37.5.325    HEARING PROCEDURE

(1) A claimant's hearing shall be conducted:

(a) by telephone conference, unless a party to the hearing requests an in-person hearing; and

(b) at a reasonable time and date.

(2) Except as otherwise provided by department rule, a claimant's hearing shall be held in the county seat of the county of the claimant's residence, unless the parties to the hearing agree to a different location. In the case of an appeal of an adverse action by a county human services or welfare office which is not the county of the claimant's residence, the hearing may be held in the county whose adverse action is being appealed at that county's option, if that county agrees to pay all the actual and necessary expenses incurred by the claimant and necessary witnesses to attend the hearing.

(3) Hearings for medical assistance providers and for pharmaceutical manufacturers under Title 37, chapter 86, subchapter 11, shall be held at Helena, Montana and shall be in person except that the hearing may be conducted by telephone as mutually agreed by the parties. The department may designate the place of hearing either by notifying the Office of Fair Hearings in writing that hearings in a particular program will generally be held in a particular place or by designating the place of hearing on a case by case basis.

(4) The hearing officer shall notify the claimant or provider or his authorized representative by certified mail at least ten days in advance of the time and place of the hearing. The claimant or provider may waive in writing the right to ten days notice.

(a) The notice of hearing shall include:

(i) the name, address, and telephone number of the person to notify in the event that it is not possible for the claimant or provider to attend the hearing;

(ii) notification that the hearing request will be dismissed if the claimant or provider or his authorized representative fails to appear at the hearing without good cause;

(iii) with respect to claimants only, the department's hearing procedures and any other information that would contribute to claimant's understanding of the proceedings and effective presentation at the hearing;

(iv) an explanation of claimant's or provider's rights as enumerated in this rule; and

(v) notification of the claimant's right to request an in-person hearing.

(5) The claimant or provider shall have adequate opportunity:

(a) to examine the contents of his case file, except for those portions which the claimant is precluded from examining by state or federal law or regulation or directive of a medical professional, and all documents, and records to be used by the department at the hearing at a reasonable time prior to the hearing as well as during the hearing. Portions of the case file, documents, and records that the claimant is not allowed to examine are not admissible as evidence at the hearing;

(b) at his option, to present his case himself or with the aid of an authorized representative;

(c) to bring witnesses;

(d) to establish all pertinent facts and circumstances;

(e) to advance arguments without undue interference; and

(f) to question or refute any testimony or evidence, including opportunities to confront and cross-examine adverse witnesses.

(6) Discovery shall be available to the parties. The department adopts and incorporates by reference the Attorney General's Model Rule ARM 1.3.217 which sets forth the procedures for discovery in contested cases. A copy of the model rule may be obtained by contacting either the Attorney General's Office, 215 North Sanders, P.O. Box 201401, Helena, MT 59620-1401 or Department of Public Health and Human Services, Office of Legal Affairs, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

History: 2-4-201, 53-2-201, 53-2-206, 53-4-212, 53-6-113, 53-7-102, MCA; IMP, 2-4-602, 53-2-201, 53-6-101, MCA; NEW, 1979 MAR p. 489, Eff. 5/25/79; AMD, 1979 MAR p. 812, Eff. 7/27/79; AMD, 1981 MAR p. 1111, Eff. 10/1/81; AMD, 1984 MAR p. 1633, Eff. 11/16/84; TRANS & AMD, from SRS, 2000 MAR p. 1653, Eff. 6/30/00; AMD, 2008 MAR p. 2669, Eff. 1/1/09.