Title: Section 51.11 - The hearing

51.11 The hearing.

(a) Appearances.

(1) A party may appear in person or by an attorney. If a party appears by an attorney, service of papers shall be made upon the attorney.

(2) Any person appearing on behalf of a party in a representative capacity may be required to show his authority to act in such capacity.

(3) If a party fails to appear at the hearing, issues on which the absent party has the burden of proof may be resolved against that party.

(4) At any time before a report is submitted to the commissioner, or to the appropriate board or council, the hearing officer may open a default or relieve any party of the consequences of any default upon good cause shown.

(b) Consolidation and severance. (1) In proceedings which involve common questions of fact, the hearing officer, upon his own initiative or upon motion of any party, may order a consolidation of actions or a joint hearing of any or all issues to avoid unnecessary delay and cost.

(2) The hearing officer, to avoid prejudice or inconvenience, may order a severance of the hearing and hear separately any issue in the proceeding.

(c) Intervention. (1) At any time after the institution of a proceeding, the hearing officer may, upon a verified petition and for good cause shown, and upon notice to the parties, permit a person to intervene as a party, except in proceedings brought pursuant to Public Health Law, section 230.

(2) The petition of any person desiring to intervene as a party shall state with precision and particularity:

(i) the petitioner's interest in the matter at issue;

(ii) the nature of the evidence petitioner intends to present and the names of witnesses, if any;

(iii) the nature of the argument petitioner intends to make; and

(iv) any other reason that petitioner should be allowed to intervene.

(d) Conduct of hearing and evidence. (1) Each witness shall be sworn or given an affirmation.

(2) The rules of evidence need not be observed.

(3) Each party shall have the right to present evidence and to cross-examine witnesses.

(4) Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the department.

(5) All evidence, including records, documents and memoranda in the possession of the department of which it desires to avail itself, shall be offered and made a part of the record. All such documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. In case of incorporation by reference, the materials so incorporated shall be available for examination by the parties before being received in evidence.

(6) The department has the burden of proof and of going forward in all enforcement cases. The petitioner/applicant has the burden of proof and of going forward in all other cases.

(7) In administration proceedings relating to violation of Public Health Law, section 2803-d, the hearing officer may not compel the disclosure of the identity of the person who made the report or any person who provided information in an investigation of any such report.

(8) Complaints relating to matters governed by Public Health Law, section 230 may not be introduced into evidence by either party and their production may not be required by the hearing officer even if the complainant is a witness.

(9) In matters governed by Public Health Law, section 230, a hearing may proceed if at least two members of the hearing committee are present. At the conclusion of the hearing each member shall affirm that he or she has read and considered evidence introduced at and transcripts of any hearing days at which he or she was not present.

(10) Claims that an administrative hearing has been unreasonably delayed shall be raised only pursuant to this section and claims of unreasonable delay not permitted by this section shall not be entertained in a hearing.

(i) Claims of unreasonable delay occurring after hearing is requested or noticed.

Any claim that a hearing has been delayed unreasonably shall be treated as an affirmative defense pursuant to section 51.5 or otherwise as part of the claimant's case and shall be argued as part of the claimant's case. The burden of proving and the burden of going forward on the issue of unreasonable delay shall be on the claimant.

(a) In reviewing a claim of unreasonable delay, the hearing officer shall first calculate the time period that has elapsed between the date the hearing was requested or noticed, whichever is earlier, and the first day of hearing (the "time period"). For purposes of this section, the time period for cases brought pursuant to Public Health Law Section 2803-d or 230, or Subpart 60-1 of this Title, shall be from the date the hearing was noticed to the first day of hearing. (b) If the time period is one year or less, the claim of unreasonable delay shall be denied.

(c) If the time period is more than one year, the claimant shall then have the burden of showing that the claimant has been handicapped significantly and irreparably in mounting a case or defense by the time period. A mere assertion of handicap shall not suffice.

(d) If the claimant meets such burden, the hearing officer must then determine whether the time period is unreasonable under the circumstances. In making that determination, the hearing officer shall weigh at least the following factors:

(1) whether there is a causal relationship between the conduct of the Department and the time period, and whether the conduct of the claimant was responsible in whole or in part for the time period;

(2) the public policy sought to be effected through the administrative action which is the subject of the administrative hearing;

(3) the availability of Department resources to pursue the case consistent with other Department responsibilities.

(e) The hearing officer shall include in the report to the decision-maker any findings, conclusions and recommendations with respect to unreasonable delay. The report shall also include findings, conclusions and recommendations that will allow the decision-maker to dispose of the case if the decision-maker does not follow the recommendation for dismissal on the basis of unreasonable delay.

(ii) Claims of unreasonable delay occurring before hearing is requested or noticed.

(a) Claimant may make a record in connection with a claim of an unreasonable delay by the department occurring prior to a request for, or notice of, a hearing that has resulted in substantial prejudice to the claimant's defense due to the passage of time. The department may make a record in opposition to such a claim. A separate hearing on this issue shall not be provided.

(b) Neither a hearing officer nor, in a case of alleged professional misconduct, a hearing committee, shall consider, sustain or reject a claim of unreasonable delay occurring before a hearing is requested or noticed. After a final determination has been rendered, in the event that such determination is adverse to the claimant, and the claimant wishes to pursue the claim of an unreasonable delay occurring prior to a hearing request or notice, the claimant may do so in a proceeding pursuant to Article 78 of the CPLR.

(e) Record. (1) A verbatim record of the proceedings shall be made by whatever means the department deems appropriate.

(2) The record of the hearing shall include: the notice of hearing, statement of charges, if any, answer and any other responsive pleadings; motions and requests submitted, and rulings thereon; the transcript or recording of the testimony taken at the hearing; exhibits; stipulations, if any; a statement of matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose; briefs or objections as may have been submitted and filed in connection with the hearing and any decision, determination, opinion, order or report rendered.