217 - Disability and Communications Access Board Rules on Practice and Procedures

Repeal of Chapter 11-217
Hawaii Administrative Rules
NOV 25 2013
TITLE 11
DEPARTMENT OF HEALTH

CHAPTER 217 Repealed. [R NOV 25, 2013 ]

Repeal of chapter 217, title 11, Hawaii Administrative Rules, on the Summary Page dated NOV 25, 2013 was adopted on NOV 25, 2013 following a public hearing held on August 29, 2013, after public notice was given in the Honolulu Star Bulletin, Hawaii Tribune-Herald, West Hawaii Today, The Maui News, and The Garden isle on July 28, 2013.

This repeal shall take effect ten days after filing with the Office of the Lieutenant Governor.

/s/________

LORETTA J. FUDDY. A. C. S. W., M. P. B,

Director of Health

/s/________

NEIL ABERCROMBIE

Governor

State of Hawaii

Dated:

________________________

Filed

APPROVED AS TO FORM:

/s/________

Deputy Attorney General

1. Chapter 217 of Title 11, Hawaii Administrative Rules, entitled "Disability and communication access Board Rules of Practice and Procedures" is repealed as follows:

"HAWAII ADMINISTRATIVE RULES
TITLE 11 DEPARTMENT OF HEALTH
CHAPTER 217 [DISABILITY AND COMMUNICATION ACCESS BOARD RULES OF PRACTICE AND PROCEDURE
SUBCHAPTER 1 GENERAL PROVISIONS

§11-217-1 Purpose and scope .

The purpose of this chapter is to establish rules of practise and procedure which shall govern procedures before the disability and communication access board, —these rules shall be construed to secure the just, speedy, and inexpensive determination of every proceeding authorised by law —[Eff 2/11/91) comp 7/28/95? am and comp 9/5/00; comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS S103 50)

§11-217-2 Definitions.

As used in this chapter; unless the context clearly requires otherwise "Applicant" means the person, agency or officer for whom the site specific alternate design proceeding is instituted.

"Board" means the disability and communication access boards

"Facility access unit" means staff of the disability and communication access board.

"Interpretive opinion" means a determination as to the applicability or non applicability with respect to a factual situation of any guideline of the board or of a statute which the board is required to administer or enforce.

"Party" means each person admitted as a participant, or properly cooking and entitled to be admitted as a participant in any board proceeding.

"Person" moans an individual, a private or public organisation of any character, a trust or estate, a society or firm, an assembly, a partnership, a corporation, a professional corporation, an association, the State, any political subdivision of the State, a county, a State agency or any instrumentality of a county.

"Petitioner" moans a party making or on whoso behalf a petition or application is made for a site specific alternate design review or design specification proceeding,

"Presiding officer" moans the person conducting a site specific alternate design review or guideline

proceeding who may bo the chairperson of the board or the chairperson's representative.

"Public buildings, facilities, and sites" means buildings, faeilities,and sites that:

(1) Are designed, constructed, purchased; or leased with the use of any federal, state, or county funds. (2) House state or county programs, services, or activities that Are intended to be accessed by the general public, or (3) Are constructed on state or county lands or lands that will bo transferred to the citato or county.

"Respondent" means the party against whom the petition is filed against whom relief is being sought or any party who contests or controverts a proceeding.

"Site specific alternate design" moans a relief from specific requirements of section 103- SO, HRS, as determined by the disability and communication access board pursuant to section 103 50,—HRS, when the site specific alternate design-will ensure an alternate design that provides equal or greater access for

persons with disabilitiso[Eff 3/11/91; comp 7/28/95? am and comp 9/5/00; am and comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS §103 50)

§11-217-3 the disability and c ommunication ac cess board.

(a) T he principal office of the board is at Honolulu, Hawaii,—All communication pursuant to this chapter to the board shall bo addressed to the chairperson of the board, Honolulu, Hawaii, unless otherwise specifically directed.

(b) For the purpose of this chapter; the regular work hours shall bo from 7:45 a.m. to 4:30 p.m., Monday through Friday, except holidays, unless otherwise provided by statute or executive order

(e) All documents required to bo filed heroin shall bo filed with the board at Honolulu, -Hawaii, within ouch time limits as proscribed by these rules or by order of the board*—[Eff-2-/41/91; comp 7/28/95f

am and comp 9/5/OQ; comp 9/20/03] (Auth: HRS §348F-6) (Imp: HRS §103 50)

§11-217-4 Obtaining necessary information

(a) The board may, in its discretion or upon the application of any interested person or an agency of the state or county government hold such proceedings as it may doom necessary for the purpose of obtaining information necessary or helpful in its rules, regulations, design specifications, and interpretive opinions.

(b) Procedures to bo followed by the board shall, unless specifically proscribed in this chapter, bo such as in the opinion of the board will boot serve the purposes of such proceedings. [Eff 2/11/91) comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS §103 50)

§11-217-5 public notices.

(a) when an applicant for a sits specific alternate design or similar action has an application ponding before the board, the board may require the applicant to pay all sects related to the processing of said application. Coots may include processing foes, proceeding sects and costs related to publishing the required publishing the public notices

(b) When a public notice is required, and the board had determined that the applicant shall pay all fees assessed for publishing legal notices, payment shall bo made directly to the newspaper publishing said notice.

(c) The public notice shall -appear in a newspaper of general circulation in the county in which the activity is proposed.

(d)—the public notices shall include at least the following:

(1) Name, address and phono number of the agency issuing the public notice;

(2) Name and address of each applicant;

(3)—Brisf description of the activities or operations at the location of the proposed site specific alternate design; (4) A briof description of the procedures for the formulation of final determinations, including the specified comment period and other means by which interested persons may comment upon the so determinations; and

(5) Address and phono of the agency promises at which interested persons may obtain further information and may inspect a copy of the application and related materials.

(e) The public notice shall be reviewed and approved by the board prior to publication and must appear in the approved form.

(f) The applicant shall obtain an affidavit specifying the date the notices appeared in the aewopaper(s) and make a copy of the affidavit available to the board.

(g) The board shall make information regarding the proposed site -specific -alternate design, design specification or interpretive opinion available for inspection in the county in which the applicant's activites are being proposed, and may at its discretion circulate information to appropriate state and county officials. [Eff2/11/91; comp 7/28/95; am and comp 9/5/00) am and comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS §103 50)

§11-217-6 Severability.

If any prevision of this chapter, or the application thereof to any person or circumstance is hold invalid, the invalidity shall not affect other previsions or applications of this chapter which can bo given of-£oot without the invalid prevision or application, and to this and the previsions of this chapter-are severable. [Eff2/11/91; comp 7/28/95; comp 9/5/00; comp 9/20/03] (Auth: HRS §348F-6) (Imp: HRS §103-50)

§11-217-7 Governing standards.

Subject to amendment by the board or site specific alternate design granted by the board, the Americans with Disabilities Act Accessibility Cuidelines, 36 C. F. R. Pt. 1192, as they existed on April 13, 1998, and the Fair Housing Amendments Act Accessibility Cuidelines, 24 C. F. R. Pt. 100.205, are hereby-adopted as the standards governing all piano and specifications for the construction of public buildings, facilities, and sites by the state or any county, or on behalf of the State or any county, and are made a part of this chapter the board may also establish guidelines for design specifications not covered in the Americans with Disabilities Act Accessibility Cuidelines, or the Fair Housing Amendments Act Accessibility Cuidelines. [Effand comp 9/5/00; am and comp 9/20/03] (Auth: HRS S348F-6) (Imp: HRS SS103 50)

§§11-217-8 to 11-217-9 (Reserved)

SUBCHAPTER 2 PROCEDURE FOR SITE SPECIFIC ALTERNATE DESIGN

§11-217-10 Scope .

( a ) Every petition requesting a sits specific alternate design shall bo reviewed by the facility access unit A petition requesting the board to hold a proceeding on a site specific alternate design may bo submitted directly to the board. Submission of a petition directly to the board does not preclude review by the facility access unit.

(b) The board may on its own motion or by petition of any interested person, hold a review proceeding on a proposed site specific alternate design.

(o) Procedures to be followed by the board shall, unless specifically prescribed in this chapter,

bo such as in the opinion of the board will boot serve the purposes of such proceedings

(d) Any procedure in a site specific alternate design review proceeding may bo modified or waived by stipulation of the parties and informal disposition may bo made of any contested matter by stipulation, agreed settlement, consent order, or default. [Eff 2/11/91; am and comp-7/28/95;-am and comp 9/5/00; Comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-11 Filing of documents.

(a) A44 documents related to a petition for a sits specific alternate design will bo filed at the board office during -regular work hours. Such papers may bo sent by mail, -hand carried to the board in Honolulu, Hawaii, or as set forth in any law, rule or regulation for ouch filing the date on which the papers actually received by the board or at the proceeding shall bo doomed to bo the date of filing.

(b) All papers filed with the board shall bo written in black ink, typewritten, or printed, shall bo plainly legible; shall be on strong durable paper, no larger than 8 1/2" x 14" in size, except that tables, maps, charts and other documents may bo larger, folded, if possible, to the size of the documents to which they are attached.

(e) All papers must bo signed in indelible ink by the party signing the same or the duly authorised agent or attorney. the signature of the person signing the document constitutes a certification that the person has road the document; that to the boot of his or her knowledge,—information, and belief every statement contained in the instrument is true and no such statements are misleading; and that it is not interposed for delay.

(d) Unless otherwise specifically provided by a particular rule, regulation, or order of the board, an original of all papers shall bo filed.

(e) The initial document filed by any person in any proceeding shall state on the first page there of the name and mailing address of the person or persons

who the petitioner desires to be served with any documents filed in the proceeding. [Eff2/11/01; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103-50)

§11-217-12 Computation of time.

(a) Within thirty salendar days after the site specific alternate design petition is filed. the board shall:

(1) File a written ruling denying the petition and stating the board's reason or reasons for the denial, or (2) Initiate and complete site specific alternate design review proceedings as provided under this chapter within sixty days from the date of the filing of a completed application.

In any event the board shall send written notification of the board section to the petitioner by certified mail, return receipt requested. [ Eff 2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-13 Consent of request for site specific alternate design.

(a) A request by an aggrieved person or proper party or by an interested agency, or the State or county governments, requesting a site specific alternate design review shall contain concise statements of:

(1) The legal authority under which the proceeding or action is to be held or made, (2) The site specific alternate design, disagreement, denial, grievance or such matter which is being contested by the applicant,

(3) The basis facte and issues raised, and (4) The relief requested.

(b) The board shall prepare instructions for any petition or application, which may bo required for any authorised proceedings. [Eff 2/11/91; comp 7/28/95;

am and comp 9/5/00); ant and comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50).

§11-217-14 Notice .

(a) No review on a request for a site specific alternate design shall bo hold until notices has been given to all parties. unless otherwise provided by law, all pasties shall bo given written notice of the review-by registered or certified mail with return receipt requested at least fifteen days before the proceeding,

(b) Unless otherwise provided by law, if service by registered or certified mail is not made because of the refusal to accept service or the board or its agents have boon unable to ascertain the address of the party after reasonable and diligent inquiry, the notice of the review proceeding may bo given to the party by publication at least once in each of two successive weeks in a newspaper of general circulation. the last published notices shall appear at least fifteen days prior to the date of the scheduled review proceeding. [Eff3/11/91) am and comp 7/28/95; am and comp 9/5/00, comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-15 C ommonenoement.

A review on a matter may bo commenced by the board or upon the application of any interested poison when the processing of such

application necessitates such a review. [Eff 2/14/94-)

comp 7/28/95; am and comp 9/5/00) comp 9/ 20/03) (Auth: HRS §348F-6) (Imp: [IRS §103 50)

§11-217-16 Docket.

The presiding officer or his or her representative shall maintain a docket of all requested site specific alternate designs and each request shall bo assigned a number. [Eff2/11/91; comp 7/38/95 am and comp 9/5/00; comp 9/20/03] (Auth:-HRS §348F 6 ) (Imp: HRS §103-50

§11-217-17 Appearance before the beard.

(a) Individuals may appear on their own behalf, or an officer or employee of an agency of the State or—a political subdivision of the State may represent such agency in any review proceeding before the boards

(b) A person may bo represented by or with counsel.

(e) A person shall not bo represented in any proceeding except stated in subsections (a) and (b) of this section.

(d) When an individual acting in a representative capacity appears in person before the board, the personal appearance or signature shall constitute a representation to the board that under the previsions of these rules and the law, that the individual is authorised and qualified to represent the particular person or agency who is represented. The board may at any time require any person acting in a representative capacity to show proof of the authority and qualification to set in such capacity.

(e) Mo person who has boon associated with the board as an officer, employee or counsel thereof shall be permitted to appear before the board in behalf of, or to represent in any manner, any person in connection with any proceeding or matter which was ponding before the board at the time the person was associated with the board unless the person first shall have obtained the written consent of the presiding officer upon a verified letter indicating that the person did not give personal consideration to the matter or proceeding as to which consent is sought or gain particular knowledge of the facts thereof during the person a association with the board.

(f) No person appearing before the board in any proceeding or matter shall in relation thereto knowingly accept assistance from any person who would bo precluded by this section from appearing before the board in such proceeding or matter. [Eff 2/11/91? am and comp 7/28/95; am and comp 9/5/00) comp 9/20/03] [Auth: HRS §348F-6) (Imp: HRS §103 50)

§11-217-18 Substitution of parties.

Upon request and for good cause shown, the presiding officer may order Substitution of partiso;—owcopt that in case of death of a party, substitution may be ordered without the filing of a motion. [Eff 3/11/91; comp 7/3 8/S5; comp 9/5/00; comp 9/20/03] (Auth; HR6 §3 4 BP 6) (Imp: HRS §103 50)

§11-217-19 Consolidations

The pro aiding officer, in his or her own discretion or upon request, may censelidate and sentemperanceusly consider two or more cases which involve substantially the same parties , or issues which are the same or elesely related. Rulings will bo aits specific, and no requests for general waivers may be considered. [Eff 2/11/91; comp 7/28/95; comp 9/5/00; comp 9/20/03] (Autht HRS §348F-6) (Imp: HRS §10 3 50)

§11-217-20 Intervention

(a)—Any person not a party to the action may cock to become a party by filing a request to intervene-.-The request shall state the grounds upon which the person claims to have an interest in the proceeding. At least ton days before the proceeding, the person shall file the request with the board and shall serve the request upon all parties or their attorneys

(b) The presiding officer may permit intervention if he or she determines:

(1) That the person Booking to become a party shows that the party has an interest in a question of law or fast involved in the matter or has a property or financial interest that may not bo adequately represented by existing parties) and (2) That intervention will not unduly broaden the issues or delay the cite specific alternate design review process

(e) The presiding officer may permit intervention to the -extent and upon such terms, as the

providing officer may doom proper. [Eff 2/-11/91; am and comp 7/28/95; am and comp 9/5/00j comp 9/5/00) am and comp 9/20/03] (Auth: HltC 5318F-6) (Imp: HRS §103-50)

§11-217-21 Amondmont of documents and dismissal

If any document initiating, or filed in, a proceeding is not in substantial conformity with the applicable rules or regulations of the board as to the contents thereof, or is otherwise insufficient, the board, in its discretion, or upon the request of any party, may strike or dismiss such document, or require its amendment If amended, the document shall bo

effective as of the date of the original filing. [Eff 3/11/91; comp 7/28/95; am and comp 9/5/00) comp 9/20/03] (Autht HRS §318F 6) (Imp HRS §103 50)

§11-217-22 Continuances or extension of time.

All sits specific alternate design review proceedings shall bo hold at the time and place as set forth in the notices of proceeding. the presiding officer may continue the proceeding from day to day or adjourn to a later date or to a different place without further notices, provided such an announcement thereof is made at the proceeding- -[Eff2/11/91) comp 7/28/95) am and comp 9/5/00) comp 9/20/03] (Auth: ARC S348F 6) (Imp: HRS §103 50)

§11-217-23 Decision.

All final orders, opinions, or rulings entered by the board in a review proceeding shall bo served upon the parties or persons participating in the proceeding by mailing a certified copy of the decision and orders and accompanying finding and conductions within a reasonable time to each party or the attorney of record)—[Eff2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS 53 48F 6) (Imp: HRS §103 50)

§11-217-24 Rotontion of documents by the board.

(a) All documents filed with or presented to the board shall be retained in the files of the board. However, the board may permit the withdrawal of original documents upon submission of properly authenticated copies to replace such document.

(b) Document retention and disposition—standards shall be in accordance with statewide general records retention schedule and board's record retention and disposition schedule. [Eff 2/ll/91) am and comp 7/28/95; am and comp 9/5/00; c omp 9/20/03] (Auth: HRS § 318F-6) (Imp: line § 103 54)-

§11-217-25 Public information.

(a) Unless otherwise provided for by statute, these rules or order of the board , all information contained in any pleading, submittal petition, application, charge, statement, recommendation, report, map, exception brief, memorandum or other document filed with the board shall be available for inspection by the public after- a final decision hag boon i a sued.

(b) When permitted or authorised by the board, matters of public record may be inspected in the offices of the board in Honolulu during regular office hours— (Eff 3/11/Dl, am and comp T-/28/95) am and comp 9/5/00; comp 9/30/03] (Auth: HRS §348F-6) (Imp: HRS §103-50)

§§11-217-26 to 11-217-30 (Reserved)

SUBCHAPTER 3 PROCDEURE TO ESTABLISH GUIDELINES FOR DESIGN CPECIFICATISNS

§11-217-31 notices of proposed guidelines for design specifications

(a) When the board proposes

to issue, amend, or repeal a guideline for a design specification which is not covered in the Americano with Disabilities Act Accessibility Guidelines 36 C. F. R., Pt. 1191, or the Fair Housing Amendments Act Accessibility Guidelines, 24 C F. R., Pt. 100.205, a notices of proposed action will bo published at least once in a newspaper which is printed and issued at least twice weekly in the county affected by the proposed action at least 20 calendar days prior to the date of the proceeding—notices shall bo mailed to all persons who make a timely request for advance notice of ouch proceeding.

(b) A notices of the proposed issuance, amendment, or repeal of a design specification will include:

(1) A statement of the date, time, and place whore the proceeding shall bo hold

(2) Roforonoo to the authority under which the issuance, amendment, or ropea1 of a design specification is proposed

(3) A statement of the substance of the proposed action.

(4) Docket number specifically assigned to the proceeding.-[Eff2/11/91; am and comp 7/28/95; am and comp 9/5/00; am and comp 9/20/03] (Auth: HRS §348F-6) (Imp: HRS §103 50)

§11-217-32 Further notices of proceeding:

For any issuance of now guidelines where the board deems it warranted, an additional notices of the proceeding will bo issued by publication thereof in a newspaper of general circulation in the State. [Eff2/11/91; am and comp 7/2 8/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS §103 50)

§11-217-33 Presiding officer

Each proceeding shall bo presided over by the chair of the board or hie or her designee. the proceeding shall bo

conducted to afford all interested persons a reasonable opportunity to bo heard on matters relevant to the issues involved and to obtain a clear and orderly record.-The presiding officer shall have authority to take all actions necessary- to the orderly conduct of the proceeding. [Eff2/4-1/91; comp 7/28/95; am and comp 9/5/00; comp 9/30/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-34 Appearance before the board.

At the commencement of the proceeding, the presiding officer shall road the notices of proceeding and shall then outline briefly the procedure to -be followed. Testimony shall then be received with respect to the matters-specified- in the notice of the proceeding as the presiding officer shall proscribe-. [Eff2/11/91; comp 7/38/95; as and comp 9/5/00; comp 9/30/03] (Auth: HRS §31BF 6) (Imp: DUG §103 50)

§11-217-35 Submission of testimony.

All interested persons shall be- given reasonable opportunity to offer testimony with respect to the matters specified in the notices. Every witness shall before. proceeding to tootify,—stato his or her name, addrooo,—and whom he or oho represents at the proceeding, and shall give ouch other information respecting his or her appe^r-anoe as the presiding offices may request. the presiding officer shall eon-fine the testimony to the issues before the board. Every witness shall bo subject to questioning by the presiding officer and members of the board. Crops examination by private persons shall not bo permitted except upon the approval of the presiding officer. (Eff 2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: IIR6 §348F 6) (Imp: HRS §103 50;

§11-217-36 Oral and written presentation at such proceeding.

All interested persons or agencies of the State or political subdivisions of the State will bo afforded an opportunity to submit data views or arguments, which Are relevant to the issues. addition, or in lieu thereof, persons or agencies may also file with the board within five salendar days following the close of the proceeding other comments or recommendations in support of or in opposition to the proposed action the period for filing written comments or recommendations may bo extended by the providing officer for good cause (Eff 2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS S348F 6) (Imp: IJRC S103 50)

§11-217-37 Transcript of testimony

unless otherwise specifically ordered by the presiding officer, testimony given at a design specification proceeding shall not bo reported- verbatim All supporting written statements, maps, charts, tabulations or similar data presented at the proceeding, and which Are deemed to bo authentic and relevant by the presiding officer, shall be accepted by the board and made a part of the record, [Eff2/11/91 comp 7/28/95) am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-38 Continuance of proseedingo.

All design specification proceedings shall bo hold at the time and place as set forth in the notice of the proceeding. the presiding officer may continue the proceeding from day to day or adjourn to later date or to a different place without further notices, provided such an announcement is made at the original proceeding [Eff 2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-39 Emergency design specifications.

Notwithstanding the foregoing rules, if the board finds that an imminent peril to public health or safety requires adoption, amendment, or repeal of a design specification upon loss than twenty days notice of a proceeding , and states in writing its reason—for such finding, it may proceed without prior notices or proceeding or upon ouch abbreviated notice and proceeding as it finds practicable to adopt an emergency design specification to be effeotive for a period not longer than 120 days without renewal [Eff 2/11/91 comp 7/23/95) am and comp 9/5/00; comp 0/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§§11-217-40 to 11-217-44 (Rooorvod)

SUBCHAPTER 4 PETITIONS FOR ADOPTISN, AMENDMENT OR REPEAL OF DESIGN SPECIFICATISNS

§11-217-45 Scope.

Any interested person may file a petition requesting the board to adopt, amend, or repeal any design specification. [Eff2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS 5103 50)

§11-217-46 Form of petition

the petition requesting an adoption, amendment, or repeal of any design specification shall. be in writing and shall include:

(1) The petitioner's name , mailing address, and telephone number ; (2) The petitioner's signature or the signature of the petitioner's autherised

representative or attorney;

(3) A statement of the nature, of the petitioner's interest; (4) A draft or substance of the proposed design specification, or amendment, or designation of the design specification sought to bo repealed.

(5) A statement of the reason or reasons in support of the proposed design specification, amendment, or repeal» and

(6) Any other information relevant to the petition.-[Eff2/11/91; comp 7/28/95; comp 9/5/00; comp 9/30/03] (Auth: HRS 534BF 6) (Imp: HRS S103 50)

§11-217-47 Filing of petition.

The pet itisnor shall file the original petition -roquosting the board to adopt, amend, or ropoal any design specificatisn at

the board'o office-[Eff2/11/91; am and comp

7/28/95; am and comp 9/5/00; comp 9/20/03] (Autht HRS S348F 6) (Imp: BUS 6103 50)

§11-217-48 Computatisn of time -.

(a) Within thirty-calendar days after the petition is filed, the board shall:

(1) File a written ruling denying the petition and stating the board's reason or reason for the denial,

(2) Initiate proceedings as provided under this chapter, or

(3) Wotify the petitioner of action to extend to allow time for full consideration

(b) In any event, the board shall send written notification of the board's action to the petitioner by certified mail, return receipt requested, [Eff 2/11/91; am and comp 7/28/95; am and comp 9/5/00; comp 9/30/03] (Auth: HRS S348F 6) (Imp: HRS S103-50)

§11-217-49 Review by facility access unit.

Every petition-requesting the adaption, amendment, or repeal of any design specification shall bo ro%*iswod by the facility access unit. A petition requesting the adaption, amendment, or repeal of any design specification may bo submitted directly to the board. Submission of a petition directly to the board does not preclude review by the facility access unit. [Eff 3/11/91; am and comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-50 Dismissal of petitions

the board may dismiss any petition which requests the adoption, amendment, or repeal of any design specification if the petition fails to comply with the requirements of §11 217 46 of these rules.-[Eff2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-51 Written notices of petition.

—At the board1 o discretion and upon written notices to the petitioner, the board may provide written notification of the petition requesting the board to adopt, amend, or repeal any design specification to any—person or persons- for review and recommendations on the potitisn.—[Eff2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103.50)

§11-217-52 Commencement. A proceeding may be commenced by the board in its own discretion or upon the application of any interested person when the processing of such application necessitates such a proceeding. [Eff2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS §103 50)

§11-217-53 Docket.

the presiding officer or his

or her designee shall maintain a docket of all requested actions for adoption, amendment, or repeal of any design specification and each request shall be assigned a number. [Eff2/11/91) am and comp 7/28/95; am and comp 9/5/00;comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS S103 50)

§11-217-54 Appearance before the beard.

(a}—An individual may appear in their own behalf, and an officer or employee of any agency of the State or a political subdivision of the State may represent such agency in any proceeding before the board.

(b) A person may bo represented by or with counsel in any proceeding under these rules.

(e) A person shall not bo represented in any proceeding except as stated in subsections (a) and (b) of this section.

(d) when an individual acting in a representative capasity appears in person before the board, the personal appearance or signature shall constitute a representation to the board that under the previsions of these rules and the law, that the individual is authorised or agency who is represented the board may at any time require any person acting in a representative capacity to show proof of the authority and qualification toast in such capacity.

(e) No person who has been associated with the board as an officer, employee, or counsel thereof shall be permitted to appear before the board in behalf of, or to represent in any manner, any person in connection with any proceeding or matter which was ponding before the board at the time the person was associated with the board unless the person first have obtained the written concent of the presiding officer upon a verified showing that the person did not give personal consideration to the matter or proceeding as to which—consent is sought or gain particular knowledge of the facto thereof during the person's association with the board.

(f) No person appearing before the board in any proceeding or matter shall in relation thereto knowingly accept assistance from any person who would bo precluded by this section from appearing before—the board in such proceeding or matter [Eff 2/11/91; eemp-7/28/95; am and comp 9/5/00; comp 9/20/03) (Auth: HRS S34 8F 6)- (Imp: HRS §103 50)

§11-217-55 Substitution of parties,

Upon request and for good cause shown, the presiding officer may order substitution of par-tics, except that in case of death of a party, substitution may bo ordered without the filing of a motion. [Eff 3/11/91; comp 7/38/95; comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-56 conselidations

the presiding officer, in his or her own discretion or upon request, may consolidate and contemporaneously consider two or more gases which involve substantially the came parties, or issues which are the came or closely related, if ho or she finds that such consolidatisn or contemporaneous proceeding will be conducive to the proper dispatch of the board's business and to the ends of justice and will not unduly delay the proceedings. [Eff 2/11/91; am and comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS §103 50)

§11-217-57 intervention.

(a) Any person not a party to the action may sock to become a party by filing a request to intervene —the request shall state the grounds Upon which the person claims to have an interest in the proceeding. At least ton days before the—proceeding, the person shall file the motion with the board and shall servo the request upon all parties or their attorneys.

(b)The presiding officer may permit intervention if he or she determines

(1) That the person peeking to become a party shows that the party has an interest in a question of law or fact involved in -the matter or has a property or financial interest that may not bo adequately repropontcd by-existing parties; and (2) That intervention will- not unduly broaden the issues or delay the proceedings.

(e) the presiding officer may permit intervention to the extent and upon such terms as the presiding officer may doom proper. [Eff2/11/91; am and comp 7/2S/95 am and comp 9/5/00; comp 9/20/03] (Auth! HRS §310F 6) (Imp: HRS §103 50)

§11-217-58 Amendment of documents and dismissal.

If any document initiating, or filed in, a proceeding is not in substantial conformity with the applicable rules or regulations of the hoard as to the contents thereof, or is otherwise insufficient, the board in its discretion, or upon the request of any party, may strike or dismiss such document, or require its amendment. If amended, The document shall be effective as of the date of the -original filing. [Eff 2/11/91 —am and comp 7/38/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F-6) (Imp: HRS §103 50)

§11-217-59 Continuances or extension of time.

the time and place act in the notice of proceeding; however, the presiding officer may at such time and place continue the proceeding from day to day or adjourn the proceeding to a later day or to a different place without notices other than the announcement thereof at the proceeding. [Eff3/11/91; comp 7/38/95) am and comp 9/5/00; comp 9/20/03] (Auth: HRS §318F 6) (Imp: HRS §103 50)

§11-217-60 Dooisisn.

All final orders, opinions, or rulings entered by the board in a design specification proceeding shall bo served upon the parties or persons participating in the proceeding by mailing a certified copy of the decision and orders and accompanying findings and conclusions within a reasonable time to each party or to the attorney of record.-[Eff 2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103-50)

§11-217-61 retention of documents by the board.

Document retention shall bo in accordance with section 11 217 34. [Eff2/11/91; am and comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-62 Public information.

(a) unless otherwise provided by statute, rule or order of the board, all information contained in any pleading, submittal, petition, application, charge, statement, recommendation, report, map, exception, brief memorandum, or other document filed with the board shall bo available for inspection by the public after a final decision has boon issued.

(b)—When permitted or authorized by the board, matters of public record may bo inspected in the offices of the board during regular office hours. (Eff 2/11/91; am and comp 7/28/95; am and eomp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§§11-217-63 to 11-217-69 (Reserved)

SUBCHAPTER 5 INTERPRETIVE OPINIONS

§11-217-70 Scope.

Any interested person may file a request for an interpretive opinion as to the applicability of any prevision administered by the board or of any rule, order, or design specification of the board .-[Eff 2/11/91) comp 7/28/95) am and comp 9/5/00) comp 9/20/03] (Auth: HRS S348F 6) (Imp: HRS §103 50)

§11-217-71 Form of requests. All requests for an interpretive opinion shall bo in writing and shall include:

(1)The requestor's name, mailing address, and telephone number;

(2) The requestor's signature or the signature of the requestor's authorized representative or attorney)

(3) A designation of the specific provision, rule, design-standard, or order in question, together with a statement of the controversy or uncertainty involved)

(4) A statement of the requestor's interest in the subject matter, including the reason or reasons for submission of the request)

(5) A statement of the requestor's position or contention) and

(6) A memorandum of authorities containing a full discussion of reasons and legal authorities in support of the requester's position or contention.-[Eff2/11/91) comp

7/28/95) comp 9/5/00) comp 9/20/03] (Auth: HRS S318F 6) (Imp: HRS §103 50)

§11-217-72 Filing of requestnr

The requester shall file the original request for an interpretive opinion at the board's office,—[Eff2/11/91) am and comp 7/38/95) am and comp 9/5/00) comp 9/20/03) (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-73 Computation of time.

(a) Within thirty calendar days after the request is filed, the board shall:

(1) File a written ruling denying the request and stating the board's reason or reasons for the denial, (2) Initiate proceedings as provided under this chaptor| or

(3) Notify the petitioner of action to extend to allow time for full consideration.

(b)-in any event, the hoard shall send written notification of the board's action to the Petitioner by certified mail, return receipt requested-.-[Eff 2/11/91; comp 7/28/95 am and comp 9/5/00; comp 9/20/03] (Auth: HRS §310F 6] (Imp: HRS §103 50)

§11-217-74 Review by facility access unit.

The facility access unit shall review every petition requesting an interpretive opinion A petition requesting an interpretive opinion may be submitted directly to the board Submission of a petition directly to the board deep not preclude review by the facility access unit. [Eff 3/11/91; am and comp 7/ 28/ 95; am and comp 9/5/00? am and comp 9/30/03] (Auth: HRS §34OF 6) (Imp: HRS §103 SO)

§11-217-75 Dismissal of request

The board may dismiss any request, for an interpretive opinion which fails to comply with the requirement of § 217-71 of the rules. [Eff 2/11/91 comp 7/38/95; am and comp 9 /20/00; comp 9/30/03] [Auth: HRS §318F 6) (Imp: HRS §103 60)

§11-217-76 Written notice of request.

At the board's discretion and upon written notice to the requester. the board may provide written notification of the request for an interpretive opinion to any

person or persons for review and recommendations on the request. [Eff 2/11/91) comp 7/26/95; am and comp 9/5/00) comp 9/20/03] (Auth: HAS §34SF 6) (Imp: HAS §103 50)

§11-217-77 Commencement.

A proceeding may bo commenced by the board in its own discretion or upon the application of any interested person when the processing of such application necessitates ouch a proceeding. [Eff 2/11/91? comp 7/38/95) am and comp 9/5/00) comp 9/30/03] (Auth: HRS §34BF 6) (Imp: HRS S1Q3 50)

§11-217-78 Proceeding on request -

At its discretion, the board may hold an informal proceeding or a public proceeding on the request before the board files its written ruling on the request [Eff a/11/91)-comp 7/28/9G; am and comp 9/5/00? comp 9/20/03] (Auth: HRS §310F-6) (Imp: HRS §103 50)

§11-217-79 Docket

the presiding officer or bin or her. designee shall maintain a docket of all requested interpretive opinions and each request shall be assigned a number. [Eff2/11/91) am and comp 7/28/95; comp 9/5/00) comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-80 Appearance before the board

(A) As individual may appear in their own board, and an officer or employee of an agency of the State or a political subdivision of the State may represent such agency in any proceeding before the board.

(b) A person may bo represented by or with counsel in any proceeding under these rules.

(e) A person shall not be represented in any proceeding except as stated in subsections (a) and (b) of this section

(d) when an individual acting in a representative capacity appearance in person before the board, the personal appearance or signature shall constitute a representation to the board that under the previsions of these rules and the law, that the individual is authorized and qualified to represent the particular person or agency who is represented the board may at any time require any person noting in a representative capacity to show proof of the authority and qualification toast in such capacity.

(e) No person who has boon associated with the board as an officer employee, or counsel thereof shall bo permitted to appear before the -board in behalf of, or to represent in any manner, any person An connection with any proceeding or matter which was ponding before the board at the time the person was associated with the board unices the person first have obtained the written consent of the presiding officer upon a verified showing that the person did not give personal consideration to the matter of proceeding as fee which consent is sought or gain particular knowledge of the facts thereof during the person's association with the board.

(f) No person appearing before the board in any proceeding or matter shall in relation thereto knowingly accept assistance from any person who would be precluded by this section from appearing before the board in such proceeding or matter. [Eff2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 60)

§11-217-81 Consolidations.

The presiding officer, in his or her discretion or upon request, may consolidate and contemporaneously consider two or more cases which involve substantially the came parties,or issues which Are the same or closely related, if ho or oho finds that ouch consolidation or contemporaneous proceeding will bo conducive to the proper dispatch of

the board's business and to the ends of justice and will not unduly delay the proceedings. [Eff2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §34SF 6) (Imp: HRS §103 50)

§11-217-82 Continuanees or extension of time.

All interpretive opinion proceedings shall bo hold at the time and place set in the notices of proceeding; however, the presiding officer may at -such time and place continue the proceeding from day to day or adjourn the proceeding to a later day or to a different place without notice other than the announcement thereof at the proceeding. [Eff 2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-83 Decision.

All final orders, opinions, or rulings entered by the board in an interpretive opinion proceeding shall bo served upon the parties or persons participating in the proceeding by mailing a certified copy of the decision and orders and accompanying findings and conclusions within a reasonable time to each party or to the attorney of record. [Eff2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-84 retention of documents by the board -.

Document retention shall be in accordance with section 11 217 21. [Eff2/11/91; am and comp 7/28/95; am and

comp 9/5/00; comp 9/20/03] (Auth: HRS §348F 6) (Imp: HRS §103 50)

§11-217-85 Public information.

(a)Unless otherwise provided by statute, rules, or order of the

board, all information contained in any pleading, submittal; petition, application, charge, statement, recommendation, report, map, exception, brief, memorandum, or other document filed with the board shall bo available for inspection by the public after a final decision has boon issued.

(b) when permitted or authorised by the board, matters of public record may bo inspected in the offices of the board during regular office hours [Eff2/11/91; am and comp 7/28/95) am and comp 9/5/00; comp 9/20/03] (Auth: HRS §248F-6) (Imp) HRS §103-50)

§11-217-86 Interpretive opinion in board's discretion.

Nothing in this chapter shall operate to prevent the board, in its own discretion, from i§§uing an interpretive opinion to terminate a controversy or to remove uncertainty. [Eff2/11/91; comp 7/28/95; am and comp 9/5/00; comp 9/20/03] (Auth: HRS S3 48F-6) (Imp: HRS §103 50)

§§11-217-87 to 11-217-91 (Reserved)] Repealed. R NOV 25, 2013 ]

2. Material to be repealed is bracketed.

3. Additions to update source notes to reflect these amendments and compilation are not underscored.

4. The repeal of chapter 11-217, Hawaii Administrative Rules, shall take effect ten days after filing with the Office of the Lieutenant Governor.

I certify that the foregoing are copies of the rules, drafted in the Ramseyer format pursuant to the requirements of section 91-4.1, Hawaii Revised

Statutes, which were adopted on NOV 25, 2013 and filed with the Office of the Lieutenant Governor.

/s/________

LORETTA J. RUDDY A. C. W., M. P. H.

Director of Health

APPROVED AS TO FORM:

/s/________

Deputy Attorney General

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