating of the order of certificate suspension.

 

(d)  After the vacating of the order pursuant to (c) above, the council shall not again suspend the certificate on the basis of the same conduct which formed the basis for the vacated order without giving the midwife prior notice and the opportunity for a hearing under Mid 208.01.

 

(e)  The recording of a hearing on the emergency suspension of a certificate shall be made by a certified shorthand court reporter provided and paid for by the council.

 

Source.  #8842, eff 3-13-07

 

Mid 208.03  Appearances.

 

(a)  An appearance shall be filed by:

 

(1)  Each party or the party's representative, if any; and

 

(2)  Each intervenor or the intervenor's representative, if any.

 

(b)  The appearance shall contain the following information:

 

(1)  The docket number assigned by the council or a brief identification of the case;

 

(2)  The daytime address and telephone number of the person filing the appearance; and

 

(3)  If applicable, the daytime address and telephone number of the party or intervenor represented by the person filing the appearance.

 

Source.  #8842, eff 3-13-07

 

Mid 208.04  Prehearing Conference.

 

(a)  A prehearing conference shall be scheduled on the request of any party or intervenor or on the initiative of the council or the presiding officer if to do so would facilitate the proceedings or encourage resolution of the dispute.

 

(b)  A prehearing conference shall address one or more of the following:

 

(1)  Offers of settlement;

 

(2)  Simplification of the issues;

 

(3)  Stipulations or admissions as to issues of fact or proof;

 

(4)  Limitations on the number of witnesses;

 

(5)  Changes to standard hearing procedures;

 

(6)  Consolidation of examination of witnesses; and

 

(7)  Any other matters that advance the efficiency of the proceedings.

 

Source.  #8842, eff 3-13-07

 

Mid 208.05  Recording the Hearing.

 

(a) Except in the circumstances described in (b) below, the presiding officer shall record the hearing electronically or any by any other method that will provide a verbatim record.

 

(b)  A hearing on the immediate suspension of a license pursuant to RSA 541-A:30, III shall be recorded by a certified shorthand court reporter provided by the council.

 

(c)  If any person requests a transcript of the recording of a hearing, the council 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.  #8842, eff 3-13-07

 

PART Mid 209  INTERVENTION; ROLES OF COMPLAINANTS AND COUNCIL STAFF

 

Mid 209.01  Intervention Procedure.

 

(a)  Petitions for intervention shall:

 

(1)  Describe in writing the petitioner's interest in the subject matter of the proceedings;

 

(2)  Be submitted to the presiding officer; and

 

(3)  Be mailed in copy form to all parties identified in the notice commencing the hearing.

 

(b) A petition for intervention shall be granted by the presiding officer if the petitioner complied with (a) above at least 3 days before the hearing and the presiding officer determines that:

 

(1)  The petition states facts demonstrating that the petitioner's rights, duties, privileges, immunities or other substantial interests might be affected by the proceedings or the petitioner qualifies as an intervenor under law; and

 

(2)  The intervention sought would not impair the interests of justice and the orderly and prompt conduct of the proceedings.

 

(c)  The presiding officer shall grant a petition for intervention at any time if:

 

(1)  The petitioner complied with (a) above; and

 

(2)  The presiding officer determines that the intervention sought would be in the interests of justice and would not impair the orderly and prompt conduct of the proceedings.

 

Source.  #8842, eff 3-13-07

 

Mid 209.02  Effect of Intervention and Rights of an Intervenor.

 

(a)  Approval of intervention by the presiding officer shall apply only to the proceeding in which the petition for intervention was granted.

 

(b)  Notwithstanding the provisions of this chapter, an intervenor’s right to participate in an adjudicative proceeding shall be subject to any limitations or conditions imposed by the presiding officer pursuant to RSA 541-A:32, III.

 

(c)  An intervenor shall take the proceedings as he or she finds them and no portion of the proceeding shall be repeated because of the fact of intervention.

 

Source.  #8842, eff 3-13-07

 

Mid 209.03  Role of Complainants and Council Staff.

 

(a)  Complainants complying with Mid 203.01 shall have no role in any hearing other than that of witness unless they petition for, and are granted, the right to intervene.

 

(b)  Unless called as witnesses, council staff shall have no role in any hearing.

 

Source.  #8842, eff 3-13-07

 

PART Mid 210  CONTINUANCES AND FAILURE TO ATTEND HEARING

 

Mid 210.01  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 a delay or continuance would assist in resolving the case fairly.

 

(c)  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.  #8842, eff 3-13-07

 

Mid 210.02  Failure of a Party to Attend or Participate in the Hearing.

 

(a)  The case shall be dismissed if the party having the overall burden of proof:

 

(1)  Has been given notice in accordance with Mid 208.01; and

 

(2)  Fails to attend the hearing, unless the party’s failure to attend results from circumstances beyond the party’s control.

 

(b)  If the party having the overall burden of proof attends the hearing but fails to participate by presenting evidence or argument, a decision shall be entered against that party. 

 

(c)  If the party who does not have the overall burden of proof fails to attend the hearing after having been given notice in accordance with Mid 208.01, the testimony and evidence of all other parties or intervenors shall be received and evaluated.

 

(d)  If the party not having the overall burden of proof failed to attend the hearing as a result of circumstances beyond the party’s control, and that party wishes to present testimony or evidence following the receipt and evaluation of other testimony and evidence pursuant to (c) above, that party may submit a motion to do so.

 

Source.  #8842, eff 3-13-07

 

PART Mid 211  REQUESTS FOR INFORMATION AND DOCUMENTS

 

Mid 211.01  Voluntary Production of Information.

 

(a)  Each party and intervenor shall attempt in good faith to make complete and timely response to requests for the voluntary production of information and documents relevant to the hearing.

 

(b)  When a dispute arises concerning a request for the voluntary production of information or documents, any party or intervenor may file a motion under Mid 211.02 to compel the production of the requested information or documents.

 

Source.  #8842, eff 3-13-07

 

Mid 211.02  Motions to Compel Production of Information and Documents.

 

(a)  Any party or intervenor may make a motion seeking an order for compliance with an information or document request. The motion shall be filed at least 30 days before the date scheduled for the hearing, or as soon as possible after receiving the notice of the hearing if such notice is issued less than 30 days in advance of the hearing.

 

(b)  The motion to compel shall:

 

(1)  Set forth in detail those facts which justify the request for information or documents; and

 

(2)  List with specificity the information or documents being sought.

 

(c)  Objections to motions to compel shall be filed within 10 days of the delivery of the motion.

 

(d)  The presiding officer shall grant the motion to compel if its proponent has demonstrated that an order for compliance is necessary for a full and fair presentation of evidence at the hearing.

 

Source.  #8842, eff 3-13-07

 

Mid 211.03  Mandatory Pre-Hearing Disclosure of Witnesses and Exhibits.  At least 5 days before the hearing, the parties and intervenors shall provide to the other parties and intervenors:

 

(a)  A list of all witnesses to be called at the hearing containing the names of the witnesses, their addresses and their telephone numbers;

 

(b)  Brief summaries of the testimony of the witnesses to be called;

 

(c)  A list of documents and exhibits to be offered as evidence at the hearing;

 

(d)  A copy of each document to be offered as evidence at the hearing; and

 

(e)  An offer to allow the inspection of non-documentary exhibits to be offered as evidence at the hearing at times and places of convenience to the parties and intervernors.

 

Source.  #8842, eff 3-13-07

 

PART Mid 212  HEARING PROCEDURE

 

Mid 212.01  Standard and Burden of Proof.  The party or intervenor asserting a proposition shall bear the burden of proving the truth of the proposition by a preponderance of the evidence.

 

Source.  #8842, eff 3-13-07

 

Mid 212.02  Order of Testimony; Cross-Examination.

 

(a)  Any individual offering testimony, evidence or arguments shall state for the record his or her name and role in the hearing. If the individual is representing another person, the person being represented shall also be identified.

 

(b)  Testimony on behalf of the parties shall be offered in the following order:

 

(1)  The testimony of the party or parties bearing the overall burden of proof and such witnesses as such party or parties may call; and

 

(2)  Thereafter, the testimony of the party or parties opposing the party who bears the overall burden of proof and such witnesses as such party or parties may call.

 

(c)  The testimony of intervenors and such witnesses as such intervenors may be allowed to call shall be offered at the time directed by the presiding officer.

 

(d)  Each party may cross-examine any witnesses offered against that party.

 

(e)  The presiding officer shall call witnesses not called by the parties if their testimony is required for a full and fair adjudication of the issues.

 

(f)  Pursuant to RSA 541-A:32, III, the right of an intervenor to cross-examine witnesses and to use the other  procedures of participation accorded to parties shall be determined by the presiding officer.

 

Source.  #8842, eff 3-13-07

 

Mid 212.03  Evidence.

 

(a)  Receipt of evidence shall be governed by the provisions of RSA 541-A:33.

 

(b)  All rules of privilege recognized under the laws of the state of New Hampshire shall apply in proceedings before the council.

 

(c)  All documents, materials and objects offered as exhibits shall be admitted into evidence unless excluded by the presiding officer as irrelevant, immaterial, unduly repetitious or legally privileged.

 

(d)  All objections to the admissibility of evidence shall be stated as early as possible in the hearing, but not later than the time when the evidence is offered.

 

(e)  Transcripts of testimony as well as documents, materials and objects admitted into evidence shall be public records unless the presiding officer determines that all or part of them is exempt from disclosure under RSA 91-A:5 or applicable case law.

 

Source.  #8842, eff 3-13-07

 

Mid 212.04  Proposed Findings of Fact and Rulings of Law.

 

(a)  Any party or intervenor may submit proposed findings of fact and rulings of law.

 

(b)  The presiding officer shall require the submission of proposed findings of fact and rulings of law and specify a deadline after the close of the hearing for their submission when:

 

(1)  Any party or intervenor has requested such action; or

 

(2)  The presiding officer determines that proposed findings of fact and rulings of law would clarify the issues presented at the hearing.

 

(c)  In any case where a party or intervenor submits proposed findings of fact and rulings of law, the presiding officer shall include rulings on such submissions in his or her proposal for disposition.

 

Source.  #8842, eff 3-13-07

 

Mid 212.05  Closing the Record.  After the conclusion of the hearing and the filing of such post-hearing submissions as may be ordered by the presiding officer, the record shall be closed and no additional evidence shall be received into the record except as allowed by Mid 212.06.

 

Source.  #8842, eff 3-13-07

 

Mid 212.06  Reopening the Record.

 

(a)  If no written proposal for decision pursuant to Mid 212.07(d) or decision pursuant to Mid 212.07(a) has been issued, any party or intervenor may move to reopen the record for the inclusion in the record of specified evidence or claims of law.

 

(b)  A motion pursuant to (a) above shall be granted if:

 

(1)  There is no objection from any other party or intervenor;

 

(2)  The evidence sought to be included in the record was not available at the time of the hearing or the claim of law was inadvertently omitted; and

 

(3)  The presiding officer determines that the evidence or claim of law is relevant, material and non-duplicative and its inclusion in the record is necessary to a full and fair consideration of the issues to be decided.

 

(c)  If there is an objection from a party or intervenor to a motion made pursuant to (a) above, the hearing shall be reopened for the purpose of receiving evidence, permitting cross-examination and permitting argument on the issue of reopening the record.

 

(d)  The presiding officer shall grant a motion made pursuant to (a) above if, after the reopened hearing described in (c) above, the presiding officer determines that:

 

(1)  The evidence sought to be included in the record was not available at the time of the hearing or the claim of law was inadvertently omitted; and

 

(2)  The evidence or claim of law is relevant, material and non-duplicative; and

 

(3)  Its inclusion in the record is necessary to a full and fair consideration of the issues to be decided.

 

(e)  If the presiding officer permits the reopening of the record for the admission of specified evidence or claim of law, the presiding officer shall extend the hearing reopened pursuant to (c) for the purpose of receiving evidence, permitting cross-examination and permitting argument on the substance of the evidence or on the claim of law.

 

Source.  #8842, eff 3-13-07

 

Mid 212.07  Disposition.

 

(a)  The council shall issue a decision or order, whether or not the record has been reopened pursuant Mid 212.06, based on:

 

(1)  A hearing attended by a quorum of the council;

 

(2)  A written proposal for disposition meeting the requirements of paragraph (d) below; or

 

(3)  A hearing held pursuant to subparagraph (e)(2) below. 

 

(b)  The decision or order shall:

 

(1)  Be in writing and dated; and

 

(2)  Include findings of fact and rulings of law.

 

(c)  A council member shall not participate in the council’s disposition if he or she has not personally heard all of the testimony in the case, unless the disposition does not depend on the credibility of any witness and the record provides a reasonable basis for evaluating the testimony.

 

(d)  If a presiding officer has been delegated the authority to conduct the hearing, the presiding officer shall submit to the council a written proposal for disposition containing:

 

(1)  The disposition proposed by the presiding officer;

 

(2)  A statement of the reasons for the proposed disposition; and

 

(3)  Findings of fact and rulings of law.

 

(e)  If a proposed disposition submitted pursuant to paragraph (d) is adverse to a party or an intervenor, the council shall:

 

(1)  Serve a copy of it on each party and intervenor; and

 

(2)  Provide an opportunity to file objections and present briefs and oral arguments to the council.

 

(f)  The council shall keep a final decision or order in its records for at least 5 years following its date 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.  #8842, eff 3-13-07

 

Mid 212.08  Rehearing.

 

(a)  Within 30 days of a decision or order any party or person directly affected may request rehearing of any matter determined in the proceeding or covered by the decision or order by submitting a written motion specifying:

 

(1)  The issues to be considered at the rehearing; and

 

(2)  Every ground on which it is claimed that the decision or order is unlawful or unreasonable.

 

(b)  The council shall mail a copy of the motion for rehearing to all parties and intervenors.

 

(c)  An objection to a motion for rehearing shall be submitted within 10 days of the date of submission of the motion.

 

(d)  Within 10 days of submission of the motion for rehearing, the council, if it has received either an objection or a notice of no objection, shall employ the standards in (g) below to grant or deny the motion for rehearing.

 

(e)  Within 10 days of submission of the motion for rehearing, the council, if it has not received an objection or notice of no objection, shall, pending the denial of the motion for rehearing or the completion of the rehearing, suspend the decision or order complained of.

 

(f)  When the time specified in (c) above for submitting an objection has expired, the council shall employ the standards in (g) below to either grant or deny the motion for rehearing.

 

(g)  The council shall grant the motion for rehearing if it determines that, in the original hearing, it:

 

(1)  Incorrectly assessed the relevant evidence;

 

(2)  Incorrectly applied the relevant law; or

 

(3)  Failed substantially to comply with this chapter.

 

Source.  #8842, eff 3-13-07

 

PART Mid 213  SETTLEMENTS

 

          Mid 213.01  Settlement of Some or All Issues in a Dispute.

 

       (a)  Any midwife who has a dispute with the council shall have the opportunity at any time to reach an agreement to settle some or all of the issues if:

 

(1)  There is no dispute about the material facts underlying the issues to be settled; and

 

(2)  The dispute relates to a complaint submitted in accordance with Mid 203.01, the complainant has the opportunity to submit for the council’s consideration written comment on the terms of the proposed settlement.

 

          (b)  To be effective, an agreement to settle shall be:

 

(1)  In writing;

 

(2)  Signed by the midwife; and

 

(3)  After the signing by the midwife, finalized as an order issued by the council.

 

          (c)  The signing by the midwife of an agreement to settle shall constitute a waiver of the midwife’s right to a hearing of the issues resolved by the agreement.

 

Source.  #8841, eff 3-13-07, EXPIRED: 3-13-15

 

New.  #11094, INTERIM, eff 5-12-16, EXPIRED: 11-8-16

 

New.  #12039, eff 11-10-16

 

PART Mid 214  RULEMAKING

 

Mid 214.01  Petitions for Rulemaking.

 

(a)  Any person may seek the adoption, amendment or repeal of a rule by submitting to the council a petition pursuant to RSA 541-A:4.

 

(b)  Each petition for rulemaking shall contain:

 

(1)  The name and address of the individual petitioner or, if the request is that of an organization or other entity, the identity of such organization or entity and the name and address of the representative authorized by the entity to file the petition;

 

(2)  A statement of the purpose of the petition, whether the adoption, amendment or repeal of a rule;

 

(3)  If amendment or adoption of a rule is sought, the text proposed;

 

(4)  If amendment or repeal of a rule is sought, identification of the current rule sought to be amended or repealed;

 

(5)  Reference to the statutory provision that authorizes or supports the rulemaking petition; and

 

(6)  Information or argument useful to the council when deciding whether to begin the rulemaking process.

 

Source.  #8842, eff 3-13-07

 

Mid 214.02  Disposition of Petitions for Rulemaking.

 

(a)  The council shall request additional information or argument from the petitioner for rulemaking or from others if such additional information or argument is required to reach a decision.

 

(b)  The council shall grant the petition for rulemaking if the adoption, amendment or repeal sought would not result in:

 

(1)  A rule that is not within the rulemaking authority of the council;

 

(2)  Duplication of a rule or of a statutory provision;

 

(3)  Inconsistency between the existing rules and the statutory mandate of the council;

 

(4)  Inconsistency of one administrative rule with another; or

 

(5)  Excessive burden upon the council in terms of cost or a reduction in efficiency or effectiveness.

 

(c)  Within 30 days of receipt of a sufficient petition the council shall dispose of it in the following manner:

 

(1)  By notifying the petitioner that the petition is granted and beginning rulemaking proceedings as required by RSA 541-A:4; or

 

(2)  By notifying the petitioner in writing that the petition is denied and the reasons for its denial.

 

(d)  The denial of a petition for rulemaking shall not entitle the petitioner to a hearing.

 

Source.  #8842, eff 3-13-07

 

PART Mid 215  PUBLIC COMMENT HEARINGS

 

Mid 215.01  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.  #8842, eff 3-13-07

 

Mid 215.02  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 Mid 215.03.

 

(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.  #8842, eff 3-13-07

 

Mid 215.03  Limitations on Public Participation.  The chair of the council or other person designated by the council 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.  #8842, eff 3-13-07

 

Mid 215.04  Media Access.  Public comment hearings shall be open to print and electronic media, subject to the following limitations when such limitations are necessary to allow a hearing to go forward:

 

(a)  Limitation of the number of media representatives when their number together with the number of other members of the public present exceeds the capacity of the hearing room;

 

(b)  Limitation on the placement of cameras to specific locations within the hearing room; or

 

(c)  Prohibition of interviews conducted within the hearing room before or during the hearing.

 

Source.  #8842, eff 3-13-07

 

Mid 215.05  Conduct of Public Comment Hearings.

 

(a)  Public comment hearings shall be attended by a quorum of the council.

 

(b) Public comment hearings shall be presided over by the chair of the council or a council member knowledgeable in the subject area of the proposed rules who has been designated by the council 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 Mid 215.03 and Mid 215.04;

 

(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 chair of the council or other person designated by the council to preside over the hearing is ill or unavoidably absent; or

 

(3)  Postponement will facilitate greater participation by the public.

 

(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.  #8842, eff 3-13-07

 

PART Mid 216  DECLARATORY RULINGS

 

Mid 216.01  Requests for Declaratory Rulings.

 

(a)  Any person may request a declaratory ruling by the council if that person is directly affected by RSA 326-D or by any administrative rule.

 

(b)  A request for a declaratory ruling shall be in a writing containing:

 

(1)  The name and address of the individual or entity making the request;

 

(2)  The text of the ruling being requested;

 

(3)  The reasons for the request; and

 

(4)  The following declaration signed by the individual making the request, the authorized representative of such individual, or the authorized representative of the entity making the request:

 

"I declare that I have examined the request for a declaratory ruling, including the accompanying documents, and state that, to the best of my knowledge and belief, the facts presented in support of the requested declaratory ruling are true, correct and complete."

 

Source.  #8842, eff 3-13-07

 

Mid 216.02  Documents Required to Support Requests for Declaratory Rulings.

 

(a)  A request for a declaratory ruling shall be accompanied by:

 

(1)  A statement citing the statutory law, regulatory law and orders believed to support the ruling being requested;

 

(2)  A statement of the facts believed to support the ruling being requested; and

 

(3)  Supplementary material necessary to establish or clarify the facts set forth in the statement of facts.

 

(b)  A request for a declaratory ruling may be accompanied by additional material chosen by the person making the request.

 

Source.  #8842, eff 3-13-07

 

Mid 216.03  Processing Requests for Declaratory Rulings.

 

(a)  Within 30 days of receiving a request for a declaratory ruling the council shall advise the person requesting it if the ruling will be delayed by the need for additional information or the complexity of the issues presented.

 

(b)  If additional information should be needed, the council shall specify the additional information required and request that it be provided in a statement of additional information that includes the declaration specified in Mid 216.01(b)(4) and is accompanied by any material necessary to establish or clarify the facts set forth in the statement.

 

Source.  #8842, eff 3-13-07

 

Mid 216.04  Issuance and Publication of Declaratory Rulings.

 

(a)  When facts sufficient to support a declaratory ruling have been established, the council shall issue a written declaratory ruling which applies all relevant law to the established facts.

 

(b)  When the established facts show that the council lacks subject matter or personal jurisdiction to issue a declaratory ruling, the council shall issue a written decision stating that it lacks jurisdiction to issue a declaratory ruling and identifying the lack of jurisdiction.

 

(c)  Declaratory rulings shall be filed on the day of issuance with the director of legislative services in accordance with RSA 541-A:16, II (b).

 

Source.  #8842, eff 3-13-07

 

Mid 216.05  Effect of Declaratory Rulings.  A declaratory ruling shall apply only to the council and to the person requesting it and shall be confined to the facts presented pursuant to Mid 216.02 (a)(2) - (a)(3) and in response to a request of the council made pursuant to Mid 216.03 (b).

 

Source.  #8842, eff 3-13-07

 

PART Mid 217  EXPLANATION OF ADOPTED RULES

 

         Mid 217.01  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 council 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.  #8841, eff 3-13-07, EXPIRED:  3-13-15

 

New.  #11094, INTERIM, eff 5-12-16, EXPIRED:  11-8-16

 

New.  #12039, eff 11-10-16

 

         Mid 217.02  Contents of Explanation.  The council shall, within 90 days of receiving a request in accordance with Mid 217.01, 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 council did so, why the council overruled any arguments and considerations presented against the rule.

 

Source.  #8841, eff 3-13-07, EXPIRED:  3-13-15

 

New.  #11094, INTERIM, eff 5-12-16, EXPIRED:  11-8-16

 

New.  #12039, eff 11-10-16

 

APPENDIX

 

RULE

STATUTE

 

 

Mid 201

RSA 541-A:7

Mid 202.01 and Mid 202.02

RSA 541-A:16, I(b)(2)

Mid 202.03

RSA 541-A:16, I(b); RSA 541-A:1, IV

Mid 203

RSA 541-A:16, I(b) intro.

Mid 204.01

RSA 541-A:16, I(b)(2)

Mid 204.02

RSA 541-A:30-a, III(k)

Mid 204.03

RSA 541-A:30-a, III(j)

Mid 205

RSA 541-A:30-a, III(f)

Mid 206

RSA 541-A:30-a, III(a)

Mid 207

RSA 541-A:16, I(b)(2)

Mid 208.01

RSA 541-A:31, III

Mid 208.02

RSA 541-A:30, III

Mid 208.03

RSA 541-A:30-a, III(b)

Mid 208.04

RSA 541-A:31, V(c)

Mid 208.05(a)

RSA 541-A:31, VII

Mid 208.05(b)

RSA 541-A:30, III

Mid 208.05(c)

RSA 541-A:31, VII

Mid 209.01

RSA 541-A:32, I and II

Mid 209.02(a)

RSA 541-A:16, I(b)(2)

Mid 209.02(b)

RSA 541-A:32, III

Mid 209.02(c)

RSA 541-A:16, I(b)(2)

Mid 209.03

RSA 541-A:30-a, III(g)

Mid 210.01

RSA 541-A:30-a, III(h)

Mid 210.02

RSA 541-A:16, I(b)(2)

Mid 211

RSA 541-A:30-a, III(c)

Mid 212.01

RSA 541-A:30-a, III(d) and (e)

Mid 212.02(a) through (e)

RSA 541-A:16, I(b)(2)

Mid 212.02(f)

RSA 541-A:32, III

Mid 212.03(a) and (b)

RSA 541-A:33

Mid 212.03(c)-(e)

RSA 541-A:16, I(b)(2)

Mid 212.04 and Mid 212.05

RSA 541-A:16, I(b)(2)

Mid 212.06

RSA 541-A:30-a, III(i)

Mid 212.07(a)-(e)

RSA 541-A:16, I(b)(2)

Mid 212.07(f)

RSA 541-A:30-a, III(l)

Mid 212.08

RSA 541-A:16, I(b)(2)

Mid 213

RSA 541-A:16, I(b)(2)

Mid 214

RSA 541-A:16, I(c)

Mid 215

RSA 541-A:16, I(b)(3)

Mid 216

RSA 541-A:16, I(d)

Mid 217

RSA 541-A:11, VII