68-11-1610 - Contested case hearings Petition Procedure Arbitration and mediation alternatives Orders Costs. - Tennessee Statutes

68-11-1610. Contested case hearings Petition Procedure Arbitration and mediation alternatives Orders Costs.

(a)  Within fifteen (15) days of the approval or denial by the agency of an application, any applicant, health care institution that filed a written objection in accordance with § 68-11-1609(g)(1), or any other person who objected to the application pursuant to § 68-11-1609(g)(2), may petition the agency in writing for a hearing. Such petition shall be filed with the executive director. Notwithstanding any other provision of the law, all persons are barred from filing any petition for contested case hearing after such fifteen-day period, and the agency shall have no jurisdiction to consider any late-filed petition. Upon receipt of a timely petition, the agency shall initiate a contested case proceeding as provided in this section. At the hearing, no issue may be raised or evidence considered concerning the merits of an applicant considered by simultaneous review, unless the applicant met the requirements of this part, of concurrent consideration with the application that is the subject of the hearing.

(b)  The contested case hearing required by this section shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, except as otherwise provided in this section.

(c)  Contested cases initiated pursuant to this section shall be heard by an administrative law judge sitting alone. Petitions for contested cases received by the agency shall be forwarded immediately to the administrative division of the secretary of state's office for assignment to an administrative law judge.

(d)  The administrative law judge to whom a case has been assigned shall convene the parties for a scheduling conference within fifteen (15) days of the date the petition for contested case is filed. At the scheduling conference, the parties shall state their respective positions on the mediation alternative described in this section. If the parties are unable to agree on mediation alternative, the scheduling order for the contested case adopted by the administrative law judge shall establish a schedule that results in a hearing completed within one hundred eighty (180) days of the date on which the petition for contested case was received by the agency, with the initial order to be entered within sixty (60) days of the date the hearing is completed. Extensions of time or variances from the scheduling order shall be granted sparingly, and only because of unforeseen developments that would cause substantial prejudice to a party.

(e)  Initial orders of the administrative law judge in contested cases may be appealed in writing to the agency. The agency may decline to hear any appeal. If the agency reviews the order, it must do so in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. If the agency declines to review the order, the requesting party may appeal the order to the Davidson County chancery court in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

(f)  As an alternative to the contested case process described in subsection (c), the parties may agree to mediation of the issues raised in the contested case. The mediator shall be designated by mutual agreement of the parties. The parties may designate a mediator who is not listed as a qualified Supreme Court Rule 31 mediator, but such mediator shall observe the standards of professional conduct set forth in Appendix A to Supreme Court Rule 31, to the extent applicable. The mediator's fee shall be shared equally among the parties, except the state shall not be required to contribute to payment of the mediator's fee. If mediation results in agreement of the parties, such agreement shall be memorialized in the order terminating the contested case. A mediation proceeding under this subsection (f) shall not be subject to the scheduling order requirements set forth in subsection (d).

(g)  The general assembly declares the public policy of this state to be that certificate of need contested cases should be resolved through mediation, and the parties to such proceedings are encouraged to pursue this alternative.

(h)  Judicial review of the agency's final order in a contested case shall be as provided by law.

(i)  All costs of the contested case proceeding, including the administrative law judge's costs and deposition costs, such as expert witness fees, shall be assessed against the losing party in the contested case. If there is more than one losing party, the costs shall be divided equally among the losing parties. No costs shall be assessed against the agency.

(j)  The provisions of this section shall govern all contested cases relative to approval or denial decisions by the agency. Contested cases initiated with respect to certificate of need decisions by the health facilities commission shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and not by this section.

[Acts 2002, ch. 780, § 4; 2004, ch. 942, §§ 7-12.]