15 Miss. Code. R. 9-91-4.13

Current through January 14, 2025

Rule 15-9-91-4.13 - Procedures For Conducting A "Hearing During The Course of Review"

4.13.1Procedure and Other Related Matters (signing in)

Certificate of need hearings are open and public, except for rare occasions when the hearing officer may wish to inspect documents or examine witnesses in camera. To expedite the conduct of the hearing, persons attending should "sign in," listing their name, address and organization.

4.13.2Declaration of Hearing Officer

The Hearing Officer opens the hearing (giving time and date).

The Hearing Officer will identify himself/herself and those responsible for recording the hearing.

The Hearing Officer has the authority to administer oaths, and will swear in those who wish to testify except officers of the courts, who are not required to be sworn.

The legal notice will be admitted into the record as Exhibit One by the Hearing Officer.

The file of the Department with respect to the application will be admitted into the record as Exhibit Two by the Hearing Officer.

The staff analysis with respect to the application will be admitted into the record as Exhibit Three by the Hearing Officer.

The Hearing Officer will read the following notice to those present: "This hearing is being conducted to discuss the merits of the application under consideration; please refrain from discussing or offering evidence concerning any other pending or yet-to-be-offered application that is not relevant to the matter in issue."

"Any affected person, during the conduct of the hearing, shall have the right to be represented by counsel. Additionally, any person may present oral or written arguments and evidence relevant to the matter which is subject to the Hearing and may conduct reasonable questioning of persons who make relevant, factual allegations if the person is affected by the matter."

4.13.3Order of Proof

NOTE: All persons giving testimony during the conduct of the hearing will state their name and their organizational affiliation.

1. A member of the staff, who may give a brief summary of the Department's staff report; such staff member may be questioned by any affected person present, including the Hearing Officer.

2. The applicant.

3. The opponent(s), if any, in an order to be established by agreement between the opponent(s), or if no agreement can be reached, by the Hearing Officer. If no opponent(s) are present, the Department may present witnesses, exhibits, and testimony regarding the application, conduct questioning of witnesses presented by the Applicant, make objections, argue, and submit proposed findings of fact and conclusions of law and/or a proposed recommendation. In this instance, the Department should be represented by a staff attorney who may be an employee of the Mississippi Attorney General.

4. Persons who wish to give evidence for themselves or on behalf of a group or organization.

5. Persons who wish to give evidence but are not listed on "Sign-In" sheet and who have not been sworn (These persons will be sworn prior to giving testimony).

6. Rebuttal by the applicant, limited to matters raised during the opponent's case in chief.

7. Closing statements or arguments of counsel or affected persons. Waiver of the submission of closing statements or arguments at the hearing shall not entitle any party or affected person to argument before the State Health Officer. (Argument shall normally be by briefs, submitted to the Hearing Officer simultaneously, within thirty (30) calendar days of the close of the Hearing).

8. The Hearing Officer will then close the Hearing.

4.13.4Submission of Written Documents

All exhibits, documents, written arguments, letters, photographs, etc., to be entered into the record (transcript) shall be on paper of not less than 8 1/2" x 11". Such, if not the required size, may be reproduced to 8 1/2" x 11" by photocopy or may be firmly affixed to paper of the required size by clear scotch-type tape.

Undeveloped film, disks and diskettes on which data or other information is stored, transparencies, documents or letters, or exhibits which are of poor quality and not easily read or understood (because of poor quality) shall not be permitted to be introduced into the Record (transcript). Such documentary evidence or written arguments as set out above shall be permitted into the Record (transcript) if of good quality, easily readable or understood (because of good quality and of the proper dimension) by the Hearing Officer.

Each page of any submission shall have a blank margin of not less than one inch at the top and the bottom, a blank margin on the left side of the page of not less than one-and-one-half inch, and a blank margin of not less than one-half inch on the right side of each page (Left and right are as the viewer looks at the page).

Any exhibit which is to be inserted in the transcript shall consist of not more than five pages - all properly numbered sequentially and also numbered Page 1, Page 2, etc., of that particular exhibit. All exhibits of more volume than five pages shall be considered as "bulky" exhibits.

The Hearing Officer, within his/her discretion, may hold the hearing open for a specified period of time for the submission of argument, briefs, or certain documentary evidence that he/she may request. Copies of any such material requested shall be furnished by the person or party of whom it was requested to the Hearing Officer, the Department, the CON applicant, and to the opposing parties. No further arguments, briefs, rebuttals, presentations, or submission of other documentary material by any person or organization of any kind pertaining to any matter will be accepted.

Any witness during the course of a hearing may be cross-examined by any party to the hearing. The Department may question or cross-examine any witness through its attorney. The Hearing Officer may question any witness on direct or cross-examination.

4.13.5Counsel Pro Hac Vice

Any attorney, appearing as such, representing any person or organization shall be in compliance with Rule 46(b) of the Mississippi Appellate Procedure Rules as to the appearance of counsel pro hac vice.

4.13.6Procedures for Conducting Comparative "Hearing During the Course of Review"

The conduct of a comparative hearing during the course of review shall differ from a non-comparative hearing only in the following respects, and shall include all other procedures for conducting a non-comparative "hearing during the course of review":

4.13.6.1Order of Proof

NOTE: All persons giving testimony during the conduct of the hearing will state their name and their organizational affiliation.

1. A member of the staff, who may give a brief summary of the Department's staff report; such staff member may be questioned by any affected person present, including the Hearing Officer.

2. The applicants, in the order that their requests for hearing were received by the Department.

3. The opponent(s), if any, in the order to be established by agreement between the opponent(s), or if no agreement can be reached, by the Hearing Officer. If no opponent(s) are present, the Department may present witnesses, exhibits, and testimony regarding the application, conduct questioning of witnesses presented by the Applicant, make objections, argue, and submit proposed findings of fact and conclusions of law and/or a proposed recommendation. In this instance, the Department should be represented by a staff attorney who may be an employee of the Mississippi Attorney General.

4. Rebuttal proof by the applicants, in the order in which they presented their cases in chief;

5. Persons who wish to give evidence for themselves or on behalf of a group or organization.

6. Persons who wish to give evidence but are not listed on "Sign-In" sheet and who have not been sworn (These persons will be sworn prior to giving testimony).

8. The Hearing Officer will then close the Hearing.

15 Miss. Code. R. 9-91-4.13

Adopted 3/2/2017

Amended 4/9/2017

Amended 9/1/2019

Amended 11/13/2023