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 |