PURPOSE: This rule sets out procedures for requesting and conducting hearings before the Department of Mental Health Hearings Administrator as provided for in 9 CSR 10- 5.200.

1. (1) Requests for hearings shall be submitted in the following manner:

   1. (A) All requests for hearings shall be made in writing by the appellant or his/her attorney to the hearings administrator within twenty

2. (20) calendar days from the date of the final determination letter as set out in 9 CSR 10- 5.200(6)(D). The request may be hand delivered or sent by mail or facsimile.

   1. 1. A request for hearing filed by hand

delivery or mail is considered received on the date received by the office of the hearings administrator. Requests shall be sent to: Office of Hearings Administrator, Department of Mental Health, 1706 East Elm, PO Box 687, Jefferson City, MO 65102.

1. 2. A request for hearing filed by facsim-

ile is considered received at the time the office of the hearings administrator receives the request, provided that the original of the document is sent to the office of the hearings administrator and received within ten (10) calendar days of the fax. If a request arrives by fax after 5:00 p.m., Central Standard Time, and before 12:00 a.m., Central Standard Time, or on a Saturday, Sunday, or legal holiday, it is considered filed on the next working day. Requests filed by facsimile shall be sent to the office of hearings administrator’s designated line at (573) 751-8069.

1. A. The time controlling when a fac-

simile arrives at the office of the hearings administrator is the office of the hearings administrator’s facsimile machine journal.

1. B. The person filing by facsimile

bears the risk of loss in transmission, nonreceipt, or illegibility. If the request for hearing is not received or is materially illegible, the request is not considered filed and is totally null and void for all purposes.

1. C. A party filing a request for hearing

by facsimile shall notify the office of the hearings administrator in advance, if possible, of its intention to file the request by fax; and

1. (B) The request for a hearing shall set out the appellant’s name, current address, and telephone number and that of his or her attorney, if applicable; the decision being appealed, the date of the decision, and the name of the person making the decision and a brief statement of the appellant’s reason for appealing the decision.

1. (2) Appellants may represent themselves and handle their own cases, but shall have the right to be represented by a Missouri licensed attorney. A party to an appeal cannot be represented by anyone other than a duly licensed attorney. If either party is represented by an attorney, the attorney shall promptly notify the office of hearings administrator and enter his/her appearance.
2. (3) When a hearing has been requested, the hearings administrator shall schedule the hearing within ninety (90) calendar days of receiving the request for hearing, but may delay the hearing for good cause shown.
3. (4) The hearings administrator may schedule a pre-hearing conference with the parties. The hearings administrator may meet (in person, via telephone, or video conference) with the parties and their representatives at a prehearing conference to determine the facts at issue. At the pre-hearing conference, the parties may stipulate to mutually agreed matters or the appeal may be resolved by agreement of the parties. All parties are required to provide the hearings administrator with a current address and telephone number. If the appellant fails to provide the hearings administrator with a current address or phone number and cannot be reached to schedule a pre-hearing conference or fails to participate in a prehearing conference after receiving written notice of the date and time of the conference, it shall be deemed that the appellant no longer wishes to proceed with the appeal and is withdrawing the appeal.
4. (5) The hearings administrator shall send written notice of hearing and prehearing dates to the parties and representatives no less than ten (10) calendar days before the scheduled date for such hearing, unless there is good cause to shorten the period to provide notice.
5. (6) The hearings administrator may grant continuances for good cause. A continuance must be requested no later than seventy-two
6. (72) hours, excluding Saturdays, Sundays, and legal holidays, prior to the scheduled date and time of the hearing or prehearing. Absent exigent circumstances, requests for continuances received less than seventy-two (72) hours prior to the hearing or prehearing shall not be considered.

7. (7) Requests for subpoena shall be governed by the following requirements:

   1. (A) A request for a subpoena for attendance at depositions or hearings shall be made in writing and specify the name of the persons, the address(es) where the person can be served with the subpoena, the deposition or hearing location, and the time the person is expected to appear at the deposition or hearing location;
   2. (B) A request for a subpoena duces tecum shall be made in writing and specify the name of the person, the address(es) where the person can be served with the subpoena, the documents the person is to provide, a statement of what is intended to be proved by the documents, where he or she should bring the documents, and a date when the documents are to be provided;
   3. (C) All subpoena requests shall be sent by regular mail or fax to the hearings administrator and opposing party at least five (5) working days before the hearing or deposition, unless there is good cause to shorten the period to request the subpoena;
   4. (D) Any motions to quash a subpoena must be sent to the hearings administrator within three (3) working days of receiving the subpoena request;
   5. (E) If no objection is sustained to a subpoena request, the hearings administrator shall prepare the subpoena and send the subpoena to the party who requested it. It is the responsibility of the person who requested the subpoena to have it served. Service of the subpoena is to be effected in accordance with section 537.077, RSMo; and
   6. (F) If a subpoena for a witness was not requested in accordance with this rule, good cause will not be found to continue the hearing for that witness’s failure to appear.
8. (8) The appellant or his/her attorney may request copies of any documents referred to in the decision letter from the attorney representing the department. If the documents involve protected health information, the attorney shall request a protective order from the hearings administrator. The protective order shall provide that no documents containing protected health information shall be released to anyone except the appellant or his/her attorney, and the appellant or his/her attorney shall return any documents provided to him or her before the end of the hearing.
9. (9) All parties who are represented by an attorney shall submit a proposed order with every motion or request that is filed or presented to the hearings administrator.

10. (10) The hearing shall be conducted according to the following procedures:

    1. (A) The hearing shall be conducted at the facility where the decision was made, unless the hearings administrator finds good cause to hold the hearing in another place;
    2. (B) If the appellant or his/her attorney does not appear at the hearing and does not call the facility or the hearings administrator to provide notification of an exigent circumstance requiring a continuance within thirty (30) minutes of the time set out in the notice, it shall be deemed that the appellant no longer wishes to proceed with the appeal and is withdrawing the appeal;
    3. (C) At the beginning of the hearing, the hearings administrator shall state the reason for the hearing and outline the hearing procedure;
    4. (D) Both parties shall be given the opportunity to present opening statements. The department shall present its witnesses and exhibits first, then the appellant shall present his or her witnesses and exhibits. The department shall have the burden of proof by a preponderance of the evidence. Both parties shall be given the opportunity to present closing statements;
    5. (E) All witnesses shall be sworn or affirmed. All witnesses are subject to crossexamination;
    6. (F) The hearings administrator, at the request of either party or on his/her own motion, may order the witnesses to be separated so as to preclude any witness, other than the parties, from hearing the testimony of other witnesses. When requested by the appellant, only one (1) person in addition to counsel may remain in the room to represent the department;
    7. (G) A witness may testify by telephone or videoconference upon request from either party. The appellant or his/her attorney if represented or the attorney representing the department should submit a written request, with a copy to the other party, for the approval of the hearings administrator for a witness to testify by telephone or videoconference at least five (5) working days before the hearing, unless there is good cause to shorten the period. Objections to a witness testifying by telephone or videoconference should be submitted to the hearings administrator at least two (2) working days prior to the hearing, unless there is good cause to shorten the period;
    8. (H) The formal rules of evidence shall not apply at these hearings. Parties may introduce any relevant evidence at the discretion of the hearings administrator;
    9. (I) In all cases of allegations of abuse, neglect, or misuse of funds/property, the attorney representing the department shall offer the investigative report into evidence at the administrative hearing. In accordance with section 630.167.3(1), RSMo, the investigative report shall be admitted into evidence;
    10. (J) The hearings administrator may exclude evidence that is purely cumulative;
    11. (K) The hearings administrator may take administrative notice of department rules, department operating regulations, and facility policies without the necessity of an offer into evidence; and
    12. (L) The hearing shall be recorded. After the hearings administrator issues his or her decision, a copy of the recording shall be made available to either party upon request. The department will not transcribe the recording from aural to written form. The cost of a transcription shall be borne by the requesting party.
11. (11) All requests shall be in writing and directed to the attention of the hearings administrator and copied to the other party. This includes such matters as requests for continuances, documents, recordings, remote witness testimony, subpoenas, protective orders, and copies of decision. Requests may be sent to the office of the hearings administrator at 1706 East Elm, PO Box 687, Jefferson City, MO 65102 or faxed to (573) 751-8069. 9 CSR 10-5
12. (12) The hearings administrator’s decision is final and is subject to judicial review in accordance with sections 536.100 to 536.140, RSMo. A motion for attorney’s fees, if any, shall be filed with the office of the hearings administrator within thirty (30) calendar days of the date of the decision. The filing of a petition for judicial review does not stay the thirty (30)-day filing requirement.

AUTHORITY: sections 630.050 and 630.167, RSMo Supp. 2008.* Original rule filed Dec. 1, 2008, effective May 30, 2009. *Original authority: 630.050, RSMo 1980, amended 1993, 1995, 2008 and 630.167, RSMo 1980, amended 1985, 1990, 1993, 1996, 1998, 2003, 2007, 2008.