Section 1240-05-04-.05 - PRE-HEARING MOTIONS(1) Motions. (a) Scope. This rule applies to all motions made prior to a hearing on the merits of a contested case.(b) Parties to a contested case are encouraged to resolve matters on an informal basis; however, if efforts at informal resolutions fail, any party may request relief in the form of a motion by serving a copy on all parties and by filing the motion with the Administrative Procedures Division, the Department of Human Services' Appeals and Hearings Division or directly with the hearing official.(c) Any such motion shall set forth a request for all relief sought, and shall set forth grounds which entitle the moving party to relief.(d) A motion shall be considered submitted for disposition seven (7) days after it was filed, unless oral argument is granted, or unless a longer or shorter time is set by the hearing official.(e) Telephonic, Televised and Alternate Electronic Methods for Conducting Hearings and Pre-hearing Conferences. In the discretion of the hearing official, and with the concurrence of the parties, any pre-hearing conference may be conducted by telephone, television, or other electronic means, if each participant in the conference has an opportunity to fully participate in the entire proceeding while it is taking place.
(2) Time Limits; Oral Argument. (a) A party may request oral argument on a motion; however, a brief memorandum of law submitted with the motion is preferable to oral argument.(b) Each opposing party may file a written response to a motion, provided the response is filed within seven (7) days of the date the motion was filed. If oral argument is requested, the motion may be argued by conference telephone call.(3) Affidavits; Briefs and Supporting Statements.(a) Motions and responses to motions shall be accompanied by all supporting affidavits and briefs or supporting statements. All motions and responses to them shall be supported by affidavits for facts relied upon which are not of record or which are not the subject of official notice. Such affidavits shall set forth only facts which are admissible in evidence under T.C.A. § 4-5-313, and to which the affiants are competent to testify. Properly verified copies of all papers or parts of papers referred to in such affidavits may be attached thereto.(b) In the discretion of the hearing official, a party or parties may be required to submit briefs or supporting statements pursuant to a schedule established by the hearing official.(4) Disposition of Motions; Drafting the Order. (a) When a pre-hearing motion has been made in writing or orally, the hearing official shall render a decision on the motion by issuing an order or by instructing the prevailing party to prepare and submit an order in accordance with subparagraph (b) below.(b) The prevailing party on any motion shall draft an appropriate order, unless otherwise directed by the hearing official. This order shall be submitted to the hearing official within five (5) days of the ruling on the motion, or as otherwise ordered by the hearing official.(c) The hearing official, after signing any order, shall cause the order to be served immediately upon the parties.Tenn. Comp. R. & Regs. 1240-05-04-.05
Original rule filed February 26, 2007; effective May 12, 2007.Authority: T.C.A. §§ 4-5-202, 4-5-219, 4-5-301, 4-5-308, 71-1-105(12) and 71-1-111.