Section 4H: Division of administrative law appeals; chief administrative magistrate
Section 4H. There shall be within the executive office for administration and finance a division of administrative law appeals under the direction of a chief administrative magistrate who shall be appointed by the secretary of the executive office for administration and finance with the approval of the governor. Said chief administrative magistrate, shall be a resident of the commonwealth at the time of his appointment, shall be a person with substantial experience as a trial attorney, shall devote full time to the duties of his office, and shall have no financial interest in any provider of services on which he shall make a rate determination. He shall hear, or assign for hearing, appeals filed pursuant to section thirty-six of chapter six A and section five of chapter one hundred and seventy-six A and shall make available not less than three full-time administrative magistrates or the equivalent thereof, to hear appeals assigned pursuant to sections forty-two and forty-three of chapter thirty-one. Said administrative magistrate shall serve under the direction, supervision and control of the commission and shall be utilized to expedite appeals of the commission. Any officer or agency of the commonwealth authorized to conduct adjudicatory proceedings or to hear appeals from such proceedings may, subject to the approval of the secretary of the executive office within which such officer is employed or such agency is located, request the division to conduct one or more classes of such proceedings or appeals on behalf of the officer or agency. The chief administrative magistrate may, subject to the approval of the secretary of administration and finance, grant any such request but shall, when necessary, promulgate regulations governing the additional class or classes of proceedings or appeals to be so conducted or heard prior to conducting or hearing any such proceedings or appeals.
It shall be the responsibility of said chief administrative magistrate to organize his division to provide speedy and fair disposition of all appeals and to establish policies that will encourage and aid parties in limiting and consolidating issues and pleadings to the superior court. Subject to appropriation he may employ such persons as may be required to discharge the responsibilities of the division, including administrative magistrates who shall be members of the bar of the commonwealth and who shall have had trial experience. Administrative magistrates responsible for adjudicating public construction contract disputes pursuant to section thirty-nine Q of chapter thirty shall in addition have had prior experience in construction law; such administrative magistrates may be hired either as regular employees of the division or on a consultant basis.
No administrative magistrate, including the chief administrative magistrate, shall be subject to the provisions of chapter thirty-one or section nine A of chapter thirty.
In accordance with section 2A of chapter 71B, the division shall provide, through the bureau of special education appeals, adjudicatory hearings, mediation and other forms of alternative dispute resolution as determined by the bureau of special education appeals for resolution of disputes between or among parents, school districts, private schools and state agencies concerning: (i) any matter relating to the identification, evaluation or educational program or placement of a child with a disability or the provision of a free and appropriate public education to the child arising under said chapter 71B and its regulations or under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 et seq., and its regulations; or (ii) a student's rights under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 794, and its regulations. All such disputes shall be referred for resolution to the bureau of special education appeals in the division. The costs incurred by the division in carrying out its duties pursuant to this paragraph shall be borne by the department of elementary and secondary education. These costs and the costs of carrying out the division's other duties shall be kept separate to the extent practical, except that the costs of administrative support for the bureau of special education appeals shall be allocated to the bureau of special education appeals under a reasonable formula determined by the commissioner of elementary and secondary education and the chief administrative magistrate. The commissioner of elementary and secondary education and the chief administrative magistrate shall periodically enter into memoranda of understanding to set forth the obligations of their respective organizations in carrying out this paragraph, as described in said section 2A of said chapter 71B. The director of special education appeals shall participate in the negotiations with regard to the memoranda of understanding and the commissioner of elementary and secondary education and the chief administrative magistrate shall make all reasonable efforts to incorporate the director's views in entering into the memoranda. The director of the special education appeals shall issue an annual report regarding his views about the memoranda to the chief administrative magistrate and the bureau of special education appeals advisory council.
In accordance with section 15 of chapter 19C, a care provider against whom a substantiated finding of registrable abuse has been made by the disabled persons protection commission or whose appeal to have the care provider's name removed from the registry established under subsection (b) of said section 15 of said chapter 19C was denied may appeal the final decision of the disabled persons protection commission at a hearing before the division.
The division may summon witnesses, administer oath and require the production of books, records and papers at any hearing before the division, upon any matter within its jurisdiction. Witnesses may be summoned by any party to the proceeding in the same manner, be paid the same fees and be subject to the same penalties as witnesses in civil cases before the courts of the commonwealth.
The division shall establish a fee structure for all appeals, except for: (i) appeals brought through the bureau of special education appeals, pursuant to this section and section 2A of chapter 71B; (ii) appeals from decisions by the secretary of veterans' services, pursuant to section 2 of chapter 115; and (iii) appeals from the contributory retirement appeal board, pursuant to section 16 of chapter 32. The maximum fee shall not exceed $300 for any appeal and may be waived for financial hardship, as determined by the division.
Detectives, in a city which employs more than three hundred and fifty police officers and where the detectives employed in the police department of said city are entitled to a hearing, other than one provided under chapter thirty-one, concerning their transfer from the rank of detective, shall be entitled to a hearing before an administrative magistrate of the division of administrative law appeals, to determine whether said transfer is for just cause.
The division of administrative law appeals shall prepare annually a report concerning all appeals filed with the division during the preceding calendar year. It shall be the responsibility of the chief administrative magistrate to cause a statistical list to be maintained of all matters assigned to each administrative magistrate as relating to any appeals required by law. The report shall contain, at a minimum, the following information: the number of new appeals filed and received; the names of all parties to each appeal; the type of each appeal; the date of submission and of disposition of the appeal; its disposition, whether by decision, withdrawal, settlement or dismissal, the number of appeals currently pending, the total number of simplified hearings; and the length of time from receipt of the appeal by the division of administrative law appeal until a written recommended final decision, summary decision, or other interlocutory ruling is issued, including the basis for any case at the division for longer than 6 months. Each calendar year the original of the report shall be submitted to the office of the house and senate clerk and to the house and senate committee on ways and means as well as to the director of the Massachusetts permit regulatory office in section 3H of chapter 23A.
It shall be the responsibility of the chief administrative magistrate to verify that written recommended final decisions are issued within 90 days after the record is closed.