SECTION 460:2-11-8. Procedure if 30-day decision requirement is not waived

  If the applicant for expedited review of a Section 776 or 777 order of cessation does not waive the 30-day decision requirement of Section 786B of the act, the following special rules shall apply:

(1)   The applicant shall serve all known parties with a copy of the application simultaneously with the filing of the application with the OHA. If service is accomplished by mail, the applicant shall inform all known parties by telephone at the time of mailing that an application is being filed and shall inform the hearing examiner by telephone that such notice has been given. However, no ex parte communication as to the merits of the proceeding may be conducted with the hearing examiner.

(2)   Any party desiring to file a response to the application for review shall file a written response with 5 working days of service of the application.

(3)   If the applicant has requested a hearing, the hearing examiner shall act immediately upon receipt of the application to notify the parties of the time and place of the hearing at least 5 working days prior to the hearing.

(4)   The hearing examiner may require the parties to submit proposed findings of fact and conclusions of law at the hearing which may be orally supplemented on the record at the hearing, or where proposed findings of fact and conclusions of law have not been submitted at the hearing, they may be orally presented for the record at the hearing.

(5)   The hearing examiner shall make an initial decision. He shall either rule from the bench on the application, orally stating the reasons for his decision or he shall issue a written decision. If the hearing examiner makes an oral ruling, his approval of the record of the hearing shall constitute his written decision. The decision of the hearing examiner must be issued within 15 days of the filing of the perfected application under 460:2-11-5.

(6)   If any party desires to appeal to the Director, such party shall:

(A)   If the hearing examiner makes an oral ruling, make an oral statement, within a time period as directed by the hearing examiner, that the decision is being appealed and request that the hearing examiner certify the record to the Director; or

(B)   If the hearing examiner issues a written decision after the close of the hearing, file a notice of appeal with the hearing examiner and with the Director within 2 working days of receipt of the hearing examiner's decision.

(7)   If the decision of the hearing examiner is appealed, the Director shall act immediately to issue an expedited briefing schedule, and the Director shall act expeditiously to review the decision of the Director must be issued within 30 days of the date the perfected application is filed with the OHA pursuant to 460:2-11-5.

(8)   If all parties waive the opportunity for a hearing and the hearing examiner determines that a hearing is not necessary, but the applicant does not waive the 30-day decision requirement, the hearing examiner shall issue an initial decision within 15 days of receipt of the application. The decision shall contain findings of fact and an order disposing of the disposing of the application. The decision shall be served upon all the parties and the parties shall have 2 working days from receipt of such decision within which to appeal to the Director. The Director shall issue his decision within 30 days of the date the perfected application is filed with the OHA pursuant to 460:2-11-5.

(9)   If at any time after the initiation of this expedited procedure, the applicant requests a delay or acts in a manner as to frustrate the expeditious nature of this proceeding or fails to comply with any requirement of 460:2-11-8(a), such action shall constitute a waiver of the 30-day requirement of Section 786B of the act.

(10)   If the applicant seeks to offer witnesses, exhibits, or testimony at the hearing in addition to those identified, submitted, described, or summarized in the application for expedited review perfected in accordance with the requirements of 460:2-11-5, upon objection by an opposing party to such offer, the hearing examiner may allow such objecting party additional time in order to prepare for cross- examination of unidentified witnesses or to identify and prepare for cross-examination of unidentified witnesses or to identify and prepare rebuttal evidence or otherwise unidentified witnesses or to identify and prepare rebuttal evidence or otherwise uncover any additional prejudice which may result to such party. The hearing examiner may rule that the running of the 30-day time for decision is stayed for the period of any additional time allowed pursuant to this subsection or may determine that the applicant has waived his right to the 30-day decision.