Hawaii Statutes 11-1

8/14/2019 Hawaii Statutes 11-1

http://slidepdf.com/reader/full/hawaii-statutes-11-1 1/37



DEPARTMENT OF HEALTH

State of Hawaii Public Health Regulations “Rules ofPractice and Procedure”, REPEALED[ ]



11-2

§11-1-27 Communications with hearings officer andfinal decision maker

§11-1-28 Filing of documents

§11-1-29 Amendment of documents and dismissal§11-1-30 Retention of documents by the department§11-1-31 Public access; documents and hearings.§11-1-32 Representation and appearances before the

department§11-1-33 Substitution of parties§11-1-34 Consolidation and severance§11-1-35 Intervention§11-1-36 Prehearing conferences§11-1-37 Motions§11-1-38 Evidence

§11-1-39 Subpoenas of witnesses§11-1-40 Continuance of contested case hearing§11-1-41 Defaults, dismissals, and summary decisions.§11-1-42 Proposed and final decisions; exceptions and

argument§11-1-43 Transcripts; fees; corrections§§1-1-44 to 11-1-50 (Reserved)

Subchapter 3 Rulemaking

§11-1-51 Petitions for adoption, amendment or repealof rules§11-1-52 Notices of proposed rulemaking§11-1-53 Conduct of hearings§11-1-54 [deleted: Emergency rulemaking]§§1-1-54 to 11-1-60 (Reserved)

Subchapter 4 Declaratory Orders

§11-1-61 Petitions for declaratory orders§§11-1-62 to 11-1-70 (Reserved)



§11-1-1

11-3

SUBCHAPTER 1

GENERAL PROVISIONS

§11-1-1 Statement of scope and purpose. (a)This chapter governs the practice and procedure beforethe department of health, State of Hawaii, providedthat an attached entity may adopt and shall begoverned by its own specific rules of practice andprocedure if it has rulemaking authority, and providedthat the director may adopt more specific rules ofpractice and procedure for any specific program, andthose more specific rules shall govern the practiceand procedure in proceedings for that program. Where

such specific rules fail to cover particular practicesand procedures, then these rules shall apply.

(b) These rules shall be construed to secure thejust, speedy, and inexpensive determination of everyproceeding authorized by law to be brought before thedepartment or any attached entity. Whenever thischapter or the specific rules of any program orattached entity are silent on a matter, the directoror hearings officer may refer to the Hawaii Rules ofCivil procedure for guidance.

(c) To the extent necessary, these rules shall

be interpreted to preserve the authority of thedepartment and State to administer programs underfederal law for which the department has primaryenforcement authority, authority to administer aprogram, or is delegated administration of a federallycreated program, provided that the department or Statemeets minimum federal requirements.[Eff 2/14/2005 ] (Auth: HRS §321-9, §91-2) (Imp:HRS §91-2, §321-9, chapters 333F {Dev. Dis.}, 340E{drinking water}, 340F {public water system operatorcertif.}, 342B {air pollution}, 342D {waterpollution}, 342J {hazardous waste}, 342L {used oil},342P {asbestos}, 346 {DHS welfare/MEDICAID})



§11-1-3

11-4

§11-1-2 Seal of the department of health.a) The official seal of the department of healthshall be circular in shape, two and one-fourth inches

in diameter. At the curve on the top portion thereshall be the words "DEPARTMENT OF HEALTH" and at thecurve on the bottom portion there shall be the words"STATE OF HAWAII." At the curve on each side portionshall be a star. In the center of the seal shall bethe Caduceus, a winged rod entwined with two serpents,which has long been recognized as a universal symbolof medicine. The Caduceus shall be encircled by anindentation, which shall separate it from the words"DEPARTMENT OF HEALTH" and "STATE OF HAWAII." Forillustrative purposes, a black and white drawing of

the official seal is attached at the end of thissection as Exhibit "A," titled "Seal of the Departmentof Health," and dated November 1, 1988, and made apart of this section.

(b) The official seal of the department ofhealth shall be embossed near the signature of thedirector of health to verify commissions ofappointment of deputy directors and notaries public,certificates, and other formal official documents onwhich the official seal has been customarily used oris appropriate to be used, as the director of health

may determine on a case-by-case basis.(c) The seal of the department of health mayalso be reproduced, in either an enlarged or a reducedsize, on official stationery, reports, certificates,equipment, supplies, uniform insignia, and otherobjects and items to be used or produced by thedepartment of health, but the reproduction and use ofthe seal shall always be subject to the exclusivecontrol of the director of health.[Eff 2/14/2005 ] (Auth: HRS §§321-9, 91-2) (Imp:HRS §§321-9, 91-2)

§11-1-3 Definitions. As used in this chapter,unless the context clearly requires otherwise:



§11-1-3

11-5

“Agency” means a state or county board, office, commission, department, or officer authorized by lawto make rules or to adjudicate contested cases, except

those in the legislative or judicial branches.“Attached entity” means an administrative office,

agency, board, or commission placed or establishedwithin or administratively attached to the department.

“Complainant" means the person or entity uponwhose complaint action by the department isinstituted.

“Complaint” refers to a notice of violation,finding of violation, order or such other document bywhich the department, a person, or agency startsaction against any person or entity.

“Contested case” means a proceeding in which thelegal rights, duties, or privileges of specificparties are required by law to be determined afteropportunity for a hearing.

“Day” means calendar day unless otherwisespecified.

“Declaratory order” means a determination by thedirector as to the applicability of any rule or orderof the department or of a statute, which thedepartment is required to administer or enforce.

“Department” means the department of health,State of Hawaii, including attached entities.

“Director” means the director of health.“Final decision maker” means the individual or

entity with the authority to render and issue a finaldecision and order, and final findings of fact andconclusions of law in a contested case.

“Hearings officer” means the individual or entitydesignated to conduct hearings by the director.

“Party” means each person or agency named oradmitted as a party, or properly seeking and entitledas of right to be admitted as party, in an agencyproceeding.

“Persons” includes individuals, partnerships,

corporations, associations, or public or privateorganizations of any character other than agencies.

“Petition” refers to a document used to request adeclaratory ruling or rulemaking.



§11-1-4

11-6

“Petitioner” means a person or agency making oron whose behalf a petition is made for a declaratoryruling as to the applicability of any statutory

provision or of any department rule or order, or forrulemaking, including the adoption, amendment, orrepeal of any department rule.

“Respondent” means the party in a contested caseagainst whom the complaint is filed, any party againstwhom relief is being sought, or any party who contestsor controverts a proceeding initiated by anotherparty.

“Rulemaking” means any formal action for theadoption, amendment, or repeal of any rule of thedepartment. [Eff 2/14/2005 ] (Auth: HRS §§91-2,

'321-9) (Imp: HRS §91-1, 91-2)

§11-1-4 The department; office; hours; filings;communications. (a) Office. The principal office ofthe department is in Honolulu, Hawaii.

(b) Office hours. The offices of the departmentshall be open from 7:45 a.m. to 4:30 p.m., Mondaythrough Friday, except on state holidays, unlessotherwise provided by statute or executive order.

(c) Filing of documents. All documents andwritten communications required by this chapter orother law to be filed with the department shall bemailed to:

Director of Health,Department of Health,State of Hawaii,P. O. Box 3378,Honolulu, Hawaii 96801,

or by hand delivery to:

Director of Health,Department of Health,State of Hawaii,1250 Punchbowl Street, Third Floor,



§11-1-4

11-7

Honolulu, Hawaii 96813,

unless otherwise specified by the department.

(d) Filing shall meet the time limits prescribedby statute, rule, or order of the director or thedepartment, unless otherwise specified by thedepartment. The date when the department actuallyreceives a document is the date of filing.

(e) The department may authorize facsimilefiling for specific purposes and specify the means andfiling date. If authorized and if the means andfiling date are not otherwise specified, facsimilefiling:

(1) Is effective if:

(i) The entire document, including anyattachment or exhibit, is transmittedto and received at the proper facsimilephone number without error, and

(ii) The entire document includes a coversheet which states the specificindividual, branch, or division to whomthe transmission is addressed, theindividual who sent it, the number ofpages of the document, and anyapplicable docket number; and

(2) Is complete upon receipt of the entiredocument at the proper facsimile numberbefore 4:30 p.m. on a normal state workday.When any part of the document is receivedafter 4:30 p.m., then filing occurs on thenext normal state workday.

(f) The department may authorize electronicfiling, and specify the means and filing date. Ifauthorized and if the means and effective date are nototherwise specified, electronic filing:

(1) Is effective if:(i) The entire document, including any

attachment, is transmitted to andreceived at the electronic mailaddress without error, and

(ii) The entire document states the nameof the specific individual, branch,



§11-1-4

11-8

or division to whom the transmissionis addressed, the individual fromwhom it is sent, the number of pages

of the document in its originalformat, and any applicable docketnumber;

(2) Is complete upon receipt of the entiredocument at the proper electronic mailaddress before 4:30 p.m. on a normal stateworkday. When the receipt concludes after4:30 p.m., then filing occurs on the nextnormal state workday; and

(3) Is in a format that the department caneasily read.

(g) Senders of facsimiles and electronic mail tothe department assume the entire risk of problems withthe transmission or receipt of their documents,including equipment and system problems, powerinterruptions, difficulties in conversion betweendifferent word processing programs, and differencesbetween department clocks and senders’ clocks.

(h) The department may at any time refuse toaccept facsimile or electronic filing, despite priorauthorization, to prevent actual or suspected damageor loss to equipment or phone, electronic, or other

systems.(i) In addition to statutorily required means ofnotice, the department may send official notices andother communications by mail, facsimile transmission,electronic mail transmission, or Internet websiteposting, and such notices and communications by thedepartment shall be complete upon mailing,transmission, or posting.

(j) The department shall provide opportunitiesfor effective communications with persons withdisabilities consistent with existing state andfederal legal requirements.

(k) The department shall provide opportunitiesfor effective communications with non-English speakingpersons consistent with existing state and federallegal requirements.

(l) The department shall maintain, as needed, a



§11-1-6

11-9

durable record of any facsimile, electronic, Internetwebsite notice or other communication between thedepartment and the public. The department shall

preserve, as needed, audio and video recordings takenof public department proceedings, or a transcript ofsuch recordings.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9) (Imp:HRS §§80-1, 91-2)

§11-1-5 Public records. Records of thedepartment shall be available for inspection duringestablished business hours, pursuant to chapter 92F,HRS, rules adopted under that chapter, and any other

applicable laws. [Eff 2/14/2005 ] (Auth:HRS §§91-2, 321-9) (Imp: HRS §91-2, ch. 92F, ch. 323C,§325-101, §334-5)

§11-1-6 Public notices for variances or permits.(a) For variances or permits for which costs andpublic notice procedures are not already provided forin title 11, HAR, or statutes, the department mayrequire an applicant for a permit, variance, or

similar action to pay all costs related to theprocessing of the application. Costs may includeprocessing fees, hearing costs, and costs related topublishing the required public notices.

(b) When a public notice in a newspaper isrequired, and the director has determined that theapplicant shall pay all costs related to publishingthe notice, the applicant shall make payment directlyto the newspaper publishing the notice.

(c) The public notice shall appear in anewspaper of statewide general circulation or a

newspaper of county general circulation published inthe county in which the project or activity isproposed, at the department’s direction.

(d) In addition to newspaper publication, thepublic notice may be published electronically. Thedepartment may require an applicant to submit an



§11-1-7

11-10

electronic version of the public notice in a formatsuitable for the department to publish in anelectronic manner.

(e) The public notice shall include at least thefollowing:

(1) The name, address, and phone number of theagency issuing the public notice;

(2) The name and address of the applicant;(3) A brief description of the applicant's

project or activity and its location(s);(4) A brief description of the procedures for

the formulation of final determinations,including the specified comment period andother means by which interested persons may

comment upon those determinations; and(5) The address and phone number of the state

agency premises where interested persons mayobtain further information and may inspect acopy of the application and relatedmaterials.

(f) The public notice shall be reviewed andapproved by the department before publication and mustappear in the newspaper in the approved form.

(g) The applicant shall obtain an affidavit fromthe newspaper specifying the date the notice appeared

in the newspaper and make a copy of the affidavitavailable to the department.(h) The department should make information

regarding the proposed project or activity availablefor inspection in the county where the applicant'sproject or activity is being proposed. The departmentneed not make all records relating to the proposal orproject available for inspection in that county. [Eff2/14/2005] (Auth: HRS §§91-2, 321-9, 321-11.5) (Imp: HRS§§91-2, 321-9, 321-11.5)

§11-1-7 Computation of time. In computing anyperiod of time prescribed or allowed by these rules orby order of the department, the day from which theperiod runs is excluded and the last day is included.



§11-1-10

11-11

The period shall be extended, if necessary, to ensurethat the last day falls on a normal State workday.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9)

(Imp: HRS §§91-2, 321-9)

§11-1-8 Extension of time. Whenever a person oragency has a right or is required to take actionwithin the period prescribed or allowed by theserules, by notice given under the rules, or by anorder, the department, or hearings officer in acontested case, may:

(1) Before the expiration of the prescribed

period, with or without notice, extend suchperiod; or

(2) Upon motion, permit the act to be done afterthe expiration of a specified period whenthe failure to act is reasonably shown to beexcusable. [Eff 2/14/2005 ](Auth: HRS §§91-2, 321-9) (Imp: HRS §§91-9, 321-9)

§11-1-9 Severability. If any provision of thischapter or the application thereof to any person orcircumstance is held invalid, the invalidity does notaffect other provisions or applications of thischapter which can be given effect without the invalidprovision or application, and to this end theprovisions of this chapter are severable. [Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9) (Imp: HRS §91-2)

§11-1-10 Videoconferences. (a) The departmentmay conduct meetings and hearings by videoconference.

(b) Public meetings held by videoconference byattached entities are subject to section 92-3.5, HRS.

(c) Before the videoconference of a contestedcase hearing, the hearings officer shall arrange a



§11-1-22

11-12

procedure for the videoconference, including theexchange and presentation of exhibits.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 92-3.5, 321-

9) (Imp: HRS §§91-2, 91-9, 92-3.5, 321-9)

§§11-1-11 to 11-1-20 (Reserved)

SUBCHAPTER 2

GENERAL PROCEDURES FOR CONTESTED CASES

§11-1-21 General. (a) Procedures to be

followed by the department shall, unless specificallyprescribed in this chapter or by chapter 91, HRS, orother statutory provisions, be such as in the opinionof the department will best serve the purposes of suchhearings. Cases shall be conducted fairly andimpartially.

(b) Any procedure in a contested case may beagreed to, modified, or waived by stipulation of theparties, and informal disposition may be made of all orpart of any contested case by stipulation, settlement,consent order, or default.

(c) The department may voluntarily withdraw or

dismiss a case it brings, and any other party mayvoluntarily withdraw or dismiss a case upon order ofthe department and upon such terms and conditions thatthe department deems proper. [Eff 2/14/2005 ](Auth: HRS §§91-2, 321-9) (Imp: HRS §§91-9, 321-9)

§11-1-22 Hearings; scheduling; requests andcomplaints; notice. (a) The department may schedulea contested case hearing on its own initiative or may

schedule one when required by law based upon acomplaint.

(b) A complaint may set or request a hearing andshall contain concise statements of:



§11-1-24

11-13

(1) The legal authority under which theproceeding, hearing, or action is to be heldor made;

(2) The disagreement, denial, grievance, orother matter that is being contested by thecomplainant;

(3) The facts and issues raised; and(4) The relief requested.

The department may prepare and require the use offorms that may be substituted for any complaint.

(c) No hearing on a contested case shall be helduntil due notice is given to all parties as providedin sections 91-9 and 91-9.5, HRS.

(d) Within the time specified in the complaint, a

respondent may request a contested case hearing andshall notify the department of such request inwriting.

[Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9)(Imp: HRS §§91-2, 91-9, 91-9.5)

§11-1-23 Docket. The department shall maintaina docket of all contested cases, and each case shallbe assigned a number. [Eff 2/14/2005 ] (Auth:

HRS §91-2, 321-9) (Imp: HRS §91-2, 91-9)

§11-1-24 Hearings officer; duties and powers.(a) The director or attached entity may act as thehearings officer and personally conduct the hearing ofa contested case or may appoint a representative to bethe hearings officer. The hearings officer shallconduct the hearing and any related pre-hearing andpost-hearing activities as may be required orappropriate.

The director or attached entity shall be thefinal decision maker unless the director or attachedentity delegates that responsibility.

(b) In any contested case, the hearings officermay:



§11-1-24

11-14

(1) Give notice of a prehearing conference orthe hearing and any continuation of aconference or the hearing;

(2) Require that a complaint be answered or bemade more definite;

(3) Impose time limits on any phase or aspect ofthe proceedings;

(4) Issue subpoenas for people, documents, andthings as authorized by law;

(5) For good cause shown, upon motion or thehearings officer’s own initiative, order aparty to produce non-privileged evidence,and may draw inferences against the party ifthe evidence is not produced without good

cause being shown;(6) Administer oaths;(7) Examine witnesses and inspect sites;(8) Certify official documents and acts;(9) Rule on motions, requests, and offers of

proof;(10) Admit, receive, and exclude evidence;(11) Regulate the course and conduct of the

hearing and related proceedings, including:(i) Allowing or directing the use of

telephone or videoconference meetings,

hearings, and testimony;(ii) Regulating the manner of anyexamination of a witness to preventharassment or intimidation and orderingthe removal of disruptive individuals;

(iii)Specifying the time, place, and methodof filing documents;

(12) Enter such orders and rulings against anyparty who fails to comply with these rules orany other order of the hearings officer,including without limit orders under section11-1-36(c); and

(13) Perform such other functions and duties, andissue such orders necessary for the properconduct of the hearing and the resolution ofthe case.

(c) Any provision of this chapter may besuspended or waived by the department or by the



§11-1-25

11-15

hearings officer before whom the matter is heard, toprevent undue hardship in any particular instance.

(d) The hearings officer may engage the services

of a stenographer, or someone similarly skilled, totake a verbatim record of the evidence presented atany hearing. If a stenographer or other person ofsimilar skill is not engaged, the hearings officershall have the hearing recorded by audiotape,videotape, or comparable means.

(e) Except as provided for under subsection(b)(5), the hearings officer shall not order orapprove civil style discovery against non-parties; andunless stipulated to by all parties, the hearingsofficer shall not order or approve civil style

discovery between parties. Civil style discoveryrefers to procedures initiated by parties underjudicial rules of civil procedure, specificallyincluding but not limited to, depositions on oral orwritten questions, written interrogatories, requestsfor production of documents or things, requests toenter land or other property, physical and mentalexaminations, and requests for admissions.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 92-16, 321-9)(Imp: HRS §§91-9, 91-10, 91-11, 91-12, 92-16)

§11-1-25 Disqualification. (a) A hearingsofficer, director, or member of an attached entity isdisqualified from hearing or deciding a contested caseif the hearings officer, director, or member of theattached entity:

(1) Has a substantial financial interest asdefined by section 84-3, Hawaii RevisedStatutes, in a business or other undertakingthat will be directly affected by thedecision of the contested case;

(2) Is related within the third degree by bloodor marriage to any party to the proceedingor any party's representative or attorney;

(3) Has participated in the investigationpreceding the institution of the contested



§11-1-26

11-16

case proceedings or has participated in thedevelopment of the evidence to be introducedin the hearing; or

(4) Has substantially participated in making thedecision or action contested; or

(5) Has a personal bias or prejudice concerninga party or matter that will prevent a fairand impartial decision involving that partyor matter.

(b) A hearings officer, director, or member ofan attached entity shall withdraw from furtherparticipation in the proceedings upon discovery of adisqualifying conflict of interest or bias if thefactual circumstances are undisputed. If the

allegation of a disqualifying conflict of interest orbias is not clearly substantiated, the allegedlydisqualified individual need not voluntarily withdraw,and the party seeking the disqualification may file amotion to disqualify.

(c) A motion to disqualify shall be filedpromptly after discovery of the alleged disqualifyingfacts. The motion shall be filed first with thechallenged hearings officer, director, or attachedentity, which shall rule on the motion.

(d) If a hearings officer appointed by thedirector or attached entity is disqualified, the

director or attached entity shall appoint anotherrepresentative to serve as the hearings officer. Ifthe director or attached entity is disqualified, thedirector or attached entity shall appoint anotherrepresentative to serve as the hearings officer, finaldecision maker, or both. [Eff 2/14/2005 ] (Auth:HRS §91-2) (Imp: HRS §§84-14, 91-9)

§11-1-26 Substitute hearings officers. If a

hearings officer is absent from a scheduled hearing,is incapacitated from performance of duty, or forother good cause, the director or attached entity mayappoint another representative to serve as asubstitute hearings officer without abatement of the



§11-1-28

11-17

proceedings. [Eff 2/14/2005 ] (Auth: HRS §91-2)(Imp: HRS §91-9)

§11-1-27 Ex parte communications with hearingsofficer and final decision maker. (a) No personshall have ex parte communications with the hearingsofficer or final decision maker regarding anysubstantive or disputed factual or legal matter to beheard or decided with the intent, or the appearance ofthe intent, to influence the decision of the hearingsofficer or final decision maker, unless all of theparties to the proceedings are given notice of

communication and an opportunity to also communicatewith the hearings officer or final decision maker.

(b) If a communication is made privately withthe hearings officer or final decision maker inviolation of subsection (a), the hearings officer orfinal decision maker shall disclose the communicationto all parties on the record and afford all parties anopportunity to respond to, refute, or otherwisecomment on the ex parte communication.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9) (Imp:HRS §§91-9, 91-13)

§11-1-28 Filing of documents. (a) Allpleadings, submittals, complaints, petitions,applications, charges, reports, maps, exceptions,briefs, memorandums, and other papers required to befiled in any contested case shall be filed as requiredin section 11-1-4(c), unless otherwise specified, andshall comply with the time limit, if any, set forth inany statute, rule, or order for that filing. The dateon which the papers are actually received by thedepartment is the date of filing, unless otherwiseprovided under subsection (g).

(b) Complaints, notices of violation and orders,and similar documents may be issued by branches of thedepartment in enforcement cases without first filing



§11-1-28

11-18

under subsection (a), but the original document shallbe transmitted to the hearings officer after a hearingis requested and the hearings officer is appointed.

(c) All papers filed with the department shall bewritten in black ink, typewritten, photocopied, orprinted, shall be plainly legible, and shall be onstrong durable paper, no larger than 8-1/2" x 11" insize, except that tables, maps, charts and otherdocuments may be larger, but shall be folded, ifpossible, to the size of the documents to which theyare attached.

(d) All papers must be signed in indelible ink bythe party or the party's fully authorized agent orattorney. The signature constitutes a certificationthat the person has read the document; that to the bestof person's knowledge, information and belief everystatement contained in the document is true and no suchstatements are misleading; and that the document is notinterposed for improper purpose, such as harassment,unnecessary delay, or increase in cost.

(e) Unless otherwise specifically provided by aparticular rule or order of the department, anoriginal and one copy of all papers shall be filed.Properly authenticated copies of documents may bereceived in evidence and attached to papers filed withthe department.

(f) The initial document filed by any party in

any proceeding shall state on the document’s firstpage the name, mailing address, phone number, andfacsimile number of the individual or individuals whomay be served with any documents filed in theproceeding. All documents filed afterwards shallcontain a certification by the party filing thedocument that a copy was served on the opposing party.The certification shall contain the name and addressof the person served; the method of service (i.e.,personal service, U.S. mail, postage prepaid, courier,etc.) the date service was or will be made, and thecertification shall be signed by the party making theservice. If an attorney represents a party, thedocument shall be served upon the party’s attorney atthe attorney’s business address.

(g) In a specific case under a hearings officer’sjurisdiction, the hearings officer may authorize



§11-1-30

11-19

facsimile or electronic filing and service ofdocuments and may specify the means and effectivefiling dates. The hearings officer shall require that

any facsimile or electronic documents be sufficientlylegible and authentic and have a signature equivalent,and the hearings officer may require thecontemporaneous or later submission of the originalsigned paper versions. The hearings officer shallprovide that a durable paper record of any facsimileand electronic communications be maintained as needed.

(h) The hearings officer may direct, or uponrequest, permit ex officio filing of documents atdepartment of health branch and district offices. Anysuch documents filed ex officio shall be promptly

transmitted to the hearings officer by the branch ordistrict office where the original was filed. [Eff 2/14/2005 ] (Auth: HRS §91-2, 321-9 (Imp:HRS §91-2, 91-9)

§11-1-29 Amendment of documents and dismissal.(a) If any document initiating, or filed in, a

contested case is not in substantial conformity withthe applicable rules of the department as to the

contents of the document, or is otherwiseinsufficient, the department, on its own motion or onmotion of any party, may reject or dismiss thedocument or require its amendment.

(b) If amended under subsection (a) orotherwise, a document shall be effective as of thedate of the original filing. [Eff 2/14/2005 ](Auth: HRS §§91-2, 321-9) (Imp: HRS §91-2, 91-9)

§11-1-30 Retention of documents by thedepartment. (a) All documents filed with orpresented to the department may be retained in thefiles of the department. Documents, which are part ofa contested case record, shall be retained at leastuntil the time for any appeal has expired. However,



§11-1-32

11-20

the department or a hearings officer may permit thewithdrawal of original documents upon submission ofproperly authenticated copies as replacements.

(b) The hearings officer or department shallmaintain a durable paper record of any facsimile orelectronic communication, which is part of thecontested case record. [Eff 2/14/2005 ] (Auth:HRS §§91-2, 321-9) (Imp: HRS §91-9)

§11-1-31 Public access; documents and hearings.(a) Documents filed with the department in a

contested case shall be available for public

inspection under section 11-1-5.(b) Hearings shall be open to the public unless

otherwise provided by law. Prehearing and posthearing conferences shall be closed to the public.Hearings may be closed to the public for the timenecessary to address information and documents thatare confidential pursuant to law.

(c) Confidential treatment may be requestedwhere authorized by statute or rule. For good causeshown, the hearings officer may grant such a request.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9) (Imp:

HRS §91-9)

§11-1-32 Representation and appearances beforethe department. (a) An individual may appear in theindividual's own behalf; a general partner of apartnership may represent the partnership; a bona fideofficer, trustee, or managerial level employee of acorporation, trust, or association may represent thecorporation, trust or association; the manager of amanager-managed limited liability company and a memberof a member-managed limited liability company mayrepresent the limited liability company; and anofficer or employee of an agency of the state or apolitical subdivision of the state may represent thatagency in any hearing before the department. A legal



11-1-32

11-21

guardian may appear on behalf of a ward, within thescope of the guardian’s duties, and a parent mayappear on behalf of his or her minor child, unless the

parent’s rights have been terminated by court order.(b) In any hearing under these rules, a party may

be represented by a lawyer or lawyers qualified topractice before the Supreme Court of Hawaii or anattorney who is allowed to appear pro hac vice. Anyattorney actively licensed to practice law by thehighest court of a state or territory of the UnitedStates or District of Columbia who is not a residentof or regularly employed in the State of Hawai’i maybe permitted to associate himself or herself with amember or members of the Hawai’i bar in the

presentation of the specific contested case at thediscretion of the hearings officer or final decisionmaker.

(c) A party shall not be represented in anyhearing except as stated in subsections (a) and (b).

(d) An individual’s personal appearance orsignature on a document filed with the departmentconstitutes a representation that the individual isauthorized and qualified to represent the particularparty on whose behalf the individual claims or appearsto act. The department may at any time require any

individual acting in a representative capacity toprove the individual’s authority and qualification toact in that capacity.

(e) No past officer, employee, or lawyer of thedepartment shall in any manner represent or appear onbehalf of any person regarding any matter orproceeding which was pending before the departmentwhen the individual was associated with thedepartment, unless the individual first obtains thedirector’s written consent. To obtain that consent,the individual shall submit a sworn statement showingthat the individual did not personally consider orgain particular knowledge of the facts of the matteror proceeding during the individual’s association withthe department.

(f) No individual appearing before thedepartment in any proceeding or matter shall knowingly



§11-1-35

11-22

accept assistance from another individual regardingthat proceeding or matter, if the second individualwould be precluded by this section from appearing

before the department in such proceeding or matter.[Eff 2/14/2005 ] (Auth: HRS §91-2, 321-9)(Imp: HRS §§91-9)

§11-1-33 Substitution of parties. Upon motionand for good cause shown, the hearings officer mayorder substitution of parties, except that when anindividual party dies or a government officer isreplaced, substitution may be ordered without the

filing of a motion. [Eff 2/14/2005 ] (Auth: HRS§§91-2, 321-9) (Imp: HRS §91-9)

§11-1-34 Consolidation and severance. (a) Thehearings officer, upon the officer's own initiative orupon motion, may consolidate for hearing or for otherpurposes or may contemporaneously consider two or moreproceedings that involve substantially the sameparties, or issues that are the same or closely

related, if the hearings officer finds that theconsolidation or contemporaneous hearing will beconducive to the proper dispatch of the business ofthe department and to the ends of justice and will notunduly delay or harm the proceedings.

(b) The hearings officer, upon the officer's owninitiative or upon motion, for good cause, may orderany proceedings severed with respect to any or allparties or issues. [Eff 2/14/2005 ] (Auth: HRS§91-2, 321-9) (Imp: §91-9)

§11-1-35 Intervention. (a) Any person oragency not a party to the contested case hearing mayseek to become a party by filing a motion for leave tointervene. The motion shall state the grounds upon



§11-1-36

11-23

which the person or agency claims to have an interestin the proceeding. The person or agency shall filethe motion at least ten days before the hearing and

shall serve the motion upon the hearings officer andall parties or their attorneys. Motions forintervention will be granted to persons or agenciesproperly seeking and entitled as of right to beadmitted as a party; otherwise, at the discretion ofthe hearings officer, they may be denied. As ageneral policy, such motions shall be denied unlessthe person or agency shows that it has an interest ina question of law or fact involved in the contestedmatter and the disposition of the contested case mayas a practical matter impair or impede the applicant’s

ability to protect that interest, unless theapplicant’s interest is adequately represented byexisting parties.

(b) The hearings officer may permit interventionto such an extent and upon such terms as the hearingsofficer may deem proper and shall consider whether theintervention will unduly delay or prejudice theadjudication of the rights of the original parties.[Eff 2/14/2005 ] (Auth: HRS §91-2, 321-9) (Imp:HRS §91-9)

§11-1-36 Prehearing conferences. (a) Thehearings officer may order and hold prehearingconferences with the parties to formulate or simplifyissues, obtain stipulations of facts, arrange theexchange of proposed exhibits or written testimony,set schedules, exchange names of witnesses, limit thenumber of witnesses, and determine such other mattersas may expedite the orderly conduct and disposition ofthe case as permitted by law.

(b) The hearings officer may request memorandasetting forth the issues, facts, and legal argumentsupon which the parties intend to rely, and thehearings officer may fix the conditions and time forthe filing of memoranda and the number of pages.Exhibits may be reproduced in an appendix to a



§11-1-37

11-24

memorandum. A memorandum of more than twenty pages,exclusive of exhibits, shall contain a table ofcontents and table of authorities.

(c) If a party fails to abide by any prehearingor other order of the hearings officer or finaldecision maker, the hearings officer or final decisionmaker may enter an order refusing the disobeying partyfrom supporting or opposing claims or defenses, orprohibiting the disobeying party from callingwitnesses and/or introducing designated matters intoevidence. [Eff 2/14/2005 ] (Auth: HRS §§91-2,321-9) (Imp: HRS §91-9)

§11-1-37 Motions. (a) All motions, other thanthose made during a hearing, shall be made in writingto the hearings officer, shall state the reliefsought, and shall be accompanied by an affidavit,declaration, or memorandum setting forth the groundsupon which they are based. The hearings officer shalldetermine whether a motion shall be heard or decidedupon written submissions, and may set the time forhearing and opposing memorandum, if any.

(b) Unless otherwise specified by the hearings

officer, the moving party shall serve a copy of allmotions on the hearings officer and all other partiesnot less than ten working days before any hearing

(c) Unless otherwise specified by the hearingsofficer, a memorandum in opposition or a counteraffidavit or declaration may be filed and served onall parties not later than three working days beforeany hearing. The original and proof of service shallbe filed with the presiding hearings officer. No partymay file any papers less than three days before thedate set for the hearing unless otherwise permitted orordered by the hearings officer.

(d) No reply or supplemental memoranda shall befiled unless specifically allowed by the hearingsofficer.

(e) When service is made by mail, two calendardays shall be added to the periods required in



§11-1-38

11-25

subsections (b) and (c). [Eff 2/14/2005 ] (Auth:§91-2, 321-9) (Imp: §91-9)

§11-1-38 Evidence. (a) The hearings officershall follow section 91-10, Hawaii Revised Statutes,with respect to evidence submitted or objected to incontested case hearings.

(b) The hearings officer shall rule on theadmissibility of all evidence.

(c) When objections are made to the admission orexclusion of evidence, the grounds relied upon shallbe stated briefly. Formal exceptions to rulings are

unnecessary and need not be taken.(d) An offer of proof for the record shallconsist of a statement of the substance of theevidence to which objection has been sustained, or thesubmission of the evidence itself.

(e) With the approval or at the direction of thehearings officer, a witness may submit writtentestimony into the record on direct examination.Before any prepared testimony is read or submitted,unless excused by the hearings officer, the witnessshall deliver copies thereof to the hearings officerand all counsel or parties. Admissibility shall besubject to the rules governing oral testimony. Thehearings officer may order that copies of the preparedtestimony be served upon all parties and the hearingsofficer a set number of days before the hearing topermit proper cross examination of the witnesses onmatters contained in the prepared testimony. Thehearings officer may order the submission of writtendirect examination if the officer deems thatsubstantial savings in time will result, or for othergood cause.

(f) If relevant and material information is

offered in evidence in a document containing othermatters, the party offering it shall designatespecifically the matter so offered. If the otherinformation in the document would burden the record,at the discretion of the hearings officer, the



§11-1-39

11-26

relevant and material information may be read into therecord, or copies of the redacted document received asan exhibit. Other parties shall be afforded

opportunity at the time to examine the document, andto offer in evidence other portions believed materialand relevant.

(g) If testimony in a proceeding other than theone being heard is offered in evidence, a copy shallbe presented as an exhibit, unless otherwise orderedby the hearings officer.

(h) The hearings officer may disregard or strikedirect testimony if opposing parties do not have anopportunity for cross-examination.

(i) At the hearing, the hearings officer may

require the production of further evidence upon anyissue. Upon agreement of the parties, the hearingsofficer may authorize the filing of specificdocumentary evidence as a part of the record within afixed time. [Eff 2/14/2005 ] (Auth: §§91-2, 92-16, 321-9) (Imp: §§91-9, 91-10, 92-16)

§11-1-39 Subpoenas of witnesses. (a) Witnessesmay be subpoenaed to give oral testimony, produce

documents and things, or both.(b) Subpoenas may be issued by the hearingsofficer. No subpoena shall be issued unless the partyrequesting the subpoena provides the name and addressof the witness; identifies the document, record orthing sought, if any; and tenders the proper, requiredwitness and mileage fees. Signed and sealed blanksubpoenas shall not be issued to anyone. The name andaddress of the witness shall be inserted in theoriginal subpoena, a copy of which shall be filed inthe proceeding. Subpoenas shall state at whose requestthe subpoena is issued.

(c) Witnesses summoned shall be paid the same

fees and mileage as are paid witnesses in circuitcourts of the State of Hawaii, and such fees andmileage shall be paid by the party at whose requestthe witness appears, except that State and countyagencies are exempt from paying witness fees and



§11-1-41

11-27

mileage. [Eff 2/14/2005 ] (Auth: HRS §§91-2,321-9) (Imp: HRS §91-10, 92-16, 607-12, 607-24, HRCP45(c))

§11-1-40 Continuance of contested case hearing.The contested case hearing shall be held at the timeand place set in the notice of hearing. The hearingsofficer may continue the hearing based on astipulation, motion, or the hearings officer’s owninitiative, and at the hearing may continue thehearing from day to day or adjourn the hearing to alater day or to a different place without notice other

than an announcement at the hearing.[Eff 2/14/2005 ] (Auth: HRS §91-2, 321-9)(Imp: HRS §91-9)

§11-1-41 Defaults, dismissals, and summarydecisions. (a) For good cause shown or upon failureof a party to appear after proper notice, a hearingsofficer may find a party in default, or dismiss a

complaint, whether or not a party requests suchrelief.(b) If a party fails to request a hearing within

the time specified in the departmental order or bystatute, a party shall be in automatic default andsubject to the order without the need for a finding orany other action by a hearings officer.

(c) Upon motion or the hearings officer’s own

initiative and proposal, and after the parties have anopportunity to present their arguments, a hearings officer may render a summary decision and order whereno genuine issue of material fact exists and a party is

entitled to a decision as a matter of law.(d) A default, dismissal, or summary decision may

apply to only some parties or may resolve only someissues, and the hearings officer shall specify whichparties or what legal issues and facts remain forhearing.



§11-1-42

11-28

(e) If a default other than an automatic defaultunder subsection (b), dismissal, or summary decisionresolves all issues, then the hearings officer shall

issue or propose appropriate decisions and orders, andfor summary decisions, findings of fact andconclusions of law. [Eff 2/14/2005 ] (Auth: HRS§91-2, 321-9) (Imp: HRS §91-9)

§11-1-42 Proposed and final decisions;exceptions and argument. (a) A hearings officer,other than the director or attached entity, shall:

(1) Render and serve on the parties or their

attorneys a certified copy of the hearingsofficer’s proposed decision and order,findings of fact, and conclusions of law(collectively, “proposal”) within thirtydays after the end of the hearing or theparties’ submission of the parties’proposals, whichever is later. The directoror attached entity may extend this time ifthe hearings officer shows good cause inwriting; and

(2) Set a time limit for any party adversely

affected by the hearings officer’s proposalto file and serve specific exceptions to theproposal, designation of parts of the recordto consider, and a request for argumentbefore the director or attached entity whowill make the final decision. The hearingsofficer shall consider the time necessaryfor any transcription of the record whensetting time limits.

(b) Exceptions or objections to the proposalshall be in writing and shall state, withparticularity, the specific finding, conclusion,decision or order being challenged and the reasons whythe proposal, or any portion thereof, is erroneous ornot warranted based upon the evidence presented at thehearing or the law and shall identify the parts of therecord which support the exception or objection.



§11-1-43

11-29

(c) When the hearings officer is not the finaldecision maker, the final decision maker:

(1) Shall consider any exceptions that a party

files,(2) Shall consider the whole hearing record or

those parts that the parties designate,(3) Shall hear any argument that has been

requested, and(4) Should issue a final decision, order,

findings of fact, and conclusions of lawwithin thirty days after the hearingsofficer files the officer’s proposal or theparties file exceptions and presentargument, whichever is later.

(d) When the hearings officer is also the finaldecision maker, the final decision maker should issuefinal decisions, orders, findings of fact, andconclusions of law within thirty days after the end ofthe hearing or the parties’ filing of proposedfindings, conclusions, decision, and order, whicheveris later.

(e) All final decisions, orders, findings offact, conclusions of law, opinions, or rulings issuedat the conclusion of a contested case shall be servedupon the parties in the hearing by mailing a certified

copy within a reasonable time to each party or to theparty’s attorney of record.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9) (Imp:HRS §§91-2, 91-12)

§11-11-43 Transcripts; fees; corrections. (a)When a stenographic or other record is taken, anyparty may request a certified transcript of thehearing. The party making the request shall beresponsible for the fees for the transcript, unlessthe party is initiating an appeal to circuit court, inwhich case the department shall provide for a copy ofthe transcript of the hearing to be transmitted to thecourt for the appeal.



§11-1-51

11-30

(b) Motions to correct the transcript shall bemade within five days after receipt of the transcript,and motions shall be acted upon by the hearings

officer within ten days.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9) (Imp:HRS §91-9)

§§11-1-44 to 11-1-50 (Reserved)

SUBCHAPTER 3

RULEMAKING

§11-1-51 Petitions for adoption, amendment orrepeal of rules. (a) Any interested agency or personwho is not representing the department, may petitionthe department to adopt, amend, or repeal any rulethat is designed to implement, interpret, or prescribelaw, policy, procedure, or practice requirements ofthe department.

(b) The petition shall be filed in writing andshall include:

(1) The petitioner's name, mailing address, and

telephone number;(2) The petitioner's signature or the signatureof the petitioner's authorizedrepresentative or attorney;

(3) A statement of the nature of thepetitioner's interest;

(4) The text of the proposed rule or amendmentor a designation of the rule sought to berepealed;

(5) A statement of the reason or reasons insupport of the proposed rule, amendment, orrepeal; and

(6) Any other information relevant to thepetition.

(c) The department may require the petitioner toserve other persons or governmental agencies known orbelieved to be interested in the proposed rulemaking.



§11-1-53

11-31

(d) The department may dismiss any petition thatfails to comply with the requirements of this section.

(e) Within thirty calendar days after the

petition is filed, the department shall either denythe petition, giving the reasons for the denial, orinitiate the rulemaking procedure. In either event,the department shall send notification of thedepartment's action to the petitioner as allowed bysection 11-1-4.

(f) Nothing in this chapter prevents thedepartment, on its own motion, from acting on anymatter disclosed in any petition. [Eff 2/14/2005 ](Auth: HRS §§91-2, 321-9) (Imp: HRS §91-6)

§11-1-52 Notices of proposed rulemaking.(a) When the department proposes to adopt, amend, orrepeal an administrative rule, the department shallassign a docket number for each proposed rulemakingunder this subchapter.

(b) Notice of proposed rulemaking shall bepublished as required by statute.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9) (Imp:§91-3, 92-41)

§11-1-53 Conduct of hearings. (a) Eachrulemaking hearing shall be presided over by ahearings officer. The hearing shall be conducted soas to afford to any interested person or agency areasonable opportunity to be heard on mattersspecified in the notice of hearing and so as to obtaina clear and orderly record. The hearings officer maydirect the order of statements, set time limits onstatements, and take all action necessary for theorderly conduct of the hearing.

(b) At the commencement of the hearing, thepresiding hearings officer shall read the notice ofhearing, or distribute copies of the notice and



§11-1-53

11-32

summarize it, and then outline briefly the procedureto be followed.

(c) All interested persons or agencies shall be

given reasonable opportunity to speak with respect tothe matters specified in the notice of hearing. Everyindividual shall, before presenting his or herstatement, state his or her name, address, and whomthe individual represents at the hearing, and shallgive such other information regarding the individual’sappearance as the hearings officer may request. Thehearings officer shall confine the statements to thematters specified in the notice of the hearing. Everyindividual may be questioned by the hearings officer,but shall not be questioned by anyone else unless the

hearings officer expressly permits it.(d) In addition to or in place of oral statements

at a hearing, persons and agencies may also file withthe department within five calendar days following theclose of the hearing, or within such other timepermitted by the hearings officer, written comments orrecommendations regarding the proposed rulemaking.

(e) The hearings officer may determine ifstatements given at a rulemaking hearing will berecorded by stenography, audiotape, videotape, orother means. All supporting written statements and

data received at the hearing and which are deemed bythe hearings officer to be authentic and relevant,shall be made a part of the record.

(f) A rulemaking hearing shall be held at thetime and place announced in the notice of hearing.The hearing may be continued by the hearings officerfrom day to day or adjourned to a later date or to adifferent place without notice other than theannouncement of the continuance or adjournment duringor at the end of the hearing held at the scheduledtime and place. [Eff 2/14/2005 ] (Auth: HRS§§91-2, 321-9) (Imp: HRS §§91-2, 91-3)

§§11-1-54 through 11-1-60 (Reserved)



§11-1-61

11-33

SUBCHAPTER 4

DECLARATORY ORDERS

§11-1-61 Petitions for declaratory orders.(a) Any interested person or agency may petition fora declaratory order as to the applicability of anystatutory provision administered by the department orof any rule or order of the department.

(b) The petition shall be filed in writing andshall include:

(1) The petitioner's name, mailing address, andtelephone number;

(2) The petitioner's signature or the signatureof the petitioner's authorizedrepresentative or attorney;

(3) A designation of the specific statutoryprovision, rule, or order in question,together with a clear and concise statementof the controversy or uncertainty involved;

(4) A full disclosure of the petitioner'sinterest in the subject matter, includingthe reason or grounds for submission of thepetition;

(5) A detailed statement of the facts;(6) A statement of the petitioner's position orcontention; and

(7) A memorandum containing a discussion ofreasons and legal authorities in support ofthe petitioner's position or contention.

The department may summarily dismiss any petition thatfails to comply with the requirements of this section,or may require the petitioner to file additional datain support of the petition, or may offer a reasonableopportunity to correct any deficiencies in thepetition.

(c) There is no right to a hearing on a petitionfor a declaratory order. At its discretion, thedepartment may hold a hearing of any type it choosesbefore it rules on the petition.

(d) The department may, for good cause, refuse to



§11-1-61

11-34

issue a declaratory order. Good cause includes, but isnot limited to, a finding by the department that:

(1) The question is speculative or purely

hypothetical and does not involve anexisting situation or one that canreasonably be expected to occur in the nearfuture;

(2) The petitioner's interest is not of the typethat would give the petitioner standing tomaintain an action in a court of law basedon the same factual and legal circumstancespresented in the petition;

(3) The statutory provision cited in thepetition is not administered by the

department or the rule or order cited in thepetition is not a rule or order of thedepartment; or

(4) The factual and legal circumstancespresented in the petition are involved inpending administrative contested caseproceedings or judicial proceedings that mayresult in a decision on the applicability ofthe statutory provision or rule or ordercited in the petition.

(e) Within a reasonable time after the petitionis filed, the department shall file a written rulingon the petition stating the department's reasons for:

(1) Denying the petition;(2) Granting the petition; or(3) Granting part and denying part of the

petition;and issue a declaratory order if the petition isgranted in whole or in part.

The department shall send the ruling and anyorder to the petitioner as allowed by section 11-1-4.[Eff 2/14/2005 ] (Auth: HRS §§91-2, 321-9) (Imp:HRS §91-8)

§§11-1-62 to 11-1-70 (Reserved)"



DEPARTMENT OF HEALTH

Chapter 1, State of Hawaii Rules of Practice and

Procedure, on the Summary Page datedfollowing public hearing held through video-conferencing on January 3, 2005, after public noticewas given in the Honolulu Star Bulletin, Sunday,December 5, 2004.

These rules shall take effect ten days afterfiling with the Office of the Lieutenant Governor.

___ ________________________CHIYOME LEINAALA FUKINO, M.D.

Director of Health

APPROVED AS TO FORM:

__ ______________________BENJAMIN T. ROBERTSDeputy Attorney General

__ ________________________LINDA LINGLEGovernorState of Hawaii

Date:

__ ______________________

Hawaii Statutes 11-1

Documents

Transcript of Hawaii Statutes 11-1