110 CMR 10.13 - Fair Hearings - Subpoenas

(1) Department or Provider Employees.

(a) The Appellant shall be able to require the attendance of any Department or Provider employee(s) who can provide information relevant to the decision that the Appellant is appealing by submitting a written request to the Hearing Officer at least 15 calendar days before the hearing.

(b) If the requested employee is not available to testify, written notification must be provided to the Appellant at least five calendar days before the hearing, indicating the identity of another employee with direct knowledge of the challenged decision who will be present to testify at the hearing.

(c) If the employee is not available and notice is given to the Appellant, the Appellant may request a continuance until such time as the employee is available; however, if the Appellant requests such continuance the time requirement for scheduling as set for in 110 CMR 10.10 shall not apply.

(2) Other Persons.

(a) Child victims shall not be required to testify at a Fair Hearing, unless a compelling reason can be shown as to why the child's testimony is essential. In no event will a child be required to testify if the testifying will harm the child. Evidence demonstrating the harm shall be produced to the Fair Hearing Officer.

(b) Any party to a hearing shall have the right to subpoena witnesses and/or the production of documents pursuant to M.G.L. c. 30A, § 12(3). The party may have the subpoena issued in any way permitted by law or may request the Hearing Office to issue a subpoena. Any request that the Hearing Officer issue a subpoena must be made at least 15 calendar days prior to the scheduled hearing and must include the person's correct name and address. Upon the request of such subpoena, the Hearing Officer, the Director of Fair Hearings or designee may issue an Order to Quash such subpoena if it is determined that the subpoena is being used to intimidate, harass, is contrary to 110 CMR 10.13(2)(a), is overly burdensome or oppressive or lacks a reasonable period of notice. If such order issues, the Appellant may request the Hearing Officer, Director of Fair Hearings or designee to reconsider, provided said party submits additional information setting forth such facts as to why the subpoena should issue.

(c) In the event that a subpoena has been issued, any party or the person subpoenaed may file a written request with the Hearing Office to vacate or modify the subpoena pursuant to M.G.L. c. 30A, § 12(4). The Hearing Officer, Director of Fair Hearings or designee shall give notice of a request to vacate or modify the subpoena to all parties either orally or in writing. The notice shall recite the contents of the request or summarize the request. If time does not permit a party to respond to the request to vacate or modify the subpoena, the hearing on the merits shall be postponed long enough to permit the party to do so. No hearing on the request shall be required. Grounds to vacate or modify a subpoena shall include, but not be limited to, requests that are overly burdensome, seek privileged information, are irrelevant to the action, are unreasonable, or impose insufficient time for the party to comply.

(d) Pursuant to M.G.L. c. 30A, § 12(5), if any person fails to comply with a properly issued subpoena, which has not been vacated or modified by the Hearing Office, the party requesting the issuance of the subpoena may petition any justice of the superior court for an order requiring compliance with the terms of the subpoena.

Notes

110 CMR 10.13