CHAPTER Mtec 200 PRACTICE
AND PROCEDURE
PART Mtec 201 PURPOSE AND
APPLICABILITY
Mtec
201.01 Purpose. These rules set forth how the board conducts proceedings
to reach decisions on matters within its statutory jurisdiction. These rules
shall be construed to secure the just, efficient and accurate resolution of
such proceedings.
Source. #11091-A,
eff 5-5-16
Mtec 201.02 Applicability. These rules shall apply to the following
types of proceedings:
(a)
Adjudicative proceedings regarding the issuance, renewal, or other
status of a certificate of registration to practice as a medical technician;
(b)
Investigations of alleged misconduct by registrants;
(c)
Adjudicative proceedings seeking the imposition of disciplinary action
upon a registrant;
(d)
Public comment hearings;
(e)
Petitions for rulemaking; and
(f)
Requests for declaratory ruling.
Source. #11091-A,
eff 5-5-16
PART Mtec 202 DEFINITIONS
Mtec
202.01 Definitions. The following terms shall have the meaning
indicated when used in this chapter:
(a)
“Board” means the board of registration of medical technicians created
pursuant to RSA 328-I.
(b)
"Complaint" means a written statement received by the board
alleging professional misconduct of a medical technician as defined in RSA
328-I: 21, II.
(c)
"Corrective action" means a written agreement between the
board and a registrant whereby the registrant agrees to make certain changes in
his or her practice, to accept clinical supervision, and/or to take some
recommended program of study to resolve a complaint of misconduct presented to
the board.
(d)
"Disciplinary proceeding" means an adjudicative proceeding
commenced by the board for the purpose of examining alleged misconduct by a
registrant.
(e)
"Order" means a document issued by the board:
(1) Establishing procedures to be followed in an
adjudicative or nonadjudicative proceeding;
(2) Granting or denying a petition or motion;
(3) Requiring a person to do, or to abstain from
doing something; or
(4) Determining a person's rights to a certificate
of registration or other privilege established by RSA 328-I.
(f)
"Settlement agreement" means a written order of the board acknowledging
consent of the registrant to enter stipulated facts and impose disciplinary
action to resolve certain allegations of misconduct.
Source. #11091-A,
eff 5-5-16
PART Mtec 203 WAIVERS
Mtec
203.01 Waiver of Procedural Rules.
(a)
No procedural requirement of the rules in this chapter shall be waived,
except for good cause as provided herein.
(b)
For the purposes of this section, good cause shall be deemed to exist
if:
(1) Adherence to the rule would cause undue
hardship to any party by:
a. Imposing unreasonable delay in the
implementation of relief;
b. Imposing unreasonable delay in the provision
of treatment; or
c. Imposing unreasonable and avoidable financial
burdens upon a party;
(2)
Waiver of the rule would be consistent with the enabling statutes and rules of
the board;
(3) Waiver of the rule would not injure third
persons;
(4) Waiver is made necessary by factors outside
the control of the petitioner; and
(5) There has been no neglect or misfeasance on
the part of the petitioner.
(c)
The procedures to be followed in the conduct of any adjudicative
proceeding shall be subject to waiver by the presiding officer based upon:
(1) The request of any party to the proceeding;
(2) A request assented to by all parties to the
proceeding; or
(3) The determination of the presiding officer following
notice to all parties and an opportunity for any party to be heard in
opposition to the proposed waiver.
(d)
The procedures to be followed in the conduct of any annual, regular, or
special meeting of the board, or any public comment proceeding, shall be
subject to waiver by the chairperson of the board upon the request of any
participant in such proceeding.
(e)
Notwithstanding (c) above, the decision of the chairperson to waive such
procedures shall be overruled by a majority vote of the quorum of the board
disapproving of such action; in which case the applicable provisions of these
rules shall be followed.
(f)
In a proceeding requesting rulemaking or a declaratory ruling, no waiver
of required procedures shall be granted other than by a petition to waive such
procedures filed with the board.
(g)
The person requesting relief shall:
(1) File an original and 6 copies of the petition
with the board;
(2) In such petition, clearly identify the rule
in question and the relief requested; and
(3) In such petition, set forth specific facts
and/or legal arguments which support the requested waiver.
(h) In a proceeding under (d) or (f) above, the
board shall consider the petition and rule upon the same only in a public
meeting duly noticed to the parties and the public in accordance with RSA
91-A.
Source. #11091-A,
eff 5-5-16
PART Mtec 204
INVESTIGATIONS
Mtec
204.01 Investigation.
(a)
The board shall make inquiry of a registrant whenever it receives
information alleging violation of any statute administered by the board.
(b)
When the board receives information indicating that a medical technician
has engaged in, or is likely to engage in conduct which poses an immediate
danger to life or health, the board shall issue an order pursuant to RSA
328-I:10, IV, which shall set forth the alleged misconduct and immediately
suspends the certificate of registration.
(c)
The suspension shall begin on the date the order is reduced to writing
and combined with a hearing notice that complies with RSA 328-I:11, and end on
the date set for a hearing pursuant to RSA 328-I:11, II, but in no event shall
this period be more than 120 days.
(d)
Investigations may gather information through various techniques,
including but not limited to:
(1) Requests for additional information from the
complainant;
(2) Requests for a release of relevant records belonging
to or under the control of the petitioner; and
(3) Face-to-face meetings with the registrant,
potential witnesses and interested persons.
Source. #11091-A,
eff 5-5-16
Mtec
204.02 Informal Resolution.
(a) Pursuant to RSA 328-I:10, XIII,
the board shall dismiss a complaint when the undisputed allegations do not
warrant disciplinary action against a registrant because:
(1) The board lacks jurisdiction over the subject
matter of the complaint; or
(2) The facts, taken in a light most favorable to
the complainant, do not allege a violation of RSA 328-I;
(3) The facts do not relate to actions of the
registrant; or
(4) Any action based upon the alleged facts is
time barred by RSA 328-I:10, XII.
(b)
Pursuant to RSA 328-I:10, II, the board shall initiate non-disciplinary
remedial proceedings when:
(1) It receives a written complaint from any
person that a registrant is afflicted with any of the following conditions that
if untreated or uncontrolled could constitute a danger to the public health:
a. A physical or mental disability or disorder;
or
b. A communicable disease; or
(2) It receives information about one or more
practices engaged in by a registrant which, if continued, would result in disciplinary
action against the registrant.
Source. #11091-A,
eff 5-5-16
Mtec
204.03 Formal Investigation.
(a)
A formal investigation shall be commenced when the board determines that
the facts in its possession are sufficient, if shown to be true, to lead to the
imposition of disciplinary action pursuant to RSA 328-I:10.
(b)
The board shall designate a person to serve as the investigating
officer, provided that no board member shall be so designated if the selection
would constitute a conflict of interest, or create a breach of ethics in the
profession represented by the board member.
(c)
A formal investigation shall be commenced by the issuance of an order of
investigation containing:
(1) The statutory or regulatory authority for the
investigation;
(2) The identity of the registrant who is the
subject of the investigation;
(3) The general nature of the conduct being
investigated;
(4) Any statutes or rules alleged to have been
violated;
(5) The time, place and manner in which the investigation
is to be conducted, and whether the investigating officer shall provide a
preliminary report to the board;
(6) Any special authority conferred upon the
investigating officer, including the authority to issue subpoenas on behalf of
the board to obtain information and data to prepare its report of investigation
and prepare to prosecute the case;
(7) The name of the person or persons designated
as investigating officer; and
(8) Any other provision relevant to the issues
under investigation.
Source. #11091-A,
eff 5-5-16
PART Mtec 205
ADJUDICATIVE PROCEEDINGS
Mtec
205.01 Hearings.
(a)
The board shall commence an adjudicative proceeding to resolve any
disciplinary or licensure allegation arising under this chapter which has not
been resolved in accordance with Mtec 204.02.
(b)
Once a disciplinary proceeding has been commenced, no party shall
communicate with a participating member of the board concerning the merits of
the case except upon notice to all parties and in accordance with the rules of
this chapter.
Source. #11091-A,
eff 5-5-16
Mtec 205.02 Presiding Officer, Appointment: Authority.
(a)
The board shall appoint a person to preside at the hearing who shall be:
(1) A member of the board; or
(2) A nonmember retained to serve as the hearing
officer, if the board determines that:
a. The issues are of unusual complexity;
b. Hearings on procedural matters and the issues
in contention will consume an amount of time that would substantially interfere
with the ordinary business of the board; or
c. More than two members are recused from
hearing the matter.
(b)
The presiding officer shall as necessary:
(1) Regulate and control the course of a hearing;
(2) Facilitate an informal resolution of the
subject matter of the hearing;
(3) Administer oaths and affirmations;
(4) Request the board to issue subpoenas to
compel the attendance of witnesses at hearings or the production of documents
or objects, pursuant to RSA 328-I:11, III;
(5) Receive relevant evidence at hearings and
exclude irrelevant, immaterial or unduly repetitious evidence;
(6) Rule on procedural requests, including
adjournments or postponements, at the request of a party or on the presiding
officer's own motion;
(7) Recognize any individual who may seek to
question any person who testifies;
(8) Cause a complete record of any hearing to be
made, as specified in RSA 541-A:31, III (f);
(9) Lead the process of preparing all written
decisions to be issued upon pending motions or the final disposition of the
case; and
(10) 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. #11091-A,
eff 5-5-16
Mtec
205.03 Withdrawal of Presiding
Officer.
(a)
Upon his or her own initiative or upon the motion of any party, a
presiding officer shall, for good cause, withdraw from any hearing.
(b)
Good cause shall exist if a presiding officer:
(1) Has a direct interest in the outcome of a
proceeding, including, but not limited to, a financial or family relationship
with any party;
(2) Has made statements or engaged in behavior
which objectively demonstrates that he or she has prejudged the facts of a
case; or
(3) Personally believes that he or she cannot
fairly judge the facts of a case.
(c)
Mere knowledge of the issues, or mere acquaintance with a party or any
witness shall not constitute good cause for withdrawal.
(d)
If a member of the board withdraws in accordance with this section, the
member shall also recuse himself or herself from any further connection with
the investigation or disciplinary action against the registrant.
Source. #11091-A,
eff 5-5-16
Mtec
205.04 Roles of Board Staff and
Complainants.
(a)
Unless called as witnesses, board staff shall have no role in any
enforcement or disciplinary hearing.
(b)
Unless called as a witness or granted party or intervenor status, a
person who initiates an adjudicative proceeding by complaining to the board
about the conduct of a registrant shall have no role in any enforcement or
disciplinary hearing regarding the registrant.
Source. #11091-A,
eff 5-5-16
Mtec
205.05 Filing and Format of Documents.
(a)
All correspondence, pleadings, or communications intended for the board
shall be:
(1) Addressed to the board's office in care of
its license clerk;
(2) Considered filed when it is actually received
at the board's office in
(3) Include the title and docket number of the
proceeding, if known; and
(4) Be typewritten or clearly printed on durable
paper 8 ½ by 11 inches in size.
(b)
Original petitions, motions, exhibits, memoranda or other documents
filed in connection with a request for board action shall be filed together
with 6 copies of the documents.
(c)
Notwithstanding (b) above, only a single copy shall be filed of:
(1) Transmittal letters;
(2) Requests for public information;
(3) Certificate of registration applications; and
(4) A communication of alleged misconduct against
a registrant.
(d)
Documents in an adjudicative proceeding shall not be filed
electronically or by facsimile transmission.
Source. #11091-A,
eff 5-5-16
Mtec
205.06 Signature on a Document.
(a)
A party or representative’s signature on a document filed with the board
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 grounds to support it; and
(4) The document has not been filed for purposes
of delay or harassment.
Source. #11091-A,
eff 5-5-16
Mtec
205.07 Computation of Time.
(a)
Unless otherwise specified, all time periods referenced in this chapter
shall be calendar days.
(b)
Pursuant to RSA 21:35:
(1) Except where specifically stated to the
contrary, when a period or limit of time is to be reckoned from a day or date,
that day or date shall be excluded from and the day on which an act should
occur shall be included in the computation of the period or limit of time.
(2) If a specified date falls on a Saturday,
Sunday, or legal holiday, the document or fee shall be deemed timely filed if
it is received by the next business day.
(c)
Communications from the board to a party sent by
(d)
Communications to the board shall be considered received on the received
date so marked by the office.
Source. #11091-A,
eff 5-5-16
Mtec
205.08 Commencement of Proceedings
and Notice.
(a)
The board shall commence an adjudicative proceeding by issuing a notice
of hearing to the parties at least 30 days before the initial prehearing
conference or hearing date.
(b)
The notice commencing an adjudicative proceeding shall:
(1) Specify the time, place and nature of any
hearing;
(2) Summarize the subject matter of the
proceeding and identify the issues to be resolved;
(3) Specify the legislative authority for the
proposed action and identify any applicable board regulations;
(4) Specify the date by which, and the address
where, appearances or motions by parties or representatives shall be filed;
(5) Specify the date, time, and location of an
initial prehearing conference or oral hearing;
(6) Identify the presiding officer for the
proceeding if other than the chairperson of the board;
(7) Identify any special procedures to be
followed;
(8) Identify any confidentiality requirements
applicable to the preceding;
(9) Specify that each party has the right to have
an attorney represent him or her at the party's own expense; and
(10) Contain such other information or attachments
as are warranted by the circumstances of the case, including, but not limited
to:
a. Orders consolidating or severing issues in
the proceeding with other proceedings; and
b. Initial orders regarding the production or
exchange of documents.
Source. #11091-A,
eff 5-5-16
Mtec
205.09 Appearances and Representation.
(a)
A party or the party's representative shall file an appearance that
includes the following information:
(1) A brief identification of the matter;
(2) A statement as to whether or not the
representative is an attorney and if so, whether the attorney is licensed to
practice in
(3) The party or representative's daytime address
and telephone number.
(b)
Any changes to the information in (a) above shall be filed in writing
with the board, and a copy provided to all other parties to the proceeding.
Source. #11091-A,
eff 5-5-16
Mtec
205.10 Intervention.
(a)
Motions to intervene shall state with particularity:
(1) The petitioner's interest in the subject
matter of the hearing;
(2) Why the interests of the parties and the
orderly and prompt conduct of the proceeding would not be impaired; and
(3) Any other reasons why the petitioner should
be permitted to intervene.
(b)
Motions to intervene shall be granted if:
(1) The petitioner shows a substantial interest
in the proceeding and qualifies for intervention in accordance with RSA 541-A:
32;
(2) The petitioner requested intervention in
accordance with these rules and RSA 541-A:32; and
(3) Granting intervention will not prejudice a
party or unduly delay the board's proceedings.
(c)
Once granted leave to intervene, an intervenor shall take the proceeding
as he or she finds it, and no portion of the proceeding shall be repeated
because of the fact of intervention.
Source. #11091-A,
eff 5-5-16
Mtec 205.
11 Consolidation or Severance.
(a)
Two or more adjudicative proceedings shall be consolidated for hearing,
if:
(1) The proceedings involve the same registrant,
or substantially related issues;
(2) The board receives a motion from one or more
parties seeking such consolidation; and
(3) The board determines, after notice to the
parties and an opportunity for hearing, that fairness, accuracy and efficiency
would be served by such an action.
(b)
The board shall sever one or more issues from an adjudicative proceeding
if:
(1) The board receives a motion from one or more
parties seeking such severance; and
(2) The board determines, after notice to the
parties and an opportunity for hearing, that fairness, accuracy and efficiency
would be served by such an action.
Source. #11091-A,
eff 5-5-16
Mtec
205.12 Prehearing Conference.
(a)
The presiding officer, upon motion from a party, or upon his or her own
initiative, shall require the parties to attend an initial prehearing
conference when such a conference would assist in planning for the prompt and
efficient disposition of the proceeding.
(b)
Matters to be addressed at the initial prehearing conference shall
include, but not be limited to:
(1) The distribution of exhibits and written
testimony, if any, to the parties;
(2) Opportunities and procedures for
simplification of the issues;
(3) Possible amendments to the pleadings;
(4) Opportunities and procedures for settlement;
(5) Possible admissions of fact and
authentication of documents to avoid unnecessary proof;
(6) Possible limitations on the number of
witnesses and possible limitations on the scheduling of witnesses;
(7) Possible changes to the standard procedures
which would otherwise govern the proceeding; and
(8) Other matters which might contribute to the
prompt and orderly conduct of the proceeding.
(c)
If the parties agree that facts material to the subject matter of the
proceeding are in dispute, but personal observation of the witnesses or the
immediate opportunity for cross-examination of witnesses is not required, the
proceeding shall consist of the submission of affidavits and memoranda to the
board.
(d)
If the parties agree that no facts material to the subject matter of the
proceeding are in dispute, the proceeding shall be limited to the submission of
memoranda to the board which argue the conclusions the parties wish the board
to draw from the undisputed facts.
(e)
If the parties do not agree to one of the methods of proceeding in (a)
above, the matter shall:
(1) Proceed to an adjudicatory hearing before the
full board in accordance with the prehearing conference report and order; or
(2) Proceed to hearing before a single hearings
officer in accordance with Mtec 207.05.
(f)
At the conclusion of the prehearing conference, a written order shall be
prepared setting forth the resolution of the issues noted in (b) above and the
times set for further proceedings in the matter.
Source. #11091-A,
eff 5-5-16
Mtec
205.13 Record of the Hearings.
(a)
The board shall record all hearings by tape recording or other method
that will provide a verbatim record of the proceedings.
(b)
A record of the hearing shall be
made by a certified shorthand court reporter provided by the agency in all
hearings involving emergency action ordering the immediate suspension of a
registration in accordance with RSA 541-A:30, III.
(c)
If any person requests a transcript of the board’s recording of a
hearing, the board shall:
(1) Cause an estimate of the cost to transcribe
the recording to be prepared and provided to the person requesting the
transcript; and
(2) Upon receipt of payment for the cost of the
transcription, authorize preparation of the transcript and transmittal of the
document to the board and a copy to the person making the request.
(d)
At the request of any party
submitted
to the agency in writing at least 10 days prior to the day of the proceeding,
the record of the proceeding shall be made by a certified shorthand court
reporter provided
by the agency at the requesting party's expense in accordance with RSA
541-A:31, VII-a.
Source. #11091-A,
eff 5-5-16
Mtec
205.14 Delivery of Documents.
(a)
All documents filed by any party in connection with an adjudicative
proceeding shall be delivered to all other parties to the proceeding by:
(1) Depositing a copy of the document in the
United States mail, first class postage prepaid, addressed to the last address
given to the board by the person being served, no later than the day the
document is filed with the board; or
(2) Delivering a copy of the document in hand on
or before the date it is filed with the board.
(b)
When a party's representative has filed an appearance, delivery shall be
to the representative.
(c)
Except for exhibits distributed at a prehearing conference or hearing,
every document filed with the board in a proceeding shall be accompanied by a
certificate, signed by the person making delivery, attesting to the method of
delivery, date of delivery, and the parties to whom delivery was made.
Source. #11091-A,
eff 5-5-16
Mtec
205.15 Motions and Objections.
(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 the nature of the relief requested requires oral presentation upon short
notice.
(b)
All motions shall state clearly and concisely in separately numbered
paragraphs:
(1) The purpose of the motion;
(2) The relief sought by the motion;
(3) The statutes, rules, orders, or other authority
authorizing the relief sought by the motion;
(4) The facts claimed to constitute grounds for
the relief requested by the motion; and
(5) The signature required by Mtec
205.04.
(c)
Objections to motions shall state clearly and concisely:
(1) The objection or defense of the party filing
the objection to any fact or request in the motion, set forth in separate
paragraphs numbered identically to the paragraphs in the original motion;
(2) The action which the party filing the
objection wishes the board to take on the motion;
(3) The statutes, rules, orders, or other
authority relief upon in defense of the motion;
(4) Any facts which are additional to or
different from the facts stated in the motion; and
(5) The signature required by Mtec
205.04.
(d)
Objections to motions shall be filed within 30 days after the filing of
the motion.
(e)
Failure to object to a motion within the time allowed shall constitute a
waiver of objection to the motion, but shall not in and of itself constitute
grounds for granting the motion.
(f)
The presiding officer shall rule upon a motion only after the time for
objection has passed, and after full consideration of all objections received
and other factors relevant to the motion.
Source. #11091-A,
eff 5-5-16
Mtec
205.16 Postponement Requests and
Failure to Attend Hearing.
(a)
Any party or intervener may make an oral or written motion that a
hearing be delayed or continued to a later date or time.
(b)
A motion for a delay or a continuance shall be granted if the presiding
officer determines that there is good cause to do so.
(c)
Good cause shall include:
(1) The unavailability of parties, intervenors,
representatives of parties or intervenors, or witnesses necessary to conduct
the hearing;
(2) The likelihood that a settlement will make
the hearing or its continuation unnecessary; and
(3) Any other circumstances that demonstrate that
a delay or continuance would assist in resolving the case fairly.
(d)
If the later date, time and place are known when the hearing is being
delayed or continued, the information shall be stated on the record.
(e)
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.
(f)
If any party to whom notice has been given in accordance with Mtec 205.08 fails to attend a hearing, the presiding
officer shall declare that party to be in default, and:
(1) If the party has the burden of proof, the
matter shall be dismissed; or
(2) If a party does not have the burden of proof,
the testimony and evidence of any other parties or intervenors shall be
received, and the matter shall proceed to a decision.
(g)
A party may move to strike the default within 30 days of receipt of an
order imposing the default if there is just cause shown for failure to attend.
(h)
Just cause shall include:
(1) Illness of the party that prevented
attendance;
(2) Accident involving the party that prevented
attendance; or
(3) Some other circumstance beyond the control of
the party that does not involve neglect or inattention to the proceeding.
Source. #11091-A,
eff 5-5-16
Mtec
205.17 Production of Information.
(a)
The board shall provide for the disclosure to the parties of any
investigative report or other unprivileged information in the possession of the
board, which is reasonably related to the subject matter of the proceeding.
(b)
Each party shall attempt in good faith to make complete and timely
response to requests for the voluntary production of information or documents
relevant to the hearing.
(c)
Any party may by motion request the presiding officer to order the
parties to comply with information requests. Such motion shall be filed at
least 30 days prior to the date scheduled for hearing, or as soon as possible
after receiving the notice of hearing if the hearing will be held less than 30
days in the future.
(d)
The motion shall:
(1) Set forth in detail those factors which it
believes justify its request for information; and
(2) List with specificity the information it is
seeking to discover.
(e)
The presiding officer shall grant the motion if the parties cannot
voluntarily resolve the request for information, and the moving party has
demonstrated that the information is necessary for a full and fair presentation
of the evidence at a hearing.
(f)
At least 5 days before the hearing, the parties shall provide to the
other parties and intervenors:
(1) A list of all witnesses to be called at the
hearing together with a brief summary of their testimony;
(2) A list of all documents and exhibits to be
offered as evidence at the hearing; and
(3) A copy of each document or exhibit.
Source. #11091-A,
eff 5-5-16
Mtec 205.18 Subpoenas.
(a)
Subpoenas for the attendance of witnesses or the production of evidence
in investigations or adjudicative proceedings shall be issued upon the order of
the board.
(b)
In adjudicative proceedings, a party requesting the board to authorize a
subpoena shall attach a copy of the proposed subpoena to its motion. If the
motion is granted, the requesting party shall be responsible for the service of
the subpoena and payment of any applicable witness fee and mileage expenses.
(c)
Motions to quash or modify a subpoena shall be entertained from the
person to whom the subpoena is directed, if filed within 7 days after service
of the subpoena, or one day before the date specified in the subpoena for
compliance therewith, whichever is later. If the board denies the motion to
quash or modify, in whole or in part, the person to whom the subpoena is
directed shall comply with the subpoena or any modification thereof, within the
balance of time prescribed in the subpoena or within 3 days from the date of
the board's order, whichever is later, unless the board expressly provides
additional time to comply.
(d)
Should a person fail to comply with a subpoena issued pursuant to this
section, the board shall take one or more of the following actions:
(1) Impose sanctions specific to any pending
proceeding or investigation, including, but not limited to, entry of a default
judgment as to some or all of the pending issues which is adverse to the
noncompliant party;
(2) Institute a separate investigation against
any non-compliant individual who is subject to the board's jurisdiction; or
(3) Continue with the proceeding and defer all,
or part, of the subpoena enforcement issues to a later date if the board
determines that the absence of the witness or the requested documents or
objects at the hearing will not unfairly prejudice the party who has requested
the same.
Source. #11091-A,
eff 5-5-16
Mtec
205.19 Evidence.
(a)
Receipt of evidence and official notice of facts, the record of other
proceedings before the board, generally recognized scientific or technical
facts, or codes or standards adopted by the board shall be governed by the
provisions of RSA 541-A:33.
(b)
All objections to the admissibility of evidence shall be stated as early
as possible in the hearing, but not later than the time the evidence is
offered.
Source. #11091-A,
eff 5-5-16
Mtec
205.20 Inquiry by Presiding Officer
or Board Members.
The presiding officer or board members
recognized by the presiding officer shall make such inquiry of witnesses,
parties or counsel, as they believe necessary to develop a sound record for
decision.
Source. #11091-A,
eff 5-5-16
Mtec
205.21 Burden of Proof.
The party asserting the affirmative of
a proposition shall have the burden of proving the truth of that proposition by
a preponderance of the evidence.
Source. #11091-A,
eff 5-5-16
Mtec
205.22 Proposed Findings of Fact and
Conclusions of Law.
(a)
Parties may submit proposed findings of fact or conclusions of law which
shall be set forth in separately numbered paragraphs.
(b)
The presiding officer shall direct all parties to submit proposed
findings of fact or conclusions of law. I Individual rulings upon such proposed
findings or conclusions shall be included as part of any proposed or final
decision or order issued.
(c)
Oral argument to the full board, other than a brief opening and closing
statement, shall be permitted only when requested in a written motion, which
demonstrates a substantial need for such a procedure.
(d)
Written argument in the form of legal memoranda shall be permitted
subject to such filing schedules as the board shall direct by written order, or
orally during the conduct of the heating.
(e)
The board shall schedule supplemental argument or hearing, or otherwise
reopen the record at any time prior to the issuance of a final order in a proceeding
upon motion of a party or a member of the board, alleging:
(1) Receipt of new evidence which could not have
been presented at the time of the hearing;
(2) Receipt of evidence that a new statute has
become applicable, or other legal precedent has been received that could alter
rulings of law in the matter; or
(3) A majority of the board determines that
additional testimony or legal argument should be received and considered in the
matter.
Source. #11091-A,
eff 5-5-16
Mtec
205.23 Decisions.
(a)
If the disposition of the matter depends upon the credibility of any
witness, no board member shall participate in the deliberation of the decision
unless he or she personally was in attendance for all of the witness’s
testimony in the case, in order to effectively assess the issue of credibility.
(b)
If the record provides a reasonable basis for evaluating the testimony
of all witnesses in the matter, a board member may participate in the
deliberation of the decision even if not personally present to hear the
testimony of the witness.
(c)
When the board has directed a hearings officer to receive evidence and
enter a proposed decision:
(1) There shall be no communications between the
hearings officer and the board members concerning the merits of the case;
(2) The board members shall not participate in
the questioning of witnesses at the hearing;
(3) Following the close of the hearing, the proposed
decision of the hearings officer shall be served upon the parties and the
board; and
(4) Following the receipt of the proposed
decision of the hearings officer, all written pleadings, and the receipt of any
oral argument, the board shall deliberate to a decision.
(5) The board decision shall:
a. Adopt the proposed decision without change;
b. Modify the proposed decision by majority
vote; or
c. If a majority of the board finds the proposed
decision to be unlawful or unreasonable, refuse to approve or modify the
proposed decision, and determine what additional proceedings are required to
reach a final decision.
(d)
The parties may file exceptions and supporting memoranda of law for
review by the board within 30 days from the date the proposed decision was
served.
(e)
Each party may file one additional written reply pleading within 15 days
following service of the original exception or memoranda.
(f)
If a party wishes to present oral argument to the board regarding the proposed
decision, the party shall file a separate motion for oral argument within the
time allowed for filing exceptions or replies to exceptions.
(g)
The board shall keep a final decision in its records for at least 5
years following its dates of issuance.
(h)
Orders of the board shall take effect on the date they are served upon
the parties.
Source. #11091-A,
eff 5-5-16
Mtec
205.24 Motion for Rehearing,
Reconsideration or Clarification.
(a)
A motion for rehearing, reconsideration or clarification shall be filed
within 30 days after service of a final adjudicative order.
(b)
Any member of the board who participated in the decision may seek
rehearing, reconsideration or clarification of a final adjudicative order by
motion presented to the remaining board members within 30 days after entry of a
final adjudicative order.
(c)
The motion shall state with specificity those points of law or fact
that:
(1) The board is alleged to have overlooked or
misapprehended,
(2) How the order is alleged to be unclear or
internally inconsistent,
(3) Shows how the order is alleged to be
unlawful, unjust, or illegal in respect to jurisdiction, authority or observance
of the law; or
(4) Shows how the order is alleged to be an abuse
of discretion, or is arbitrary, unreasonable or capricious.
(d)
Each motion for rehearing, reconsideration, or clarification shall be
served on all parties to the proceeding in accordance with these rules.
(e)
No answer to a motion for rehearing, reconsideration or clarification
shall be required, but any answer or objection filed by another party shall be
delivered to the board within 30 days following notification that the motion to
reconsider has been filed with the board.
(f)
The board shall deny the motion unless the board finds that a relevant
rule, point of law or fact has been overlooked or misapprehended, or that the
decision is unlawful, unjust, or unreasonable, but may amend its order to
clarify any items alleged to be unclear or inconsistent.
Source. #11091-A,
eff 5-5-16
Mtec
205.25 Motion for Rehearing or
Reconsideration Granted.
(a)
If the motion of any party or board member for rehearing or
reconsideration is granted, the process for commencement of an adjudicative
proceeding shall begin again, with notice to all affected parties.
(b)
The scope of any rehearing or reconsideration including the issues to be
heard and the introduction of the previous record into evidence shall be
determined by the presiding officer at a new prehearing conference.
Source. #11091-A,
eff 5-5-16
Mtec
205.26 Stay of Board Orders.
(a)
Board actions shall be stayed only in response to a specific motion
requesting a stay or by the board acting on its own motion.
(b)
The mere filing of a motion for reconsideration shall not operate as a
stay of any order, but a motion for stay may be combined with a motion for
reconsideration.
(c)
A motion for stay shall be considered only if it is filed within the
time period for requesting reconsideration
(d)
A stay shall not be granted unless the facts demonstrate good cause
sufficient to warrant the stay of an action by the New Hampshire Superior
Court.
Source. #11091-A,
eff 5-5-16
PART Mtec 206 RULEMAKING
Mtec
206.01 Procedure for Adopting Rules.
The board shall seek to adopt any
rule, or an amendment or repeal thereof, by filing a rulemaking proceeding in
accordance with RSA 541-A.
Source. #11091-A,
eff 5-5-16
Mtec
206.02 Petition for Rulemaking.
(a)
Any person may request the board to adopt, amend, or repeal a rule by
filing a petition with the board which contains the following information:
(1) A statement of the petitioner's interest in
the proposed rulemaking action;
(2) The text of the proposed new rule;
(3) The text of a proposed amendment to an
existing rule;
(4) The text of any existing rule which the
petitioner wishes to have repealed;
(5) A statement of the particular results
intended by the petitioner to flow from the proposed rulemaking proceeding; and
(6) Any data or legal argument the petitioner believes
would be useful to the board in evaluating whether the proposed rulemaking
proceeding should be commenced.
Source. #11091-A,
eff 5-5-16
Mtec
206.03 Disposition of Petition for
Rulemaking.
(a)
Within 30 days of the submission of a petition, the board shall:
(1) Deny the petition by written order, stating
its reasons for the denial, or
(2) Initiate rulemaking proceedings, pursuant to
RSA 541-A:4.
(b)
Any denial shall be based upon a finding by the board that:
(1) The petition for rulemaking seeks a change
that is not consistent with published declaratory rulings of the board;
(2) The board lacks rulemaking authority over the
issues in the petition; or
(3) The petition is contrary to legislative
intent.
Source. #11091-A,
eff 5-5-16
Mtec
207 PUBLIC COMMENT HEARINGS
Mtec
207.01 Public Access and
Participation.
(a)
Public comment hearings shall be open to the public, and members of the
public may provide information to the board, subject to the limitations of
these rules.
(b)
Written comments may be submitted in lieu of or in addition to oral
testimony.
(c)
Notice of the hearing shall be provided to the public in accordance with
the requirements of RSA 541-A and RSA 91-A.
Source. #11091-A,
eff 5-5-16
Mtec
207.02 Conduct of Public Comment
Hearings.
(a)
A public comment hearing shall be attended by a quorum of the board.
(b)
A public comment hearing shall be presided over by the board chair or a
board member knowledgeable in the subject area of the proposed rules who has
been designated by the board to preside over the hearing.
(c)
The chair or other person presiding over a hearing shall:
(1) Call the hearing to order;
(2) Identify the proposed rules that are the subject
matter of the hearing and provide copies of them upon request;
(3) Cause a recording of the hearing to be made;
(4) Recognize those who wish to be heard;
(5) Request each person who wishes to provide
information to the board to write on the speaker's list:
a. His or her
full name and address; and
b. The
name and address of organizations, entities or other persons whom he or she
they represents, if any.
(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; or
(2) The board chair or other person designated by
the board to preside over the hearing is ill or unavoidably absent.
(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. #11091-A,
eff 5-5-16
Mtec
207.03 Limitations on Public
Participation.
(a)
The person presiding at a public comment hearing shall refuse to
recognize, or revoke the recognition of any person who:
(1) Speaks or acts in an abusive or disruptive
manner to those in attendance;
(2) Fails to keep comments relevant to the
subject matter of the hearing; or
(3) Needlessly restates information already
provided to the board in a manner which results in the waste of time, or a
likelihood that others who wish to speak will be denied an opportunity to
present information to the board.
(b)
The person presiding at a public comment hearing shall limit oral
presentations on behalf of an organization or entity to no more than 3 persons,
provided that:
(1) 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; and
(2) All those representing such organization or
entity shall be entitled to file written or electronic comments of any length
with the board within 9 days of the close of the hearing.
Source. #11091-A,
eff 5-5-16
PART Mtec 208 DECLARATORY
RULINGS
Mtec
208.01 Petitions for Declaratory
Rulings.
(a)
Any interested person may request a declaratory ruling from the board on
how a statute, rule or order applies to a specific factual situation.
(b)
The request for a ruling shall be made by filing a petition with the
board, which contains:
(1) The name and address of the petitioner ;
(2) A concise statement of the facts which the
petitioner believes requires a ruling from the board;
(3) A proposed ruling which the petitioner seeks
the board to adopt; and
(4) The claimed statutory and factual basis for
the requested ruling, set forth in separately numbered paragraphs, including
any supporting factual affidavits or memoranda of law.
Source. #11091-A,
eff 5-5-16
Mtec
208.02 Action on Petitions for
Declaratory Rulings.
(a)
The board shall issue a decision on the request for a declaratory
ruling, in writing, within 90 days of receipt of a petition.
(b)
A copy of each written decision on a request for declaratory ruling
shall be:
(1) Filed with the director of legislative
services;
(2) Sent to the petitioner by first class mail;
and
(3) Filed with the board.
Source. #11091-A,
eff 5-5-16
PART Mtec 209 EXPLANATION
OF ADOPTED RULES
Mtec
209.01 Requests for Explanation of
Adopted Rules. Pursuant to RSA
541-A:11, VII, any interested person may, within 30 days of the final adoption
of a rule, request a written explanation of that rule by making a written
request to the board including:
(a)
The name and address of the individual making the request: or
(b)
If the request is that of an organization or other entity, the name and
address of such organization or entity and the name and address of the representative
authorized by the organization or entity to make the request.
Source. #11091-A,
eff 5-5-16
Mtec
209.02 Contents of Explanation. The board shall, within 90 days of receiving
a request in accordance with Mtec 209.01, provide a
written response which:
(a)
Concisely states the meaning of the rule adopted;
(b)
Concisely states the principal reasons for and against the adoption of
the rule in its final form; and
(c)
States, if the board did so, why the board overruled any arguments and
considerations presented against the rule.
Source. #11091-A,
eff 5-5-16
APPENDIX
Rule |
Statute |
|
|
Mtec
201.01-205.25 |
RSA
328-I:4, 328-I:11; RSA 541-A:16, I(b)(2) |
Mtec
206.01- 206.03 |
RSA
541-A:16, I(c) |
Mtec
207.01-207.03 |
RSA
541-A:16, I(b)(3) |
Mtec
208.01-208.02 |
RSA
541-A:16(d) |
Mtec
209.01-209.02 |
RSA
541-A:11, VII |
Mtec
210 |
RSA
328-I:3; 328-I:11, I; RSA 91-A |
|
|