216-RICR-10-05-4
216-RICR-10-05-4. Practices and Procedures Before the Rhode Island Department of Health (version Amendment, 10/13/2014 to 05/15/2018)
RULES AND REGULATIONS PERTAINING TO
PRACTICES AND PROCEDURES
BEFORE THE RHODE ISLAND DEPARTMENT OF HEALTH
[R42-35-PP]
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
DEPARTMENT OF HEALTH
May 1980
AS AMENDED
November 1981
May 1997
October 2000
January 2012 (re-filing in
accordance with the
provisions of § 42-35-4.1 of
the Rhode Island General
Laws, as amended)
July 2013
September 2014
January 2002 (re-filing in
accordance with the
provisions of § 42-35-4.1 of
the Rhode Island General
Laws, as amended)
March 2003
April 2004
January 2007 (re-filing in
accordance with the
provisions of § 42-35-4.1 of
the Rhode Island General
Laws, as amended)
i
INTRODUCTION
These amended Rules and Regulations Pertaining to Practices and Procedures Before the Rhode
Island Department of Health (R42-35-PP) are promulgated pursuant to the authority conferred
under RIGL Chapter 42-35 for the purpose of establishing uniform procedures and practices
governing administrative proceedings before the Department of Health and all boards, councils, and
commissions therein. These specific amendments clarify the procedures used by the Department of
Health for rulemaking and establish procedures to be used for hearings conducted as part of license
renewal for hospitals.
These Regulations shall be liberally construed to further the fair, prompt, impartial and orderly
administration and determination of contested cases in conformity with the Rhode Island
Administrative Procedures Act [RIGL Chapter 42-35]. To the extent that any part of these
Regulations are inconsistent with the applicable law, the applicable law shall govern.
These amended Regulations shall supersede all previous Rules and Regulations Pertaining to
Practices and Procedures Before the Rhode Island Department of Health previously promulgated by
the Rhode Island Department of Health and filed with the Secretary of State.
NOTICE REGARDING ENFORCEMENT OF CHILD SUPPORT UNDER
CHAPTER 11, TITLE 15 OF THE GENERAL LAWS OF RHODE ISLAND
All licenses granted under the auspices of the Department of Health are subject to the provisions of
Rhode Island General Laws § 15-11.1 et seq, which mandates suspension of licenses by the issuing
board upon receipt of certification of court ordered child support.
ii
TABLE OF CONTENTS
Page
Introduction
i
1.0
Definitions
1
2.0
Scope
2
3.0
Representations
2
Appearance
2
Representative/Attorney Unavailability
3
Ex Parte Communications
3
By Present or Former Employees
3
4.0
Time
4
Timely Filing
4
Computation of Time
4
Extension of Time
4
5.0
Filings Generally
5
Title
5
Signatures
5
Designation of Division
5
Form and Size
5
Copies
5
Service
5
Construction
5
6.0
Commencement of Formal Proceedings
6
Notice
6
Request for Hearing
6
Content of Hearing Request
6
Amendments and Withdrawal of Pleading
6
7.0
Motions/General Requirements
6
Motion Practice
6
Presentation/Objection to Motions
6
Action on Motion
7
Factual Basis
7
8.0
Special Requests
7
Withdrawals
7
Emergency Scheduling
7
Disqualification of Administrative Hearing Officer
7
Other Requests
7
9.0
Exchange of Information
7
General
7
Production of Documents and other Tangible Items
7
Hearing Delay
8
Protective Orders
8
10.0
Intervention and Participation
8
Intervention
8
Form and Content
8
Rights of Intervenors
8
Rights to Participate
9
Rules of Evidence
9
iii
Table of Contents (Continued)
Page
11.0
Pre-Hearing Conferences
9
Pre-Hearing Conference
9
Submission Without a Hearing
10
12.0
Contested Hearings
10
Hearings, When and Where Held
10
Notice of Hearing
10
General
10
Decorum
11
Duties of Administrative Hearing Officer
11
Order of Proceedings
11
Presentation
11
Witnesses and Evidence
13
Evidence Included
13
Administrative Notice
13
Subpoenas
14
Transcript of Proceedings
14
Close of Proceedings
14
Contents of Record
14
Evidence After Completion
14
Weight of Evidence
15
Exceptions
15
13.0
Decisions
15
Decisions and Orders
15
Withdrawal of Exhibits
15
Presiding Officer Unavailable
15
14.0
Consent Order
15
Negotiations
15
Contents of Agreement
16
Disposition of Proposed Agreement
16
15.0
Appeals to Decisions/Orders
16
16.0
Rule Making
16
17.0
Petitions for Rule Making, Amendment Or Repeal
16
18.0
Declaratory Rulings
17
19.0
[DELETED]
20.0
Exculpatory Material
17
21.0
Hearings Conducted as Part of License Renewal for Hospitals
17
22.0
Severability
18
1
SECTION 1.0
DEFINITIONS
When used in these rules, the following words and or terms, except as otherwise required by the
context, shall have the following meaning:
1.1 "Act" means RIGL Chapter 42-35.
1.2 "AHO" means the Administrative Hearing Officer authorized by law or duly designated by the
Director and/or Board, to hear and decide, or to make a recommended order and/or decision to
the Director or Board.
1.3 "Authorized representative" means an attorney, legal guardian or, in the case of fair hearings
for the WIC and Children With Special Needs Programs, another person authorized by a party
to represent her/him in an Administrative Proceeding.
1.4 "Board" means any of the various boards, committees, councils, and commissions within the
Department which offer parties hearings regarding legal rights, duties and/or privileges of those
parties.
1.5 "Contested case(s)" means a proceeding, including but not restricted to ratemaking, price
fixing, licensing and benefits, in which the legal rights, duties, or privileges of a specific party
are required by law to be determined by the Department after an opportunity for hearing. If the
parties agree, proceedings not required by law may also be conducted under these Regulations.
1.6 "Department" means the Rhode Island Department of Health and any Board, Commission,
Council or other entity within the Department.
1.7 "Director" means the Director of the Department of Health or her/his designee.
1.8 "Division" means a subsection of the Department with authority to carry out statutorily
designated departmental functions.
1.9 "Ex Parte" communications means a discussion, correspondence or contact regarding a
contested case between the AHO and a party to a contested case, or a non-party who has an
interest in the outcome of the case, without all parties being present to such communication.
Communications for the purpose of scheduling and other administrative functions shall not be
considered ex parte.
1.10 "License" means the whole or part of any Department license, permit, certificate, approval,
registration, charter or similar form of permission required by law.
1.11 "Licensing" includes the agency process respecting the grant, denial, renewal, revocation,
suspension, annulment, withdrawal, or amendment of a license.
1.12 "Party" or "parties" means the specifically named person(s) whose legal rights, duties or
privileges are being determined in an adjudicatory proceeding, or who are admitted as a party,
or properly seeking and entitled as of right to be admitted as a party in a contested case, or
intervenors which may be otherwise admitted.
1.13 "Person" means any individual, partnership, corporation, limited liability company,
association, governmental subdivision, public or private organization of any character, or their
designee(s), but does not include the Department.
1.14 "Petitioner" means an individual or legal entity(ies) who initiates a petition which results in an
administrative proceeding.
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1.15 "Regular business hours" means between the hours of 8:30 AM to 4:30 PM, Monday through
Friday, excluding state holidays. Filing by telecopier or facsimile is prohibited unless
specifically allowed prior to such filing.
1.16 "Respondent" means a party who is the subject of a complaint and/or department investigation
or any others not bearing the burden of proof.
1.17 "RIGL" means the Rhode Island General Laws, as amended.
1.18 "Rule(s)" and or "regulation(s)"means each Department statement of general applicability that
implements, interprets, or prescribes law or policy or describes the organization, procedure, or
practice requirements of the Department. The term includes the amendment or repeal of a prior
rule, but does not include (1) statements concerning only the internal management of an agency
and not affecting private rights or procedures available to the public, or (2) declaratory rulings
issued pursuant to § 42-35-8 of the Act, (3) intra-Department memoranda, or (4) an order.
1.19 "Rule making proceeding" means a proceeding before the Department for purposes of
adopting, amending or repealing any rule or regulation of the Department.
1.20 "Sua sponte" means of their own will or motion, without prompting or suggestion.
1.21 "Subpoena" means a process whereby a witness is commanded to appear and give testimony.
1.22 "Subpoena duces tecum" means a process whereby a witness is commanded to produce
documents and/or papers.
1.23 “These Regulations” mean all parts of the Rhode Island Rules and Regulations Pertaining to
Practices and Procedures Before the Rhode Island Department of Health [R42-35-PP)]
SECTION 2.0
SCOPE
2.1 These Regulations delineate the procedures and practices which will be utilized by the
Department and all Boards and commissions established therein. All hearings and reviews
required by law or regulations shall be conducted in accordance with these Regulations and with
applicable provisions of RIGL Chapter 42-35 entitled "Administrative Procedures." [“the Act”]
SECTION 3.0
REPRESENTATION
Appearance
3.1 The Department shall inform a party of her/his right to be represented by legal counsel in a
contested proceeding.
3.2 Except as may be otherwise provided by law, or in the sole discretion of the AHO, no person
may appear in a representative capacity other than:
(i)
Members in good standing of the Bar of Rhode Island;
(ii) A bona fide officer, partner, director, member or full time employee of an individual firm,
association, partnership, limited liability company or corporation on behalf of that entity;
(iii) A person who is a party to an administrative proceeding or his/her professional engineer,
architect, or land surveyor or other designee, as specifically authorized in writing and
notarized if the party is not present. In Fair Hearings, involving the WIC or Children With
3
Special Needs programs, a person other than an attorney may represent a party.
3.3 All persons shall conform to the standards of ethical conduct required of practitioners before the
courts of Rhode Island. If any such person does not conform to such standards, the AHO may
decline to permit such person to appear in a representative capacity in any proceeding before the
AHO.
Representative/Attorney Unavailability
3.4 Absent agreement by the parties, the AHO at his/her sole discretion, for good cause shown, may
grant a continuance of an administrative proceeding. For good cause shown, the parties may
agree to up to two (2) continuances. Thereafter, any continuance requested may be granted only
by the AHO in his or her sole discretion for good cause shown. All requests for continuances
pursuant to this section shall be made in writing.
3.5 Organizations who are parties to an administrative proceeding, and who are not represented by
legal counsel, shall designate a spokesperson to participate on their behalf at the proceeding.
Should the designated spokesperson be unavailable on a scheduled hearing date, they shall
notify the AHO of the specific reason for their unavailability.
3.6 Spokesperson for parties not represented by counsel, who have a conflict with hearing dates,
shall be required to inform the AHO of the specific nature of the conflict and the reason for
his/her unavailability.
3.7 Should the AHO grant a continuance, it shall be the responsibility of the party requesting the
continuance to notify immediately all other parties of record and their representatives. The
Department shall insure that at the site of the hearing a cancellation notice is posted at the
entrance to the facility, said notice to include the date and time of the next scheduled hearing, if
known, or the name and telephone number of the person who will be able to provide that
information.
3.8 It shall be the further responsibility of the party requesting the continuance to notify the AHO
of any anticipated scheduling conflict as soon as possible.
3.9 Ex Parte Communications. No person who is a party to or a participant in any proceeding
before the Department, or the party's counsel, employee, agent, or any other individual, acting
on the party's or their own or another's behalf, shall communicate ex parte with the AHO or the
Director about or in any way related to the proceeding, and the AHO and/or Director shall not
request or entertain any such ex parte communications. The prohibitions contained above do
not apply to those communications which relate solely to general matters of procedure and
scheduling.
By Present or Former Employees of Department
3.10 In accordance with RIGL Chapter 36-14 entitled "Code of Ethics", no person who is currently
an employee of the Department may appear personally, or on behalf of, or represent any other
person, or act as an expert witness before the Department except in the performance of her/his
official duties.
4
3.11 Also in accordance with said 36-14, no person having been employed at the Department may,
within one (1) year after employment has ceased, appear personally, or on behalf of any other
person, or act as an expert witness before the Department, unless he/she appears on behalf of the
Department.
SECTION 4.0
TIME
4.1 Timely Filing. Papers required or permitted to be filed under these Regulations, or any
provision of the applicable law, must be filed with the Department or AHO within the time
limits for such filings as are set by Department regulation or by the AHO or established by law.
Papers filed in the following manner shall be deemed filed as set forth in these Regulations:
1. Hand-delivery: Papers hand delivered during regular business hours shall be deemed filed
on the date of hand-delivery. Papers delivered by hand at times other than during regular
business hours shall be deemed filed on the next regular business day when recorded as
received by the Department.
2. Mailing: Papers deposited in the U.S. Mail shall be deemed filed on the date received by
the Department. In the event that no date received appears, papers shall be deemed filed on
the date so postmarked. All papers shall show the date received by the Department.
3. Telecopying: Papers transmitted by facsimile or telecopier shall not be accepted for filing
unless specifically exempted from this provision by the AHO and arrangements made for an
authorized person to receive the transmitted papers as they are transmitted.
4.2 Computation of Time. Unless otherwise specifically provided by law or these Regulations,
computation of any time period referred to in these Regulations shall begin with the first day
following the act which initiates the running of the time period. The last day of the time period
so computed is to be included unless it is a Saturday, Sunday or legal holiday, or any other day
on which the Department is closed, in which event the period shall run until the end of the
regular business hours of the next following business day. When the time period is less than
eleven (11) days, intervening days when the Department is closed shall be excluded in the
computation.
4.3 Extension of Time. It shall be within the discretion of the AHO, for good cause shown, to
extend any time limit contained in these Regulations, unless precluded by statute. All requests
for extensions of time shall be made by written motion before the expiration of the original or
previously extended time period provided, however, that the AHO may, during hearings, grant
such extensions upon oral motion.
5
SECTION 5.0
FILINGS GENERALLY
5.1 Title. All pleadings and other documents filed with the Department shall, whenever possible,
state the file number, if any, the title of the proceeding, and the name of the person on whose
behalf the filing is made. Additionally, the name, phone number, and bar numbers, if any, of
the persons filing the pleading(s) or document(s) are required on the documents being filed.
5.2 Signatures. Papers filed with the Department shall be signed and dated by the party on whose
behalf the filing is made or by the party's authorized representative. This signature constitutes a
certification that the individual has read the document, knows the content thereof, and to the
best of her/his knowledge, that such statements are true, that it is not interposed for delay, and
that if the document has been signed by an authorized representative she/he has full power and
authority to do so. Failure to comply may be cause for sanctions.
5.3 Designation of Division. Any Department Division which is a party to a contested case shall
be designated by its name and not by the name(s) of particular individual(s) holding office, and
if while the contested hearing is pending, a change occurs in an individual(s) holding office, the
proceeding shall not abate solely for this reason, and no substitution of parties shall be
necessary.
5.4 Form and Size. All papers, except those submittals and documents which are kept in a smaller
or larger format during the ordinary course of a party's business, shall be submitted on 8½ X 11
inch paper. All papers shall be hand printed or typewritten.
5.5 Copies. The original and one (1) copy of all pleadings, motions, briefs and memorandums shall
be filed with the Department however, the AHO may deem additional copies to be provided.
Service
5.6 Service Upon Parties. Simultaneously with the filing of any and all papers with the
Department, the party filing such papers shall send a copy thereof to all other parties, if any, or
their authorized representative to the proceedings, by hand delivery, or first class US mail to
her/his place of business, home address or other address as may be required by applicable law or
regulations. Service by mail is complete upon mailing, even if unclaimed or returned, when
sent to the last known address of the party.
5.7 Certificate of Service. There shall accompany and be included in the original of each pleading
filed with the Department a Certificate of Service showing service on all parties.
5.8 Date of Certificate to Govern. In addition to the provisions in this section, the provisions of §
4.0 of these Regulations also apply and the time for response to all pleadings shall commence as
of the date of mailing the certificate of service.
5.9 Construction. All pleadings shall be liberally construed and errors or defects therein which do
not misled or affect the substantial rights of the parties involved may be disregarded.
6
SECTION 6.0
COMMENCEMENT OF FORMAL PROCEEDINGS
6.1 Notice. Whenever a proceeding may be initiated as a result of an action taken or proposed to be
taken by the Department, Board, or other entity of the Department, a notice shall be sent which
shall comply with the requirements set forth under § 12.2 of these Regulations.
6.2 Request for Hearing. Any person having a right to request a hearing shall follow the
procedures set forth in RIGL Chapter 42-35 and other applicable statutory and regulatory
requirements. All requests for a hearing/s shall be on a sheet of 8½ x 11 inch paper; shall be
processed in a timely fashion and shall be forwarded to the Department legal counsel no more
than ten (10) days after receipt by the Department or any of its divisions.
6.3 Content of Hearing Request. The request for a hearing shall state clearly and concisely the
specific issues which are in dispute, and the facts in support thereof, the relief sought, if any, the
license or permit sought or involved, and any additional information required by applicable
statutes and regulations.
6.4 Amendments and Withdrawal of Pleading. The AHO, upon her/his own initiative or upon
the motion of any party, may order any party to file an answer or other pleading, or to reply to
any pleading and further permit either party to amend its pleading upon conditions just to all
parties.
SECTION 7.0
MOTIONS/GENERAL REQUIREMENTS
7.1 Motion Practice. By motion, any party may request of the AHO any order or action not
inconsistent with law or these Regulations. Such a request shall be called a motion. A copy of
all written motions shall be served upon all parties to the case.
7.2 Presentation/Objection to Motions. Motions may be made in writing at any time before or
during the hearing, or they may be made orally during the hearing. A written motion submitted
before the commencement of a hearing shall set forth the grounds for the desired order or action
and state whether oral argument is requested. Within ten (10) business days after a written
motion is filed with the AHO, a party opposing said motion must file a written objection to the
allowance of the motion and shall, if desired, request oral argument. All motions and objections
shall be accompanied by a written memorandum, specifying the legal basis and support of the
party's position. Failure to file a written objection within the prescribed time period will be
deemed a waiver of the objection.
7.3 Action on Motion. The AHO may, if she/he determines oral argument on the motion is
warranted, give at least five (5) business days notice of the time and place for such argument.
The AHO may grant requests for continuances for good cause shown. The AHO may rule on a
motion without a hearing if delay would seriously injure a party, or if the motion involves a
matter as to which presentation of testimony or oral argument would not advance the AHO's
understanding of the issues involved, or if disposition without a hearing would best serve the
public interest. The AHO may act on a motion when all parties have responded thereto, or the
deadline for response has passed, whichever comes first.
7.4 Factual Basis. The parties may offer at a hearing on the motions only such evidence as is
7
relevant to the particular motion in accordance with § 42-35-10 of the Act.
SECTION 8.0
SPECIAL REQUESTS
8.1 Withdrawals. A petitioner at any time may withdraw his request for hearing, but the
withdrawal must be submitted in writing to the AHO and be signed by the petitioner or his
authorized representative.
8.2 Emergency Scheduling. Upon request of a party, the AHO may, for good cause, order an
accelerated hearing. Any request for an order accelerating the scheduling of a hearing shall be
addressed to the AHO in writing and shall state the grounds therefor.
8.3 Disqualification of Administrative Hearing Officer. Any party may make a motion to
disqualify or remove the AHO from a proceeding. The motion shall be accompanied by an
affidavit setting forth the reasons for the proposed disqualification.
8.4 Other Requests. A request may be made by a party, or his/her authorized representative, in
writing at any time, or orally during a hearing, for rulings or relief, and may, after notice to the
other parties, be ruled upon by the AHO without a hearing.
SECTION 9.0
EXCHANGE OF INFORMATION
9.1 General. The Department encourages prompt and complete disclosure and exchange of
information between the parties to an Administrative Proceeding. Any party may request the
names and addresses of all proposed witnesses in accordance with § 11.0 of these Regulations.
9.2 Production of Documents and Other Tangible Items. Any party, by written request served
upon all other parties, may request the other party to produce for inspection, copying or
photocopying a document, object or tangible thing which is relevant to the subject matter of the
hearing. Any party wishing to object to such a request shall do so in as timely a manner as is
possible prior to the date of the hearing and only after discussing the matter with the opposing
party in an attempt to reach an agreement. The AHO in her/his discretion may establish limits
on such requests.
9.3 From Parties Any party to the proceeding may request an order of the AHO requiring any
other party to produce and to make available for inspection, copying or photocopying, at a pre-
hearing conference or other specific time and place, any designated documents and tangible
items, not privileged, which constitute or contain relevant evidence. The party seeking
production should serve copies of the application on the other party(ies) to the proceeding, who
should be given an opportunity to notify the AHO of any objections. The AHO shall order the
production of such designated documents and tangible things unless he/she finds there is not
good cause for doing so.
9.4 From Non-parties. Any party to the proceeding may obtain a subpoena requiring a non-party
to produce relevant designated documents and tangible items, not privileged, at a pre-hearing
conference, at the taking of the non-parties deposition, or at any other specific time and place
designated by the AHO.
8
9.5 Hearing Delay No hearing shall be continued to permit the completion of discovery unless
prior due diligence is shown.
Protective Orders
9.6 The AHO may, upon motion and for good cause shown, issue an order to protect a party or
person from annoyance, embarrassment, oppression, disclosure of proprietary or confidential
information, or undue burden or expense.
9.7 The AHO may, upon motion of a party or another person, and for good cause shown, by order:
(i)
restrict or defer disclosure by a party of the name of a witness, a narrative summary of
expected testimony of a witness, or in the case of a Department witness, any prior
statement of the witness, and
(ii) prescribe other appropriate measures to protect a witness.
9.8 Any party affected by such action will have an adequate opportunity, once she\he learns the
name of the witness(s) and obtains the narrative summary of her/his expected testimony, or, in
the case of a Department employee witness, his prior statement or statements, to prepare for
cross-examination and for the presentation of their case.
SECTION 10.0 INTERVENTION AND PARTICIPATION
10.1 Intervention. Any person not initially a party who wishes to intervene or participate in a
contested hearing shall file a written petition to intervene or participate with the AHO.
10.2 Form and Content. The motion shall set forth clearly and concisely the facts from which the
nature of the movant's alleged right or interest can be determined, the grounds for the proposed
intervention and the position of the movant in the proceeding.
10.3 Rights of Intervenors. Intervenors shall be persons who have demonstrated an injury in fact
which will result from a challenged action or application and whose interests are not adequately
represented by other parties to the hearing. Any person permitted to intervene shall be a full
party. Every petition to intervene shall be treated in the alternative as a petition to participate.
10.4 Rights to Participate. Only those persons admitted as parties or intervenors to a proceeding
shall be permitted to participate in an administrative proceeding. If the particular statute under
which the hearing is held permits persons other than parties to participate, they shall be allowed
to participate. Permission to participate, unless otherwise stated, shall not be deemed to
constitute an expression that the person allowed to participate is a party in interest who may be
aggrieved by any final decision. Participation may be limited to the filing of a brief. If the
person allowed to participate is permitted to make a statement on the record, said person shall
be under oath and subject to cross examination from any party. The AHO shall set such limits
on public participation as she/he deems necessary to ensure that the hearing is held in an orderly
and expeditious fashion without undue prejudice to a party. A person who petitioned to
intervene and who was denied party status but allowed to participate, may participate without
waiving his/her rights to judicial review of the denial of said petition to intervene.
9
10.5 Rules of Evidence. The Rhode Island Rules of Evidence shall apply to evidence introduced
during public participation to the same extent as the rules apply to evidence admitted by other
parties. Testimony and papers submitted by members of the public which do not comport with
the evidentiary requirements of § 42-35-10 of the Act may be accepted, made a part of the
record for identification purposes and marked as a public comment; however, if any of the
testimony or evidence is utilized to arrive at a decision, there shall be a statement identifying
said testimony and or evidence in the decision and or order.
SECTION 11.0 PRE-HEARING CONFERENCES
Pre-Hearing Conference
11.1 In any proceeding the AHO may require the parties to appear for a pre-hearing conference prior
to the scheduled commencement of the hearing to consider:
(i)
The simplification or clarification of the issues;
(ii) The possibility of obtaining stipulations, admissions, agreements on documents,
understanding on matters already of record, or similar agreement which will avoid
unnecessary proof;
(iii) The identification and limitation of; the number of witnesses, expert witnesses and
avoidance of similar cumulative evidence, if the case is to be heard;
(iv) The possibility of agreement disposing of all or any of the issues in dispute; and
(v) Consideration of outstanding motions and status of settlement negotiations, if any;
(vi) Any matters pertaining to exchange of information;
(vii) Scheduling of hearings and such other matters as may aid in the disposition of the
contested hearing or the other matters under consideration.
11.2 All parties attending the pre-hearing conference shall be fully prepared to discuss all matters
involved in the proceedings.
11.3 The AHO may require the parties to submit the following at the commencement of the pre-
hearing conference:
(i)
Any stipulations of fact which have been agreed upon in advance;
(ii) A concise summary of each party's position;
(iii) A list of exhibits and expert witnesses. Anticipated objections to various exhibits shall be
submitted to the AHO no later than five (5) business days prior to the scheduled hearing.
Every proposed exhibit to which objection shall be made at hearing shall be marked for
identification, and a schedule of those exhibits shall be prepared, along with summary
notations of anticipated objections by a party, e.g. "privilege", "authenticity", "hearsay",
etc. A party shall not be permitted, except in the discretion of the AHO, to introduce into
evidence in said party's direct case exhibits which are not filed in accordance with the
order;
(iv) A list of pending motions which require action prior to the hearing;
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(v) The names and address of witnesses each party intends to produce in its direct case.
11.4 Submission Without a Hearing. Any party may elect to waive a hearing and to submit its case
upon the record. Submission of a case without a hearing does not relieve the parties from the
necessity of providing the facts supporting their burdens, allegations or defenses.
SECTION 12.0 CONTESTED HEARINGS
12.1 Hearings, When and Where Held. Hearings will be held at a designated location. Any party
may, by motion, request that a hearing be held at some place other than that designated, due to
disability or infirmity of the party or witness, or where justice and equity would be best served.
Upon motion of any party and upon good cause shown, the AHO may in her/his discretion
advance or delay a case for hearing.
12.2 Notice of Hearing. In any contested case, the Department shall give notice of hearing which
will apprise interested persons of the opportunity for hearing on the matter in controversy which
shall include, at a minimum:
1. The date, time and place of the hearing and/or pre-hearing conference;
2. A statement of the petitioner's right to appear personally, to be represented by counsel or an
authorized representative, as permitted by § 3.0 of these Regulations present at the pre-
hearing conference and/or hearing, and that she/he may respond and present evidence and
witnesses and cross examine other witnesses;
3. Sufficient notice of the specific issues involved, the specific sections of statutes and/or rules
and regulations involved, the specific violations alleged, and/or the specific reason(s) for
denial so that the parties may have a reasonable opportunity to prepare and present evidence
and argument regarding the allegations and/or denial. If the information stated in this
paragraph cannot be fully stated in advance of the hearing, the information shall be fully
stated as soon as practicable. In all cases of a delayed issues statement, or where subsequent
amendment of the issues is necessary, sufficient time shall be allowed, at the discretion of
the AHO, after full statement or amendment to afford all parties reasonable opportunity to
prepare and present evidence and argument respecting the issues;
4. A statement that notwithstanding failure to appear at a scheduled hearing, absent good
cause, the AHO will proceed with the hearing and enter an order based upon the evidence
presented;
5. The notice of hearing must set forth the requirements for intervention as outlined in § 10.0
of these Regulation.
12.3 General. Hearings may be as informal as may be reasonable and appropriate under the
circumstances, and except as otherwise provided by law, all hearings shall be open to the public.
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12.4 Decorum. All parties, authorized representatives, witnesses and other persons present at a
hearing shall conduct themselves in a manner consistent with the standards of decorum
commonly observed in any statewide R.I. court. Where such decorum is not observed, the AHO
may take appropriate action which includes ejectment or adjournment, if necessary.
12.5 Duties of Administrative Hearing Officer. The AHO shall:
1. Conduct the hearing;
2. Make all decisions regarding admission or exclusion of evidence or any other procedural
matters;
3. Administer an oath or affirmation to all witnesses or ask the stenographer to do so;
4. Submit a decision and/or order after due consideration of the hearing record, and only the
hearing record, and matters noted on the record;
5. Not communicate with any employee involved with the administration of a matter, or with
any Board member empowered by law to adjudicate a matter, regarding any decision or
order, or any proposed decision or order, excepting on the record with all parties present;
6. Participate in the proceedings to ensure that the hearing proceeds in an orderly and
expeditious fashion and to ensure evidence sufficient to determine the facts are on the
record;
7. Question any party or witness for the purpose of clarifying her/his statement and or the
AHO's understanding or to clarify the record. This subsection is not intended to change the
provisions of these Rules regarding parties not appearing, without good cause, at a
scheduled hearing where evidence may be admitted with some party(ies) not present.
Order of Proceedings
12.6 Opening. Except as otherwise required by law, it shall be the usual practice that in proceedings
initiated by an application for a license or permit, the party bearing the burden of proof shall
open. The opposing party or parties may make an opening statement immediately after the
opening statement by the party bearing the burden of proof.
12.7 Discretion of AHO. Where evidence is peculiarly within the knowledge of one party, or in
cases in which contested hearings have been consolidated, or where there are multiple parties,
the AHO may direct who shall open and shall designate the order of presentation.
Presentation
12.8 Rights of Parties. All parties shall have the right to present evidence, cross examine witnesses,
make objections, bring motions and make oral arguments. Whenever appropriate, the AHO
shall permit further examination as she/he deems necessary.
12.9 Default. If any party to a proceeding fails to answer a complaint and appear at a hearing, or
otherwise fails to defend an action as provided by these rules, the AHO may hear and receive
evidence and enter a judgment, or take other such action, based upon the pleadings and or
evidence submitted by the non-defaulting party(ies), as the AHO deems appropriate.
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Witnesses and Evidence
12.10 Witnesses
(i)
All witness testimony shall be under oath or affirmation.
(ii) A party may conduct cross examination required for a full and true disclosure of the facts.
(iii) Witnesses may be excluded from the hearing room upon motion of any party.
(iv) Protective orders may be issued for witnesses for good cause shown.
(v) If an interpreter is used to assist a witness giving testimony, the interpreter's understanding
is the final word of the witness. The interpreter shall be considered an expert for purposes
of translation.
(vi) If a witness refuses to answer questions under cross-examination, the AHO may strike
her/his direct testimony from the record.
12.11 Rules of Evidence.
(i)
In contested cases the Rhode Island rules of evidence as applied in civil cases in the
Superior Courts of this state shall govern. Irrelevant, immaterial or unduly repetitious
evidence shall be excluded in all proceedings wherein evidence is taken.
(ii) While the Rhode Island Rules of Evidence as applied to civil cases in the Superior Courts
of this state shall be followed to the extent practicable, the AHO shall not be bound by
technical evidentiary rules. Evidence not otherwise admissible may be admitted, unless
precluded by statute, when necessary to ascertain facts not reasonably susceptible of proof
under the rules, if it is of a type commonly relied upon by reasonably prudent persons in
the conduct of their affairs. The rules of privilege recognized by law shall apply.
(iii) Objections to evidentiary offers may be made and shall be noted on the record. Parties
objecting to the introduction of evidence shall state the precise grounds of such objection
at the time such evidence is offered. When objection is made to the admissibility of
evidence, such evidence may be received subject to a later ruling. The AHO may, in
her/his discretion, either with or without objection, exclude inadmissible or cumulative
evidence.
(iv) In all cases where evidence is taken, documentary evidence may be received in the form of
copies or excerpts, if the original is not readily available. Upon request, parties shall be
given an opportunity to compare the copy with the original.
(v) When portions only of a document are to be relied upon, the offering party shall prepare
the pertinent excerpts, together with a statement indicating the purpose for which such
materials will be offered, to the AHO and to the other parties. Only the excerpts, so
prepared and submitted, shall be received in the record. However, the whole of the
original document shall be made available for examination and for use by all parties to the
proceeding, and where appropriate, admitted into evidence.
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12.12 Offer of Proof. An offer of proof made in connection with an objection taken to a ruling of
the AHO rejecting or excluding proffered testimony shall consist of a statement and substance
of the evidence which the party contends would be adduced by such testimony, if the excluded
evidence consists of evidence in documentary or written form, or of reference to documents or
records, a copy of such evidence shall be marked for identification and shall constitute the
offer of proof.
12.13 Written Testimony. The AHO may order the parties to file, where practicable, prior to the
commencement of any hearing, the testimony of any or all of their respective witnesses and to
submit such testimony to the AHO and the opposing party or the opposing counsel by such
date as the AHO shall determine. The witness shall testify under oath, and all of such
testimony shall be in a question and answer format. Save for good cause shown, said
testimony shall be the direct examination of said witness; provided, however, that said witness
shall be available at the hearing for cross examination by the opposing party or opposing
counsel.
12.14 Documentary Evidence in Advance. Where practicable, the AHO may require:
(i)
That all documentary evidence which is to be offered during the taking of evidence be
submitted to the AHO and the other Parties to the proceeding sufficiently in advance of
such taking of evidence to permit study and preparation or cross examination and rebuttal
evidence;
(ii) That documentary evidence not submitted in advance, as may be required by subdivision
(i) above, may not be received in evidence in the absence of a clear showing that the
offering party had good cause for their failure to produce the evidence sooner;
(iii) That the authenticity of all documents submitted in advance in a proceeding in which such
submission is required, be deemed admitted unless written objection thereto is filed prior
to the hearing, except that a party will be permitted to challenge such authenticity at a later
time upon a clear showing of good cause for failure to have filed such written objection.
12.15 Evidence Included. All evidence, including any records, investigative reports, documents,
and stipulations must be offered and made a part of the record. Documentary evidence may be
received in evidence in the form of copies or excerpts.
12.16 Administrative Notice The AHO may take notice of any fact which may be judicially noticed
by the courts of this State, or of general, technical or scientific facts within the AHO's
specialized knowledge, only if the parties are notified of the material so noticed and are given
an opportunity to contest the facts so noticed. Notice may also be taken of properly adopted
rules and regulations adopted by the Department and other agencies of this state or federal
government. The AHO's experience, technical competence and specialized knowledge may be
utilized in the evaluation of the evidence. The burden is on the party requesting the AHO's
administrative notice to produce the documents or other matter for the AHO's review.
12.17 Subpoenas. Pursuant to the provisions of RIGL §§ 21-28-3.25, and 2-1-11, and/or under any
other applicable statute, in all cases of any nature before the Department, the AHO or other
official authorized by law, may issue subpoenas requiring the attendance and testimony of
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witnesses and to compel the production and examination of papers, books, accounts,
documents, records, certificates and other legal evidence that may be necessary or proper for
the determination and decision of any question before or the discharge of any duty required by
law of the said AHO.
1. Signature Required. All subpoenas and subpoena duces tecum shall be signed by the AHO,
or other person authorized by law to sign subpoenas, and shall be served as required by law.
2. Motion to Vacate or Modify. Any person to whom a subpoena is directed may, within a
five (5) working day period, file in writing a motion that the subpoena be vacated or
modified. The AHO may grant such motion in whole or in part, upon a finding that the
testimony, or the evidence, whose production is requested, does not relate with reasonable
directness to any matter in question, or upon a finding that a subpoena for attendance of a
witness or the production of documents or evidence is unreasonable or oppressive, or has
not been issued a reasonable period in advance of the time when the evidence is requested
or for other good and sufficient cause. The AHO may, sua sponte, or on motion of any of
the parties or witnesses, issue such protective orders, grant such motions to quash, and grant
such other motions as justice or fairness may require.
3. Contumacy. In cases of contumacy or refusal to obey the command of the subpoena so
issued, the AHO or the Department may make application to the Superior Court for an order
to show cause why the disobeying Person shall not be held in contempt and for such further
relief as may be appropriate.
12.18 Transcript of Proceedings.
1. Recording and Transcripts A complete record of the testimony and argument at the
hearing shall be either stenographically or electronically recorded. Transcripts of the
proceedings shall be supplied to any party at her/his own expense upon request to the
stenographer.
2. Correction of Transcript Corrections in the official transcript may be made only to make it
conform to the evidence presented at the hearing. Transcript corrections, agreed to by
opposing parties, may be incorporated into the record, if and when approved by the AHO, at
any time during the hearing, or after the close of evidence. The AHO may call for the
submission of proposed corrections and may make disposition thereof at appropriate times
during the course of the proceeding.
12.19 Close of Proceedings. At the conclusion of the evidence, the AHO may, in her/his discretion,
permit the parties to argue orally or to submit written briefs. The AHO may, within her/his
discretion, direct that proposed findings of fact and conclusions of law be submitted by the
parties. The record of the proceeding shall close after oral argument, or after the deadline for
filing of the briefs, or upon such date as may be set by the AHO.
12.20 Contents of Records. The record shall, at all reasonable times, be available for inspection by
the parties. Confidential, proprietary, or trade secret information including information
qualifying as a non-public record under RIGL § 38-2-2(4) shall, upon motion of a party and for
good cause shown, be received at a closed hearing and not be released for public scrutiny. Any
such evidence received on a confidential basis shall not be subject to disclosure for purposes of
RIGL Chapter 38-2. The AHO may take all steps reasonably necessary to preserve any
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confidential, proprietary or trade secret information and to keep the same secret and
confidential from the general public. The record of every contested case shall include the
hearing notice, all pleadings, motions, all rulings, exhibits, evidence considered, statements of
matters officially noted, proposed findings of fact and law and exceptions claimed thereto,
decision and/or order, proposed decision and /or order, or report of the AHO.
12.21 Evidence after Completion. No evidence shall be admitted after completion of a hearing or
after a case submitted on the record, unless the AHO reopens the hearing or the parties agree to
the submission, and all the parties have been notified of said reopening. No Board shall take
evidence, comments, recommendations, summaries, opinions, or any information regarding the
case, or participate in any ex parte conversations after the close of a hearing, except that
proposed decisions/orders from an AHO who conducted the hearing, which the Board may
discuss among themselves only.
12.22 Weight of Evidence. The weight to be attached to any evidence in the record will rest within
the sound discretion of the AHO. The matter is closed after the final decision and order is
issued.
12.23 Exceptions. Formal exceptions to rulings on evidence and procedure are unnecessary. It is
sufficient that a party, at the time that a ruling is made or sought, makes known his/her
objection to such action and his/her grounds therefore, provided that, if a party has no
opportunity to object to a ruling at the time it is made, or to request a particular ruling at an
appropriate time, such party within three (3) days of notification of action taken or refused,
shall state his/her objection and the grounds therefor.
SECTION 13.0 DECISIONS
13.1 Decisions and Orders. All decisions and orders rendered by the AHO shall be in writing, or
stated on the record, and shall comply with the requirements of § 42-35-12 of the Act and shall
be made public unless otherwise restricted by law. Every final decision and order shall contain
findings of fact and conclusions of law as necessary to comply with the requirements of § 42-
35-12 of the Act, and shall contain a notice indicating the right to enter an appeal of the decision
and order to the Superior Court pursuant to § 42-35-15 of the Act.
13.2 Withdrawal of Exhibits. After a decision has become final and all appeal periods have lapsed,
the AHO may in her/his discretion, upon motion, permit the withdrawal of original exhibits or
any part thereof by the party or person entitled thereto.
13.3 Presiding Officer Unavailable. When an AHO becomes incapacitated or unavailable, for an
unreasonable period of time, to complete a hearing and/or decision and order, the Director may
appoint another AHO who shall complete the hearing after notification to the parties and an
opportunity to be heard.
SECTION 14.0 CONSENT ORDER
14.1 Negotiations. At any time prior to the AHO rendering a final decision, parties to a hearing may
attempt to dispose of a matter by entering into a consent order. A joint request for a stay of a
hearing for this purpose shall be forwarded to the AHO and shall indicate the present status of
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negotiations. If an agreement is not reached within the time period for which any stay is
approved, the hearing process shall continue at the point from which the stay was issued.
14.2 Contents of Agreement. Every agreement shall contain, in addition to an appropriate order, an
admission of all jurisdictional facts and express waivers of further procedural steps before the
AHO and of the right to appeal and shall also state that such agreement is enforceable as an
order of the Department in accordance with procedures prescribed by law. In addition, the
agreement may contain a statement that the signing thereof is for settlement purposes only and
does not constitute an admission by any party that the law or regulations have been violated as
alleged in the hearing notice.
14.3 Disposition of Proposed Agreement. Upon receiving such agreement the AHO may:
1. Accept it and issue the order agreed upon;
2. Reject it and reschedule a hearing; or
3. Take such other action as the AHO deems appropriate.
The provisions of this rule shall not preclude settlement of the proceedings in any other manner.
SECTION 15.0 APPEALS TO DECISIONS/ORDERS
15.1 Any party aggrieved by a final written order of the AHO may file a complaint with the Superior
Court pursuant to § 42-35-15 of the Act. The filing of a complaint does not automatically stay
the decision or order unless so ordered by the Superior Court. In the absence of a timely appeal,
the order or decision of the AHO shall become final and no further administrative appeal may
be taken.
SECTION 16.0 RULE MAKING
16.1 Whenever the Department proposes to adopt, amend or revoke rules and regulations
promulgated pursuant to statute, or at the discretion of the Director, such adoption, amendment
or revocation shall be conducted pursuant to § 42-35-3 of the Act (Procedures for Adoption of
Rules).
SECTION 17.0 PETITIONS FOR RULE MAKING, AMENDMENT OR REPEAL
17.1 Any interested person may petition the Director requesting the promulgation, amendment or
repeal of any rule in the form prescribed by § 5.0 of these Regulations and § 42-35-3 of the Act.
1. Where a petition requests the promulgation of a rule, the requested or proposed rule must be
set out in full. The petition must also include all the reasons for the requested rule together
with memoranda of any applicable law. Where the petition requests the amendment or
repeal of a rule presently in effect, the rule or portion of the rule in question must be set out
as well as a suggested form, if any. The petition must include all reasons for the requested
amendment or repeal of the rule.
2. All petitions shall be considered by the Director who may, in her/his discretion, order a
hearing for further consideration and discussion of the requested promulgation, amendment,
repeal or modification of any rule.
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3. The Director shall notify the petitioning party, within thirty (30) days of receipt of the
petition, of the disposition of the petition.
4. A hearing shall be granted if requested by twenty-five (25) persons, or by a governmental
subdivision or agency, or by an association having not less than twenty-five (25) members.
The Department shall consider fully all written and oral submissions respecting the
proposed rule.
5. Upon adoption of a rule, the Department, if requested to do so by an interested person,
either prior to adoption or within thirty (30) days thereafter, shall issue a concise statement
of the principal reasons for and against its adoption, incorporating therein its reasons for its
action.
SECTION 18.0 DECLARATORY RULINGS
18.1 As prescribed by § 42-35-8 of the Act, any interested person may petition the Director, in the
form prescribed by § 6.0 of these Regulations for a declaratory ruling. The Director shall
consider the petition and within a reasonable time shall:
1. Issue a declaratory ruling; or
2. Notify the petitioner that no declaratory ruling is to be issued; or
3. If requested by a petitioner, or at her/his discretion, set a reasonable time and place for
hearing argument upon the matter, and give reasonable notice to the parties of the time and
place for such hearing. After said hearing is conducted, the Director or his/her designee
shall, within a reasonable time, issue a declaratory ruling.
SECTION 19.0 [DELETED]
SECTION 20.0 EXCULPATORY MATERIAL
20.1 Any Department attorney or employee, appearing in an adjudicatory proceeding on behalf of the
Department, has a duty to disclose to the other parties to the proceeding: relevant material or
information which supports the position of any other party, where the value of the material or
information to that party is or should have been apparent, or where disclosure of the material or
information is specifically requested by a party. The duty of the attorney or employee extends
to material or information within her/his personal knowledge or possession, or in the possession
or control of or known by any person who assisted the Department in the investigation or
preparation of the proceeding, and who either regularly reports to or with reference to the
particular proceeding has reported to the attorney or employee.
SECTION 21.0 HEARINGS CONDUCTED AS PART OF LICENSE RENEWAL FOR
HOSPITALS
21.1 In accordance with its inspection and investigatory responsibility and authority under RIGL
Chapter 23-17 (Licensing of Health Care Facilities), the Department may conduct, or cause to
be conducted, a public hearing as part of the hospital licensure renewal process. Such public
hearing shall occur prior to the licensure renewal date and shall be conducted pursuant to RIGL
Chapter 42-46 (Open Meetings), except that a minimum of thirty (30) days advance notice shall
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be provided.
21.2 In addition to information required pursuant to RIGL Chapter 42-46, the public notice for such
hearings shall specify that that the Department is soliciting input from the public regarding the
compliance of licensed hospitals with the following:
(a) License conditions;
(b) Hospital Conversion Act;
(c) Certificate of Need conditions;
(d) Financial disclosure;
(e) Community benefit derived from operation of the hospital;
(f) Community health assessment;
(g) Federal CLAS standards; and
(h) Other specific information the Director deems relevant to the renewal of a hospital’s license.
21.3 The public notice for such hearings shall also identify the contact person in the Department to
whom comments may be submitted, in electronic format, prior to the hearing.
21.4 If a hearing involves more than one hospital, testimony will be heard in alphabetical order of the
hospitals involved in the hearing.
SECTION 22.0 SEVERABILITY
22.1 If any provision of these rules and regulations or the application thereof to any person or
circumstances shall be held invalid, such invalidity shall not affect the provisions or application
of the rules and regulations which can be given effect, and to this end the provisions of these
rules and regulations are declared to be severable.
Health_PracticesAndProcedures_Final_September2014.doc
Monday, 15 September 2014