CHAPTER 3. ADJUDICATIVE PROCEEDINGS
IC 4-21.5-3
Chapter 3. Adjudicative Proceedings
IC 4-21.5-3-1
Service of process; notice by publication
Sec. 1. (a) This section applies to:
(1) the giving of any notice;
(2) the service of any motion, ruling, order, or other filed item;
or
(3) the filing of any document with the ultimate authority;
in an administrative proceeding under this article.
(b) Except as otherwise provided by law, a person shall serve
papers by United States mail or personal service. If an agency mails
or personally serves a paper, the agency shall keep a record of the
time, date, and circumstances of the service.
(c) Service shall be made on a person or on the person's counsel
or other authorized representative of record in the proceeding.
Service on an artificial person or a person incompetent to receive
service shall be made on a person allowed to receive service under
the rules governing civil actions in the courts. If an ultimate authority
consists of more than one (1) individual, service on that ultimate
authority must be made on the chairperson or secretary of the
ultimate authority. A document to be filed with that ultimate
authority must be filed with the chairperson or secretary of the
ultimate authority.
(d) If the current address of a person is not ascertainable, service
shall be mailed to the last known address where the person resides or
has a principal place of business. If the identity, address, or existence
of a person is not ascertainable, or a law other than a rule allows,
service shall be made by a single publication in a newspaper of
general circulation in:
(1) the county in which the person resides, has a principal place
of business, or has property that is the subject of the
proceeding; or
(2) Marion County, if the place described in subdivision (1) is
not ascertainable or the place described in subdivision (1) is
outside Indiana and the person does not have a resident agent or
other representative of record in Indiana.
(e) A notice given by publication must include a statement
advising a person how the person may receive written notice of the
proceedings.
(f) The filing of a document with an ultimate authority is complete
on the earliest of the following dates that apply to the filing:
(1) The date on which the document is delivered to the ultimate
authority under subsection (c).
(2) The date of the postmark on the envelope containing the
document, if the document is mailed to the ultimate authority by
United States mail.
(3) The date on which the document is deposited with a private
carrier, as shown by a receipt issued by the carrier, if the
document is sent to the ultimate authority by private carrier.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.2;
P.L.33-1989, SEC.2; P.L.35-1989, SEC.2.
IC 4-21.5-3-2
Time computation
Sec. 2. (a) In computing any period of time under this article, the
day of the act, event, or default from which the designated period of
time begins to run is not included. The last day of the computed
period is to be included unless it is:
(1) a Saturday;
(2) a Sunday;
(3) a legal holiday under a state statute; or
(4) a day that the office in which the act is to be done is closed
during regular business hours.
(b) A period runs until the end of the next day after a day
described in subdivisions (1) through (4). If the period allowed is less
than seven (7) days, intermediate Saturdays, Sundays, state holidays,
and days on which the office in which the act is to be done is closed
during regular business hours are excluded from the calculation.
(c) A period of time under this article that commences when a
person is served with a paper, including the period in which a person
may petition for judicial review, commences with respect to a
particular person on the earlier of the date that:
(1) the person is personally served with the notice; or
(2) a notice for the person is deposited in the United States
mail.
(d) If section 1(d) of this chapter applies, a period of time under
this article commences when a notice for the person is published in
a newspaper.
(e) If a notice is served through the United States mail, three (3)
days must be added to a period that commences upon service of that
notice.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-3-3
Notice of orders; additional proceedings; effectiveness; stays
Sec. 3. (a) An agency shall give notice concerning an order under
section 4, 5, 6, or 8 of this chapter. An agency shall conduct
additional proceedings under this chapter if required by section 7 or
8 of this chapter. However, IC 4-21.5-4 applies to the notice and
proceedings necessary for emergency and other temporary orders.
(b) Notwithstanding IC 1-1-4-1, if:
(1) a panel of individuals responsible for an agency action has
a quorum of its members present, as specified by law; and
(2) a statute other than IC 1-1-4-1 does not specify the number
of votes necessary to take an agency action;
the panel may take the action by an affirmative vote of a majority of
the members present and voting. For the purposes of this subsection,
a member abstaining on a vote is not voting on the action.
(c) An order is effective when it is issued as a final order under
this chapter, except to the extent that:
(1) a different date is set by this article;
(2) a later date is set by an agency in its order; or
(3) an order is stayed.
(d) After an order becomes effective, an agency may suspend the
effect of an order, in whole or in part, by staying the order under this
chapter.
(e) A party to an order may be required to comply with an order
only after the party has been served with the order or has actual
knowledge of the order.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.3.
IC 4-21.5-3-4
Notice required; licenses and personnel decisions; persons who
must be notified; contents
Sec. 4. (a) Notice must be given under this section concerning the
following:
(1) The grant, renewal, restoration, transfer, or denial of a
license by the bureau of motor vehicles under IC 9.
(2) The grant, renewal, restoration, transfer, or denial of a
noncommercial fishing or hunting license by the department of
natural resources under IC 14.
(3) The grant, renewal, restoration, transfer, or denial of a
license by a board described in IC 25-1-8-1.
(4) The grant, renewal, suspension, revocation, or denial of a
certificate of registration under IC 25-5.2.
(5) A personnel decision by an agency.
(6) The grant, renewal, restoration, transfer, or denial of a
license by the department of environmental management or the
commissioner of the department under the following:
(A) Environmental management laws (as defined in
IC 13-11-2-71) for the construction, installation, or
modification of:
(i) sewers and appurtenant facilities, devices, or structures
for the collection and transport of sewage (as defined in
IC 13-11-2-200) or storm water to a storage or treatment
facility or to a point of discharge into the environment; or
(ii) pipes, pumps, and appurtenant facilities, devices, or
structures that are part of a public water system (as defined
in IC 13-11-2-177.3) and that are used to transport water
to a storage or treatment facility or to distribute water to
the users of the public water system;
where a federal, state, or local governmental body has given
or will give public notice and has provided or will provide
an opportunity for public participation concerning the
activity that is the subject of the license.
(B) Environmental management laws (as defined in
IC 13-11-2-71) for the registration of a device or a piece of
equipment.
(C) IC 13-17-6-1 for a person to engage in the inspection,
management, and abatement of asbestos containing material.
(D) IC 13-18-11 for a person to operate a wastewater
treatment plant.
(E) IC 13-15-10 for a person to operate the following:
(i) A solid waste incinerator or a waste to energy facility.
(ii) A land disposal site.
(iii) A facility described under IC 13-15-1-3 whose
operation could have an adverse impact on the
environment if not operated properly.
(F) IC 13-20-4 for a person to operate a municipal waste
collection and transportation vehicle.
(b) When an agency issues an order described by subsection (a),
the agency shall give a written notice of the order to the following
persons:
(1) Each person to whom the order is specifically directed.
(2) Each person to whom a law requires notice to be given.
A person who is entitled to notice under this subsection is not a party
to any proceeding resulting from the grant of a petition for review
under section 7 of this chapter unless the person is designated as a
party on the record of the proceeding.
(c) The notice must include the following:
(1) A brief description of the order.
(2) A brief explanation of the available procedures and the time
limit for seeking administrative review of the order under
section 7 of this chapter.
(3) Any information required by law.
(d) An order under this section is effective when it is served.
However, if a timely and sufficient application has been made for
renewal of a license described by subsection (a)(3) and review is
granted under section 7 of this chapter, the existing license does not
expire until the agency has disposed of the proceeding under this
chapter concerning the renewal, unless a statute other than this article
provides otherwise. This subsection does not preclude an agency
from issuing under IC 4-21.5-4 an emergency or other temporary
order with respect to the license.
(e) If a petition for review of an order described in subsection (a)
is filed within the period set by section 7 of this chapter and a
petition for stay of effectiveness of the order is filed by a party or
another person who has a pending petition for intervention in the
proceeding, an administrative law judge shall, as soon as practicable,
conduct a preliminary hearing to determine whether the order should
be stayed in whole or in part. The burden of proof in the preliminary
hearing is on the person seeking the stay. The administrative law
judge may stay the order in whole or in part. The order concerning
the stay may be issued after an order described in subsection (a)
becomes effective. The resulting order concerning the stay shall be
served on the parties and any person who has a pending petition for
intervention in the proceeding. It must include a statement of the
facts and law on which it is based.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1989, SEC.3;
P.L.25-1991, SEC.1; P.L.33-1993, SEC.1; P.L.1-1996, SEC.25;
P.L.54-2001, SEC.2; P.L.184-2002, SEC.1.
IC 4-21.5-3-5
Notice required; certain licensing and other decisions; persons who
must be notified; contents; effectiveness of order; stays
Sec. 5. (a) Notice shall be given under this section concerning the
following:
(1) The grant, renewal, restoration, transfer, or denial of a
license not described by section 4 of this chapter.
(2) The approval, renewal, or denial of a loan, grant of property
or services, bond, financial guarantee, or tax incentive.
(3) The grant or denial of a license in the nature of a variance
or exemption from a law.
(4) The determination of tax due or other liability.
(5) A determination of status.
(6) Any order that does not impose a sanction or terminate a
legal right, duty, privilege, immunity, or other legal interest.
(b) When an agency issues an order described in subsection (a),
the agency shall give a written notice of the order to the following
persons:
(1) Each person to whom the order is specifically directed.
(2) Each person to whom a law requires notice to be given.
(3) Each competitor who has applied to the agency for a
mutually exclusive license, if issuance is the subject of the
order and the competitor's application has not been denied in an
order for which all rights to judicial review have been waived
or exhausted.
(4) Each person who has provided the agency with a written
request for notification of the order, if the request:
(A) describes the subject of the order with reasonable
particularity; and
(B) is delivered to the agency at least seven (7) days before
the day that notice is given under this section.
(5) Each person who has a substantial and direct proprietary
interest in the subject of the order.
(6) Each person whose absence as a party in the proceeding
concerning the order would deny another party complete relief
in the proceeding or who claims an interest related to the
subject of the order and is so situated that the disposition of the
matter, in the person's absence, may:
(A) as a practical matter impair or impede the person's
ability to protect that interest; or
(B) leave any other person who is a party to a proceeding
concerning the order subject to a substantial risk of incurring
multiple or otherwise inconsistent obligations by reason of
the person's claimed interest.
A person who is entitled to notice under this subsection is not a party
to any proceeding resulting from the grant of a petition for review
under section 7 of this chapter unless the person is designated as a
party in the record of the proceeding.
(c) The notice required by subsection (a) must include the
following:
(1) A brief description of the order.
(2) A brief explanation of the available procedures and the time
limit for seeking administrative review of the order under
section 7 of this chapter.
(3) A brief explanation of how the person may obtain notices of
any prehearing conferences, preliminary hearings, hearings,
stays, and any orders disposing of the proceedings without
intervening in the proceeding, if a petition for review is granted
under section 7 of this chapter.
(4) Any other information required by law.
(d) An agency issuing an order under this section or conducting
an administrative review of the order shall give notice of any:
(1) prehearing conference;
(2) preliminary hearing;
(3) hearing;
(4) stay; or
(5) order disposing of all proceedings;
concerning the order to a person notified under subsection (b) who
requests these notices in the manner specified under subsection
(c)(3).
(e) If a statute requires an agency to solicit comments from the
public in a nonevidentiary public hearing before issuing an order
described by subsection (a), the agency shall announce at the opening
and the close of the public hearing how a person may receive notice
of the order under subsection (b)(4).
(f) If a petition for review and a petition for stay of effectiveness
of an order described in subsection (a) has not been filed, the order
is effective fifteen (15) days (or any longer period during which a
person may, by statute, seek administrative review of the order) after
the order is served. If both a petition for review and a petition for
stay of effectiveness are filed before the order becomes effective, any
part of the order that is within the scope of the petition for stay is
stayed for an additional fifteen (15) days. Any part of the order that
is not within the scope of the petition is not stayed. The order takes
effect regardless of whether the persons described by subsection
(b)(5) or (b)(6) have been served. An agency shall make a good faith
effort to identify and notify these persons, and the agency has the
burden of persuasion that it has done so. The agency may request that
the applicant for the order assist in the identification of these
persons. Failure to notify any of these persons is not grounds for
invalidating an order, unless an unnotified person is substantially
prejudiced by the lack of notice. The burden of persuasion as to
substantial prejudice is on the unnotified person.
(g) If a timely and sufficient application has been made for
renewal of a license with reference to any activity of a continuing
nature and review is granted under section 7 of this chapter, the
existing license does not expire until the agency has disposed of a
proceeding under this chapter concerning the renewal, unless a
statute other than this article provides otherwise. This subsection
does not preclude an agency from issuing, under IC 4-21.5-4, an
emergency or other temporary order with respect to the license.
(h) On the motion of any party or other person having a pending
petition for intervention in the proceeding, an administrative law
judge shall, as soon as practicable, conduct a preliminary hearing to
determine whether the order should be stayed. The burden of proof
in the preliminary hearing is on the person seeking the stay. The
administrative law judge may stay the order in whole or in part. The
order concerning the stay may be issued before or after the order
described in subsection (a) becomes effective. The resulting order
concerning the stay shall be served on the parties, any person who
has a pending petition for intervention in the proceeding, and any
person who has requested notice under subsection (d). It must
include a statement of the facts and law on which it is based.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.4.
IC 4-21.5-3-6
Notice required; persons who must receive notice; contents;
effectiveness of order; stay, preliminary hearing, and resulting
order
Sec. 6. (a) Notice shall be given under this section concerning the
following:
(1) A safety order under IC 22-8-1.1.
(2) Any order that:
(A) imposes a sanction on a person or terminates a legal
right, duty, privilege, immunity, or other legal interest of a
person;
(B) is not described in section 4 or 5 of this chapter or
IC 4-21.5-4; and
(C) by statute becomes effective without a proceeding under
this chapter if there is no request for a review of the order
within a specified period after the order is issued or served.
(3) A notice of program reimbursement or equivalent
determination or other notice regarding a hospital's
reimbursement issued by the office of Medicaid policy and
planning or by a contractor of the office of Medicaid policy and
planning regarding a hospital's year end cost settlement.
(4) A determination of audit findings or an equivalent
determination by the office of Medicaid policy and planning or
by a contractor of the office of Medicaid policy and planning
arising from a Medicaid postpayment or concurrent audit of a
hospital's Medicaid claims.
(5) A license revocation under:
(A) IC 24-4.4-2;
(B) IC 24-4.5-3;
(C) IC 28-1-29;
(D) IC 28-7-5;
(E) IC 28-8-4; or
(F) IC 28-8-5.
(b) When an agency issues an order described by subsection (a),
the agency shall give notice to the following persons:
(1) Each person to whom the order is specifically directed.
(2) Each person to whom a law requires notice to be given.
A person who is entitled to notice under this subsection is not a party
to any proceeding resulting from the grant of a petition for review
under section 7 of this chapter unless the person is designated as a
party in the record of the proceeding.
(c) The notice must include the following:
(1) A brief description of the order.
(2) A brief explanation of the available procedures and the time
limit for seeking administrative review of the order under
section 7 of this chapter.
(3) Any other information required by law.
(d) An order described in subsection (a) is effective fifteen (15)
days after the order is served, unless a statute other than this article
specifies a different date or the agency specifies a later date in its
order. This subsection does not preclude an agency from issuing,
under IC 4-21.5-4, an emergency or other temporary order
concerning the subject of an order described in subsection (a).
(e) If a petition for review of an order described in subsection (a)
is filed within the period set by section 7 of this chapter and a
petition for stay of effectiveness of the order is filed by a party or
another person who has a pending petition for intervention in the
proceeding, an administrative law judge shall, as soon as practicable,
conduct a preliminary hearing to determine whether the order should
be stayed in whole or in part. The burden of proof in the preliminary
hearing is on the person seeking the stay. The administrative law
judge may stay the order in whole or in part. The order concerning
the stay may be issued after an order described in subsection (a)
becomes effective. The resulting order concerning the stay shall be
served on the parties and any person who has a pending petition for
intervention in the proceeding. It must include a statement of the
facts and law on which it is based.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.5;
P.L.42-1995, SEC.2; P.L.80-1998, SEC.1; P.L.35-2010, SEC.1.
IC 4-21.5-3-7
Review; petition; denial of petition; preliminary hearing
Sec. 7. (a) To qualify for review of a personnel action to which
IC 4-15-2 applies, a person must comply with IC 4-15-2-35 or
IC 4-15-2-35.5. To qualify for review of any other order described in
section 4, 5, or 6 of this chapter, a person must petition for review in
a writing that does the following:
(1) States facts demonstrating that:
(A) the petitioner is a person to whom the order is
specifically directed;
(B) the petitioner is aggrieved or adversely affected by the
order; or
(C) the petitioner is entitled to review under any law.
(2) Includes, with respect to determinations of notice of
program reimbursement and audit findings described in section
6(a)(3) and 6(a)(4) of this chapter, a statement of issues that
includes:
(A) the specific findings, action, or determination of the
office of Medicaid policy and planning or of a contractor of
the office of Medicaid policy and planning from which the
provider is appealing;
(B) the reason the provider believes that the finding, action,
or determination of the office of Medicaid policy and
planning or of a contractor of the office of Medicaid policy
and planning was in error; and
(C) with respect to each finding, action, or determination of
the office of Medicaid policy and planning or of a contractor
of the office of Medicaid policy and planning, the statutes or
rules that support the provider's contentions of error.
Not more than thirty (30) days after filing a petition for review
under this section, and upon a finding of good cause by the
administrative law judge, a person may amend the statement of
issues contained in a petition for review to add one (1) or more
additional issues.
(3) Is filed:
(A) with respect to an order described in section 4, 5,
6(a)(1), 6(a)(2), or 6(a)(5) of this chapter, with the ultimate
authority for the agency issuing the order within fifteen (15)
days after the person is given notice of the order or any
longer period set by statute; or
(B) with respect to a determination described in section
6(a)(3) or 6(a)(4) of this chapter, with the office of Medicaid
policy and planning not more than one hundred eighty (180)
days after the hospital is provided notice of the
determination.
The issuance of an amended notice of program reimbursement
by the office of Medicaid policy and planning does not extend
the time within which a hospital must file a petition for review
from the original notice of program reimbursement under clause
(B), except for matters that are the subject of the amended
notice of program reimbursement.
If the petition for review is denied, the petition shall be treated as a
petition for intervention in any review initiated under subsection (d).
(b) If an agency denies a petition for review under subsection (a)
and the petitioner is not allowed to intervene as a party in a
proceeding resulting from the grant of the petition for review of
another person, the agency shall serve a written notice on the
petitioner that includes the following:
(1) A statement that the petition for review is denied.
(2) A brief explanation of the available procedures and the time
limit for seeking administrative review of the denial under
subsection (c).
(c) An agency shall assign an administrative law judge to conduct
a preliminary hearing on the issue of whether a person is qualified
under subsection (a) to obtain review of an order when a person
requests reconsideration of the denial of review in a writing that:
(1) states facts demonstrating that the person filed a petition for
review of an order described in section 4, 5, or 6 of this chapter;
(2) states facts demonstrating that the person was denied review
without an evidentiary hearing; and
(3) is filed with the ultimate authority for the agency denying
the review within fifteen (15) days after the notice required by
subsection (b) was served on the petitioner.
Notice of the preliminary hearing shall be given to the parties, each
person who has a pending petition for intervention in the proceeding,
and any other person described by section 5(d) of this chapter. The
resulting order must be served on the persons to whom notice of the
preliminary hearing must be given and include a statement of the
facts and law on which it is based.
(d) If a petition for review is granted, the petitioner becomes a
party to the proceeding and the agency shall assign the matter to an
administrative law judge or certify the matter to another agency for
the assignment of an administrative law judge (if a statute transfers
responsibility for a hearing on the matter to another agency). The
agency granting the administrative review or the agency to which the
matter is transferred may conduct informal proceedings to settle the
matter to the extent allowed by law.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.6;
P.L.42-1995, SEC.3; P.L.2-1997, SEC.11; P.L.222-2005, SEC.22;
P.L.213-2007, SEC.1; P.L.217-2007, SEC.1.
IC 4-21.5-3-8
Sanctions; temporary orders
Sec. 8. (a) An agency may issue a sanction or terminate a legal
right, duty, privilege, immunity, or other legal interest not described
by section 4, 5, or 6 of this chapter only after conducting a
proceeding under this chapter. However, this subsection does not
preclude an agency from issuing, under IC 4-21.5-4, an emergency
or other temporary order concerning the subject of the proceeding.
(b) When an agency seeks to issue an order that is described by
subsection (a), the agency shall serve a complaint upon:
(1) each person to whom any resulting order will be specifically
directed; and
(2) any other person required by law to be notified.
A person notified under this subsection is not a party to the
proceeding unless the person is a person against whom any resulting
order will be specifically directed or the person is designated by the
agency as a party in the record of the proceeding.
(c) The complaint required by subsection (b) must include the
following:
(1) A short, plain statement showing that the pleader is entitled
to an order.
(2) A demand for the order that the pleader seeks.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-3-9
Ultimate authority of agency; acting as or designating an
administrative judge; disqualification; procedures
Sec. 9. (a) Except to the extent that a statute other than this article
limits an agency's discretion to select an administrative law judge,
the ultimate authority for an agency may:
(1) act as an administrative law judge;
(2) designate one (1) or more members of the ultimate authority
(if the ultimate authority is a panel of individuals) to act as an
administrative law judge; or
(3) designate one (1) or more other individuals, not necessarily
employees of the agency, to act as an administrative law judge.
A designation under subdivision (2) or (3) may be made in advance
of the commencement of any particular proceeding for a generally
described class of proceedings or may be made for a particular
proceeding. A general designation may provide procedures for the
assignment of designated individuals to particular proceedings.
(b) An agency may not knowingly assign an individual to serve
alone or with others as an administrative law judge who is subject to
disqualification under this chapter.
(c) If the judge believes that the judge's impartiality might
reasonably be questioned, or believes that the judge's personal bias,
prejudice, or knowledge of a disputed evidentiary fact might
influence the decision, an individual assigned to serve alone or with
others as an administrative law judge shall:
(1) withdraw as the administrative law judge; or
(2) inform the parties of the potential basis for disqualification,
place a brief statement of this basis on the record of the
proceeding, and allow the parties an opportunity to petition for
disqualification under subsection (d).
(d) Any party to a proceeding may petition for the disqualification
of an individual serving alone or with others as an administrative law
judge upon discovering facts establishing grounds for
disqualification under this chapter. The administrative law judge
assigned to the proceeding shall determine whether to grant the
petition, stating facts and reasons for the determination. If the
administrative law judge ruling on the disqualification issue is not
the ultimate authority for the agency, the party petitioning for
disqualification may petition the ultimate authority in writing for
review of the ruling within ten (10) days after notice of the ruling is
served. The ultimate authority shall conduct proceedings described
by section 28 of this chapter to review the petition and affirm,
modify, or dissolve the ruling within thirty (30) days after the
petition is filed. A determination by the ultimate authority under this
subsection is a final order subject to judicial review under
IC 4-21.5-5.
(e) If a substitute is required for an administrative law judge who
is disqualified or becomes unavailable for any other reason, the
substitute must be appointed in accordance with subsection (a).
(f) Any action taken by a duly appointed substitute for a
disqualified or unavailable administrative law judge is as effective
as if taken by the latter.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.7.
IC 4-21.5-3-10
Disqualification of administrative law judge
Sec. 10. Any individual serving or designated to serve alone or
with others as an administrative law judge is subject to
disqualification for:
(1) bias, prejudice, or interest in the outcome of a proceeding;
(2) failure to dispose of the subject of a proceeding in an
orderly and reasonably prompt manner after a written request
by a party; or
(3) any cause for which a judge of a court may be disqualified.
Nothing in this subsection prohibits an individual who is an
employee of an agency from serving as an administrative law judge.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-3-11
Ex parte communications; violations
Sec. 11. (a) Except as provided in subsection (b) or unless
required for the disposition of ex parte matters specifically
authorized by statute, an administrative law judge serving in a
proceeding may not communicate, directly or indirectly, regarding
any issue in the proceeding while the proceeding is pending, with:
(1) any party;
(2) any individual who has a direct or indirect interest in the
outcome of the proceeding;
(3) any individual who presided at a previous stage of the
proceeding; or
(4) any individual who is prohibited from assisting the
administrative law judge under section 13 of this chapter;
without notice and opportunity for all parties to participate in the
communication.
(b) A member of a multimember panel of administrative law
judges may communicate with other members of the panel regarding
a matter pending before the panel, and any administrative law judge
may receive aid from staff assistants. However, a staff assistant may
not communicate to an administrative law judge any:
(1) ex parte communications of a type that the administrative
law judge would be prohibited from receiving under subsection
(a); or
(2) information that would furnish, augment, diminish, or
modify the evidence in the record.
(c) Unless required for the disposition of ex parte matters
specifically authorized by statute, a person described by subsection
(a)(1), (a)(2), (a)(3), or (a)(4) may not communicate, directly or
indirectly, in connection with any issue in that proceeding while the
proceeding is pending, with any person serving as administrative law
judge without notice and opportunity for all parties to participate in
the communication.
(d) If, before serving as administrative law judge in a proceeding,
an individual receives an ex parte communication of a type that
would not properly be received while serving, the individual,
promptly after starting to serve, shall disclose the communication in
the manner prescribed in subsection (e).
(e) An administrative law judge who receives an ex parte
communication in violation of this section shall:
(1) place on the record of the pending matter all written
communications received, all written responses to the
communications, and a memorandum stating the substance of
all oral communications received, all responses made, and the
identity of each individual from whom the administrative law
judge received an ex parte communication; and
(2) advise all parties that these matters have been placed on the
record.
Any person described by subsection (a)(1), (a)(2), (a)(3), or (a)(4)
shall be allowed to rebut a charge of wrongful ex parte
communication upon requesting the opportunity for rebuttal within
fifteen (15) days after notice of the communication.
(f) If necessary to eliminate the effect of an ex parte
communication received in violation of this section, an
administrative law judge who receives the communication may be
disqualified and the portions of the record pertaining to the
communication may be corrected, modified, or preserved by
protective order.
(g) A violation of this section is subject to the sanctions under
sections 36 and 37 of this chapter.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.8.
IC 4-21.5-3-12
Administrative law judge; prohibited acts; disqualification
Sec. 12. An administrative law judge who:
(1) comments publicly, except as to hearing schedules or
procedures, about pending or impending proceedings; or
(2) engages in financial or business dealings that tend to:
(A) reflect adversely on the administrative law judge's
impartiality;
(B) interfere with the proper performance of the
administrative law judge's duties;
(C) exploit the administrative law judge's position; or
(D) involve the administrative law judge in frequent
financial or business dealings with attorneys or other persons
who are likely to come before the administrative law judge;
is subject to disqualification. A violation of this section is subject to
the sanctions under sections 36 and 37 of this chapter.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-3-13
Disqualification; involvement in preadjudicative stage
Sec. 13. (a) An individual who has served as investigator,
prosecutor, or advocate in a proceeding or in its preadjudicative stage
may not serve as an administrative law judge or assist or advise the
administrative law judge in the same proceeding.
(b) An individual who is subject to the authority, direction, or
discretion of an individual who has served as investigator,
prosecutor, or advocate in a proceeding or in its preadjudicative stage
may not serve as an administrative law judge or assist or advise the
administrative law judge in the same proceeding.
(c) An individual who has made a determination of probable cause
or other equivalent preliminary determination in a proceeding may
serve as an administrative law judge or assist or advise the
administrative law judge in the same proceeding, unless a party
demonstrates grounds for disqualification under section 10 of this
chapter.
(d) An individual may serve as an administrative law judge or a
person presiding under sections 28, 29, 30, and 31 of this chapter at
successive stages of the same proceeding, unless a party
demonstrates grounds for disqualification under section 10 of this
chapter.
(e) A violation of this section is subject to the sanctions under
sections 36 and 37 of this chapter.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-3-14
Record; hearing on motion; burden of proof
Sec. 14. (a) An administrative law judge conducting a proceeding
shall keep a record of the administrative law judge's proceedings
under this article.
(b) If a motion is based on facts not otherwise appearing in the
record for the proceeding, the administrative law judge may hear the
matter on affidavits presented by the respective parties or the
administrative law judge may direct that the matter be heard wholly
or partly on oral testimony or depositions.
(c) At each stage of the proceeding, the agency or other person
requesting that an agency take action or asserting an affirmative
defense specified by law has the burden of persuasion and the burden
of going forward with the proof of the request or affirmative defense.
Before the hearing on which the party intends to assert it, a party
shall, to the extent possible, disclose any affirmative defense
specified by law on which the party intends to rely. If a prehearing
conference is held in the proceeding, a party notified of the
conference shall disclose the party's affirmative defense in the
conference.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.9.
IC 4-21.5-3-15
Participation in proceeding
Sec. 15. (a) Any party may participate in a proceeding in person
or, if the party is not an individual or is incompetent to participate,
by a duly authorized representative.
(b) Whether or not participating in person, any party may be
advised and represented at the party's own expense by counsel or,
unless prohibited by law, by another representative.
As added by P.L.18-1986, SEC.1. Amended by P.L.33-1989, SEC.3.
IC 4-21.5-3-16
Interpreters
Sec. 16. (a) A person who:
(1) cannot speak or understand the English language or who
because of hearing, speaking, or other impairment has difficulty
in communicating with other persons; and
(2) is a party or witness in any proceeding under this article;
is entitled to an interpreter to assist the person throughout the
proceeding under this article.
(b) The interpreter may be retained by the person or may be
appointed by the agency before which the proceeding is pending. If
an interpreter is appointed by the agency, the fee for the services of
the interpreter shall be set by the agency. The fee shall be paid from
any funds available to the agency or be paid in any other manner
ordered by the agency.
(c) Any agency may inquire into the qualifications and integrity
of any interpreter and may disqualify any person from serving as an
interpreter.
(d) Every interpreter for another person in a proceeding shall take
the following oath:
Do you affirm, under penalties of perjury, that you will justly,
truly, and impartially interpret to _______ the oath about to be
administered to him (her), the questions that may be asked him (her),
and the answers that he (she) shall give to the questions, relative to
the cause now under consideration before this agency?
(e) IC 35-44-2-1 concerning perjury applies to an interpreter.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-3-17
Opportunity to file documents; copies
Sec. 17. (a) The administrative law judge, at appropriate stages of
a proceeding, shall give all parties full opportunity to file pleadings,
motions, and objections and submit offers of settlement.
(b) The administrative law judge, at appropriate stages of a
proceeding, may give all parties full opportunity to file briefs,
proposed findings of fact, and proposed orders.
(c) A party shall serve copies of any filed item on all parties.
(d) The administrative law judge shall serve copies of all notices,
orders, and other papers generated by the administrative law judge
on all parties. The administrative law judge shall give notice of
preliminary hearings, prehearing conferences, hearings, stays, and
orders disposing of the proceeding to persons described by section
5(d) of this chapter.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-3-18
Prehearing conference; notice
Sec. 18. (a) The administrative law judge for the hearing, subject
to the agency's rules, may, on the administrative law judge's own
motion, and shall, on the motion of a party, conduct a prehearing
conference. The administrative law judge may deny a motion for a
prehearing conference if the administrative law judge has previously
conducted a prehearing conference in the proceeding.
(b) This section and section 19 of this chapter apply if the
conference is conducted.
(c) The administrative law judge for the prehearing conference
shall set the time and place of the conference and give reasonable
written notice to the following:
(1) All parties.
(2) All persons who have filed written petitions to intervene in
the matter.
(3) All persons entitled to notice under any law.
(d) The initial prehearing conference notice in a proceeding must
include the following:
(1) The names and mailing addresses of all known parties and
other persons to whom notice is being given by the
administrative law judge.
(2) The names and mailing addresses of all publications used to
provide notice under this section.
(3) The name, official title, and mailing address of any counsel
or employee who has been designated to appear for the agency
and a telephone number through which the counsel or employee
can be reached.
(4) The official file or other reference number, the name of the
proceeding, and a general description of the subject matter.
(5) A statement of the time, place, and nature of the prehearing
conference.
(6) A statement of the legal authority and jurisdiction under
which the prehearing conference and the hearing are to be held.
(7) The name, official title, and mailing address of the
administrative law judge for the prehearing conference and a
telephone number through which information concerning
hearing schedules and procedures may be obtained.
(8) A statement that a party who fails to attend or participate in
a prehearing conference, hearing, or other later stage of the
proceeding may be held in default or have a proceeding
dismissed under section 24 of this chapter.
(e) Any subsequent prehearing conference notice in the
proceeding may omit the information described in subsections (d)(1),
(d)(2), (d)(3), (d)(6), and (d)(8).
(f) Any notice under this section may include any other matters
that the administrative law judge considers desirable to expedite the
proceedings.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.10.
IC 4-21.5-3-19
Prehearing conference; electronic means; matters considered;
prehearing order on pleadings
Sec. 19. (a) This section and section 18 of this chapter apply to
prehearing conferences.
(b) To expedite a decision on pending motions and other issues,
the administrative law judge may conduct all or part of the
prehearing conference by telephone, television, or other electronic
means if each participant in the conference has an opportunity:
(1) to participate in;
(2) to hear; and
(3) if technically feasible, to see;
the entire proceeding while it is taking place.
(c) The administrative law judge shall conduct the prehearing
conference, as may be appropriate, to deal with such matters as the
following:
(1) Resolution of the issues in the proceeding under section 23
of this chapter.
(2) Exploration of settlement possibilities.
(3) Preparation of stipulations.
(4) Clarification of issues.
(5) Rulings on identity and limitation of the number of
witnesses.
(6) Objections to proffers of evidence.
(7) A determination of the extent to which direct evidence,
rebuttal evidence, or cross-examination will be presented in
written form.
(8) The order of presentation of evidence and
cross-examination.
(9) Rulings regarding issuance of subpoenas, discovery orders,
and protective orders.
(10) Such other matters as will promote the orderly and prompt
conduct of the hearing.
The administrative law judge shall issue a prehearing order
incorporating the matters determined at the prehearing conference.
(d) If a prehearing conference is not held, the administrative law
judge for the hearing may issue a prehearing order, based on the
pleadings, to regulate the conduct of the proceedings.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-3-20
Hearing; time and place; notice
Sec. 20. (a) The administrative law judge for the hearing shall set
the time and place of the hearing and give reasonable written notice
to all parties and to all persons who have filed written petitions to
intervene in the matter. Unless a shorter notice is required to comply
with any law or is stipulated by all parties and persons filing written
requests for intervention, an agency shall give at least five (5) days
notice of the hearing.
(b) The notice must include a copy of any prehearing order
rendered in the matter.
(c) To the extent not included in a prehearing order accompanying
it the initial hearing notice in a proceeding must include the
following:
(1) The names and mailing addresses of all parties and other
persons to whom notice is being given by the administrative law
judge.
(2) The name, official title, and mailing address of any counsel
or employee who has been designated to appear for the agency
and a telephone number through which the counsel or employee
can be reached.
(3) The official file or other reference number, the name of the
proceeding, and a general description of the subject matter.
(4) A statement of the time, place, and nature of the hearing.
(5) A statement of the legal authority and jurisdiction under
which the hearing is to be held.
(6) The name, official title, and mailing address of the
administrative law judge and a telephone number through which
information concerning hearing schedules and procedures may
be obtained.
(7) A statement of the issues involved and, to the extent known
to the administrative law judge, of the matters asserted by the
parties.
(8) A statement that a party who fails to attend or participate in
a prehearing conference, hearing, or other later stage of the
proceeding may be held in default or have a proceeding
dismissed under section 24 of this chapter.
(d) Subsequent hearing notices in the proceeding may omit the
information described in subsections (c)(1), (c)(2), (c)(5), and (c)(8).
(e) Any notice under this section may include any other matters
the administrative law judge considers desirable to expedite the
proceedings.
(f) The administrative law judge shall give notice to persons other
than parties and petitioners for intervention who are entitled to notice
under any law. Notice under this subsection may include all types of
information provided in subsections (a) through (e) or may consist of
a brief statement indicating:
(1) the subject matter, parties, time, place, and nature of the
hearing;
(2) the manner in which copies of the notice to the parties may
be inspected and copied;
(3) the name of the administrative law judge; and
(4) a telephone number through which information concerning
proceeding hearing schedules and procedures may be obtained.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.11.
IC 4-21.5-3-21
Petition for intervention
Sec. 21. (a) Before the beginning of the hearing on the subject of
the proceeding, the administrative law judge shall grant a petition for
intervention in a proceeding and identify the petitioner in the record
of the proceeding as a party if:
(1) the petition:
(A) is submitted in writing to the administrative law judge,
with copies mailed to all parties named in the record of the
proceeding; and
(B) states facts demonstrating that a statute gives the
petitioner an unconditional right to intervene in the
proceeding; or
(2) the petition:
(A) is submitted in writing to the administrative law judge,
with copies mailed to all parties named in the record of the
proceeding, at least three (3) days before the hearing; and
(B) states facts demonstrating that the petitioner is aggrieved
or adversely affected by the order or a statute gives the
petitioner a conditional right to intervene in the proceeding.
(b) The administrative law judge, at least twenty-four (24) hours
before the beginning of the hearing, shall issue an order granting or
denying each pending petition for intervention.
(c) After the beginning of the hearing on the subject of the
proceeding, but before the close of evidence in the hearing, anyone
may be permitted to intervene in the proceeding if:
(1) a statute confers a conditional right to intervene or an
applicant's claim or defense and the main action have a question
of law or fact in common; and
(2) the administrative law judge determines that the interests of
justice and the orderly and prompt conduct of the proceedings
will not be impaired by allowing the intervention.
In exercising its discretion, the administrative law judge shall
consider whether the intervention will unduly delay or prejudice the
adjudication of the legal interests of any of the parties.
(d) An order granting or denying a petition for intervention must
specify any condition and briefly state the reasons for the order. The
administrative law judge may modify the order at any time, stating
the reasons for the modification. The administrative law judge shall
promptly give notice of an order granting, denying, or modifying
intervention to the petitioner for intervention and to all parties.
As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.12.
IC 4-21.5-3-22
Administrative orders; enforcement
Sec. 22. (a) The administrative law judge at the request of any
party or an agency shall, and upon the administrative law judge's own
motion may, issue:
(1) subpoenas;
(2) discovery orders; and
(3) protective orders;
in accordance with the rules of procedure governing discovery,
depositions, and subpoenas in civil actions in the courts.
(b) The party seeking the order shall serve the order in accordance
with these rules of procedure. If ordered by the administrative law
judge, the sheriff in the county in which the order is to be served
shall serve the subpoena, discovery order, or protective order.
(c) Subpoenas and orders issued under this section may be
enforced under IC 4-21.5-6.
As added by P.L.18-1986, SEC.1.
IC 4-21.5-3-23
Summary judgment
Sec. 23. (a) A party may, at any time after a matter is assigned to
an administrative law judge, move for a summary judgment in the
party's favor as to all or any part of the issues in a proceeding. The
motion must be supported with affidavits or other evidence permitted
under this section and set forth specific facts showing that there is
not a genuine issue in dispute.
(b) The motion must be served at least five (5) days before the
time fixed for the hearing on the motion. The adverse party may
serve opposing affidavits before the day of hearing. The
administrative law judge may direct the parties to give oral argument
on the motion. The judgment sought shall be rendered immediately
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits and testimony, if any,
show that a genuine issue as to