Section 88.08 - Appeal Hearing Procedures(1)Conduct of Persons Present. All parties, Authorized Representatives, counsel, witnesses and other persons present at an Appeal Hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in the courts of the Commonwealth. Where such standards are not observed, the Hearing Officer may take action as he or she deems appropriate to maintain order at the hearing, including the exclusion of any person from the hearing. If the person so excluded is a Party or his or her counsel or Authorized Representative, the Hearing Officer may decide the Appeal against such Party with prejudice.(2)Appellant's Statement in Lieu of Personal Appearance. After an Appellant receives a notice of an Appeal Hearing, he or she may elect to waive an Appeal Hearing and to submit to the Board a written Statement in Lieu of Personal Appearance. The Appellant must sign the Statement under the pains and penalties of perjury. The Appellant must submit with such Statement copies of all documents supporting the Appellant's allegations or defenses, except for those that have already been supplied to the Board. The Statement must be submitted to the Board's Boston office at least five business days prior to the Appeal Hearing date.(3)Rights and Duties of the Parties. (a)Appellant's Rights. The Appellant may present his or her own case at the Appeal Hearing, or may be assisted by an Authorized Representative. The Appellant is responsible for paying the cost of representation, if any. The Appellant, or his or her Authorized Representative, shall have the following rights at the Appeal Hearing: 1. to examine the Insurer's Claim Record at the Appeal Hearing;2. to present and establish all relevant facts and circumstances by oral testimony, documentary evidence or other evidence;3. to testify and to present witnesses;4. to introduce exhibits;5. to advance pertinent arguments without undue interference;6. to challenge any testimony and cross-examine the witnesses of the Insurer; and7. to submit rebuttal evidence.(b)Insurer's Rights. The Insurer shall have the following rights at the Appeal Hearing: 1. to present and establish all relevant facts and circumstances by oral testimony, documentary evidence or other evidence;2. to testify and to present witnesses;3. to introduce the Insurer's Claim Record;4. to advance pertinent arguments without undue interference;5. to challenge any evidence;6. to submit rebuttal evidence; and7. if an Insurer has four or fewer Appeal Hearings scheduled on a given date, the Board in its discretion may authorize an Insurer to submit documents or other evidence in lieu of an appearance by that Insurer at the Appeal Hearing if the Insurer complies with the following procedures: a. At least seven days prior to the Appeal Hearings, the Insurer shall request authorization for the Insurer's Claim Records to be submitted in lieu of appearance at the Appeal Hearings.b. If authorization is granted by the Board at least five days prior to the Appeal Hearings, the Insurer may submit the Insurer's Claim Records to the Board and to each of the Appellants together with copies of all accident and police reports, photographs and witness statements.c. Submitting the Insurer's Claim Records in lieu of a personal appearance does not relieve the Insurer from supplying any and all documents supporting its At-fault Accident Determination. (c)Insurer's Duties. The Insurer shall ensure that the Insurer's Claim Record is available for the Appellant's inspection at the in-person Appeal Hearing and that the Appellant has adequate opportunity to examine it at the Appeal Hearing.(4)Hearing Officer's Duties and Powers at Appeal Hearings. The Hearing Officer shall conduct a fair Appeal Hearing to protect the rights of the Parties and to ensure that the Parties have a full opportunity to present their cases. The Hearing Officer shall make a fair, independent and impartial decision based upon the issues and evidence presented at the Appeal Hearing according to the law. The Hearing Officer need not observe the rules of evidence observed by the courts of the United States or the Commonwealth, but shall observe the rules of privilege recognized by Massachusetts law. Evidence may be admitted and given probative effect only if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. All records, investigative reports, and other documents on which the Hearing Officer relies in making a decision shall be made a part of the record of the Appeal Hearing. Documentary materials may be tendered and entered into evidence in the form of originals, copies, or excerpts, or by incorporation by reference. The Hearing Officer also shall have the following duties and powers, including, but not limited to: (a) administering the oath or affirmation to those testifying at the Appeal Hearing;(b) regulating the presentation of evidence and the participation of the Parties at the Appeal Hearing including, but not limited to, requiring that all testimony and questions be directed to the Hearing Officer, in order to maintain a non-adversarial atmosphere, and to ensure an adequate and comprehensive record of the Appeal Hearing;(c) receiving and ruling on evidence, including the exclusion or limitation of cumulative or unduly repetitious evidence or testimony;(e) utilizing his or her experience, technical competence, and specialized knowledge to evaluate and weigh the evidence presented;(f) taking administrative notice of any fact which may be judicially noticed by the courts of the Commonwealth, and taking administrative notice of general, technical or scientific facts within his or her specialized knowledge; provided the Hearing Officer shall notify the Parties of the material so noticed and afford the Parties an opportunity to contest the facts so noticed;(g) requiring that a Party submit further evidence on an issue and setting a specific time period for submitting the additional evidence, at the Hearing Officer's discretion;(h) keeping the Appeal Hearing open to permit either Party to produce additional evidence, witnesses, or other materials, at the Hearing Officer's discretion;(i) ruling on, or taking under advisement, any requests or motions that may be made; and(j) granting or issuing on his or her own initiative a continuance of the Appeal Hearing.(5)Conflicts of Interest. No Hearing Officer who has a direct or indirect interest, personal involvement, or bias, in an Appeal Hearing, shall participate in the decision-making process or conduct the Appeal Hearing. In the event of a conflict, the Hearing Officer shall recuse himself or herself and the Appeal Hearing will be reassigned to another Hearing Officer or will be rescheduled to another date to be conducted by another Hearing Officer.(6)Oral Testimony. Oral testimony shall be given under oath or affirmation.(7)Ex Parte Communications. (a) No Party or other person directly or indirectly involved in an Appeal shall submit to the Hearing Officer or any Board employee involved in the decision-making process, any evidence, argument, analysis or advice, whether written or oral, regarding any matter at issue in an Appeal, unless such submission is part of the Appeal Record or made in the presence of all Parties to the Appeal. 211 CMR 88.08(7) does not apply to consultation among Board members concerning the Board's internal administrative functions or procedures. If any ex parte communication is directed to any person in violation of 211 CMR 88.08(7), that person shall immediately inform the Board of the substance and circumstances of the communication. If the Board determines that a Party or his or her Authorized Representative has violated 211 CMR 88.08(7), the Board may exclude such Party from the Appeal Hearing or decide against that Party with prejudice. If the Board determines that a person not a Party has violated 211 CMR 88.08(7), the Board may exclude that person from the Appeal Hearing.(b) An Appellant's presentation of the facts to a Hearing Officer in the absence of the Insurer or its Authorized Representative, as permitted pursuant to 211 CMR 88.08(2), will not be considered an ex parte communication.(8)Objections and Exceptions to Rulings. A Party need not make formal exceptions to rulings on evidence and procedure but must, at the time of a ruling, make known to the Hearing Officer his or her objections to such ruling, the grounds for the objections, and the different action which he or she desires be taken.(9)Offers of Proof. Any offer of proof made in connection with an objection to a ruling by the Hearing Officer that rejects or excludes the proffered oral or written testimony shall consist of a statement of the substance of the evidence which the Party making such offer contends would be adduced by the testimony. If the rejected or excluded evidence consists of documents or records, or of references to documents or records, the objecting Party must submit to the Hearing Officer a copy of such documents, records, or references, which shall be marked for identification and shall constitute the offer of proof.(10)Motions. The Hearing Officer may make rulings regarding the admissibility of evidence or any other matter which may arise during the Appeal Hearing. Any Party requesting a ruling from the Hearing Officer shall do so by motion that states the grounds for the motion and the nature of the ruling that is sought. The Hearing Officer may require that a motion be in writing. The Hearing Officer may, in his or her discretion, hear oral argument on a motion prior to making a ruling.(11)Non-English Speaking Parties. All Appeal Hearings are conducted in English. If a Party cannot communicate effectively in English, the Hearing Officer shall continue the Appeal Hearing until the Party, at his or her own expense, can provide someone who can communicate effectively at the Appeal Hearing in both English and the language of the Party. The Hearing Officer has the discretion to impose a time limitation on the continuance of the Appeal Hearing.(12)Default by Appellant.(a) The Board shall enter a default against an Appellant who fails to appear at a scheduled Appeal Hearing.(b) The Board shall enter a default against an Appellant who fails to file a timely Statement in Lieu of Personal Appearance and thereafter fails to appear at the scheduled Appeal Hearing.(c) The Board may enter a default against an Appellant if he or she fails to respond to notices, or otherwise appears to not intend to pursue an Appeal.(d) The Appellant may file with the Board within ten days of the Board's notice of default a written request to set aside the default and to reschedule an Appeal Hearing. The Board may, for exceptional circumstances, set aside the entry of default and reschedule the Appeal Hearing.(13)Vacating At-fault Accident Determination for Failure of Insurer to Defend Appeal. The Board shall vacate an Insurer's At-fault Determination if an Insurer fails to defend the Appeal. Failure to defend an Appeal includes the failure of the Insurer to file papers required under 211 CMR 88.00, to appear at a scheduled Appeal Hearing, to respond to notices, or any other activity that supports a conclusion that the Insurer does not intend to defend its At-fault Accident Determination.(14)Audio Recording. The Board shall electronically record all oral testimony at an Appeal Hearing. The Board's audio recording shall be included in the Appeal Record. The Board need not transcribe such audio recordings.Amended by Mass Register Issue 1355, eff. 12/29/2017.