CHAPTER Cla 100  ORGANIZATIONAL RULES

 

PART Cla 101  DEFINITIONS

 

Cla 101.01  "Agency" means "agency" as defined in RSA 541-B:1, I, namely, "all departments, boards, offices, commissions, institutions, other instrumentalities of state government, including but not limited to the Pease development authority, division of ports and harbors, the New Hampshire housing finance authority, the New Hampshire energy authority, and the Pease development authority, and the general court, including any official or employee of same when acting in the scope of his or her elected or appointed capacity, but excluding political subdivisions of the state."

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8508 eff 12-9-05

 

Cla 101.02  "Board'' means "board" as defined in RSA 541-B:1, II, namely, "the board of claims established by RSA 541-B:2."

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8508 eff 12-9-05

 

Cla 101.03 "Claim'' means "claim" as defined by RSA 541-B:1, II-a, namely, "any request for monetary relief for either:

 

(a)  Bodily injury, personal injury, death or property damages caused by the failure of the state or state officers, trustees, officials, employees, or members of the general court to follow the appropriate standard of care when that duty was owed to the person making the claim, including any right of action for money damages which either expressly or by implication arises from any law, unless another remedy for such claim is expressly provided by law; or

 

(b)  Property damages suffered by a state employee or official during the performance of that employee's or official's duties while on state business where compensation is appropriate under principles of equity and good conscience."

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8508 eff 12-9-05

 

Cla 101.04  "Political subdivision'' means "political subdivision" as RSA 541-B:1, VI, namely, "any village district, school district, town, city, county or unincorporated place in the state."

 

                                                                      Source.  #8508 eff 12-9-05

 

PART Cla 102  DESCRIPTION OF THE AGENCY

 

Cla 102.01  Composition of the Board.  The board consists of 5 members appointed in accordance with RSA 541-B:3 for terms specified in RSA 541-B:4.

 

                                                                      Source.  #8508 eff 12-9-05

 

Cla 102.02  Responsibilities of the Board.

 

(a)  The responsibilities of the board are to investigate, conduct hearings upon, decide and render or deny awards on claims against agencies within the jurisdictions set forth in (b) below.

 

(b)  With the exception of claims described in RSA 541-B:19 and those specified in (c) below, the board's jurisdictions are:

 

(1)  Original and exclusive over claims not exceeding $5,000, except those arising under workers' compensation, unemployment compensation, eminent domain proceedings, RSA 110-B:73, RSA 207:23-a, RSA 228:29, and RSA 491:8; and

 

(2)  Jurisdiction concurrent with the superior court over claims in excess of $5,000 but not exceeding $50,000, except those arising under workers' compensation, unemployment compensation, eminent domain proceedings, RSA 110-B:73, RSA 207:22-25, RSA 228:29 and RSA 491:8.

 

(c)  The board's jurisdiction excludes claims against the department of corrections and claims against New Hampshire hospital when the amount involved is less than $500.

 

                                                                      Source.  #8508 eff 12-9-05

 

Cla 102.03  Meetings of the Board.

 

(a)  The board shall meet quarterly and at such additional times as its business requires.

 

(b)  The time and place of the meetings shall be noticed to the public in accordance with RSA 91-A:2, II.

 

(c)  Pursuant to RSA 541-B:8 a majority of the board shall constitute a quorum to conduct hearings and a vote of at least a majority of the quorum shall be required to adopt and approve any matter considered by it.

 

                                                                      Source.  #8508 eff 12-9-05

 

Cla 102.04  Records of Board Actions.

 

(a)  Minutes shall be kept of board meetings which are not hearings and of official actions taken by the board.

 

(b)  The minutes shall record the members who participate in each vote and shall separately record the position of members who concur, dissent or abstain.

 

(c)  Minutes of board actions which are not exempt from disclosure under RSA 91-A:3, II or RSA 91-A:5 shall be public records.

 

(d)  A recording shall be made of the board's hearings.

 

                                                                      Source.  #8508 eff 12-9-05

 

PART Cla 103  PUBLIC INFORMATION

 

Cla 103.01  Mailing Address, Telephone Number and Access for TTY/TDD Users.

 

(a)  The office of the secretary of state shall be the office of record for the board.

 

(b)  The board’s mailing address is:

 

Board of Claims

c/o Secretary of State

State House Room 204

Concord, New Hampshire 03301

 

(c)  The board's telephone number is (603) 271-3242.

 

(d)  Access for in-state TTY/TDD users is through Relay New Hampshire by dialing 711 or by dialing 1-800-735-2964.

 

(e)  Correspondence, filings and other communications intended for the board shall be mailed to the address set forth in (b) above.

 

(f)  Information may be obtained by using the numbers set forth in paragraphs (c) and (d).

 

                                                                      Source.  #8508 eff 12-9-05

 

Cla 103.02  Inspection and Copies of Records.

 

(a)  The board shall make available records subject to public inspection under RSA 91-A during weekday business hours at the office of the secretary of state.

 

(b)  Persons desiring to inspect or obtain copies of records shall identify as specifically as possible the information being sought.

 

(c)  Persons desiring copies of written records other than transcripts of hearings shall pay the actual costs of copying.

 

(d)  Persons desiring transcripts of hearings shall pay the costs of transcription, printing of the transcript and mailing.

 

(e)  If records are requested which contain both public information and information exempt from disclosure pursuant to RSA 91-A or other law, the board shall delete the information exempt from disclosure and provide the remaining information.

 

                                                                      Source.  #8508 eff 12-9-05

 

CHAPTER Cla 200  PROCEDURAL RULES

 

PART Cla 201  DEFINITIONS

 

          Cla 201.01  “Adjudicative proceeding” means “adjudicative proceeding” as defined in RSA 541-A:1, I., namely “the procedure to be followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-A: 36.”

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

          Cla 201.02  “Appearance" means a written notification to the board that a party, an intervenor or the representative of a party or intervenor intends to actively participate in an adjudicative proceeding.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90 (see Cla 201.03)

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

          Cla 201.03  "Board'' means "board" as defined in RSA 541-B:1, II, namely, "the board of claims established by RSA 541-B:2."

 

                                                                      Source.  #5481, eff 11-1-92 (from Cla 201.02), EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

Cla 201.04 “Chair” means the chair of the board of claims appointed pursuant to RSA 541-B:3, II, or the chair’s designee.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.05  "Claim'' means "claim" as defined by RSA 541-B:1, II-a, namely,  "any request for monetary relief for either:

 

          (a)  Bodily injury, personal injury, death or property damages caused by the failure of the state or state officers, trustees, officials, employees, or members of the general court to follow the appropriate standard of care when that duty was owed to the person making the claim, including any right of action for money damages which either expressly or by implication arises from any law, unless another remedy for such claim is expressly provided by law; or

 

          (b)  Property damages suffered by a state employee or official during the performance of that employee's or official's duties while on state business where compensation is appropriate under principles of equity and good conscience."

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.06  "Claimant'' means any person or entity making a claim pursuant to RSA 541-B.

 

                                                                      Source.  #8509, eff 12-09-05

 

Cla 201.07  “Declaratory ruling" means, pursuant to RSA 541-A:1, V, a ruling by the board as to the specific applicability of any procedural statutory provision, rule or order of the board.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.08 "Intervenor" means a person without the status of a party but participating in an adjudicative proceeding to the extent permitted by the presiding officer acting pursuant to RSA 541-A:32.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.09  "Motion" means a request to the presiding officer for an order or ruling directing some act to be done in favor of the proponent of the motion, including a statement of justification or reasons for the request.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.10  "Order" means, pursuant to RSA 541-A:1, XI, the whole or part of the board's final disposition of a matter other than a rule, but not including the board's decision to initiate, postpone, investigate or process any matter, or to issue a complaint or citation.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.11  “Person” means any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character other than the board.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.12  "Party" means "party" as defined by RSA 541-A:1, XII, namely, "each person or agency named or admitted as a party, or properly seeking and entitled as a right to be admitted as a party."

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.13  "Proof by a preponderance of the evidence" means a demonstration by admissible evidence that a fact or legal conclusion is more probable than not to be true.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.14  “Public comment hearing” means a proceeding held pursuant to RSA 541-A:11.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.15  "Record" means the materials set forth in RSA 541-A:31, VI.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 201.16  “Rulemaking petition” means a petition made pursuant to RSA 541-A:4, I.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 202  CONSTRUCTION AND WAIVER OF RULES

 

          Cla 202.01  Construction of Rules.  Cla 202.02 through Cla 215 shall be construed to provide a prompt and impartial determination of claims and challenges to payment or the dismissal of claims.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

Cla 202.02 Waiver of Rules.

 

          (a)  The board shall respond to the motion of a party or intervenor, or request of the chair, for suspension or waiver of a requirement or limitation imposed by Cla 200.

 

          (b)  The board shall, by majority vote, waive any requirement or limitation imposed by these rules when the suspension or waiver:

 

(1)  Appears to be lawful; and

 

(2) Is more likely to promote the fair and accurate resolution of the matter than would adherence to the particular requirement or limitation.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

PART Cla 203  TIME PERIODS

 

          Cla 203.01  Computation of Time.

 

          (a)  Unless otherwise specified, the unit of time for time periods referenced in this chapter shall be calendar days.

 

          (b)  Computation of any period of time referred to in this chapter shall begin with the day after the action which sets the time period in motion, and shall include the last day of the period so computed.

 

          (c)  If the last day of the period so computed falls on a Saturday, Sunday or a legal holiday, then the time period shall be extended to include the first business day following the Saturday, Sunday or legal holiday.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

PART Cla 204  COMMENCEMENT OF ADJUDICATIVE PROCEEDINGS; APPEARANCES; CHAIR AS PRESIDING OFFICER; FUNCTIONS OF THE SECRETARY; PRE-HEARING CONFERENCES

 

          Cla 204.01  Commencement of Adjudicative Proceedings.

 

          (a)  Adjudicative proceedings shall be commenced by giving the parties and the attorney general the written notice described in (b) below at least 10 days before the hearing.

 

          (b)  The notice shall contain:

 

(1)  The names and addresses of the parties;

 

(2) A statement of the time, place and nature of the hearing;

 

(3)  A statement of the time and place of the pre-hearing conference, if any has been scheduled;

 

(4)  A statement of the legal authority under which the hearing is to be held;

 

(5)  A reference to the particular sections of the statutes and rules which are relevant;

 

(6)  A short and plain statement of the issues; and

 

(7)  A statement that each party has the right to have representation by an attorney at the party’s own expense.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

          Cla 204.02  Appearances.

 

          (a)  If the claimant is not represented by an attorney, the claim form filed pursuant to Cla 302.02(b) shall constitute the appearance of the claimant.

 

          (b)  If the claimant is represented by an attorney, the claimant or the claimant’s attorney shall submit an appearance containing the following information:

 

(1)  The docket number assigned to the claim by the board or other brief identification of the claim; and

 

(2)  For both the claimant and the attorney:

 

a.  The name and daytime address; and

 

b.  The telephone number and e-mail address.

 

          (c)  Those permitted pursuant to Cla 212 to intervene shall file an appearance containing the information required by (b) above.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

          Cla 204.03  Chair’s Functions as Presiding Officer.

 

          (a)  The chair shall preside over hearings and pre-hearing conferences.

 

          (b)  Upon the chair’s own initiative, or upon the motion of any party or intervenor, the chair shall withdraw for good cause.

 

          (c)  Good cause shall exist if the chair:

 

(1)  Has a direct interest in the outcome of the matter, including but not limited to, a financial or family relationship with any party or intervenor;

 

(2)  Has made statements or engaged in behavior which objectively demonstrate that he or she has prejudged the facts of the case; or

 

(3)  Believes that he or she cannot fairly preside over the matter.

 

          (d)  Mere knowledge of the issues or acquaintance with any party, intervenor or witness shall not constitute good cause for withdrawal.

 

          (e)  The chair shall:

 

(1)  Regulate and control the course of the hearing;

 

(2)  Facilitate settlement of the issues;

 

(3)  Administer oaths and affirmations;

 

(4)  Receive evidence having a reasonably probative value and exclude irrelevant, immaterial or unduly repetitious evidence;

 

(5)  Rule on procedural requests made by motion or on the chair’s own initiative;

 

(6)  Question witnesses to the extent required to make a full and fair record; and

 

(7)  Take any other action consistent with applicable statutes, rules and case law necessary to conduct the hearing and complete the record in a fair and timely manner.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

Cla 204.04  Functions of the Clerk of the Board.

 

          (a)  The clerk of the board shall:

 

(1)  Arrange for the recording of hearings and the provision of transcripts in accordance with Cla 211;

 

(2)  When instructed to do so by the board, issue subpoenas on behalf of the board in accordance with Cla 208.01(a); and

 

(3)  Conduct hearings in the absence of the chair.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

          Cla 204.05  Pre-Hearing Conference and Pre-Hearing Statement.

 

          (a)  The chair shall require the parties, or their authorized representatives, to appear at a pre-hearing conference held before the hearing if such a conference would aid in:

 

(1)  Facilitating settlement;

 

(2)  Simplifying or resolving issues, including making stipulations as to undisputed facts, if any;

 

(3)  Determining the nature and quantity of the evidence to be presented at hearing;

 

(4)  Determining compliance with discovery requests;

 

(5)  Determining compliance with any previous orders issued by the chair or the board;

 

(6)  Resolving dispositive motions; or

 

(7)  Otherwise advancing the efficiency of the proceedings.

 

          (b)  The chair shall require submission of a written pre-hearing statement when:

 

(1)  The claimant is represented by an attorney; and

 

(2)  Such a statement would assist in clarifying the disputed and undisputed issues.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

PART Cla 205  FILING, FORMAT AND DELIVERY OF DOCUMENTS

 

          Cla 205.01  Dates of Issuance or Filing.

 

(a)  All written documents governed by this chapter shall be rebuttably presumed to have been issued on the date noted on the document.

 

(b)  All written documents governed by this chapter shall be rebuttably presumed to have been filed with the board on the date of receipt, as evidenced by a date placed on the document by the board or its staff in the normal course of business.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

          Cla 205.02  Format of Documents.

 

          (a)  All correspondence, pleadings, motions or other documents relating to an adjudicative proceeding and filed with the board shall:

 

(1)  Include the title and docket number of the case, if known;

 

(2)  Be typewritten or clearly printed on durable paper 8 1/2 by 11 inches in size;

 

(3)  Be signed by the proponent of the document or, if the proponent appears by a representative, by the representative; and

 

(4)  Include a statement certifying that a copy of the document has been delivered to all parties and intervenors in compliance with Cla 205.03.

 

          (b)  The signature of a party or intervenor or the attorney of the party or the intervenor on a document filed with the board shall constitute certification that:

 

(1)  The signer has read the document;

 

(2)  The signer is authorized to file it;

 

(3)  To the best of the signer's knowledge, information and belief there are good and sufficient grounds to support it; and

 

(4)  The document has not been filed for purposes of delay.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

          Cla 205.03  Delivery of Documents.

 

          (a)  Written motions, exhibits, memoranda or other documents relating to an adjudicative proceeding shall be:

 

(1)  Filed in the form of an original and 4 copies; and

 

(2)  Delivered in single copy and in accordance with (c) below to all other parties and intervenors.

 

          (b)  Notices, orders, decisions or other documents issued by the chair or the board shall be delivered to all parties and intervenors.

 

          (c)  Delivery of documents relating to an adjudicative proceeding shall be made either in hand or by depositing into the United States mail a copy of the document in an envelope bearing:

 

(1)  The name of the person intended to receive the document;

 

(2)  The full address, including zip code, last provided to the board by such person; and

 

(3)  Prepaid first class postage.

 

          (d)  When a party or intervenor is represented by an attorney, delivery of a document to the party's or intervenor’s attorney either in hand or at the address stated on the appearance shall constitute delivery to the party or intervenor.

 

                                                                      Source.  #2659, eff 3-28-84; EXPIRED 3-28-90

 

                                                                      New.  #5481, eff 11-1-92, EXPIRED: 11-1-98

 

                                                                      New.  #8509, eff 12-09-05

 

PART Cla 206  MOTIONS AND OBJECTIONS

 

          Cla 206.01  Motions; Objections to Motions; Ruling on Motions.

 

          (a)  Motions shall be in filed in written form, unless made in response to a matter asserted for the first time at a hearing or based on information that was not received in time to prepare a written motion.

 

          (b)  Oral motions and any oral objections to such motions shall be recorded in full in the record of the hearing. If the chair finds that the motion requires additional information in order to be fully and fairly considered, the chair shall direct the proponent to submit the motion in writing and provide supporting information.

 

          (c)  Except as otherwise provided in this chapter, objections to written motions shall be filed within 10 days of receipt of the motion.

 

          (d)  Failure by an opposing party or an intervenor to object to a motion shall not in and of itself constitute grounds for granting the motion.

 

          (e)  Unless otherwise specified in this chapter, the chair shall not hold a hearing on any motion unless the chair determines that a hearing is necessary to obtain information or to clarify an issue.

 

          (f)  The chair shall rule upon a motion after full consideration of all objections and applicable law.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 207  DISCOVERY

 

          Cla 207.01  Requests for Information and Documents.

 

          (a)  Parties or intervenors seeking information or documents from other parties or intervenors shall:

 

(1)  Make a request for production of such information and documents; and

 

(2)  Allow 30 days for compliance with their requests.

 

          (b)  Parties and intervenors shall attempt in good faith to make complete and timely response to requests for information and documents.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 207.02  Motions to Compel Production of Information and Documents.

 

          (a)  Parties or intervenors wishing to enforce a request made pursuant to Cla 207.01(a) after receiving a refusal or after the expiration of the 30 days allowed for compliance shall seek a discovery order by:

 

(1)  Filing a motion for the discovery order with the secretary of state at the following address:

 

Board of Claims

c/o Secretary of State

State House Room 204

Concord, New Hampshire 03301; and

 

(2)  Mailing a copy of such motion to the other parties and intervenors.

 

          (b)  Parties or intervenors opposing a motion for a discovery order shall do so in a written objection filed within 10 days of receipt of the motion.

 

          (c)  The chair shall grant or deny a motion for a discovery order:

 

(1)  Without a hearing; or

 

(2)  After a hearing, if one is requested by any party.

 

          (d)  The chair shall grant a motion for a discovery order if the discovery sought is necessary for an expeditious, full and fair presentation of evidence at the hearing.

 

          (e)  Failure to comply with a discovery order shall be grounds for conditional default or dismissal of the claim as set forth in Cla 207.03.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 207.03  Failure to Comply With the Board’s Discovery Order.

 

          (a)  Failure of a party to comply fully with the board’s discovery order within the time specified in the order shall result in:

 

(1)  A conditional default of the party failing to comply; or

 

(2)  Dismissal of the claim in accordance with (d) below.

 

          (b)  The board shall lift a conditional default issued pursuant to (a) above if the board determines that the failure fully to comply with the discovery order was not the result of a willful disregard for the order but the result of:

 

(1)  Inadvertence; or

 

(2)  An inability to comply.

 

          (c)  If the time required for the board to make the determination called for by (b) above requires postponement of the hearing of the claim, the board shall postpone the hearing pursuant to Cla 210.02(a)(2).

 

          (d)  If the board determines that the claimant’s failure to comply fully with the board’s discovery order was the result of willful disregard for the order, the board shall dismiss the claim.

 

          (e)  A claimant whose claim has been dismissed pursuant to (d) above is entitled to a hearing challenging the dismissal of the claim.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 208  SUBPOENAS

 

Cla 208.01  Issuance of Subpoenas.

 

          (a)  When necessary for full and fair adjudication of the issues, the board shall issue subpoenas, including subpoenas duces tecum, requiring the attendance of witnesses and the production of books, papers and documents.

 

          (b)  Parties to an adjudicative proceeding wishing to compel the attendance of witnesses or the production of books, papers or documents shall:

 

(1)  Issue their own subpoenas; or

 

(2)  Request by motion the issuance of subpoenas by the board.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 208.02  Vacation or Modification of Subpoena Issued by the Board.

 

          (a)  Any witness summoned by a subpoena issued by the board may petition the board to vacate or modify the subpoena.

 

          (b)  Promptly upon receipt of a petition under (a) above, the board shall forward a copy of the petition to the party requesting the subpoena by motion.

 

          (c)  After consideration of the petition and any objection filed by the party requesting the subpoena, the board shall:

 

(1)  Vacate the subpoena upon the determination that:

 

a.  The testimony of the witness summoned or the materials produced in compliance with the subpoena would be:

 

1.  Privileged; or

 

2.  Immaterial to the issues presented by the adjudicative proceeding;

 

b.  Compliance with the subpoena would be unreasonably burdensome; or

 

c.  The subpoena is otherwise unreasonable or unlawful; or

 

(2)  Modify the subpoena upon the determination that any deficiencies described in (1) above can be corrected by modifying the subpoena without vacating it.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 208.03  Enforcement of Subpoena Issued by the Board.  Upon the failure of any person to comply with a subpoena issued by the board, the board or the party who requested the subpoena, if either wishes to enforce the subpoena, shall apply to any superior court for an order of compliance.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 209  DISCLOSURE OF WITNESSES AND EXHIBITS

 

          Cla 209.01  Mandatory Pre-Hearing Disclosure of Witnesses and Exhibits.  At least 5 days before the hearing, the parties and intervenors shall provide to the other parties and intervenors:

 

          (a)  A list of all witnesses to be called at the hearing containing the names of the witnesses, their addresses and their telephone numbers;

 

          (b)  Brief summaries of the testimony of the witnesses to be called;

 

          (c)  A list of documents and exhibits to be offered as evidence at the hearing;

 

          (d)  A copy of each document to be offered as evidence at the hearing; and

 

          (e)  An offer to allow the inspection of non-documentary exhibits to be offered as evidence at the hearing at times and places of convenience to the parties and intervernors.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 210  RESCHEDULING THE HEARING

 

          Cla 210.01  Withdrawal of Claim.

 

          (a)  Upon the withdrawal of a claim the board shall discontinue without prejudice to the claimant proceedings which have already begun, so long as the board does not determine that the withdrawal of the claim is made in bad faith.

 

          (b)  If the board determines that the withdrawal of the claim is made in bad faith, the board shall discontinue the proceedings with prejudice.

 

          (c)  The withdrawal of the claim shall be determined to be in bad faith if:

 

(1)  The claimant withdraws the claim late in the proceedings merely to frustrate the defense of the claim or for the purpose of unnecessary delay; or

 

(2)  The agency claimed against makes a showing that it would be unfairly prejudiced by being required to defend against the claim should it be brought at a later date.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 210.02  Postponement of the Hearing.

 

          (a)  A scheduled hearing shall be postponed:

 

(1)  By agreement of the parties, intervenors, if any, and the chair;

 

(2)  On the request of the board; or

 

(3)  On a written motion to continue granted by the chair.

 

          (b)  A written motion to continue shall be:

 

(1)  Filed at least 10 days before the scheduled date of the hearing; and

 

(2)  Be accompanied by a certification that the proponent has made all reasonable efforts to obtain the concurrence of the other parties and intervenors.

 

          (c)  An objection to a motion to continue shall be filed:

 

(1)  Within 10 days of receipt of the motion; or

 

(2)  Within 5 days if the motion was filed within 2 weeks of the scheduled date of the hearing.

 

          (d)  Failure to object within the time limits in (c) above shall constitute a waiver of the right to object to a motion to continue.

 

          (e)  The chair shall grant a motion to continue when:

 

(1)  The motion is assented to by both parties; or

 

(2)  In balancing the potential harm to each party, the chair concludes that the principles of justice and equity favor the granting of the continuance.

 

          (f)  If the hearing is rescheduled, the board shall, pursuant to RSA 541-B:11, IV, give at least 10 days’ notice of the date, time and place of the rescheduled hearing to:

 

(1)  The claimant;

 

(2)  The agency claimed against; and

 

(3)  The office of the attorney general.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 211  RECORDING THE HEARING; TRANSCRIPTS

 

          Cla 211.01  Recording the Hearing.

 

(a)  There shall be a stenographic recording of the hearing unless a stenographer is unavailable, in which case the secretary shall arrange for recording the hearing by tape recording, video recording or any other method that will provide a verbatim record.

 

          (b)  The board shall retain a copy of the verbatim recording of the hearing for at least 30 days after the opportunity for administrative and judicial appeals has been exhausted.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 211.02  Transcripts.

 

          (a)  If any person requests a transcript of the recording of a hearing, the board shall:

 

(1)  Notify the claimant of the cost of the transcript;

 

(2)  Upon receipt of payment for the cost of the transcription, cause a transcript to be prepared; and

 

(3)  Upon completion of the transcript either forward the transcript to the claimant or provide notice of where it can be picked up.

 

          (b)  Any party may record the hearing and have a transcript made at the party’s expense, but only the transcript made by the board shall be the official transcript of the proceeding.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 212  INTERVENTION

 

          Cla 212.01  Intervention Procedure.

 

          (a) Petitions for intervention shall:

 

(1)  Describe in writing the petitioner's interest in the subject matter of the proceedings;

 

(2)  Be submitted to the chair; and

 

(3)  Be mailed in copy form to all parties identified in the notice commencing the proceedings.

 

          (b)  A petition for intervention shall be granted by the chair if the petitioner complied with (a) above at least 3 days before the hearing and the presiding officer determines that:

 

(1)  The petition states facts demonstrating that the petitioner's rights, duties, privileges, immunities or other substantial interests might be affected by the proceedings or the petitioner qualifies as an intervenor under law; and

 

(2)  The intervention sought would not impair the interests of justice and the orderly and prompt conduct of the proceedings.

 

          (c)  The chair shall grant a petition for intervention at any time if:

 

(1)  The petitioner complied with (a) above; and

 

(2)  The chair determines that the intervention sought would be in the interests of justice and would not impair the orderly and prompt conduct of the proceedings.

 

          (d)  The chair shall state in the order granting a petition for intervention:

 

(1)  Any limitations imposed on the intervenor’s participation in the proceedings; and

 

(2)  The reasons for such limitations.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 212.02  Effect of Intervention and Rights of an Intervenor.

 

          (a)  Approval of intervention by the chair shall apply only to the proceeding in which the petition for intervention was granted.

 

          (b)  Notwithstanding the provisions of this chapter, an intervenor’s right to participate in an adjudicative proceeding shall be subject to any limitations or conditions imposed by the chair pursuant to RSA 541-A:32, III.

 

          (c)  An intervenor shall take the proceeding as he or she finds it and no portion of the proceeding shall be repeated because of the fact of intervention.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 213  HEARING PROCEDURE

 

          Cla 213.01  Consolidation of Claims.  The board shall consolidate for hearing the separate claims of a claimant’s insurer for reimbursement of the sum paid to a claimant and of the claimant for the related deductible if to do so would increase the efficiency and accuracy of the determination of either of the claims.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 213.02  Testimony and the Presentation of Non-Testimonial Evidence.

 

          (a)  The chair shall direct the course of the hearing and accept testimony on the facts and the law relating to the claim.

 

          (b)  Any individual offering testimony, evidence or arguments shall state for the record his or her name and role in the hearing. If the individual represents another person, the person being represented shall also be identified.

 

          (c)  The chair shall permit the parties and intervenors to make opening and closing arguments:

 

(1)  If the board determines that such statements will increase the efficiency of the hearing; and

 

(2)  At the time during the proceedings designated by the chair.

 

          (d)  The order of testimony and the presentation of non-testimonial evidence, to the extent that such testimony and non-testimonial presentation of evidence takes place, shall be as follows:

 

(1)  The claimant’s testimony and presentation of non-testimonial evidence as well as the testimony and presentation of non-testimonial evidence of the claimant’s witnesses;

 

(2)  Cross examination by the agency claimed against of a testifying claimant and the claimant’s testifying witnesses;

 

(3)  Questioning by the board of the testifying claimant and the claimant’s testifying witnesses;

 

(4)  The testimony and presentation of non-testimonial evidence given on behalf of the agency claimed against;

 

(5)  Cross examination by the claimant of those testifying on behalf of the agency claimed against;

 

(6)  Questioning by the board of those testifying on behalf of the agency claimed against; and

 

(7)  Testimony and the presentation of non-testimonial evidence on behalf of intervenors in accordance with conditions imposed pursuant to RSA 541-A:32, III.

 

(e)  The chair shall summarize for the record the information and allegations of the claim when it is apparent that the claimant is having difficulty presenting the claim in a distinct and coherent fashion. Under such circumstances the claimant shall have the opportunity to augment the chair’s summarization with such additional admissible evidence or information as does not otherwise exist in the pleadings or the record.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 213.03  Evidence.

 

          (a)  The chair shall determine the admissibility of evidence, subject to being overruled by a majority of the board members present and voting.

 

          (b)  The rules of evidence used in courts shall not apply.

 

          (c)  Any testimonial or non-testimonial evidence which is relevant, material, and not unduly repetitious or cumulative shall be admissible.

 

          (d)  The rules of privilege recognized under the laws of New Hampshire shall apply.

 

          (e)  Scientific or technical evidence shall be introduced through the testimony of an individual with sufficient expertise to reasonably ensure the reliability of the evidence offered. Questions regarding the qualifications of the individual presenting such evidence shall go to the weight the evidence is given in the final disposition of the claim. 

 

          (f)  Unless otherwise agreed by the parties, statements made at a pre-hearing conference shall not be admissible.

 

          (g)  Any objections to the admission of evidence shall be made at the time of the hearing. If they are not made at the time of the hearing, they shall be deemed to have been waived.

 

          (h)  Transcripts of testimony and non-testimonial evidence admitted into evidence shall be public records unless the chair determines that all or part of them is exempt from disclosure under RSA 91-A:5 or applicable case law.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 213.04  Standard and Burden of Proof. The party or intervenor asserting a proposition shall bear the burden of proving the truth of the proposition by a preponderance of the evidence.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 213.05  Briefs.

 

          (a)  The board shall accept briefs of fact and law when submitted by parties or intervenors in accordance with (c) below.

 

          (b)  The chair shall require briefs of fact and law upon a determination that their receipt would advance the fairness and speed of adjudication.

 

          (c)  Briefs shall be submitted as follows:

 

(1)  To the board:

 

a.  In the form of an original and 5 copies; and

 

b.  Including certification of delivery to each party and intervenor in accordance with (2) below;

 

(2)  To each party and intervenor in the form of a copy delivered in accordance with Cla 205.03(c); and

 

(3)  If the briefs are required by the chair pursuant to (b) above, on the date designated in an order of the board.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 214  DISPOSITION

 

          Cla 214.01  Disposition of the Claim Upon Failure to Appear.

 

          (a)  If the claimant fails to appear, the board shall receive an offer of proof from the agency claimed against as to its defense or position with regard to the claim. The board shall decide the claim based upon the materials submitted by the claimant and the offer of proof provided by the agency, unless the claimant's failure to appear was due to lack of notice, mistake or misfortune.

 

          (b)  If the claimant's failure to appear was the result of lack of notice, mistake or misfortune, but not due to neglect, the board shall reschedule the hearing.

 

          (c)  Failure of the agency claimed against to appear shall result in the issuance of an order of default. The board shall strike the default on the determination that the agency’s failure to appear was due to lack of notice, mistake or misfortune but not due to neglect.

 

Source.  #8509, eff 12-09-05

 

          Cla 214.02  Orders.

 

          (a)  The board shall issue its decision in a written order delivered to:

 

(1) The claimant;

 

(2)  The agency claimed against, if it was not represented;

 

(3)  The attorney general; and

 

(4)  The secretary of state.

 

          (b)  An order on a contested claim shall include:

 

(1)  The amount of the payment on the claim, if any;

 

(2)  A brief explanation of the facts supporting the order; and

 

(3)  Rulings of applicable law.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 214.03  Payments on Claims.  Board orders authorizing the payment of claims shall be subject to the limitation on payments and interest on payments set forth in RSA 541-B:14, I through III.

 

                                                                      Source.  #8509, eff 12-09-05

 

Cla 214.04  Attorney Fees.

 

          (a)  Attorney’s fees shall be:

 

(1)  Approved by the board;

 

(2)  Reasonable and fair given:

 

a.  The difficulty of the claim and the nature, length and complexity of the services performed by the attorney;

 

b.  The usual and customary charge for work of like kind; and

 

c.  The claimant’s actual recovery; and

 

(3)  Paid either by the claimant or from the proceeds of any award.

 

          (b)  Upon receiving the order of the board approving the client’s claim, the attorney shall:

 

(1)  Submit to the board a fee request including:

 

a.  A statement of the fee charged; and

 

b.  Documentation supporting it; and

 

(2)  Submit to the attorney general copies of the same materials.

 

          (c)  If the attorney general objects to the fee request the attorney general shall do so in writing within 5 days of receipt of the request.

 

          (d)  Upon receipt of a written objection from the attorney general, the board shall make a decision on the fee request:

 

(1)  Taking into account the submissions of the attorney making the request and the objection of the attorney general; and

 

(2)  Applying the standards in (a)(2) above.

 

Source.  #8510, eff 12-09-05, EXPIRED: 12-9-13

PART Cla 215  REHEARINGS

 

          Cla 215.01  Rehearing.

 

          (a)  Within 30 days of a decision or order any party or person directly affected may request rehearing of any matter determined in the proceeding or covered by the decision or order by submitting a written motion:

 

(1)  Identifying each error of fact, error of reasoning, or error of law that the moving party wishes to have reconsidered;

 

(2)  Describing how each error causes the board’s decision to be:

 

a.  Unlawful, unjust or unreasonable;

 

b.  Illegal in respect to jurisdiction, authority or observance of the law;

 

c.  An abuse of discretion; or

 

d.  Arbitrary, unreasonable or capricious;

 

(3)  Stating concisely the factual findings, reasoning or legal conclusion proposed by the moving party; and

 

(4)  Accompanied by any argument or memorandum of law the moving party wishes to file.

 

          (b)  The party or person directly affected seeking rehearing shall mail a copy of the motion for rehearing to all parties and intervenors.

 

          (c)  Any objections to a motion for rehearing shall be submitted within 10 days of the date of receipt of the motion for rehearing.

 

          (d)  No order of payment shall be issued prior to the expiration of the 30 day time period provided for filing a motion for rehearing.

 

          (e)  Within 10 days of the submission of a motion for rehearing, the board shall suspend the decision or order complained of pending the denial of the motion for rehearing, completion of the rehearing or final resolution of any appeal.

 

          (f)  Within 10 days of submission of the motion for rehearing, the board, if it has received either an objection or a notice of no objection, shall employ the standards in (h) below to either grant or deny the motion for rehearing.

 

          (g)  If the board has not yet granted or denied the motion for rehearing when the time specified in (c) above for submitting an objection has expired, the board shall employ the standards in (h) below to do so.

 

          (h)  The board shall grant the motion for rehearing if it determines that, in the original hearing, it:

 

(1)  Incorrectly assessed the relevant evidence;

 

(2)  Incorrectly applied the relevant law; or

 

(3)  Failed substantially to comply with this chapter.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 216  RULEMAKING

 

Cla 216.01  Petitions for Rulemaking.

 

          (a)  Anyone may seek the adoption, amendment or repeal of a rule by submitting to the board a petition pursuant to RSA 541-A:4.

 

          (b)  Each petition for rulemaking shall contain:

 

(1)  The name and address of the individual petitioner or, if the request is that of an organization or other entity, the identity of such organization or entity and the name and address of the representative authorized by the entity to file the petition;

 

(2)  A statement of the purpose of the petition, whether the adoption, amendment or repeal of a rule;

 

(3)  If amendment or adoption of a rule is sought, the text proposed;

 

(4)  If amendment or repeal of a rule is sought, identification of the current rule sought to be amended or repealed;

 

(5)  Reference to the statutory provision that authorizes or supports the rulemaking petition; and

 

(6)  Information or argument useful to the board when deciding whether to begin the rulemaking process.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 216.02  Disposition of Petitions for Rulemaking.

 

          (a)  The board shall request additional information or argument from the petitioner for rulemaking or from others if such additional information or argument is required to reach a decision.

 

          (b)  The board shall grant the petition for rulemaking if the adoption, amendment or repeal sought would not result in:

 

(1)  A rule that is not within the rulemaking authority of the board;

 

(2)  Duplication of a rule or of a statutory provision;

 

(3)  Inconsistency between the existing rules and the statutory mandate of the board;

 

(4)  Inconsistency of administrative rules one with another; or

 

(5)  Excessive burden upon the board in terms of cost or a reduction in efficiency or effectiveness.

 

(c)  Within 30 days of receipt of a sufficient petition the board shall dispose of it in the following manner:

 

(1)  By notifying the petitioner that the petition is granted and beginning rulemaking proceedings as required by RSA 541-A:4; or

 

(2)  By notifying the petitioner in writing that the petition is denied and the reasons for its denial.

 

          (d)  The denial of a petition for rulemaking shall not entitle the petitioner to a hearing.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 217  PUBLIC COMMENT HEARINGS

 

          Cla 217.01  Purpose.  The purpose of this part is to provide uniform procedures for the conduct of public comment hearings held pursuant to RSA 541-A:11.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 217.02  Public Access and Participation.

 

          (a)  Public comment hearings shall be open to the public, and members of the public shall be entitled to testify, subject to the limitations of Cla 217.03.

 

          (b)  Individuals who wish to testify shall be asked to write on the speaker's list:

 

(1)  Their full names and addresses; and

 

(2)  The names and addresses of organizations, entities or other persons whom they represent, if any.

 

          (c)  Written comments, which may be submitted in lieu of, or in addition to, oral testimony, shall be accepted for 10 days after the adjournment of a hearing or after the adjournment of a postponed or continued hearing.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 217.03  Limitations on Public Participation. The chair shall:

 

          (a)  Refuse to recognize for speaking or revoke the recognition of anyone who:

 

(1)  Speaks or acts in an abusive or disruptive manner;

 

(2)  Fails to keep comments relevant to the proposed rules that are the subject matter of the hearing; or

 

(3)  Restates more than once what he or she has already stated; and

 

(b)  Limit presentations on behalf of the same organization or entity to no more than 3, provided that all those representing such organization or entity may enter their names and addresses into the record as supporting the position of the organization or entity.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 217.04  Media Access.  Public comment hearings shall be open to print and electronic media, subject to the following limitations when such limitations are necessary to allow a hearing to go forward:

 

          (a)  Limitation of the number of media representatives when their number together with the number of members of the public present exceeds the capacity of the hearing room;

 

          (b)  Limitation on the placement of cameras to specific locations within the hearing room; or

 

          (c)  Prohibition of interviews conducted within the hearing room before or during the hearing.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 217.05  Conduct of Public Comment Hearings.

 

          (a)  Public comment hearings shall be attended by a quorum of the board.

 

          (b)  Public comment hearings shall be presided over by the chair.

 

          (c)  The chair shall:

 

(1)  Call the hearing to order;

 

(2)  Identify the proposed rules that are the subject matter of the hearing and provide copies of them upon request;

 

(3)  Cause a recording of the hearing to be made;

 

(4)  Recognize those who wish to be heard;

 

(5)  If necessary, establish limits pursuant to Cla 217.03 and Cla 217.04;

 

(6)  If necessary to permit the hearing to go forward in an orderly manner, effect the removal of an individual who speaks or acts in a manner that is personally abusive or otherwise disrupts the hearing;

 

(7)  If necessary, postpone or move the hearing; and

 

(8)  Adjourn or continue the hearing.

 

          (d)  A hearing shall be postponed in accordance with RSA 541-A:11, IV when:

 

(1)  The weather is so inclement that it is reasonable to conclude that members of the public wishing to attend the hearing will be unable to do so;

 

(2)  There is no quorum of the board due to illness or unavoidable absence; or

 

(3)  Postponement will facilitate greater participation by the public.

 

          (e)  A hearing shall be moved to another location in accordance with RSA 541-A:11, V when the original location is not able to accommodate the number of people who wish to attend the hearing.

 

          (f)  A hearing shall be continued past the scheduled time or to another date in accordance with RSA 541-A:11, III when:

 

(1)  The time available is not sufficient to give each individual who wishes to speak a reasonable opportunity to do so; or

 

(2)  The capacity of the room in which the hearing is to be held does not accommodate the number of people who wish to attend and it is not possible to move the hearing to another location.

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 218  DECLARATORY RULINGS

 

          Cla 218.01  Requests for Declaratory Rulings.

 

          (a)  Any person may request a declaratory ruling by the board if:

 

(1)  That person is directly affected by RSA 541-B or by any rule of the board; and

 

(2)  The facts presented in accordance with Cla 218.02(a)(2) as the basis for the declaratory ruling are not the facts of a claim pending before the board or of a claim which can reasonably be anticipated to be submitted to the board.

 

          (b)  A request for a declaratory ruling shall be in a writing containing:

 

(1)  The name and address of the individual or entity making the request;

 

(2)  The text of the ruling being requested;

 

(3)  The reasons for the request; and

 

(4)  The following declaration signed by the individual making the request, the authorized representative of such individual, or the authorized representative of the entity making the request:

 

"I declare that I have examined the request for a declaratory ruling, including the accompanying documents, and state that, to the best of my knowledge and belief, the facts presented in support of the requested declaratory ruling are true, correct and complete."

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 218.02  Documents Required to Support Requests for Declaratory Rulings.

 

          (a)  A request for a declaratory ruling shall be accompanied by:

 

(1)  A statement citing the statutory law, regulatory law and orders believed to support the ruling being requested;

 

(2)  A statement of the facts believed to support the ruling being requested; and

 

(3)  Supplementary material necessary to establish or clarify the facts set forth in the statement of facts.

 

          (b)  A request for a declaratory ruling may be accompanied by additional material chosen by the person making the request.

 

                                                                      Source.  #8509, eff 12-09-05

 

Cla 218.03  Processing Requests for Declaratory Rulings.

 

          (a)  Within 30 days of receiving a request for a declaratory ruling the board shall advise the person requesting it if the ruling will be delayed by the need for additional information or the complexity of the issues presented.

 

(b)  If additional information should be needed, the board shall specify the additional information required and request that it be provided in a statement of additional information that includes the declaration specified in Cla 218.01(b)(4) and is accompanied by any material necessary to establish or clarify the facts set forth in the statement.

 

                                                                      Source.  #8509, eff 12-09-05

 

          Cla 218.04  Issuance and Publication of Declaratory Rulings.

 

          (a)  When facts sufficient to support a declaratory ruling have been established, the board shall issue a written declaratory ruling which applies all relevant law to the established facts.

 

          (b)  When the established facts show that the board lacks subject matter or personal jurisdiction to issue a declaratory ruling, the board shall issue a written decision stating that it lacks jurisdiction to issue a declaratory ruling and identifying the lack of jurisdiction.

 

(c)  Declaratory rulings shall be filed on the day of issuance with the director of legislative services in accordance with RSA 541-A:16, II(b).

 

                                                                      Source.  #8509, eff 12-09-05

 

Cla 218.05  Effect of Declaratory Rulings.  A declaratory ruling shall apply only to the board and to the person requesting it and shall be confined to the facts presented pursuant to Cla 218.02(a)(2)-(a)(3) and in response to a request of the board made pursuant to Cla 218.03(b).

 

                                                                      Source.  #8509, eff 12-09-05

 

PART Cla 219  EXPLANATION OF ADOPTED RULES

 

Cla 219.01  Requests for Explanation of Adopted Rules.  Any interested person may, within 30 days of the final adoption of a rule, request a written explanation of that rule by making a written request to the board including:

 

(a)  The name and address of the person making the request; or

 

(b)  If the request is that of an organization or other entity, the name and address of such organization or entity and the name and address of the representative authorized by the organization or entity to make the request.

 

                                                                      Source.  #8510, eff 12-09-05, EXPIRED: 12-9-13

 

Cla 219.02  Contents of Explanation.  The board shall, within 90 days of receiving a request in accordance with Cla 220.01, provide a written response which:

 

(a)  Concisely states the meaning of the rule adopted;

 

(b)  Concisely states the principal reasons for and against the adoption of the rule in its final form; and

 

(c)  States, if the board did so, why the board overruled any arguments and considerations presented against the rule.

 

                                                                      Source.  #8510, eff 12-09-05, EXPIRED: 12-9-13

 

CHAPTER Cla 300  CLAIMS

 

PART Cla 301  DEFINITIONS

 

Cla 301.01  “Chair” means the chair of the board of claims appointed pursuant to RSA 541-B:3, II, or a member of the board designated by the chair.

 

                                                                      Source.  #8511, eff 12-09-05, EXPIRED: 12-9-13

 

Cla 301.02  "Claim'' means "claim" as defined by RSA 541-B:1, II-a, namely, "any request for monetary relief for either:

 

(a)  Bodily injury, personal injury, death or property damages caused by the failure of the state or state officers, trustees, officials, employees, or members of the general court to follow the appropriate standard of care when that duty was owed to the person making the claim, including any right of action for money damages which either expressly or by implication arises from any law, unless another remedy for such claim is expressly provided by law; or

 

(b)  Property damages suffered by a state employee or official during the performance of that employee's or official's duties while on state business where compensation is appropriate under principles of equity and good conscience."

 

                                                                      Source.  #8511, eff 12-09-05, EXPIRED: 12-9-13

 

Cla 301.03  "Claimant'' means any person who makes a claim pursuant to RSA 541-B.

 

                                                                      Source.  #8511, eff 12-09-05, EXPIRED: 12-9-13

 

PART Cla 302  MAKING CLAIMS, RESPONDING TO CLAIMS AND THE PROCESSING OF CLAIMS.

 

Cla 302.01  Scope.

 

(a)  This chapter shall apply to monetary claims which:

 

(1)  Are of the following types:

 

a.  Claims not exceeding $50,000, with the exception of :

 

1.  The following types of claims without reference to the sum claimed:

 

(i)  Workers' compensation claims;

 

(ii)  Unemployment compensation claims; and

 

(iii)  Claims in eminent domain proceedings;

 

2.  Claims against the department of corrections for less than $500; and

 

3.  Claims against New Hampshire hospital for less than $500;

 

b.  Claims described in RSA 541-B:21 arising out of incidents occurring after July 1, 1988 in clinical services provided to the department of health and human services; and

 

c.  Claims described in RSA 541-B:21-a arising out of incidents occurring after  June 21, 2000 in clinical services provided to the department of corrections;

 

(2)  Are brought within 3 years of the date of the alleged:

 

a.  Bodily injury;

 

b.  Personal injury;

 

c.  Property damage; or

 

d.  Wrongful death resulting from bodily injury; and

 

(3)  Are not subject to the following exceptions set forth in RSA 541-B:19:

 

a.  Claims based upon the exercise of a legislative or judicial function;

 

b. Claims based upon an act or omission of a state officer, employee or official when such officer, employee or official is exercising due care in the execution of any statute or administrative rule;

 

c.  Claims based upon the exercise or performance or the failure to exercise or perform a discretionary executive or planning function or duty on the part of:

 

1.  The state;

 

2.  Any state agency; or

 

3.  A state officer, employee or official acting within the scope of his or her office or employment; and

 

d.  Claims arising out of an intentional tort, including assault, battery, false imprisonment, false arrest, intentional mental distress, malicious prosecution, malicious abuse of process, libel, slander, misrepresentation, deceit, invasion of privacy, interference with advantageous relations, or interference with contractual relations, provided that:

 

1.  The employee whose conduct gives rise to the claim reasonably believed at the time of the acts or omissions complained of, that the employee’s conduct was lawful; and

 

2.  The acts complained of were within the scope of official duties of the employee.

 

(b)  The claims of a claimant’s insurer for reimbursement of the sum paid to a claimant and of the claimant for the related deductible sum shall be separate claims.

 

                                                                      Source.  #8511, eff 12-09-05, EXPIRED: 12-9-13

 

          Cla 302.02  Preparation of a Claim.

 

(a)  A claimant shall prepare a claim by:

 

(1)  Completing the claim form described in (b) below; and

 

(2)  Attaching the documents described in (c) below.

 

(b)  The claimant shall provide the following information on a claim form furnished by the secretary of state:

 

(1)  The name and address of the claimant;

 

(2)  The name and address of the attorney for the claimant, if any;

 

(3)  The name of the agency claimed against;

 

(4)  The date of the incident giving rise to the claim;

 

(5)  The amount claimed;

 

(6)  The circumstances surrounding the claim; and

 

(7)  The claimant's theory of liability.

 

(c)  The claimant shall attach to the completed claim form copies of:

 

(1)  Bills and receipts supporting the amount claimed; and

 

(2)  Any other relevant documents supporting the claim.

 

                                                                      Source.  #8511, eff 12-09-05, EXPIRED: 12-9-13

 

Cla 302.03  Filing the Claim. The claimant shall file the claim by submitting:

 

(a)  To the agency complained against, one copy of the completed claim form and supporting documents; and

 

(b)  To the secretary of state at the address stated in (c) below:

 

(1)  Three copies of the completed claim form and supporting documents; and

 

(2) If the claim is for an amount greater than $5,000.00, payment of a fee in the amount of $25.00.

 

(c)  The filing address shall be:

 

Board of Claims

Secretary of State

State House Room 204

Concord, New Hampshire 03301

 

                                                                      Source.  #8511, eff 12-09-05, EXPIRED: 12-9-13

 

Cla 302.04  Responding to the Claim.

 

(a)  Upon receiving a copy of a claim the agency claimed against shall identify the date scheduled for the hearing of the claim by inquiring of the secretary of state.

 

(b)  Within 30 days of the receipt of a claim, or at least 10 days before the scheduled hearing of the claim, which ever comes first, the agency claimed against shall:

 

(1)  Respond to the claim in a written answer setting forth any defenses the agency may wish to raise; and

 

(2)  Do so by:

 

a.  Mailing one copy of its response to the claimant; and

 

b.  Filing 3 copies with the secretary of state at the address stated in Cla 302.03(c).

 

                                                                      Source.  #8511, eff 12-09-05, EXPIRED: 12-9-13

 

          Cla 302.05  Processing the Claim.

 

          (a)  The board shall examine the completed claim form and the attached documents to ascertain whether the claim is complete.

 

(b)  f the claim is not complete, the board shall, within 60 days of receipt of the claim:

 

(1)  Notify the claimant of any apparent errors or omissions;

 

(2)  Request any missing information or documents; and

 

(3)  Notify the claimant of the name, official title, address and telephone number of the individual who may be contacted regarding the matter.

 

          (c)  Upon receipt of the completed claim, the board shall:

 

(1)  Authorize payment of the claim if the claim is uncontested;

 

(2)  Dismiss the claim pursuant to (d) below; or

 

(3)  Begin an adjudicative proceeding if:

 

a.  The claim is contested; or

 

b.  The claim is uncontested but the following circumstances prevail:

 

1.  The board requires additional information to determine its jurisdiction over the claim; or

 

2.  The board requires information not obtained through the process of requesting it pursuant to (b)(2) above.

 

(d)  The board shall administratively dismiss a claim if the claim is plainly outside the jurisdiction of the board.

 

(e)  The board’s order dismissing a claim shall include:

 

(1)  Notice to the claimant of the dismissal and of the claimant's right to request a hearing of the matter;

 

(2)  The record of the vote dismissing the claim; and

 

(3)  Notice to the claimant of entitlement to reimbursement of any filing fee paid.

 

(f)  The board shall issue its administrative decision in the form of a written order delivered to:

 

(1)  The claimant;

 

(2)  The agency claimed against;

 

(3)  The attorney general; and

 

(4)  The secretary of state.

 

(g)  The board’s order on a claim on which payment is administratively approved shall include:

 

(1)  The amount of the award; and

 

(2)  The record of the vote approving the claim.

 

                                                                      Source.  #8511, eff 12-09-05, EXPIRED: 12-9-13

 

Cla 302.06  Claimant’s Right to an Adjudicative Hearing. A claimant shall be entitled to a hearing under the following circumstances:

 

(a)  When the claim has not been administratively approved;

 

(b)  When the claim has been administratively approved in an amount different from the amount claimed; or

 

(c)  For the purpose of determining the board's jurisdiction when the claimant wishes to challenge dismissal of the claim pursuant to Cla 302.05(d).

 

                                                                      Source.  #8511, eff 12-09-05, EXPIRED: 12-9-13

 

APPENDIX

 

RULE

STATUTE

 

 

Cla 101

RSA 541-A:7

 

 

Cla 102.01

RSA 541-B:3; RSA 541-B:4

Cla 102.02

RSA 541-B:19; RSA 541-B:9, I-V-a

Cla 102.03(a)

RSA 541-B:11, IV and V

Cla 102.03(b)

RSA 541-B:8

Cla 102.04(a)

RSA 91-A:2, II; RSA 541-A:16, I(a)

Cla 102.04(b)

RSA 541-A:16, I(a)

Cla 102.04(c)

RSA 91-A:2, II;

Cla 102.04(d)

RSA 541-A:16, I(a); RSA 541-A:16, I(b)(2)

 

 

Cla 103.01

RSA 541-A:16, I(a)

Cla 103.02

RSA 91-A:4

 

 

Cla 201

RSA 541-A:7

 

 

Cla 202.01

RSA 541-A:7

Cla 202.02

RSA 541-A:30-a, III(j)

 

 

Cla 203

RSA 541-A:30-a, III(f)

 

 

Cla 204.01

RSA 541-A:30-a, I; RSA 541-A:31, III

Cla 204.02

RSA 541-A:30-a, III(b)

Cla 204.03(a)

RSA 541-A:30-a, I; RSA 541-B:10, I

Cla 204.03(b) (c) and (d)

RSA 541-A:30-a, III(k)

Cla 204.03(e)

RSA 541-A:30-a, I; RSA 541-B:10, I

Cla 204.04

RSA 541-A:30-a, I; RSA 541-B:10, I

Cla 204.05

RSA 541-A:30-a, III(a)

Cla 204.06 and Cla 207

RSA 541-A:30-a, I; RSA 541-B:10, I

 

 

Cla 208.01

RSA 541-B:10, III; RSA 541:30-a, I

Cla 208.02

RSA 541-B:10, III; RSA 541-B:11, VI; RSA 541:30-a, I

Cla 208.03 and Cla 208.04

RSA 541-B:10, III; RSA 541:30-a, I

 

 

Cla 209

RSA 541-A:30-a, III(c)

 

 

Cla 210.01

RSA 541-A:30-a, I; RSA 541-B:10, I

Cla 210.02

RSA 541-A:30-a, III(h)

 

 

Cla 211,  Cla 212 and Cla 213

RSA 541-A:30-a, I; RSA 541-B:10, I

 

 

Cla 213.01 and Cla 213.02

RSA 541-A:30-a, I; RSA 541-B:10, I

Cla 213.03(a)-(g)

RSA 541-B:10, II

Cla 213.03(h)

RSA 541-B:11, VII

Cla 213.04

RSA 541-A:30-a, III(d) and (e)

Cla 213.05

RSA 541-A:30-a, I; RSA 541-B:10, I

 

 

Cla 214.01, 214.02 and 214.03

RSA 541-A:30-a, I; RSA 541-B:10, I

Cla 214.04

RSA 541-B:11, VI; RSA 541-B:18; RSA 541-A:16, I(b)

 

 

Cla 215

RSA 541-B:10, I and IV

 

 

Cla 216

RSA 541-A:16, I(c)

Cla 217

RSA 541-A:16, I(b)(3)

 

 

Cla 218

RSA 541-A:16, I(d)

 

 

Cla 219

RSA 541-A:11, VII

 

 

Cla 301

RSA 541-A:7

Cla 302.01(a)

RSA 541-B:9; RSA 541-B:21, I and III; RSA 541-B:21-a, I and III; RSA 541-B:14, IV; RSA 541-B:19

Cla 302.01(b)

RSA 541-B:10, I

Cla 302.02

RSA 541-B:10, I

Cla 302.03(a)

RSA 541-B:11, I

Cla 302.03(b)(1)

RSA 541-B:11, III

Cla 302.03(b)(2)

RSA 541-B:17

Cla 302.03(c)

RSA 541-B:11, III; RSA 541-A:7

Cla 302.04

RSA 541-B:10, I

Cla 302.05

RSA 541-A:1, IV