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(1) A hearing shall be conducted by an impartial individual appointed or hired by the department as hearing officer who has had no direct involvement in the initial determination of the adverse action.

(2) The hearing officer may:

(a) require the furnishing of such information, the attendance of witnesses, depositions upon oral examination or written questions, written interrogatories, and the production of such books, records, papers, documents, and other objects as may be necessary and proper for purposes of the hearing. For this purpose, the hearing officer may, and upon request of any party to a hearing, shall issue subpoenas for witnesses or subpoenas duces tecum;

(b) except in a hearing to which the department is not a party, order the department or, where appropriate, the local office to pay witness fees, mileage and other actual and necessary expenses as provided under the Rules of Civil Procedure for district courts of the state of Montana of a witness subpoenaed at the request of a claimant if, in the judgment of the hearing officer, the testimony of that witness is essential to the claimant's case;

(c) disqualify himself at any time on the filing of a timely and sufficient affidavit of personal bias or other disqualification;

(d) direct the parties to appear and confer in a prehearing conference to consider definition and simplification of the issues or other matters to aid in the orderly and efficient conduct of the hearing;

(e) allow, for good cause shown, a third party to represent a claimant as an authorized representative in those instances where written authorization of the claimant is not obtainable;

(f) grant a continuance at the request of a party for good cause shown or with the consent of all parties;

(g) take judicial notice of state and federal laws and regulations and facts within the general knowledge of the public;

(h) grant summary judgment according to the provisions of Rule 56, Montana Rules of Civil Procedure; and

(i) require a party to comply with reasonable and appropriate orders or requests not in conflict with these rules and necessary to assure the orderly conduct of prehearing and hearing procedures or to avoid unnecessary proceedings or expense.

(3) A hearing officer shall:

(a) administer oaths and affirmations:

(b) ensure that all relevant issues are considered;

(c) request, receive and make part of the record all evidence determined necessary to decide the relevant issues;

(d) regulate the conduct of the hearing consistent with due process to ensure an orderly hearing;

(e) prepare a proposal for decision consisting of proposed findings of fact, conclusions of law and a recommended order deciding the case based on the evidence and the testimony contained in the hearing record.

(4) In provider hearings, if a motion is filed, or as otherwise ordered by the hearing officer in a particular claimant hearing, the following rules apply to motions:

(a) Upon filing of a motion or within five days thereafter, the moving party must state the reasons. The statement may be accompanied by appropriate supporting documents. Within ten days thereafter, the adverse party must file an answer statement which also may be accompanied by appropriate supporting documents. Within ten days thereafter movant may file a reply brief or other appropriate responsive documents.

(b) Failure to file a statement required under (4)(a) may subject the motion to summary ruling. Failure to file a statement within five days by the moving party shall be deemed an admission that the motion is without merit. Failure to file an answer statement within ten days by an adverse party shall be deemed an admission that the motion is well taken. Reply statements by movants are optional and failure to file will not subject a motion to summary ruling. The hearing officer may grant extensions of these filing time limits.

(c) The hearing officer may order oral argument with or without request of a party.

(d) Unless oral argument is ordered, the motion is deemed submitted at the expiration of any applicable time limit without supporting briefs having been filed. If oral argument is ordered, the motion will be deemed submitted at the close of argument unless the hearing officer orders additional briefs in which case the motion will be deemed submitted as of the date designated as the time for filing the final brief.

(5) For purposes of this rule, time computation shall be governed by Rule 6(a), Montana Rules of Civil Procedure.

History: 53-2-201, 53-2-606, 53-4-212, 53-6-113, 53-7-102, MCA; IMP, 53-2-201, MCA; NEW, 1979 MAR p. 489, Eff. 5/25/79; AMD, 1979 MAR p. 812, Eff. 7/27/79; AMD, 1985 MAR p. 943, Eff. 7/12/85; TRANS & AMD, from SRS, 2000 MAR p. 1653, Eff. 6/30/00.

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