Title 10 — Subtitle 01. Procedures

Chapter 01. Income Tax Credits for Preceptors in Areas with Health Care Workforce Shortages

Regulation .01 Purpose.Link Copy Citation

The purpose of this chapter is to establish regulatory provisions related to the State income tax credit program for the following qualified health care practitioners who serve as preceptors without compensation in health care workforce shortage areas:

(1)

Physicians;

(2)

Advanced practice registered nurses;

(3)

Physician assistants;

(4)

Registered nurses; and

(5)

Licensed practical nurses.

This chapter describes the procedures used by the Maryland Department of Health to assess eligibility of applicants, process applications, and certify income tax credits for approved applications.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Applicant” means an individual:

(a)

Who has submitted an application to the Department requesting State income tax credit; and

(b)

Whose status for receipt of a tax credit certification has not yet been determined.

(2)

“Department” means the Maryland Department of Health.

(3)

“Health Care Practitioner” means an individual who is:

(a)

A health care practitioner, as defined in Tax-General Article, §10–752, Annotated Code of Maryland;

(b)

An advanced practice registered nurse as defined in Health Occupations Article, §8-101, Annotated Code of Maryland;

(c)

A registered nurse as defined in Health Occupations Article, §8-101, Annotated Code of Maryland; or

(d)

A licensed practical nurse as defined in Health Occupations Article, §8-101, Annotated Code of Maryland.

(4)

“Health care workforce shortage area” means:

(a)

A health professional shortage area;

(b)

A medically underserved area;

(c)

A medically underserved population;

(d)

Federally designated rural areas;

(e)

State defined shortage areas;

(f)

State defined rural areas; or

(g)

Other areas defined as in need by the Secretary of Health or Governor or as otherwise determined by the Department in consultation with the Governor’s Workforce Development Board.

(5)

“Income tax credit” means a nonrefundable credit against State income tax.

(6)

“Preceptor” means a health care practitioner participating in a preceptorship program.

(7)

“Preceptorship program” has the meaning as stated in Tax-General Article, §§10–738, and 10-752, Annotated Code of Maryland.

(8)

“Rotation” means a minimum of:

(a)

100 hours of community-based clinical training between a:

(i)

Medical student and a licensed physician preceptor;

(ii)

Physician assistant student and a licensed physician, nurse practitioner, or physician assistant preceptor in family medicine, general internal medicine, or general pediatrics practice or setting; or

(b)

90 hours of community-based clinical training between a:

(i)

Nurse practitioner student and a licensed physician or nurse practitioner preceptor;

(ii)

A registered nurse student and an advanced practice registered nurse or registered nurse preceptor; or

(iii)

A licensed practical nurse student and an advanced practice registered nurse, registered nurse, or licensed practical nurse preceptor.

(9)

“Taxable year” means the annual accounting period for keeping records and reporting income and expenses that starts on January 1 and ends on December 31 of the same year.

Regulation .03 Program Eligibility.Link Copy Citation

A healthcare practitioner preceptor in a preceptorship program is eligible for an income tax credit if the individual served:

Without compensation for a minimum of three rotations; and

In a health care workforce shortage area.

Regulation .04 Application Procedures.Link Copy Citation

Applicant.

(1)

By the published deadlines, on the form designated by the Department, an applicant shall:

(a)

Submit a complete application to the Department;

(b)

Facilitate submission of application components by all contributors; and

(c)

Provide any supporting documentation as requested by the Department.

(2)

An applicant may voluntarily withdraw the application without prejudice.

(3)

An applicant may submit a new application subject to §B of this regulation.

The Department shall receive applications by January 5 for the previous taxable year during which rotations were completed.

The Department shall:

(1)

Accept applications received during the application period for Department review;

(2)

Approve the application if the:

(a)

Application is complete;

(b)

Applicant is determined to be eligible; and

(c)

Funds are available in the appropriate Fund based on precepted student type;

(3)

Disapprove an application if the application:

(a)

Fails to provide sufficient information or comply with requested documentation to determine eligibility;

(b)

Has the appropriate documentation but is determined to be ineligible; or

(c)

Does not satisfy the requirements established by law or the Department; and

(4)

Provide the applicant with written notice of the final disposition of the application within 45 calendar days of receipt of an application.

Appeal of Disapproval of Application.

(1)

An applicant may appeal the decision to disapprove an application by submitting an appeal request in writing to the Department within 30 calendar days of the date on the notice of the disapproved application.

(2)

If an applicant submits an appeal, the Department, within 60 calendar days of receipt of the appeal, shall:

(a)

Sustain or reverse the decision on the application; and

(b)

Provide written notice to the applicant:

(i)

Indicating whether the decision on the application has been sustained or reversed; and

(ii)

Providing an explanation of the decision.

(3)

An applicant may request a hearing within 10 calendar days after the date of written notice of the Department’s disapproval of an application as stated in §D(2) of this regulation. Following receipt of the request, the Department shall follow hearing procedures in accordance with COMAR 10.01.03.

(4)

Failure to be present for the hearing without prior notice, communication, or approval from the Department may result in:

(a)

The appeal nullified and decision sustained;

(b)

The hearing on the appeal not being rescheduled; or

(c)

Appropriate sanctions as determined by the Department.

Regulation .05 Verification and Audit of Income Tax Credits.Link Copy Citation

The Department may:

(1)

Request from an applicant additional information to verify statements in an application; and

(2)

Use independent verification, such as a preceptor list and preceptor completion letters received by the medical and nursing schools, to verify information reported on an application for an income tax credit.

The Comptroller shall retain its audit authority under Tax-General Article, Annotated Code of Maryland.

Regulation .06 Income Tax Credits.Link Copy Citation

On approval of an application, the Department shall issue an income tax credit certificate to the approved healthcare practitioner in the amount of $1,000 for each qualifying student rotation for which the healthcare practitioner served as a preceptor.

Income tax credits shall be issued for the taxable year of the application during which the health care practitioner served without compensation.

The total amount of an income tax credit allowed for an individual in a taxable year may not exceed the:

(1)

Maximum credit amount as indicated in Tax-General Article, §§10–738, 10-739, 10-739.1, and 10-752, Annotated Code of Maryland; or

(2)

State income tax imposed for that individual for that taxable year.

Any unused amount of an income tax credit for a taxable year may not be carried over to any other taxable year by the preceptor, as referenced in Tax-General Article, §§10–738, 10-739, 10-739.1, and 10-752, Annotated Code of Maryland.

Regulation .07 Responsibilities of the Comptroller.Link Copy Citation

On notification that an income tax credit certificate has been issued by the Department, the Comptroller shall transfer an amount equal to the income tax credit amount stated in the income tax credit certificate from the Nurse Practitioner Preceptorship Tax Credit Fund, the Physician Assistant Preceptorship Tax Credit Fund, or Licensed Practical Nurse and Registered Nurse Preceptorship Tax Credit Fund, to the General Fund.

Regulation .08 Expiration of Program.Link Copy Citation

The Department shall issue final income tax credits based on available funds.

This chapter remains in effect until:

(1)

The date that funding for income tax credits ceases to be available; or

(2)

Sunset on June 30, 2030.

Chapter 02. Procedures for Public Hearings

Regulation .01 Scope.Link Copy Citation

This chapter applies to hearings the Secretary conducts to gather information from the general public before making a decision or taking an action such as adopting a regulation or issuing a license, certificate, or permit.

This chapter does not apply to contested case hearings or any hearing where the purpose is other than to gather information from the public at large or from a person with a specific interest in the issue.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Department” means the Maryland Department of Health.

(2)

“Hearing” means a formal meeting, properly published and convened, the sole purpose of which is to gather information from the public at large, or other group or person as required by law, before making a decision or taking an action.

(3)

“Hearing examiner” means the Secretary of Health or that employee of the Department designated by the Secretary to conduct a specific hearing or hearings.

Regulation .03 Notice of Hearing.Link Copy Citation

The Department shall publish a notice of the hearing in the Maryland Register and any other publication required by law.

The Department shall include in any published or circulated notice of the hearing:

(1)

The time of the hearing;

(2)

The place of the hearing, giving the street address, floor, and designated room;

(3)

The purpose of the hearing;

(4)

A statement that the Department will make reasonable accommodation for individuals with disabilities if these individuals advise the Department of their special needs by giving the Department reasonable advance notice; and

(5)

Any other applicable publishing requirements in law.

Regulation .04 Testimony.Link Copy Citation

The hearing examiner shall give all persons present who wish to testify an opportunity to do so but may limit repetitious testimony.

The right of cross-examination is not applicable to hearings under this chapter.

The hearing examiner may:

(1)

Allow questions from the audience;

(2)

Take questions from the audience and redirect the questions to others present at the hearing;

(3)

Ask questions of anyone present at the hearing; and

(4)

Refer questions to agency personnel who may respond after the hearing.

The rules of evidence are inapplicable to hearings under this chapter.

The hearing examiner shall receive and mark all exhibits offered in testimony if they are relevant to the hearing.

Regulation .05 Oaths and Affirmations.Link Copy Citation

The formality of an oath may be dispensed with unless the hearing examiner believes the oath gives some assurance of veracity, formality, or decorum to the hearing.

Regulation .06 Conduct and Control of Hearing.Link Copy Citation

The hearing examiner shall determine the conduct of the hearing, including:

(1)

The order of presentation; and

(2)

Time limits for questions and testimony.

The hearing examiner may:

(1)

Order a person who engages in disruptive behavior, such as waving a sign or placard or shouting or jeering, that interferes with the orderly conduct of the hearing, to be removed from the hearing;

(2)

Request police assistance to assure or restore order; and

(3)

Recess a disorderly hearing.

Recording, Photographing, Videotaping, Broadcasting, and Televising of Hearings.

(1)

Except as provided in §C(5) of this regulation, a member of the public, including a representative of the news media, may record a hearing with a tape recorder or other recording device if the:

(a)

Device does not create excessive noise that interferes with the participation in or the observation of the hearing by a person present; and

(b)

Recording is done openly so that it is obvious to those in attendance that the hearing is being recorded.

(2)

Except as provided in §C(5) of this regulation, a member of the public, including a representative of the news media, may photograph, videotape, televise, or broadcast the proceedings of a hearing with a camera if the camera:

(a)

Is operated without excessively bright or hot artificial light or excessive noise that interferes with the participation in or the observation of the hearing by a person present; and

(b)

Is used openly so that it is obvious to those in attendance that the hearing is being recorded.

(3)

The hearing examiner may restrict the movement of a person who is using a recording device, camera, or broadcasting or televising equipment if the restriction is necessary to maintain the orderly conduct of the hearing.

(4)

Except as provided in §C(5) of this regulation, a member of the public, including a representative of the news media, who is recording, photographing, videotaping, broadcasting, or televising a hearing does not need to obtain the consent of a member of the public at the hearing to do so if the recording, photographing, videotaping, broadcasting, or televising is done openly so that it is obvious to those in attendance.

(5)

A person who wishes to testify without being photographed, videotaped, or televised or without being recorded by anyone other than the court reporter service or Department may do so by making such a request of the hearing examiner.

A recording of a hearing made by anyone other than the court reporter service or Department, or a transcript derived from such a recording, is not part of the record of a hearing.

Regulation .07 The Transcript.Link Copy Citation

At the Department's discretion, the Department or a court reporter service shall stenographically record verbatim or tape record the hearing.

If a court reporter service records the hearing:

(1)

The Department shall arrange for the court reporter service to retain the tape recording or stenographic recording for 1 year following the final decision or action; and

(2)

A person who desires a copy of the transcript may purchase a copy from the court reporter service.

If an employee of the Department records the hearing:

(1)

The Department shall keep the tape recording or stenographic recording with the original of the record; and

(2)

A person who desires a copy of the transcript may purchase a copy from the Department for a reasonable cost in accordance with COMAR 10.01.08.

Regulation .08 The Record.Link Copy Citation

The hearing examiner controls the record.

The hearing examiner shall assemble a record that consists of all of the following:

(1)

Exhibits and documents entered into the record, such as:

(a)

Proposed regulations or applications for licenses, certificates, or permits,

(b)

Documentation of public notification of the hearing, and

(c)

Relevant supporting and opposing documentation obtained before, during, and subsequent to the hearing;

(2)

The register of all persons who attended the hearing including their names, addresses, and any affiliations relevant to the hearing;

(3)

In accordance with Regulation .07 of this chapter, any:

(a)

Full or partial transcript of the hearing made or purchased by the Department, and

(b)

Tape recording or stenographic notes of the hearing made by the Department;

(4)

A hearing examiner's report consisting of all of the following:

(a)

A statement of the purpose of the hearing including citations of applicable laws and regulations,

(b)

An account of the methods of public notification of the hearing,

(c)

An account of the attendance and conduct of the hearing,

(d)

A summary of supporting and opposing arguments and analyses of those arguments in light of relevant laws and regulations,

(e)

Relevant findings such as compliance with law or sufficiency of proposed regulations, and

(f)

Conclusions and recommendations for a final decision; and

(5)

The final decision of the decision-making authority.

Maintenance of and public access to the record is governed by State Government Article, Title 10, Subtitle 6, Annotated Code of Maryland, and by COMAR 10.01.08.

The Department shall maintain copies of the record as follows:

(1)

The Office of the Secretary shall maintain the original of the record; and

(2)

Except for the tape recording or stenographic notes specified in §B(3)(b) of this regulation, the office of the director of the unit concerned shall maintain a copy of the record.

Regulation .09 Postponement and Continuance.Link Copy Citation

The hearing examiner has sole discretion over:

Postponement or continuance of the hearing; and

Keeping the record open beyond the date of the hearing.

Chapter 03. Procedures for Hearings Before the Secretary of Health

Regulation .01 Scope.Link Copy Citation

This chapter applies to hearings that the Secretary is required to conduct by statute or regulation except for those hearings for which specific procedural regulations have been promulgated. This chapter does not apply to conferences, investigations, or proceedings at which the general public has been assembled to provide comments and opinions regarding a permit or license proposed to be issued by the Department, or to hearings before the Department’s Boards and Commissions, which are authorized by law to conduct their own hearings.

These procedures are intended to supplement the procedures required by law. They are not substantive and are not to be construed as creating rights not set out by law. In the event of conflict, statutory provisions take precedence over this chapter.

Construction.

(1)

In hearings conducted by an administrative law judge of the Office of Administrative Hearings, this chapter shall be construed, whenever possible, as supplementing COMAR 28.02.01.

(2)

In a conflict between this chapter and COMAR 28.02.01, this chapter applies.

Regulation .02 Definitions.Link Copy Citation

The following terms have the meanings indicated.

Terms Defined.

(1)

Civil Penalty.

(a)

“Civil penalty” means a monetary penalty authorized by statute or regulation and imposed for a violation of a statute, regulation, permit, or license.

(b)

“Civil penalty” does not include statutorily authorized reimbursement of State or federal expenditures.

(2)

“Department” means the Maryland Department of Health, or any of its constituent units.

(3)

“Hearing” means a contested case hearing as defined by the Administrative Procedure Act, State Government Article, §10-201 et seq., Annotated Code of Maryland.

(4)

“Administrative Law Judge (ALJ)” means an administrative law judge of the Office of Administrative Hearings as defined in COMAR 28.02.01.02B(1).

(5)

“Office of Administrative Hearings (OAH)” means the independent unit in the Executive Branch of State government authorized to conduct hearings in contested cases, pursuant to the Administrative Procedures Act and this chapter.

(6)

“Party” means any person or agency named or admitted as a party, including the Department.

(7)

“Person” means any individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any firm, partnership, association, corporation, or other entity including any public or municipal corporation and any agency, bureau, department, or instrumentality of federal, State, or local government.

(8)

“Secretary” means the Secretary of Health, a designee of the Secretary, or that official empowered by statute to render the final agency decision in a contested case.

Regulation .03 Sanctions.Link Copy Citation

This chapter shall be construed to secure the just and speedy determination of each action. If a party fails to follow this chapter, the ALJ or the Secretary may enter such orders in regard to the failure as are just, including limiting the issues to be heard and dismissing the request for hearing or entering an order on the merits against the Department.

Regulation .04 The Record.Link Copy Citation

The record in each case shall include:

The items listed in COMAR 28.02.01.22B; and

In the case of a proposed decision:

(1)

Any exceptions filed by any party;

(2)

The response to those exceptions;

(3)

The final decision; and

(4)

Any correspondence relating to the proposed decision, the exceptions process, and the final decision.

Regulation .05 Notice of the Right to a Hearing.Link Copy Citation

The Department shall provide the notices of agency action and of the right to a hearing required by law. The notices shall contain the information required by State Government Article, §§10-207 and 10-208, Annotated Code of Maryland.

Regulation .06 Request for Hearing.Link Copy Citation

A person, either directly or through a representative, may request a hearing by mailing or delivering a written request via U.S. mail, facsimile, or electronic mail to the individual and unit of the Department specified in the notice

The request shall state that the person desires a hearing in order to review a matter that is the proper subject of a hearing as provided under Department regulations or other applicable law. In addition, the person requesting the hearing shall enclose a copy of the notice of agency action being appealed.

The request shall include a brief statement of the basis for the request, and other information required by law.

The Department or constituent unit may require a statement to be made on a form if the person is notified of this requirement and is provided a copy of the form in the notice of the right to a hearing.

A request for a hearing shall be deemed filed when received in the unit of the Department specified in the notice required by Regulation .05 of this chapter.

Regulation .07 Delegation.Link Copy Citation

Contested cases that are authorized by statute to be conducted by the Secretary or the Department shall be conducted by:

(1)

OAH in accordance with a letter of delegation from the Secretary; or

(2)

Such other person as authorized by law.

In all cases delegated to OAH, the delegation is limited to the issues raised by the notice of agency action attached to the transmittal from the agency to OAH.

Regulation .08 Service.Link Copy Citation

When the Department is required to make service, service may be made in any manner reasonably calculated to provide the required notice to the intended recipient. Service upon a party who has applied for a permit, license, or certificate or to whom a permit or license or certificate has been issued by the Department may be made by delivering a copy to the last known address in the Department’s records.

Regulation .09 Certificates of Service.Link Copy Citation

Whenever a party is required by this chapter to serve a copy of a pleading or memorandum upon another party, a certificate shall be appended to the pleading or memorandum stating:

To whom the copy was sent;

The address to which the copy was sent;

The name of the person who sent the copy; and

The date the copy was sent.

Regulation .10 Continuances.Link Copy Citation

On motion or on the Secretary’s own initiative, an exceptions hearing may be continued by the Secretary as justice may require.

Requests for postponement shall be confirmed in writing, and the written request shall:

(1)

Set forth the reason for the request; and

(2)

Unless the parties agree to schedule beyond the 45-day period, list at least three dates within the 45-day period following the day originally scheduled on which the party and counsel would be available for a hearing.

(3)

Whenever feasible, a postponed hearing shall be rescheduled within the 45-day period.

Regulation .11 Time Periods.Link Copy Citation

For good cause, either the Secretary or the ALJ may shorten, extend, or waive any time periods provided in this chapter.

Regulation .12 Appointment of Interpreter.Link Copy Citation

If a party cannot readily hear, speak, or understand the spoken English language, the Secretary may appoint a qualified interpreter to provide assistance during an exceptions hearing.

Costs of an interpreter may be charged to the party on whose behalf the interpreter is obtained.

Regulation .13 Appearance of Parties at Hearings; Representation.Link Copy Citation

A party to a proceeding may be represented by an attorney, or, if allowed by law, appear in person or through another representative.

Except as otherwise provided by law, a person other than an individual shall be represented by an attorney authorized to practice law in the State.

Unless the appearance is subsequently withdrawn in writing, any notice, decision, or other matter required to be sent to a party may be sent to the attorney at the attorney’s address.

When any party is represented by counsel, all submission of evidence, examination, and cross-examination of witnesses, and all objections and motions on its behalf shall be made solely by counsel.

Regulation .14 Discovery.Link Copy Citation

Discovery on Request. By written request filed with OAH and served on other parties at least twenty days before the scheduled hearing, a party may require another party to produce, within 15 calendar days:

(1)

A list of witnesses to be called;

(2)

Copies of documents intended to be produced at the hearing; and

(3)

The name and curriculum vitae of any expert who will testify at the hearing.

Parties are not entitled to discovery of items other than as listed in §A of this regulation.

Regulation .15 Open Hearings.Link Copy Citation

Unless otherwise provided by law, documents, notices, and records in the possession of the Secretary as a result of these contested case proceedings may be inspected by any person as provided in State Government Article, §10-611 et seq., Annotated Code of Maryland.

Cameras and other photographic equipment may be permitted in the exceptions hearing room at the discretion of the Secretary.

The Secretary may cause the removal of any person whose conduct impedes the orderly progress of an exceptions hearing, or may recess the hearing until such time as it may proceed in an orderly fashion.

The Secretary may exclude from an exceptions hearing a person or persons who have given the Secretary no advance notice of an intention to attend, if the size of the hearing room is too small to accommodate the presence of that person or persons.

An exceptions hearing is open to public observation, except for the parts that the Secretary states are to be closed pursuant to a provision of law expressly authorizing that closure. To the extent that a hearing is conducted by telephone, television, or other electronic means, the availability of public observation is satisfied by giving members of the public an opportunity, at reasonable times, to hear the tape recordings, except for such portions of the hearing as are closed pursuant to this section.

Regulation .16 Burden of Going Forward and Persuasion.Link Copy Citation

When, by specific statute or regulation, the burden of going forward or the burden of persuasion rests upon a certain party, this regulation does not shift those burdens.

Except as provided in §A of this regulation:

(1)

A party requesting a hearing following notice of the Department’s intent to deny or refuse to renew a permit or license bears the burden of going forward to establish a prima facie case of entitlement to the permit or license and the burden of persuasion that the permit or license should be issued;

(2)

A party contesting the Department’s tentative decision to issue or renew a permit or license bears the burden of going forward to establish a prima facie case that grounds exist for denying the license or permit and the burden of persuasion that the license or permit should be denied;

(3)

In a proceeding following notice by the Department of an intent to revoke or suspend a permit or license, the Department bears the burden of going forward to establish a prima facie case as to the existence of grounds for revocation or suspension and the burden of persuasion that the license or permit should be revoked or suspended;

(4)

In a proceeding to impose a civil penalty or to issue an order, the Department bears the burden of going forward to establish a prima facie case as to existence of the grounds for imposition of a civil penalty or issuance of an order and the burden of persuasion that the civil penalty should be imposed or order issued; and

(5)

In a proceeding in which a party seeks payment from the Department or contests the recoupment by the Department of an alleged overpayment, the party seeking payment or contesting recoupment has burden of going forward and the burden of persuasion.

Except as provided by §§A and B of this regulation, the party asserting the affirmative of an issue before the ALJ has the burden of going forward and the burden of persuasion.

A party with the burden of persuasion shall be required to present its case first, unless otherwise agreed by the parties.

Regulation .17 Final Decision.Link Copy Citation

The Secretary is not bound by the ALJ’s proposed decision even in those cases where no exceptions are filed.

If no exceptions have been filed and, after reviewing an ALJ’s proposed decision, the Secretary concludes that the Secretary is unable to approve that decision as written, the Secretary shall notify all parties and invite argument from the affected parties on the issues the Secretary is reconsidering.

Regulation .18 Exceptions; Requests for Oral Argument.Link Copy Citation

Exceptions to an ALJ’s proposed decision shall be filed with the Secretary within 21 days after the ALJ’s proposed decision is received. Receipt is presumed to occur 3 days after mailing.

Exceptions shall be in writing and contain a concise statement as to each portion of the ALJ’s determination to which exception is taken and the asserted basis for taking the exception.

Any party may file a written response to exceptions taken to the ALJ’s proposed decision within 14 days of the filing of exceptions.

A copy of the exceptions and any response shall be served on all parties to the proceedings.

The Secretary shall hear oral argument on the exceptions and may limit the time for oral argument in the discretion of the Secretary.

The Secretary shall consider the exceptions filed before rendering the final agency decision.

A party that intends to refer to any evidence produced at the hearing before the ALJ shall notify the agency of the specific evidence in its request for exceptions. That party is responsible for filing with the Secretary a copy of the transcript of the hearing, or relevant portions of it, at that party’s expense, at least 5 days before the scheduled exception hearing.

If all parties are in agreement, a stipulation of facts may be submitted instead of a transcript.

Additional evidence may not be introduced, nor may testimony of witnesses be heard by the Secretary. All exception hearings or reviews shall be conducted on the basis of the record compiled before the ALJ.

Within 90 days after the conclusion of the exceptions hearing, the Secretary shall adopt a final decision and, if appropriate, an order. Copies of the final decision and findings of fact and conclusions of law shall be delivered or mailed promptly to all parties or to their attorneys.

Regulation .19 Stays.Link Copy Citation

Except as prohibited by law, a party that is adversely affected by a final order may request a stay of the order from the Secretary pending judicial review.

A request for a stay shall be filed with the Secretary within 10 days of the date of the final order from which the stay is sought.

A request shall include a statement of the reasons a stay is sought.

A request shall include a statement of the grounds for the appeal to the Board of Review or the petition for judicial appeal.

The Secretary may grant a stay upon such conditions, including security or bond, as the Secretary determines to be proper.

A request for stay may not operate as a stay, nor extend the time for appeal.

The Secretary may hold a hearing on a request for a stay, or rule upon the request without a hearing.

Regulation .20 Judicial Review.Link Copy Citation

Unless otherwise agreed between the parties, a party may not file a petition for the judicial review of a decision of the Secretary unless the party has filed exceptions with the Secretary to the proposed decision and the Secretary has rendered a final decision. This provision does not apply when the Secretary has delegated final decision-making authority to OAH.

Chapter 04. Fair Hearing Appeals Under the Maryland State Medical Assistance Program

Regulation .01 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Administrative law judge” means an individual appointed by the Chief Administrative Law Judge under State Government Article, §9-1604, Annotated Code of Maryland, or designated by the Chief Administrative Law Judge under State Government Article, §9-1607, Annotated Code of Maryland, to adjudicate contested cases at the Maryland Office of Administrative Hearings.

(2)

“Action by an MCO” means:

(a)

Denial or limited authorization of a requested service, including:

(i)

The type or level of service;

(ii)

Requirements for medical necessity;

(iii)

Appropriateness;

(iv)

Setting; or

(v)

Effectiveness of a covered benefit;

(b)

Reduction, suspension, or termination of a previously authorized service;

(c)

Denial, in whole or part, of payment for a service;

(d)

Failure to provide services in a timely manner;

(e)

Failure to act within the required time frames; or

(f)

The denial of an enrollee’s request to dispute a financial liability, including:

(i)

Cost sharing;

(ii)

Copayments;

(iii)

Premiums;

(iv)

Deductibles;

(v)

Coinsurance; or

(vi)

Other enrollee financial liabilities.

(3)

“Affordable Care Act” means the Patient Protection and Affordable Care Act of 2010 (Pub.L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub.L. 111-152), as amended by the Three Percent Withholding Repeal and Job Creation Act (Pub.L. 112-56).

(4)

“Appellant” means any individual who requests a fair hearing for the reasons specified in Regulation .02 of this chapter or that individual’s authorized representative.

(5)

“Authorized representative” has the same meaning as in Regulation .12.

(6)

“Consolidated Services Center” means a call center operated by the Maryland Health Benefit Exchange to assist consumers who apply for, or participate in, Insurance Affordability Programs offered through the Maryland Health Connection.

(7)

“Delegate agency” means the:

(a)

Department of Human Services and its affiliated local departments which, under contractual agreements with the Department, determine initial and continuing eligibility in the Program; and

(b)

Maryland Health Benefit Exchange and its designated affiliates.

(8)

“Department” means the Maryland Department of Health, the single state agency which, pursuant to Title XIX of the Social Security Act, implements fair hearing requirements for Program applicants and recipients.

(9)

“Insurance affordability program” means a program that is one of the following:

(a)

The Maryland State Medicaid program;

(b)

The Maryland Children’s Health Insurance Program (CHIP), including the program known as Maryland Children’s Health Program (MCHP) Premium;

(c)

A State basic health program established under §1331 of the Affordable Care Act;

(d)

A program that makes available to eligible individuals coverage in a qualified health plan through the Maryland Health Benefit Exchange with advance payments of the premium tax credit established under §36B of the Internal Revenue Code; and

(e)

A program that makes available to eligible individuals coverage in a qualified health plan through the Maryland Health Benefit Exchange with cost-sharing reductions established under §1402 of the Affordable Care Act.

(10)

“Maryland Health Benefit Exchange” means the unit of State government that determines initial and continuing eligibility for the MAGI-based insurance affordability programs, including, by delegation, certain eligibility in the Program.

(11)

“Maryland Health Connection” means the electronic eligibility system maintained by the Maryland Health Benefit Exchange.

(12)

“MCO” means a managed care organization qualified to participate in the Program under COMAR 10.67.04.

(13)

“Program" means the Department’s Medical Assistance Program.

Regulation .02 Opportunity for a Fair Hearing.Link Copy Citation

An opportunity for a fair hearing shall be granted if:

(1)

A Program applicant claims their application for Program eligibility is denied;

(2)

A Program applicant claims that the determination of eligibility received through Maryland Health Connection is incorrect;

(3)

A Program applicant claims their application for eligibility, or any part thereof, is not acted upon within:

(a)

30 days from the date of application to an insurance affordability program;

(b)

45 days from the date of application for aged or blind applicants to the Program; or

(c)

60 days from the date of application to the Program in the case of determination of disability;

(4)

A Program recipient asserts their claim for Program services has been erroneously denied or is not acted upon with reasonable promptness;

(5)

A Program recipient asserts that the Program has acted erroneously;

(6)

A Program recipient residing in a skilled nursing facility or nursing home asserts that the recipient has been or will be erroneously transferred or discharged;

(7)

A Program recipient asserts that the Program has made an erroneous decision related to nursing home preadmission and annual review; or

(8)

A Program participant in an MCO is appealing an action by an MCO and the appeal has been filed within 120 days from the date specified in the notice from the MCO as required by COMAR 10.67.09.05.

The administrative law judge may not grant a fair hearing if the sole issue is a federal or State law requiring an automatic change adversely affecting some or all Program recipients.

Regulation .03 Notification of Right to Request a Fair Hearing.Link Copy Citation

The Program, delegate agency, or MCO shall notify an individual and his or her authorized representative, if previously designated by the individual or recognized as valid by the Program, in writing:

(1)

Of the right to obtain a fair hearing;

(2)

Of the method to obtain the hearing; and

(3)

That the individual may represent himself or use an authorized representative at a fair hearing.

The notification specified in §A of this regulation shall:

(1)

Be provided by the Program, the MCO, or the delegate agency when:

(a)

The individual applies for Program benefits;

(b)

Any Program, MCO, or delegate agency action affects the individual’s claim to Program benefits;

(c)

A skilled nursing facility or a nursing facility notifies the individual that the individual is to be transferred or discharged; and

(d)

The individual receives an adverse determination by the Department or delegate agency with regard to skilled nursing facility or a nursing facility preadmission screening and annual resident review;

(2)

Include a statement of the action the Program, MCO, skilled nursing facility, or nursing facility intends to take;

(3)

Include the reasons for the intended action;

(4)

Include the specific regulations that support, or the change in federal or State law that requires, the action;

(5)

Include an explanation of the individual’s right to request a fair hearing, including that expenses incurred in connection with a fair hearing, such as transportation and baby-sitting costs, but not including attorney's fees, shall be paid by the Department when incurred by the appellant and may be paid by the Department when incurred by the appellant's witnesses;

(6)

Include information about fair hearings;

(7)

Include an explanation of the circumstances under which assistance is continued if a fair hearing is requested, as provided in Regulation .04B of this chapter;

(8)

Identify who may act as an authorized representative of the appellant in the fair hearing process, explain how an applicant or recipient may designate an authorized representative, and provide information about designation procedures under 10.09.04.12;

(9)

Specify that the appellant or the appellant’s authorized representative may generally examine the appellant’s records upon reasonable notice to the Program, MCO, or delegate agency; and

(10)

Except as specified in §C of this regulation, be mailed at least 10 days before the date of action.

The notice specified in §A of this regulation may be mailed less than 10 days before but not later than the date of action if:

(1)

The Program has information confirming the recipient’s death;

(2)

The Program receives a clear written statement signed by a recipient that:

(a)

The recipient no longer wishes services; or

(b)

Gives information that requires termination or reduction of services and indicates that the recipient understands that this change in services is the result of supplying that information;

(3)

The recipient has been admitted to an institution where the recipient is ineligible under the Program for further services;

(4)

Subject to Regulation .10B(4) of this chapter, the recipient's whereabouts are unknown and the post office returns to the Program or delegate agency mail directed to the recipient indicating no forwarding address;

(5)

The Program establishes that the recipient has been accepted for Program services by another local jurisdiction, State, territory, or commonwealth;

(6)

The recipient's physician prescribes a change in the level of care;

(7)

The notice involves an adverse determination made with regard to preadmission screening requirements;

(8)

The date of action will occur in less than 10 days and the action involves a long-term care facility’s resident transfer or discharge, in which case the notification shall be made as soon as practicable before transfer or discharge in accordance with 42 CFR §438.12;

(9)

The Program has facts indicating that action should be taken because of probable fraud by the recipient and the facts have been verified, if possible, through secondary sources, in which case the notification may be mailed 5 days before the date of action; or

(10)

The action is an eligibility determination, in which case notice shall be given at the same time as the determination.

Regulation .04 Request for Fair Hearing.Link Copy Citation

Statement of Request.

(1)

Any individual, either himself or through an authorized representative, may request a fair hearing by giving a clear statement, oral, electronic, or written, to any member of the Department or delegate agency, that the individual desires an opportunity to present for review any matter which is the proper subject of a fair hearing as provided in Regulation .02 of this chapter. The request shall be made by:

(a)

Contacting the Program’s Office of Health Services in writing, by telephone or by fax, if the appeal concerns a recipient’s services being denied, suspended, terminated, or reduced;

(b)

Contacting the Maryland Health Benefits Exchange in writing, by telephone, by email, or by fax, if the appeal concerns an applicant’s eligibility for insurance affordability programs;

(c)

Contacting the Consolidated Services Center maintained by the Maryland Health Benefit Exchange in writing, by telephone, by email, or by fax, if the appeal concerns eligibility for insurance affordability programs; or

(d)

Contacting the Office of Administrative Hearings in person, by mail, or by fax, if the appeal concerns the appellant’s eligibility for insurance affordability programs.

(2)

The Program’s Office of Health Services, the Consolidated Services Center, or the delegate agency that receives the request for a hearing shall assist the appellant or the appellant’s authorized representative in preparing the request.

(3)

The Program's Office of Health Services, the Consolidated Services Center, or the delegate agency that receives a written statement requesting an appeal shall:

(a)

Immediately forward an applicant’s statement to the Office of Administrative Hearings;

(b)

Indicate whether the appeal is for a determination of eligibility under an insurance affordability program or for conventional Medicaid; and

(c)

Note in its correspondence with the Office of Administrative Hearings if the appeal:

(i)

Concerns the medical necessity of a denied benefit or service to an MCO enrollee or an application for eligibility insurance affordability programs;

(ii)

Meets the Program’s criteria for an expedited resolution because the Program has determined that taking the time for a standard resolution could seriously jeopardize the individual’s life or health or ability to attain, maintain, or regain maximum function; and

(iii)

Must be heard and decided upon within 3 working days after the Office of Administrative Hearings receives the fair hearing request.

(4)

Appeals of eligibility determinations for insurance affordability programs requested through the Maryland Health Connection shall automatically be transmitted to the Office of Administrative Hearings.

(5)

If a request for a hearing is made by someone other than the applicant or recipient, the Office of Administrative Hearings shall:

(a)

Treat the appeal as timely noted if it complies with §D of this regulation unless no documentation is provided on or before the hearing date;

(b)

Accept appropriate documentation, up to and including the date of the fair hearing, demonstrating that the representative is authorized; and

(c)

Accept the representation of any member of the bar of Maryland that the individual appellant is his or her client without further documentation.

Acknowledgement. The Office of Administrative Hearings shall:

(1)

Promptly acknowledge any request for a fair hearing;

(2)

Give advance notice in writing of the date, time, and place of the fair hearing; and

(3)

Provide the appellant with the information specified in Regulation .03B of this chapter.

Postponements.

(1)

If any party notifies the Office of Administrative Hearings that either the time or place designated by the Office of Administrative Hearings is not convenient to the party, and requests a different time or place for the fair hearing, the administrative law judge shall designate another time or place convenient to the parties if the administrative law judge deems that the party has sufficient reason for requesting the change.

(2)

If the appellant is employed during the periods when fair hearings are normally held, the administrative law judge shall attempt to schedule the hearing so that the appellant will not be required to miss employment.

Timeliness of Appeal. A request for a fair hearing may not be granted unless the request in §A of this regulation is:

(1)

Postmarked, delivered in person, or sent by email or facsimile to the Office of Health Services within 120 days of the receipt of the notification specified in Regulation .03A of this chapter, if the appeal concerns services provided or denied by an MCO;

(2)

Postmarked, delivered in person, or sent by email or facsimile to the Office of Health Services within 90 days of the receipt of the notification specified in Regulation .03A of this chapter, if the appeal concerns services provided or denied by the fee-for-service program; or

(3)

Postmarked, delivered in person, or sent by facsimile to the Office of Administrative Hearings; or emailed to Maryland Health Benefit Exchange; telephoned or faxed to the Consolidated Services Center or postmarked, telephoned, faxed, or delivered in person to the delegate agency within 90 days of the receipt of the notification specified in Regulation .03A of this chapter if the appeal concerns the appellant’s eligibility.

Dismissal.

(1)

The Program, the delegate agency, or the Office of Administrative Hearings may dismiss a request for a fair hearing when the appeal has been:

(a)

Withdrawn in writing addressed to the Office of Administrative Hearings, or in writing, by telephone, or by fax to the Office of Health Services, or in writing, by telephone, or electronically to the Maryland Health Benefit Exchange or other delegate agency, by the appellant or his authorized representative; or

(b)

Abandoned.

(2)

An appellant shall be deemed to have abandoned the appellant’s request for a fair hearing if the appellant fails to appear for the fair hearing on the established date without good cause as determined by the administrative law judge.

Program’s Response. In responding to timely filed requests for a fair hearing, the Office of Administrative Hearings:

(1)

May respond to a series of individual requests for hearing by conducting a single group hearing;

(2)

May consolidate hearings only in cases in which the sole issue involved is one of federal or State law or policy;

(3)

Shall follow the regulations of this chapter governing hearings in all group hearings; and

(4)

Shall permit each applicant to present the appellant’s own case or be represented by the appellant’s authorized representative.

Regulation .05 Pre-Hearing Procedures.Link Copy Citation

A hearing summary shall be prepared containing pertinent information detailing the specific action that is the basis for the appeal. The summary shall be forwarded to the appellant or the appellant’s authorized representative and to the Office of Administrative Hearings at least 6 days before the hearing date.

The appellant and the Department or MCO may request the names of all witnesses that the other party intends to call at the fair hearing.

Regulation .06 Hearing Procedures.Link Copy Citation

The appellant, the Program, the MCO, and the delegate agency shall have the opportunity to:

(1)

Present witnesses;

(2)

Present documentary evidence;

(3)

Present oral and written argument without undue interference;

(4)

Establish all facts and circumstances the administrative law judge judges to be pertinent; and

(5)

Question or refute any testimony or evidence, including an opportunity to confront and cross-examine all witnesses the administrative law judge judges to be adverse.

All parties that wish to call a witness at the hearing shall subpoena the witness in accordance with Office of Administrative Hearings procedures in COMAR 28.02.01.11. The appellant or authorized representative may subpoena any employees of the Department, MCO, or delegate agency whose action is being contested by the appellant or whose testimony may be relevant to the issues under consideration as determined by the administrative law judge.

Right to Review Record.

(1)

If the Program, MCO, or delegate agency introduces as evidence documents from the case record, special investigation file, or other sources, the appellant shall have the opportunity to examine the:

(a)

Persons who prepared the documents; and

(b)

Case record or special investigation file for the purpose of discovering information favorable to the appellant’s case.

(2)

Except as specified in Regulation .05A of this chapter, in addition to the rights specified in §C(1) of this regulation and for purposes of defining reasonable notice under Regulation .03B(9) of this chapter, the appellant or the appellant’s authorized representative shall have the opportunity to examine the appellant’s case record or investigation file upon reasonable notice to the Program, the MCO, or the delegate agency as specified in COMAR 07.01.02.04.

(3)

The Program shall have access to relevant portions of the appellant’s medical record in accordance with Health-General Article, §4-305, Annotated Code of Maryland.

When a hearing involves a medical issue, such as a diagnosis, an examining physician's report or a medical review team's decision, an additional medical assessment of the appellant's condition shall be obtained and made part of the record if the administrative law judge considers it necessary. Any additional medical assessment shall be made by a person other than the person who made the original medical assessment and shall be obtained at the Department's expense.

The delegate agency shall be a party to the fair hearing if the fair hearing involves an issue of eligibility.

Appeal for an Individual Enrolled in an MCO.

(1)

The parties to the appeal for an individual enrolled in an MCO include the MCO, the enrollee, and the enrollee’s representative or the personal representative of a deceased enrollee’s estate.

(2)

If the appeal concerns the medical necessity of a denied, reduced, suspended, or terminated benefit or service to an MCO enrollee, and if the fair hearing meets the Department-established criteria for an expedited hearing as provided in Regulation .04A(3)(b)(ii) of this chapter, the Office of Administrative Hearings shall:

(a)

Schedule the hearing and render a bench decision within 3 working days after the Office of Administrative Hearings receives the fair hearing request; and

(b)

Issue a follow-up written decision within 30 days of rendering the bench decision if the Office of Administrative Hearings, the appellant or the appellant’s authorized representative, and the MCO agree that a written decision is necessary.

(3)

All other appeals from MCO decisions shall be:

(a)

Scheduled for a hearing within 30 days of receipt of the appeal and decided on within 30 days of the hearing; and

(b)

Otherwise governed by COMAR 10.67.09.05.

Regulation .07 The Record.Link Copy Citation

A verbatim recording of the fair hearing shall be made. Nonrecorded or confidential information, which the appellant does not have an opportunity to hear or see, may not be made a part of the hearing record. One transcribed copy of the recording shall be supplied to the appellant at no cost if the appellant takes a further appeal.

The following shall constitute the exclusive record of the hearing:

(1)

The transcript or recording of testimony and exhibits, or an official report containing the substance of what happened at the hearing;

(2)

All papers and requests filed in the proceeding; and

(3)

The administrative law judge’s decision.

The recording of testimony shall remain in the custody of the Office of Administrative Hearings for a period not to exceed 2 years, or until all litigation involving the decision is terminated. All other components of the record shall remain in the custody of the Program for a period not to exceed 2 years, or until all litigation involving the decision is terminated.

Regulation .08 Findings, Timing of Decision, and Effect of Decision.Link Copy Citation

Findings.

(1)

The administrative law judge shall:

(a)

Prepare a written summary of findings and conclusions based exclusively on the record; and

(b)

Make a decision based on his findings and conclusions.

(2)

The summary of findings and conclusions shall:

(a)

State the evidence, policies, regulations, or laws upon which the administrative law judge's decision is based; and

(b)

Provide written notice to the appellant that, if they are not satisfied with the decision, they may seek additional appeals as specified in §C of this regulation.

Timing of Hearing Decision.

(1)

If the appellant is not enrolled in an MCO, the administrative law judge shall forward to the appellant a copy of the findings, conclusions, and decision within 90 days from the earlier of the following:

(a)

The date the appellant postmarked, delivered in person, or sent by email or facsimile to the Office of Health Services a request for a fair hearing pursuant to Regulation .04D(1) of this chapter;

(b)

The date the appellant postmarked, delivered in person, or sent by facsimile to the Office of Administrative Hearings or the delegate agency a request for a fair hearing pursuant to Regulation .04D(2) of this chapter;

(c)

The date the appellant emailed, postmarked or delivered in person to the Maryland Health Benefit Exchange a request for a fair hearing pursuant to Regulation .04D(2) of this chapter; or

(d)

The date the appellant called or sent by facsimile to the Consolidated Services Center a request for a fair hearing pursuant to Regulation .04D(2) of this chapter.

(2)

If the appellant is enrolled in an MCO, the administrative law judge shall forward to the appellant or the appellant’s authorized representative a copy of the findings, conclusions, and decision within:

(a)

3 working days after the Office of Administrative Hearings receives the fair hearing request if the appeal concerns the medical necessity of a denied benefit or service, and the hearing that meets the criteria, as determined by the Department, for an expedited hearing as provided in Regulation .04A(3)(b)(ii) of this chapter; or

(b)

30 days of the hearing if the appeal does not concern the medical necessity of a denied benefit or service.

(3)

If the date of the fair hearing is postponed at the appellant's request, the length of the postponement may not be counted as part of any of the time periods specified in §B(1) or (2) of this regulation.

Appeal Rights.

(1)

Any party may seek administrative review of the administrative law judge’s decision as provided in Health-General Article, §§2-206 and 2-207, Annotated Code of Maryland, and subsequent judicial review as provided in State Government Article, §10-215, Annotated Code of Maryland, except if the appeal is solely of a decision of the Maryland Health Benefit Exchange, in which case any party may seek judicial review as provided in State Government Article, §10-215, Annotated Code of Maryland.

(2)

An administrative law judge’s decision adverse to the appellant shall be implemented immediately.

(3)

To the extent an administrative law judge’s decision upholds the determination of the Maryland Health Benefit Exchange with respect to an applicant for an insurance affordability program described in Regulation .01B(9)(a)—(e), the applicant may appeal to the United States Department of Health and Human Services.

Effect of Decision.

(1)

When the decision requires action by the delegate agency, that agency shall notify the Program of its compliance with the decision.

(2)

When the decision is favorable to the appellant, or when the Department, Program, or delegate agency grants the appellant the relief the appellant requests before the decision, the Department, Program, or delegate agency, where applicable, shall:

(a)

Authorize corrected payments or relief retroactive to the date the incorrect action was taken; and

(b)

If appropriate, provide for admission or readmission of the appellant to a facility.

(3)

Any payment or action by the Department, Program, or delegate agency in §D(2) of this regulation may not constitute a waiver of the Department’s, Program’s or delegate agency’s sovereign immunity from suit.

(4)

When the decision is favorable to the appellant and is an MCO service, the MCO shall authorize or provide the disputed services no later than 72 hours from the date it receives notice reversing the MCO’s determination.

Regulation .09 Confidentiality.Link Copy Citation

If the appellant waives in writing his privilege of confidentiality as to the fair hearing, the administrative law judge shall permit members of the public to attend the hearing.

The administrative law judge may cause the removal of any member of the public whose conduct impedes the orderly progress of the hearing, or recess the hearing until it may proceed in orderly fashion.

The administrative law judge may exclude from the hearing individuals who have not given the Department or MCO advance notice of their intention to attend if the size of the hearing room is too small to accommodate them.

Regulation .10 Benefits During Appeals Process.Link Copy Citation

Benefits Pending Outcome of the Hearing.

(1)

The Program may terminate or reduce services effective as of the date specified in the notice if the Program timely mails the notice as required under Regulation .03 of this chapter and:

(a)

The appellant or the appellant’s authorized representative does not timely request a hearing in accordance with Regulation .04 of this chapter; or

(b)

The appellant or the appellant’s authorized representative withdraws in writing or abandons a request for a fair hearing.

(2)

Except as provided in §A(3) of this regulation, the Program may not terminate or reduce services until a decision is rendered after the hearing if:

(a)

The Program timely mails the notice as required under Regulation .03 of this chapter; and

(b)

The appellant requests a hearing before the date specified in the notice.

(3)

The Program may terminate or reduce services before an administrative law judge renders a decision after a hearing if:

(a)

The administrative law judge determines at the hearing that the sole issue is one of federal or State law or policy, or the request for a fair hearing is withdrawn in writing or abandoned; and

(b)

The Program includes in the notification required by Regulation .03 of this chapter that services are to be terminated or reduced pending the hearing decision.

(4)

The MCO shall continue benefits pending the outcome of the State fair hearing as described in COMAR 10.67.09.05F.

Reinstating Benefits.

(1)

If the Program terminates or reduces services pursuant to §A of this regulation, the Program may reinstate services if a Program recipient requests a hearing not more than 10 days after the date specified in the notice.

(2)

The reinstated services shall continue until a hearing decision, unless, at the hearing, the administrative law judge determines that the sole issue is one of federal or State law or policy.

(3)

The Program shall reinstate and continue services until a decision is rendered after a hearing if:

(a)

Action is taken without the advance notice being given to the recipient as required by Regulation .03 of this chapter;

(b)

The recipient requests a hearing within 10 days of the mailing of the notice; and

(c)

The Program determines that the action resulted from other than the application of federal or State law or policy.

(4)

If a recipient's whereabouts are unknown, as indicated by the return of unforwardable Program mail directed to the recipient, any discontinued services shall be reinstated if the recipient’s whereabouts become known during the time the recipient is eligible for services.

(5)

The administrative law judge may provide for an additional period during which time the request for a fair hearing will result in reinstatement of a recipient’s assistance to be continued until the hearing decision.

Regulation .11 Applicability of Regulations.Link Copy Citation

If a conflict exists between this chapter and the Rules of Procedure of the Office of Administrative Hearings in COMAR 28.02.01, this chapter shall govern.

Regulation .12 Authorized Representatives.Link Copy Citation

Definitions.

(1)

“Authorized representative” means an individual or organization acting responsibly on behalf of the applicant or recipient in accordance with §§B, C, D, and E of this regulation, in assisting with an applicant or recipient’s application, renewal of eligibility, appeals, and other ongoing communications with the agency.

(2)

“Signature” includes electronic, including telephonically recorded, signatures and handwritten signatures transmitted by facsimile or other electronic transmissions.

Designating an Authorized Representative.

(1)

An applicant or recipient may designate any individual or organization to serve as an authorized representative.

(2)

An authorized representative may be designated either:

(a)

In writing, including the applicant or recipient’s signature; or

(b)

By providing proof of legal authority to act on behalf of an applicant or recipient.

(3)

Legal authority includes, but is not limited to those who are the:

(a)

Applicant or, if applicant or recipient is a minor, recipient’s parent;

(b)

Applicant or recipient’s legal guardian, if one has been appointed, or a person who has in good faith filed an application to be appointed the applicant or recipient’s legal guardian but who has not yet been appointed the applicant or recipient’s legal guardian;

(c)

Applicant or recipient’s healthcare surrogate as defined in Health General Article, §5-605, Annotated Code of Maryland;

(d)

Personal representative of the applicant or recipient’s estate, or a person who has in good faith filed an application to be appointed the personal representative of the applicant or recipient’s estate but who has not yet been appointed the personal representative of the applicant or recipient’s estate;

(e)

Individual appointed to make legal or medical decisions on behalf of the applicant or recipient pursuant to a validly executed power of attorney; or

(f)

Attorney or paralegal retained by the individual.

(4)

For individuals who lack the capacity to designate an authorized representative and for whom no other individual or organization has the legal authority to act under §B(2) of this regulation, an authorized representative can be any individual or organization acting responsibly on behalf of the applicant or recipient who:

(a)

In good faith, is acting in the best interest of the applicant or recipient; and

(b)

Declares the applicant or recipient lacks legal capacity, and for organizations, declares that its directors, employees, officers or employers, if any, do not have a direct financial interest in the outcome of the fair hearing.

(5)

For individuals who lack the capacity to designate an authorized representative, for whom no other individual or organization has the legal authority to act under §B(2) of this regulation, and on behalf of whom no individual or organization covered by §B(4) of this regulation is willing and able to act, an authorized representative can be any individual or organization with a direct financial interest in the outcome of the hearing or whose employer has a direct financial interest in the outcome of the hearing who:

(a)

In good faith is acting in the best interest of the applicant or recipient;

(b)

Declares that the applicant or recipient lacks legal capacity; and

(c)

Declares that to the best of his or her belief, no other individual or organization is willing and able to act on the applicant or recipient’s behalf.

Time for Authorization. Designation of an authorized representative or the declarations by an individual or organization required under §B(4) and (5) of this regulation to become an authorized representative can take place at any time, including, but not limited to, the time of application, upon redetermination, upon filing an appeal, and at the appeal hearing.

Validity of Representation. The power to act as an authorized representative is valid until the applicant or recipient modifies the authorization or notifies the agency that the representative is no longer authorized to act on his or her behalf, or the authorized representative informs the agency that the authorized representative is no longer acting in such capacity, or there is a change in the legal authority upon which the individual or organization’s authority was based. This notice shall be in writing and shall include the applicant or recipient’s signature or the authorized representative’s signature as appropriate.

Powers of Authorized Representative. Authorized representatives may be authorized to:

(1)

Sign an application on the applicant’s behalf;

(2)

Complete and submit an update, a renewal form, or respond to a request for redetermination;

(3)

Receive copies of the applicant or recipient’s notice and other communications from the agency; and

(4)

Act on behalf of the applicant or recipient in all matters with the agency including appeals.

Obligations of the Authorized Representative. An authorized representative:

(1)

Is responsible for fulfilling all the responsibilities encompassed within the scope of the authorized representation as described in §E of this regulation to the same extent as the individuals the authorized representative represents; and

(2)

Shall agree to maintain, or be legally bound to maintain, the confidentiality of any information regarding the applicant or recipient provided by the agency.

Authorized Representatives Through an Organization. A provider, staff member or volunteer of an organization shall sign an agreement that he or she will adhere to the federal regulations governing authorized representatives as laid out in 42 CFR §435.923 or 45 CFR §155.227, or both, as well as relevant State and federal laws concerning conflicts of interest and confidentiality of information.

Chapter 05. Board of Review Procedures

Repealed

Chapter 06. Fair Hearing Appeals under the Special Supplemental Food Program for Women, Infants, and Children (WIC)

Regulation .01 Definitions.Link Copy Citation

“Appellant” means an individual, an applicant agency, a food vendor, or delegate agency who desires to participate in the WIC Program, who requests a fair hearing for the reasons specified in Regulation .02, of this chapter.

“Applicant agency” means a public or private, non-profit health or welfare agency providing or contracting to provide health services, which has filed with the Department all the information required by the Department to apply to participate in the WIC Program.

“Delegate agency” means a local agency or organization which, pursuant to contractual agreements with the Department, has accepted responsibilities under the WIC Program as defined by federal program regulations.

“Department” means the Maryland Department of Health.

“Food vendor” means an individual or organization licensed to sell food products, who has, or has applied to have, a contractual agreement with the Department or delegate agency to supply approved foods to program recipients.

“Hearing officer” means an impartial official designated by the Secretary of Health to conduct and make administrative decisions in fair hearings. The hearing officer may not have had any prior connection with the action which is the subject of the fair hearing.

“Participant” means pregnant women, breastfeeding women, post-partum women, infants, and children who are receiving supplemental foods or food instruments (benefits) under the WIC Program, and the breastfed infants of participant breastfeeding women.

“State Agency” means that unit of the Maryland Department of Health which is responsible for the administration and operation of the WIC Program in Maryland.

“WIC” means the Special Supplemental Food Program for Women, Infants, and Children, a federally funded program authorized under an amendment to the Child Nutrition Act of 1966 (PL 94-105) to provide supplemental nutritious food as an adjunct to good health care during critical times of growth and development to prevent the occurrence of health problems.

Regulation .02 Opportunity for a Fair Hearing.Link Copy Citation

A request for a fair hearing shall be granted in the following cases:

An individual's application for participation in the WIC Program is denied by the Department or delegate agency;

An eligible participant is required to pay the cash value of improperly issued benefits, or is denied benefits, suspended or terminated from the WIC Program by the Department or delegate agency;

An applicant agency, delegate agency, or food vendor's:

(1)

Application to participate in the WIC program is denied by the State or local agency,

(2)

Participation in the WIC program is suspended or terminated by the State or local agency,

(3)

Participation in the WIC program is affected by any other adverse action by the State or local agency.

Regulation .03 Notification of Right to Request a Fair Hearing.Link Copy Citation

Written notification of the right to obtain a fair hearing shall be given by the Department or delegate agency to each appellant at each time of application.

Written notification of the right to obtain a fair hearing, and the method of obtaining the hearing, shall be given by the Department or delegate agency whenever it notifies an appellant that it intends to recover the cash value of the improperly issued benefits or to deny, suspend, or terminate participation in the WIC Program. If benefits or eligibility for an individual or food vendor are to be denied, suspended, or terminated, written notice shall be mailed or given at least 15 days before the effective date. In the case of a delegate agency, the notice shall be provided 60 days in advance of the effective date. This notification is not required at the expiration of a certification period.

The notification specified in §B, of this regulation, shall give the appellant the following information:

(1)

The reason for the action which may adversely affect him or his benefits;

(2)

The matters which are the proper subject of a fair hearing as provided in Regulation .02, of this chapter;

(3)

Any positions or arguments on his behalf may be presented personally or by a representative such as a relative, friend, or legal counsel;

(4)

The circumstances under which assistance is continued if a fair hearing is requested, as provided in Regulation .02, of this chapter.

Regulation .04 Request for Fair Hearing.Link Copy Citation

An appellant, either himself or through a representative, may request a fair hearing by giving a clear statement, oral or written, to any member of the State WIC Staff or delegate agency, that he desires an opportunity to present for review any matter which is the proper subject of a fair hearing as provided in Regulation .02, of this chapter. The statement shall be forwarded immediately to the hearing officer. The State WIC staff or delegate agency to whom a request for a hearing is made shall assist the appellant in submitting and processing the request.

Regulation .05 Acknowledgement of Request.Link Copy Citation

The Department shall promptly acknowledge a request for a fair hearing and conduct it within 3 weeks from the date the Department received the request for a hearing.

The appellant shall be given notice, in writing, at least 10 days before the date of the fair hearing.

The notification specified in §B, of this chapter, shall include the following information:

(1)

The date, time, and place of the fair hearing;

(2)

His right to be represented by a lawyer or other person of his choice during the fair hearing process;

(3)

His right to present witnesses and documents in his behalf at the fair hearing;

(4)

A summary of rules for a fair hearing.

Regulation .06 Redesignation of Time and Place for Hearing.Link Copy Citation

If a party notifies the Department that either the time or place designated by the Department is not convenient and requests a different time or place for the fair hearing, the hearing officer shall designate another time or place convenient to the parties, if he considers that the party has sufficient reason for requesting the change. If the appellant is employed during the periods when fair hearings are normally held, the hearing officer shall schedule the hearing so that the appellant will not be required to miss employment.

Regulation .07 Period of Time for Requesting Hearing.Link Copy Citation

A request for a fair hearing may not be granted unless it is made within 60 days from the date the notification specified in Regulation .03, of this chapter, is mailed or given to the appellant, or when Regulation .03, of this chapter, does not apply, within 60 days following the conclusion of the action or inaction which is the subject of the appeal.

Regulation .08 Dismissal of Request for Hearing.Link Copy Citation

The Department may dismiss a request for a fair hearing if:

It has been withdrawn in writing by the appellant or his representative;

The appellant or his representative fails, without good cause, to appear at the scheduled hearing;

The appellant or his representative does not respond within 10 days to a Department letter asking whether he wishes to withdraw his request for a fair hearing;

The request is not made within the time limits specified in Regulation .07, of this chapter; or

The appellant has been denied participation by a previous hearing and cannot provide evidence that circumstances relevant to program eligibility have changed in such a way as to justify a hearing.

Regulation .09 Pre-Hearing Procedures.Link Copy Citation

The Department shall prepare a hearing summary containing pertinent information respecting the specific action or inaction which is the basis for the appeal. The summary shall be forwarded to the appellant or his representative at least 6 days before the hearing date, and shall include notification that the appellant or his representative may examine documents and records to be used at the hearing at the office of the hearing officer, at a reasonable time before the date of hearing.

The appellant and the Department may request the names of all witnesses that the other party intends to call at the fair hearing.

Regulation .10 Hearing Procedures.Link Copy Citation

The fair hearing procedures may not be unduly complex or legalistic. The hearing official shall administer oaths or affirmations as required by the State. The appellant, the Department, and the delegate agency shall have the opportunity to present witnesses, documentary evidence, and oral and written argument, and to cross-examine all adverse witnesses. The appellant will have the opportunity to advance arguments without undue interference.

If the appellant wishes to call as witnesses employees of the Department or delegate agency whose action or inaction is being contested by the appellant, or whose testimony, in the judgment of the hearing officer, is relevant to the issues under consideration, the hearing officer shall require their presence at the fair hearing, provided that, when the appellant has knowledge of the names or other identifying description of these employees before the fair hearing, he shall supply the hearing officer with the names or other identifying descriptions at least 3 days before the fair hearing.

If the Department or delegate agency introduces documents as evidence, the appellant shall have the opportunity to examine persons who prepared the documents and to examine the case record or special investigation file for the purpose of discovering information favorable to his case.

When the hearing involves medical issues, an additional medical assessment of the appellant's condition shall be obtained and made part of the record if either the hearing officer or the appellant considers it necessary. This additional medical assessment shall be made by a person satisfactory to the appellant other than the person or persons who made the original medical determination, and shall be obtained at the Department's expense.

Regulation .11 The Record.Link Copy Citation

A verbatim recording of the fair hearing shall be made. One transcribed copy of the recording shall be supplied to the appellant, at no cost, if the appellant takes a further appeal. The recording, together with all exhibits and papers admitted into evidence, shall constitute the exclusive record for decision. Nonrecorded or confidential information which the appellant does not have an opportunity to hear or see may not be made a part of the hearing record. The written record of the hearing shall be preserved for a period of 3 years and shall be available for examination by the person or his representative at any reasonable time or place during this period.

The recording and copies of all exhibits and papers shall remain in the custody of the hearing officer for at least 3 years, or until all litigation involving the decision is terminated.

Regulation .12 Findings, Conclusions, and Decision.Link Copy Citation

The hearing officer shall prepare a written summary of findings and conclusions based exclusively on the record, and shall state the policies, regulations, or laws upon which the hearing officer's decision is based. The hearing officer's decision shall become a part of the record.

A copy of the findings, conclusions, and decision shall be forwarded to the appellant or his representative no later than 45 days after the date of receipt of the initial request for a fair hearing; except that, if the date of the fair hearing is postponed at the appellant's request, the length of the postponement may not be counted as part of the 45-day period. The hearing officer further shall provide written notice to the appellant or his representative that if he is not satisfied with the decision, he may seek administrative review as provided in Health-General Article, §2-207, Annotated Code of Maryland, and judicial review as provided in Article 41, §225, Annotated Code of Maryland, or any other provision of law.

The decision of the hearing officer shall be final and binding upon the Department and the delegate agency, and shall be implemented immediately unless otherwise specifically indicated in the decision, or unless the appellant takes an appeal as provided in Health-General Article, §2-207, Annotated Code of Maryland. However, if the decision being appealed is in favor of a delegate agency seeking to recover the cash value of improperly issued benefits, the delegate agency shall resume its claim collection efforts during pendency of the appeal. When the decision requires action by the delegate agency, that agency shall notify the Department of compliance with the decision.

The hearing officer shall maintain a copy of the decision, with the name of the appellant and witnesses deleted, in a reference file or hearing decisions that will be accessible to the public. Copies of all decisions, either in full text or in summary form, shall be forwarded to the delegate agency and any agency or physician with which it has contracted to fulfill its program responsibilities and is involved in this fair hearing.

Regulation .13 Confidentiality as to Fair Hearings.Link Copy Citation

If the appellant waives in writing his privilege of confidentiality as to the fair hearings, the hearing officer shall permit members of the public to attend the hearing; however, the hearing officer may cause the removal of any member of the public whose conduct impedes the orderly progress of the hearings, or may recess the hearings until a time when it may proceed in orderly fashion. The hearing officer also may exclude from the hearing persons who have given the Department no advance notice of their intention to attend, if the size of the hearing room is too small to accommodate them.

Regulation .14 Continuation of Benefits or Participation Pending Hearing Decision.Link Copy Citation

Whenever an individual, applicant agency, delegate agency, or food vendor is notified of a proposed action as provided in Regulation .03, of this chapter, the proposed action may not be taken unless at least one of the following occurs:

(1)

A fair hearing is not requested in a timely manner, as provided by Regulation .07, of this chapter;

(2)

A request for a fair hearing has been withdrawn in writing by the appellant or a representative;

(3)

The appellant or representative fails, without good cause, to appear at the scheduled hearing;

(4)

The appellant or representative, after failing to appear at a scheduled hearing, does not respond within 10 days to a departmental letter asking whether the appellant wishes to continue with the appeal;

(5)

A decision affirming the proposed action of the Department or delegate agency is made by the hearing officer following a fair hearing;

(6)

The Department has made a determination that the request for a fair hearing is not appropriate as provided for by Regulation .02, of this chapter.

Whenever an eligible participant is notified during a certification period that benefits are to be denied, suspended, or terminated, those benefits will continue to be provided if the participant requests a fair hearing within the 15 day advance notice period provided by Regulation .03B, of this chapter. Those benefits will continue until one of the conditions specified in Regulation .14A, of this chapter, occurs.

Whenever an eligible participating food vendor is notified that participation is to be denied, suspended, terminated, or affected by any other adverse action, the food vendor shall be allowed to continue to participate if the food vendor requests a fair hearing at least 10 days before the effective date of the proposed adverse action. Participation shall continue until one of the conditions specified in §A, of this chapter, occurs.

Applicants who are denied benefits at initial certification or at subsequent certifications may appeal the denial but may not receive benefits while awaiting a hearing.

An applicant agency or food vendor which is denied participation at time of application may appeal the denial but may not participate while awaiting a hearing.

Whenever an eligible participant, participating delegate agency, or food vendor requests a fair hearing following the expiration of the time period as provided in §§B and C, of this regulation, the hearing officer, in his discretion, may provide an additional period during which time a request for a fair hearing shall result in continuation of benefits or participation until one of the conditions specified in §A, of this regulation, occurs.

The adverse action affecting a participating delegate agency shall be postponed until a hearing decision is reached.

Appealing an action does not relieve a delegate agency or food vendor permitted to continue in the program while its appeal is in process from the responsibility of continued compliance with the terms of any written agreement or contract with the State or local agency.

Regulation .15 Criminal or Civil Sanctions.Link Copy Citation

This fair hearing procedure may not be construed as excluding or replacing any criminal or civil sanctions or other remedies that may be applicable under any federal or State statute or local ordinance.

Chapter 07. Petitions for Adoption, Amendment, or Repeal of Regulations

Regulation .01 Scope.Link Copy Citation

This chapter applies to all petitions submitted to the Department to promulgate, amend, or repeal a regulation over which the Secretary has rulemaking authority in accordance with State Government Article, §10-122, Annotated Code of Maryland..

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Department” means the Maryland Department of Health.

(2)

“Petition” means a petition to promulgate, amend, or repeal a regulation.

(3)

“Petitioner” means an interested person filing a petition to the Department to promulgate, amend, or repeal a regulation.

(4)

“Regulation” has the meaning stated in State Government Article, §10-101, Annotated Code of Maryland.

(5)

“Secretary” means the Secretary of Health.

Regulation .03 Who May File.Link Copy Citation

Any interested person may file a petition requesting the promulgation, amendment, or repeal of any regulation over which the Secretary has rulemaking authority.

Regulation .04 Form and Submission of Petition.Link Copy Citation

A petition shall be in writing and include:

(1)

A detailed description of the regulation which the petitioner requests the Department to promulgate, amend, or repeal;

(2)

If a request for amendment or repeal, a citation to the affected regulation;

(3)

A statement in support of the petition; and

(4)

The petitioner’s:

(a)

Name;

(b)

Signature;

(c)

Address; and

(d)

Telephone number.

A petition shall be submitted by the petitioner to the Director of the Department’s Office of Regulation and Policy Coordination via email or U.S. Mail.

Regulation .05 Disposition and Notification Requirements.Link Copy Citation

Disposition of Petition. Within 60 days after receipt of a petition, the Secretary shall:

(1)

Deny the petition; or

(2)

Initiate rulemaking proceedings.

Notification Requirements.

(1)

If the Secretary denies the petition, the Secretary shall provide in writing the reason for denial in accordance with Regulation .06 of this chapter.

(2)

If the Secretary initiates rulemaking proceedings, the Secretary shall provide in writing notification to the petitioner:

(a)

Upon the intent to initiate rulemaking proceedings;

(b)

Upon publication of the proposed action in the Maryland Register; and

(c)

Upon final disposition through either publication of a notice of final action in the Maryland Register or discontinuation of rulemaking.

(3)

If the Secretary discontinues rulemaking proceedings the written notification provided to the petitioner in accordance with §B(2) of this regulation shall state the reasons for discontinuation.

The Secretary shall provide the written notification required under §B of this regulation to any other individual requesting notification.

Regulation .06 Reasons for Denial of a Petition.Link Copy Citation

The Secretary may deny a petition for any reason permitted by law, including, but not limited to:

That the Secretary does not have the authority to grant the petition;

That the Department does not have adequate information or resources to evaluate the petition;

That the Department does not have adequate resources to implement the requested regulation if it is adopted;

That the Secretary previously adopted a regulation dealing with the same subject matter as that of the petition and rejected the position taken by petitioner at that time, or the petitioner unreasonably failed to make his position known at that time; or

That the requested regulation change is contrary to or inconsistent with Departmental policy.

Regulation .07 Rulemaking Proceedings.Link Copy Citation

Rulemaking proceedings may include any type of action which the Secretary is authorized or required by law to take when promulgating, amending, or repealing regulations, including:

(1)

Studies to gather information concerning the regulation;

(2)

Advance notice of proposed rulemaking if the Secretary determines that additional information or public comment is necessary or desirable before a proposed regulation can be formulated;

(3)

Referral to advisory councils or other official or quasi-official agencies or groups responsible for reviewing the regulation;

(4)

Proposal of the regulation in the Maryland Register;

(5)

Reproposal of the regulation if the Secretary determines that, before final adoption, the proposed regulation should be altered and any part of the proposed text differs substantively from its original text; or;

(6)

Modification of the regulation change either in form or in substance, and either before or after proposal in the Maryland Register, to better reflect the Secretary's responsibilities.

Despite the initiation of rulemaking proceedings, the Secretary may decide not to promulgate, amend, or repeal the regulation.

Upon final disposition, the Secretary shall provide the notification required to the petitioner in accordance with Regulation .05 of this chapter.

Regulation .08 Files of Petitions for Regulations.Link Copy Citation

The Department shall maintain a file of all petitions submitted and their disposition. This file shall be available for public inspection in accordance with General Provisions Article, §§4-201—4-206, Annotated Code of Maryland.

Chapter 08. Procedures for Access to Records

Regulation .01 Scope.Link Copy Citation

This chapter establishes the procedures for requesting and gaining access to records and information of the Maryland Department of Health , its administrations, and its facilities.

This chapter does not apply to requests for medical records of individuals, which are governed by Health-General Article, §4-301 et seq., Annotated Code of Maryland, or to requests for drug and alcohol treatment records of individuals, which are governed by Health-General Article, §8-601, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Applicant” means any person or governmental unit requesting disclosure of public records.

(2)

“Department” means the Maryland Department of Health.

(3)

“Official custodian” means the Secretary of Health or the Secretary's designee.

(4)

“Secretary” means the Secretary of Health.

(5)

“Working day” means every day except Saturdays, Sundays, and official State holidays.

Regulation .03 Procedures Regarding Inspection or Copying of a Record.Link Copy Citation

To obtain access to records of the Department, an applicant shall submit to the custodian a written application containing the applicant's name, address, telephone number, if available, and a description of the record sought. If the applicant is an individual with a disability, the Department may arrange for an alternative.

Upon receipt of an application, the custodian shall follow the procedures stated in State Government Article, §§10-614—10-619, Annotated Code of Maryland.

Response to Requests.

(1)

The custodian shall respond to a record request as soon as possible, but not later than 10 business days after the receipt of the request, by:

(a)

Providing access to the requested records;

(b)

Denying access to the record or parts of the record with an explanation for the denial; or

(c)

Advising that additional time is needed because the request:

(i)

Is for voluminous records;

(ii)

Requires legal advice; or

(iii)

A record is in storage or archived.

(2)

If a requested record has been destroyed or lost, the custodian shall notify the applicant of this fact within 10 working days of the request and shall explain in the response the circumstances of the destruction or loss.

(3)

If access cannot be provided within 10 business days, the custodian shall:

(a)

Cite the reasons why more time is needed; and

(b)

Provide a good-faith estimate of how much additional time is required to fulfill the request.

Time and Place of Inspection.

(1)

An applicant may inspect a record between 8 a.m. and 5 p.m. on a working day.

(2)

Inspection takes place where the document is located, unless the custodian determines that another location is more suitable.

(3)

The custodian shall arrange for a suitable location and method of inspection for an individual with a disability.

Regulation .04 Fees.Link Copy Citation

Fee Schedule.

(1)

Copies.

(a)

When copies are reproduced using a computer printer or copier machine, the charge for each copy is 50 cents per page.

(b)

For duplication of other storage media such as compact disks, magnetic tapes, zip disks, floppy disks, memory cards, microfilm, blueprints, drawings, and similar items the charge for reproduction is the actual cost to the Department.

(c)

For preprinted material that is disseminated by the Department to the public, there is no charge or the charge is the same as that charged to the general public.

(d)

For records that cannot be copied by the Department and that are copied outside the Department, the charge for reproduction is the actual cost to the Department. In the alternative, the custodian may arrange for the applicant to pay the charges directly to the entity that copies the record.

(2)

Certification of Copies. The additional charge for each copy certified as a true copy of the original is 20 cents per page.

(3)

Employee Time. Except for the first 2 hours which are free, the standard charge for responding to requests for public information is $25 per hour of employee time. Employee time to respond to a request may include time searching for records, preparing records to be copied, copying records, and any other similar tasks.

(4)

Mailing. The charge for mailing or delivery is the actual cost to the Department.

Estimated Charges. Before reproducing a record, the custodian shall provide the applicant with an estimate of the charge for reproduction and any other costs, and obtain agreement from the applicant that the charges will be paid. The custodian may demand prepayment of the estimated charges before reproducing the record.

Waiver of Charges. The custodian may waive charges for:

(1)

Advocacy groups;

(2)

Medicaid and WIC recipients; or

(3)

Applicants who demonstrate need and good cause.

Chapter 09. Procedures for Hearing Before the Hospital Appeal Board and Nursing Home Appeal Board

Regulation .01 General.Link Copy Citation

This chapter sets out the procedures for appeals of final cost settlements before the Hospital Appeal Board, pursuant to COMAR 10.09.92.10, 10.09.93.12, and 10.09.95.12, and the Nursing Home Appeal Board, pursuant to COMAR 10.09.10.34.

Regulation .02 Definitions.Link Copy Citation

The following terms have the meanings indicated.

Terms Defined.

(1)

“Board” means the Hospital Appeal Board or the Nursing Home Appeal Board.

(2)

“Final cost settlement” means a determination by the Medical Assistance Program of any amounts due to or owed by a participating provider and includes the results of cost verifications and desk reviews.

(3)

“Party” means a hospital or nursing home or the Medical Assistance Program.

Regulation .03 Notice of Appeal.Link Copy Citation

An opportunity for a hearing shall be provided to any hospital or nursing home that requests review of a final cost settlement by filing a written notice of appeals with the Board not later than 30 days after receipt of the notice of final cost settlement. This notice shall be filed in a format prescribed by the Board.

The notice of appeal shall be delivered in person to the Board at the address designated by the notice of final cost settlement or shall be sent by registered or certified mail, return receipt requested.

The notice of appeal shall describe with specificity the particular cost adjustments appealed by the provider as well as the fiscal years in which those adjustments have been applied.

The provider may elect one of the following types of procedures:

(1)

The consideration by the Board solely of written material submitted by the provider and the Medical Assistance Program, or its designee, and upon which the Board shall render a decision. The Board may establish time limits within which the material is to be submitted.

(2)

The consideration by the Board of written material submitted by the provider and the Medical Assistance Program, or its designee, and brief, informal oral arguments. Each party may submit oral arguments by not more than two persons. Formal testimony, swearing in, or witnesses or recording of proceedings may not take place. The Board shall render a decision based upon the written materials submitted and the oral arguments presented.

(3)

A full evidentiary hearing, including a prehearing conference, in accordance with Regulations .04, .05, and .06 of this chapter.

The procedures provided in §D(3) of this regulation will be followed if the Medical Assistance Program objects in writing to the election of a procedure provided for in §D(1) or (2) of this regulation within 10 working days of receipt of the election.

The Board shall prescribe the format in which the provider may elect the type of procedure desired with the submission of an appeal. This election shall be binding and constitutes a waiver of any other form of hearing before the Board for that particular appeal unless the Medical Assistance Program objects in the manner provided in §E of this regulation.

Regulation .04 Prehearing Conference for Evidentiary Hearing.Link Copy Citation

After receipt of a notice of appeal with an election by the provider of a full evidentiary hearing, the Board shall schedule a prehearing conference.

The prehearing conference shall be presided over by a member of the Board or by a person designated by the Board.

The prehearing conference may be conducted either in person or by telephone conference call.

The presiding officer shall issue a prehearing order after the conference specifying the:

(1)

Witnesses that each party intends to call, if any.

(2)

Schedule for any briefs of the issues of fact and law involved in the hearing. These briefs shall be in the form and with the number of copies designated by the presiding officer.

(3)

Date of the hearing, unless the parties agree to waive an oral hearing.

(4)

Order in which the parties shall present their case.

A record shall be made of the prehearing conference by the officer in charge.

All prehearing matters, including requests for postponements, shall be addressed to and determined by the officer who presides at the prehearing conference.

Regulation .05 Conduct of the Evidentiary Hearing.Link Copy Citation

The hearing shall be conducted by the Board, or by a person or agency designated by the Board.

The rules of evidence in all hearings shall be those set forth in State Government Article, §§10-213 and 10-214, Annotated Code of Maryland.

Any party may submit evidence, examine and cross-examine witnesses, and file objections, exceptions, and motions. When a party is represented by counsel, all submissions of evidence, examination and cross-examination of witnesses, and filing of objections, exceptions, and motions shall be done and presented solely by counsel.

The presiding officer or officers at the hearing may examine any witness called by any party or may call as a witness any persons in attendance at the hearing.

Testimony taken at the hearing shall be under oath. The oath shall be in the following form: “Do you solemnly promise and affirm under the penalties of perjury that the testimony you are about to give in this matter now pending before the Board shall be the truth, the whole truth, and nothing but the truth?”

If a party fails to appear at the hearing after due notice, the presiding officer or officers at the hearing may reschedule the hearing, or dismiss the appeal, or may proceed to determine the issues appealed on the available record.

The presiding officer or officers shall prepare an official record of the hearing which shall include the notice of appeal, the presiding officer or officers' record of the prehearing conference, the prehearing order, a stenographic transcription of any oral evidence presented at the hearing, as well as any pleadings, written testimony, exhibits, and other memoranda or materials filed in the proceedings.

Regulation .06 Recommendation to the Board.Link Copy Citation

If the hearing is not conducted before a Board consisting of three members as provided in COMAR 10.09.10.34, 10.09.92.10, 10.09.93.12, and 10.09.95.12, the presiding officer or officers at the hearing shall issue recommendations to the Board on all of the issues appealed in the notice of appeal.

The recommendations shall be in writing and shall include findings of fact and conclusions of law.

A copy of the recommendations shall be delivered or mailed promptly to each party or his attorney of record.

Within 20 days after receipt of the recommendations, any party may file exceptions with the Board from all or a portion of the recommendations and may present argument before the Board as provided in State Government Article, §10-216, Annotated Code of Maryland, or waive oral argument and have the Board proceed only on the party's written exceptions. If exceptions to the recommendations are filed beyond the 20 day limit, these exceptions may not be considered by the Board when making its decision.

Regulation .07 Decision.Link Copy Citation

If the hearing was presided over by the full Board, or after consideration by the full Board of the recommendations and exceptions to the recommendations and any argument in support of them, the Board shall issue a decision including findings of fact and conclusions of law on all issues appealed in the notice of appeal.

The decision of the Board shall be implemented immediately unless otherwise specifically indicated in the decision.

Regulation .08 Appeal.Link Copy Citation

Any party may file an appeal from the decision of the Board as provided by law.

Chapter 10. Payment for Off-Grounds Medical Services

Regulation .01 Purpose.Link Copy Citation

The Secretary of Health (MDH) has established accounts for the purpose of payment of off-grounds medical services. These accounts are to be used by MDH facilities whose clients receive services from private medical providers that the facility cannot furnish or secure by contract. The care could include laboratory work, services from medical specialties, and acute hospitalization. The care does not include ambulance transportation.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Client” means a resident or patient in a Maryland Department of Health facility.

(2)

“Department” means the Maryland Department of Health.

(3)

Facility.

(a)

“Facility” means an inpatient or residential facility owned and operated by the Department.

(b)

“Facility” includes Mental Administration institutions, Developmental Disabilities Administration institutions, and chronic and rehabilitation facilities.

(4)

“Medical providers” means private providers of medical care or related services who render care to clients of the Department's facilities.

(5)

“Off-grounds medical services” means medical care or related services provided to clients of the Department's facilities rendered by medical providers at a site other than the facility.

(6)

“Secretary” means the Secretary of Health.

Regulation .03 Requirements.Link Copy Citation

All facilities shall provide or arrange for the provision of medical care required by individuals placed in Department facilities.

All facilities shall purchase medical services that cannot be provided in the facility by the facility's staff or visiting consultants from providers appropriately licensed in the state in which the service is to be rendered.

All facilities shall purchase medical services from medical providers who agree to invoice the facility only for those services that are not covered by third-party payers, including federal, state, or federal-state programs.

The financial agents shall assist the provider in identifying potential sources of recovery.

Regulation .04 Payment Procedures.Link Copy Citation

Medical providers shall collect to the extent possible from third-party payers such as Medical Assistance, Medicare, and private insurers.

Facilities shall direct medical providers to invoice the facility for the cost of those services not covered by third-party payers. For Medical Assistance recipients, the Secretary or the Secretary's designee shall determine which services are specifically provided for in the facility's budget and are included in the facility's Medical Assistance per diem rate, and, therefore, may not be billed directly to the Maryland Medical Assistance Program.

The purchase of care agreement entered into with the provider shall state that “The provider, in accepting this client for care, agrees to pursue recovery of the cost of care from all third-party payers and any state, federal, and federal-state program for which this client might be eligible, based on the information furnished by the facility before invoicing (name of facility).”

Payment in Full.

(1)

If a third-party source of payment is intended to be payment in full, the facility may accept but may not pay invoices for the service rendered, unless payment by the third-party source is denied.

(2)

If a third-party source of payment is not intended to be payment in full, the facility shall pay the amount of the bill not paid by the third-party payer.

Medical providers shall submit all invoices to the appropriate facility within 12 months of the date of services.

Regulation .05 Recovery and Reimbursement.Link Copy Citation

If a client has insurance or if any other person is obligated, either legally or contractually, to pay for, or to reimburse the client for any service covered by this chapter, the medical provider shall seek payment from that source.

Payment. If payment is made by both the facility and insurance or other payer, the following conditions apply:

(1)

If the facility has paid all or part of the invoice and the third-party payer has made payment that represents payment in full, then the medical provider shall return the facility's entire payment to the facility;

(2)

If the facility has paid the invoice in full and if the third-party payer has made payment that represents partial payment, then the medical provider shall return the amount of the third-party payment to the facility;

(3)

If a third-party payer has made payment that is intended to be a partial payment and the facility has paid the remainder, then no repayment to the facility is required.

The provider shall reimburse the facility for any overpayment.

Chapter 11. Correction or Amendment of Public Records

Regulation .01 General.Link Copy Citation

These regulations set out procedures for persons in interest who are authorized to inspect a public record to request the correction or amendment of that public record in the Maryland Department of Health under State Government Article, §10-625, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Department” means the Maryland Department of Health.

(2)

“Person in interest” means:

(a)

A person or governmental unit that is the subject of a public record, or a designee of the person or governmental unit;

(b)

If the person has a legal disability, the parent or legal representative of that person; or

(c)

As to requests for correction of certificates of death under Health-General Article, §5-310(d)(2), Annotated Code of Maryland, the spouse, adult child, parent, adult sibling, grandparent, or guardian of the person of the deceased at the time of the deceased's death.

Regulation .03 Who May Request.Link Copy Citation

A person in interest may request the Department to correct or amend any public record that the person in interest is authorized to inspect pursuant to State Government Article, §10-625, Annotated Code of Maryland.

Regulation .04 Contents of Request.Link Copy Citation

The person in interest shall request the correction or amendment in writing. The request shall:

Identify the public record the person is seeking to correct or amend;

State the precise correction or amendment requested;

State the reason the correction or amendment is sought; and

Include the statement that the record is, to the person's belief, currently inaccurate or incomplete.

Regulation .05 Filing the Request.Link Copy Citation

A person shall file a request for correction or amendment of the record with the Department by addressing it to the custodian of the record. If the custodian is unknown to the person in interest, the person may address the request to the Secretary of Health.

Regulation .06 Return of Nonconforming Request.Link Copy Citation

The Department shall accept a request to correct or amend a public record when it is received if it complies with Regulations .04 and .05 of this chapter.

If the request does not comply with Regulations .04 and .05 of this chapter, the Department shall return the request to the requester with:

(1)

An explanation of the reason for the return; and

(2)

A statement that, on receipt of a request that complies with Regulations .04 and .05 of this chapter, the request will be accepted and considered.

Regulation .07 Response to Request.Link Copy Citation

Within 30 days after the request for correction or amendment is received, the custodian of the record shall:

Make the requested correction or amendment and inform the person of the action;

Inform the person in writing of the:

(1)

Department's refusal to make the requested correction or amendment, and

(2)

Reason for the refusal; or

Inform the person in writing that the request will not be acted on because:

(1)

The person is not a person in interest;

(2)

The record sought to be corrected or amended is not a public record;

(3)

The person requesting the correction or amendment is not entitled to inspect the record under State Government Article, §§10-615—10-619, Annotated Code of Maryland;

(4)

The record in which the change is requested is not in the Department's custody; or

(5)

Of any other reason that is authorized by law.

Regulation .08 Refusal of Request.Link Copy Citation

If the Department's response under Regulation .07 of this chapter, is to refuse the requested correction or amendment, the person in interest may file with the Department a concise statement of the person's reasons for:

The requested correction or amendment; and

Disagreement with the Department's refusal to make the correction or amendment.

Regulation .09 Requirements for Statement of Disagreement.Link Copy Citation

A person who desires to file the statement of disagreement specified in Regulation .08 of this chapter shall file the statement in not more than five, one-sided, 8-1/2 by 11 inch pages.

Regulation .10 Information Provided to Third Parties.Link Copy Citation

When the Department discloses to a third party information from a public record about which a statement in compliance with Regulations .08 and .09 of this chapter has been filed, the Department shall furnish a copy of the statement to the third party.

Regulation .11 Administrative Review.Link Copy Citation

A person may request a hearing by filing a request for a hearing with the custodian of the record, if the person has been denied:

(1)

An amendment or correction of a record;

(2)

The right to file a statement of disagreement; or

(3)

The right to have a statement to a third party forwarded pursuant to Regulation .10 of this chapter.

A person shall file the request for a hearing within 30 days of the date of the denial pursuant to §A of this regulation.

The custodian of the record shall file immediately the request for a hearing with the Office of Administrative Hearings, which shall conduct the hearing.

The Office of Administrative Hearings shall conduct hearing proceedings in accordance with State Government Article, §10-201 et seq., Annotated Code of Maryland, and the administrative hearing regulations of the Department and the Office of Administrative Hearings.

Regulation .12 Judicial Review.Link Copy Citation

A person who is aggrieved by the final decision following all administrative review, including the final decision of the Secretary and the decision of the Board of Review, may file for judicial review under State Government Article, §10-222, Annotated Code of Maryland, by filing a petition in the appropriate circuit court.

Chapter 12. Declaratory Ruling

Regulation .01 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Declaratory ruling” means a ruling made by a promulgating authority with respect to the manner in which the promulgating authority would apply a regulation or order of the promulgating authority, or a statute that the promulgating authority enforces, to a person or a property based on a given set of facts.

(2)

“Department” means the Maryland Department of Health.

(3)

“Person” means:

(a)

An individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind;

(b)

A partnership, firm, association, corporation, or other entity; and

(c)

A political subdivision of the State or an instrumentality of a political subdivision.

(4)

“Promulgating authority” means the promulgating authority's designee or an officer or unit of the Department that is authorized by law to adopt regulations subject to State Government Article, §§10-101—10-139, Annotated Code of Maryland, or adjudicate contested cases subject to State Government Article, §§10-201—10-207, Annotated Code of Maryland.

Regulation .02 Petition.Link Copy Citation

An interested person may file with the promulgating authority a petition for a declaratory ruling.

Petition for Declaratory Ruling. The petition for a declaratory ruling shall be filed in writing and shall describe in detail:

(1)

The interest of the petitioner in making the request;

(2)

The issues involved;

(3)

A statement of the facts;

(4)

A list of documents or statements the petitioner believes should be considered; and

(5)

A sworn statement by the petitioner that the facts contained in the petition are true to the best of the person's knowledge and belief.

Regulation .03 Consideration and Disposition.Link Copy Citation

Consideration and Disposition. The promulgating authority shall:

(1)

Consider the petition and may issue the declaratory ruling requested;

(2)

Notify the petitioner in writing of the action decided upon and state the reasons for the decision.

Publication and Inspection.

(1)

The promulgating authority shall keep a record of each declaratory ruling issued and index all declaratory rulings issued by reference to statutes or regulations involved.

(2)

The promulgating authority may publish declaratory rulings of general interest subject to the mandates of the Public Information Act, State Government Article, §10-601 et seq., Annotated Code of Maryland, and allow inspection of the declaratory rulings subject to the Public Information Act.

Regulation .04 Appeal.Link Copy Citation

A declaratory ruling is subject to judicial review as provided in State Government Article, §10-305, Annotated Code of Maryland.

Chapter 13. Procedures for Interagency Coordination for Licensing Residential Child Care Facilities

Regulation .01 Scope.Link Copy Citation

An applicant for a license for a residential child care facility or a residential child care program may seek a variance or waiver under this regulation. This chapter applies to licenses regulated by COMAR 10.22.03, 10.22.11, 10.22.14, 10.23.02, and 10.47.01 if the population of the facility is comprised of at least 90 percent children and if they are not regulated by the Health Resources Planning Commission through the Certificate of Need process.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Secretary” means the Secretary of Health.

(2)

“Variance” means an alternative procedure to satisfy a specific licensing regulation.

(3)

“Waiver” means the setting aside of a specific licensing regulation.

Regulation .03 Application for Variance.Link Copy Citation

An applicant for a license under the chapters listed in Regulation .01, of this chapter, may request a variance to specific licensing regulations.

An application for a variance shall:

(1)

Be written;

(2)

Contain specific details of the alternative procedures proposed by the applicant; and

(3)

Demonstrate that the alternative procedures proposed shall:

(a)

Meet or produce the intended effects of each regulation for which the variance is requested and

(b)

Maintain the health, safety, and well-being of children in the facility at or above the level required by each regulation for which the variance is requested.

Regulation .04 Department Action on Application for Variance.Link Copy Citation

Upon consideration of an application for variance, the Secretary may grant the request for a variance, if the:

(1)

Applicant has submitted an application in accordance with the provisions of Regulation .03 of this chapter;

(2)

Applicant has complied with all other applicable licensing regulations of the Department; and

(3)

Secretary determines that the alternative procedure proposed by the applicant shall:

(a)

Meet or produce the intended effect of the regulation, and

(b)

Maintain the health, safety, and well-being of children in the facility at or above the level required by the regulation at issue.

The determination of the Secretary upon the application for variance shall be in writing, and mailed to the applicant within 60 days of the date the application for variance is received by the Department.

If granted, the variance may remain in effect for the term of the license and may be renewed upon application of the licensee when the license is renewed.

Regulation .05 Application for Waiver.Link Copy Citation

An applicant for a license under the COMAR chapters listed in Regulation .01, of this chapter, may request a waiver of specific provisions of licensing regulations.

An application for a waiver shall:

(1)

Be written;

(2)

Contain specific facts upon which the waiver is requested; and

(3)

Demonstrate that:

(a)

The waiver is necessary to meet the requirements of any federal child care licensing program; or

(b)

Enforcement of the regulation for which a waiver is requested is contrary to the purposes of the statute under which the regulations are promulgated, and it would be unduly burdensome and inequitable for the applicant to comply with the provisions of the regulation for which a waiver is requested.

Regulation .06 Department Action on Application for Waiver.Link Copy Citation

The Secretary may grant a waiver of provisions of the applicable licensing regulation if the:

(1)

Applicant has filed a written request for a waiver in accordance with Regulation .05 of this chapter;

(2)

Waiver is not inconsistent with the purposes and provisions of the statute under which the regulations are promulgated, and the health, safety, and well-being of the children in the facility will not be jeopardized solely by the granting of the waiver; and

(3)

Applicant has demonstrated the facts required in Regulation .05B(3) of this chapter.

The determination of the Secretary upon the application for waiver shall be in writing, and mailed to the applicant within 60 days of the date the application for the waiver is received by the Department.

If granted, the waiver may remain in effect for the term of the license and may be renewed upon application of the licensee when the license is renewed.

Regulation .07 Appeals.Link Copy Citation

An applicant aggrieved by a determination of the Secretary upon an application for waiver or variance may file an appeal of the determination in accordance with the Administrative Procedure Act, State Government Article, §§10-201—10-405, Annotated Code of Maryland, and the Department's regulations governing administrative appeals taken pursuant to the Administrative Procedure Act.

Chapter 14. Open Meetings — Attendance and Recording, Photographing, and Broadcasting of Sessions

Regulation .01 Definition.Link Copy Citation

“Public body” means the entity defined at State Government Article, §10-502(h), Annotated Code of Maryland.

Regulation .02 Public Attendance.Link Copy Citation

The general public may attend and observe an open session of a public body within or established by the Maryland Department of Health.

Except in instances when a public body expressly invites public testimony, questions, comments, or other forms of public participation, or when public participation is otherwise authorized by law, a member of the public attending an open session may not participate in the session.

Regulation .03 Disruptive Conduct.Link Copy Citation

Prohibition. An individual attending an open session of a public body may not engage in any conduct, including a visual demonstration such as the waving of a placard, sign, or banner, that disrupts the session or that interferes with the right of a member of the public to attend and observe the session.

Action to Restore Order. The presiding officer may:

(1)

Order an individual who engages in conduct prohibited by §A of this regulation, or who violates any other regulation concerning the conduct of an open session, to be removed from the session;

(2)

Request police assistance to restore order; and

(3)

Recess the session while order is restored.

Regulation .04 Recording, Photographing, Videotaping, Broadcasting, and Televising of Open Sessions.Link Copy Citation

A member of the public, including a representative of the news media, may record an open session of a public body by means of a tape recorder or another recording device, if the:

(1)

Device does not create an excessive noise that interferes with the participation in a session by a member of the public body or the observation of the session by a member of the public;

(2)

Device does not otherwise interfere with an individual's observation of or participation in the session; and

(3)

Recording is done openly so that it is obvious to those in attendance that the session is being recorded.

A member of the public, including a representative of the news media, may photograph or videotape the proceedings of a public body at an open session by means of a camera if the camera:

(1)

Is operated without excessively bright artificial light or excessive noise that interferes with the participation of a member of the public body in the session or the observation of the session by a member of the public;

(2)

Does not otherwise interfere with an individual's observation of or participation in the session; and

(3)

Is used openly so that it is obvious to those in attendance that the session is being recorded.

A representative of the news media may broadcast or televise the proceedings of a public body at an open session if the equipment used:

(1)

(2)

Does not otherwise interfere with an individual's observation of or participation in the session; and

(3)

Is used openly so that it is obvious to those in attendance that the session is being broadcast or televised.

The presiding officer may restrict the movement of an individual who is using a recording device, camera, or broadcasting or televising equipment if the restriction is necessary to maintain the orderly conduct of the session.

A public body may require that an individual, who intends to record, photograph, videotape, broadcast, or televise an open session, register in advance of the beginning of the meeting.

Regulation .05 Recordings Not Part of the Record.Link Copy Citation

A recording of an open session made by a member of the public, or a transcript derived from the recording, is not a part of the record of a proceeding of a public body.

Chapter 15. Exemption from Self-Referral Laws

Regulation .01 Scope.Link Copy Citation

This chapter governs exemptions from the prohibition on self-referral made by the Secretary in conjunction with the Maryland Health Care Commission.

This chapter creates the means by which the Secretary and the Maryland Health Care Commission can determine whether:

(1)

A health care practitioner's beneficial interest is essential to finance and to provide a health care entity; and

(2)

The health care entity is needed to ensure appropriate access for a community to the services provided by the health care entity.

This chapter interprets certain definitions and terms used in the statute for the purpose of enforcement by the licensing boards of the Maryland Department of Health.

Regulation .02 Definitions—Applicable to Health Occupations Article, §1-301 et seq., Annotated Code of Maryland.Link Copy Citation

For the purpose of enforcing Health Occupations Article, §1-301 et seq., Annotated Code of Maryland, the following terms have the meanings indicated.

Terms Defined.

(1)

“Group practice” has the meaning stated in Health Occupations Article, §1-301, Annotated Code of Maryland.

(2)

Health Care Service.

(a)

“Health care service” has the meaning stated in Health Occupations Article, §1-301, Annotated Code of Maryland.

(b)

“Health care service” includes but is not limited to:

(i)

Supplies;

(ii)

Drugs; and

(iii)

Items furnished to a patient by a health care entity..

(3)

“Members of the group” means health care practitioners:

(a)

With an ownership interest in the group practice; or

(b)

Who are full-time or part-time contractors or employees during the time they furnish services to patients of the group practice that are furnished through the group and are billed in the name of the group.

(4)

“Patient care services” means the total patient care time spent on any task performed by a group practice member that addresses the medical needs of specific patients, regardless of whether they involve direct patient encounters, and including but not limited to time spent:

(a)

By a member of the group in consultation with other health care practitioners, whether or not they are members of the group; and

(b)

Reviewing laboratory tests, as well as the services of other health care practitioners who do not directly treat patients.

(5)

“Personally supervised” means the responsibility of a health care practitioner to exercise on-site supervision or immediately available direction for employees performing referred in-office ancillary services or tests.

(6)

“Referring health care practitioner” means a health care practitioner, or group practice, who makes a referral.

(7)

“Rental or lease of office space” means payments made for the rental or lease of utilities, use of equipment, and secretarial and support staff.

Regulation .03 Definitions—For Exemption from Self-Referral Laws.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Area of concentration” means a limitation of practice by demonstrable training and competence of a health care practitioner.

(2)

“Department” means the Maryland Department of Health.

(3)

“Essential” means a health care entity would not be able to exist but for the health care practitioner's beneficial interest in the health care entity.

(4)

“Health care entity” has the meaning stated in Health Occupations Article, §1-301, Annotated Code of Maryland.

(5)

Health Care Practitioner.

(a)

“Health care practitioner has the meaning stated in Health Occupations Article, §1-301, Annotated Code of Maryland.

(b)

“Health care practitioner” does not include a mortician, an assisted living manager, or a nursing home administrator, unless the mortician, assisted living manager, or nursing home administrator is licensed, certified, or otherwise authorized under the Health Occupations Article, Annotated Code of Maryland, to provide health care services by any board other than the Board of Morticians and Funeral Directors or the Board of Long-Term Care Administrators.

(6)

“Maryland Health Care Commission (MHCC)” means the Maryland Health Care Commission.

(7)

“Referral” has the meaning stated in Health Occupation Article, §1-301, Annotated Code of Maryland.

(8)

“Requestor” means an individual other than the health care practitioner who is an attorney admitted to the Maryland Bar or specially admitted to practice law in the State under Maryland Rules Title 19.

(9)

“Secretary” means the Secretary of the Maryland Department of Health or their designee.

(10)

“Specialty” means “area of concentration” as defined in §B(1) of this regulation.

Regulation .04 Scope of Exemption.Link Copy Citation

The Secretary may exempt a health care practitioner from the prohibition on self-referral pursuant to Health Occupations Article, §1-302(d)(5), Annotated Code of Maryland, in accordance with this chapter.

Regulation .05 Request for Exemption.Link Copy Citation

A health care practitioner who has or wishes to have a beneficial interest in a health care entity may request from the Secretary an exemption from the self-referral laws.

In order for a health care practitioner to obtain an exemption by the Secretary from the self-referral laws, the health care practitioner shall make a request to the Secretary in the manner specified by the Department that:

(1)

Identifies the street address, political subdivision, and area of concentration of both the health care practitioner and the entity in which the practitioner has or wishes to have a beneficial interest;

(2)

Demonstrates to the Secretary's satisfaction that the health care practitioner's beneficial interest is:

(a)

Essential to finance and to provide the health care entity; and

(b)

Needed to ensure appropriate access for the community to the services provided at the health care entity;

(3)

States when the services are proposed to begin;

(4)

Provides the health care practitioner’s:

(a)

Name;

(b)

Licensing board;

(c)

License number;

(d)

License expiration date;

(e)

Business address; and

(f)

Business telephone number;

(5)

Includes an attestation in writing that, if the health care practitioner seeks renewal of an exemption from the Secretary and the Secretary no longer deems the beneficial interest to be essential, the practitioner shall:

(a)

Immediately cease accepting any referrals from sources prohibited under Health Occupations Article, §1-301 et seq., Annotated Code of Maryland; or

(b)

Divest the practitioner's beneficial interest in the entity within 1 year after the exemption is no longer applicable.

Request to MHCC.

(1)

The Secretary shall request, in writing, the advice of the Executive Director of the MHCC concerning whether the beneficial interest is needed to ensure appropriate access for the community to the services provided at the health care entity.

(2)

The Secretary shall provide, with the request to the Executive Director of the MHCC, a copy of any materials submitted to the Department in accordance with §B of this regulation and any additional items which may be pertinent to the MHCC’s review.

(3)

The Secretary shall follow the timetable set forth in Regulation .06 of this chapter.

The Executive Director of the MHCC shall advise the Secretary in accordance with the timetable in Regulation .06 of this chapter as to whether the health care entity is needed to ensure appropriate access for the community to the services provided at the health care entity.

If additional information is needed by the Secretary or the Executive Director of MHCC for their determination, the Department may ask the health care practitioner to provide additional information to establish that the practitioner’s beneficial interest is:

(1)

Essential to finance and to provide the health care entity; and

(2)

Needed to ensure appropriate access for the community to the services provided at the health care entity.

Regulation .06 Timetable for the Secretary's Action.Link Copy Citation

The Secretary shall make the required determinations within 90 calendar days following receipt of a health care practitioner's request for exemption.

The Secretary shall request advice from the Executive Director of the MHCC as to whether the health care entity is needed to ensure appropriate access for the community to the services provided at the health care entity within 30 calendar days of receipt of the health care practitioner’s request for exemption.

The Executive Director of the MHCC shall advise the Secretary as to whether the health care entity is needed to ensure appropriate access for the community to the services provided at the health care entity within 60 calendar days after receipt of the Secretary's letter.

Regulation .07 Renewal of Exemption.Link Copy Citation

The term of an exemption shall be in conjunction with a health care practitioner's professional license renewal and shall be renewed at the same time the health care practitioner's professional license is renewed.

The exemption expires at the end of its term, unless the exemption is renewed in accordance with this regulation.

An exempted health care practitioner, on renewal, shall meet all the requirements of this chapter at the time of renewal.

Each health care practitioner who has been exempted by the Secretary from the prohibition on self-referral as an essential health care entity needed for access to health care shall renew the health care practitioner's exemption status in the manner provided by the Department at the time of licensure, certification, or other form of practice renewal authorized under the Health Occupations Article, Annotated Code of Maryland, within the time period specified on the form.

At a minimum, the health care practitioner shall provide, at the time of renewal, to the Department:

(1)

A copy of the initial exemption request;

(2)

A copy of the Secretary’s approval of the initial exemption;

(3)

The items specified in Regulation .05B of this chapter; and

(4)

Any additional pertinent information as requested by the Secretary.

Each exempted health care practitioner shall keep the appropriate licensing, certification, or other practice authorizing board apprised of the health care practitioner’s current business address.

On request by the Department, the relevant board or boards shall supply the current business addresses of exempted health care practitioners.

The Department shall mail a notice of the required renewal to the health care practitioner at the current business address supplied by the appropriate board.

If an exempted health care practitioner does not receive notice of renewal, it is the exempted health care practitioner's responsibility to notify the Department so that the Secretary may renew the exemption before the expiration of the current exemption.

Failure to Renew Exemption.

(1)

If an exempted health care practitioner fails to renew the exemption, the practitioner is not considered exempted under the Health Occupations Article, §1-301(d)(5), Annotated Code of Maryland.

(2)

If an exempted health care practitioner fails to renew the exemption, and fails to carry out the agreed requirements set forth in Regulation .05B(6) of this chapter, the practitioner shall be subject to disciplinary action as set forth in Health Occupations Article, §1-307, Annotated Code of Maryland, for violation of the self-referral laws.

Chapter 16. Retention and Disposal of Medical Records and Protected Health Information

Regulation .01 Scope.Link Copy Citation

This chapter applies to medical records and protected health information held by health care providers practicing in Maryland, their agents, and their records management service.

This chapter does not supersede any federal or State laws or regulations that exceed this chapter's requirements by requiring that a medical record:

(1)

Be retained for a longer period of time;

(2)

Be afforded greater security measures;

(3)

Be afforded more privacy measures; and

(4)

Be more easily accessible to the patient.

This chapter is not intended to address the disposition of abandoned medical records.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Divisible” means a medical record that is amenable to separation or division after the expiration of the retention time stated in Regulation .04 of this chapter.

(2)

Health Care Provider.

(a)

“Health care provider” means an acupuncturist, audiologist, chiropractor, dietician, dentist, electrologist, massage therapist, mortician, nurse, nutritionist, occupational therapist, optometrist, physical therapist, physician, podiatrist, professional counselor, psychologist, social worker, speech-language pathologist, or a health care facility or entity that is a:

(i)

Freestanding, ambulatory care facility as defined in Health-General Article, §19-3B-01, Annotated Code of Maryland;

(ii)

Freestanding medical facility as defined in Health-General Article, §19-3A-01, Annotated Code of Maryland;

(iii)

Health maintenance organization as defined in Health-General Article, §19-701, Annotated Code of Maryland;

(iv)

Hospital as defined in Health-General Article, §19-301, Annotated Code of Maryland;

(v)

Limited service hospital as defined in Health-General Article, §19-301, Annotated Code of Maryland;

(vi)

Related institution as defined in Health-General Article, §19-301, Annotated Code of Maryland;

(vii)

Residential treatment center as defined in Health-General Article, §19-301, Annotated Code of Maryland; and

(viii)

Health care facility as defined in Health-General Article, §10-101, Annotated Code of Maryland.

(b)

“Health care provider” includes an agent, officer, director, or employee of any entity listed in §B(2)(a) of this regulation.

(3)

Medical Record.

(a)

“Medical record” means any oral, written, or other transmission in any form or medium of information that:

(i)

Is entered in the record of a patient;

(ii)

Identifies or can readily be associated with the identity of a patient; and

(iii)

Relates to the health care of the patient.

(b)

“Medical record” includes any:

(i)

Documentation of disclosures of the medical record to any person who is not an employee, agent, or consultant of the health care provider;

(ii)

File or record maintained under Health Occupations Article, §12-403(b)(13), Annotated Code of Maryland, by a pharmacy of a prescription order for drugs, medicines, or devices that identifies or may be readily associated with the identity of a patient;

(iii)

Documentation of an examination of a patient regardless of who requested the examination or is making payment for the examination;

(iv)

File or record received from another health care provider that relates to the health care of a patient received from that health care provider, and identifies or can readily be associated with the identity of the patient; and

(v)

To the extent not narrowed by §B(3)(a) and (b)(i)—(iv) of this regulation, “protected health information” as defined by 45 CFR §160.103, as amended.

(4)

“Medical records series” means a set of medical records, as defined in §B(3) of this regulation, that is maintained on paper, microform, magnetic disk, magnetic tape, or other medium.

(5)

“Patient” has the meaning stated in Health-General Article, §4-301(j), Annotated Code of Maryland.

(6)

“Person in interest” has the meaning stated in Health-General Article, §4-301(k), Annotated Code of Maryland.

(7)

“Records management service” means any agent that has been procured by a health care provider to transport, handle, manage, maintain, store, or destroy medical records.

(8)

“Records retention schedule” means a records management plan that includes:

(a)

A list and description of the medical records series of an office or unit;

(b)

The minimum retention period required to keep each medical record series;

(c)

The eventual disposition instructions;

(d)

If desired:

(i)

Maintenance procedures, such as access or copy control, for each medical records series both in office and in storage;

(ii)

Scanning or microfilming instructions; or

(iii)

Disposal methods such as shredding or incineration; and

(e)

A signature of approval by an individual with authority over all the medical records series listed.

(9)

“Sanitizing” means overwriting, degaussing, shredding, or burning electronic or other media.

Regulation .03 Incorporation by Reference.Link Copy Citation

In this chapter, the following documents are incorporated by reference:

45 CFR Part 160, as amended; and

45 CFR Part 164, as amended.

Regulation .04 Maintenance of Medical Records.Link Copy Citation

A health care provider shall develop and maintain a records retention schedule compatible with the requirements of Regulations .04—.07 of this chapter.

Except as provided in Regulations .06 and .07 of this chapter, a health care provider shall maintain medical records for all patients in the health care provider's care for a minimum of 5 years after the medical record is made or until the patient is 21 years old, whichever is longer.

Medical records are the personal property of the entity providing health care and are maintained for:

(1)

The patient;

(2)

The medical or treatment staff; and

(3)

Other treatment, payment, and health care operations.

A health care provider shall retain medical records in:

(1)

An office with access restricted to authorized staff;

(2)

A computer or other device with appropriate security such as passwords or data encryption;

(3)

A commercial records storage site with appropriate environmental and security controls; or

(4)

Other storage options that ensure protection, security, and access control.

Maintenance of medical records may be contracted to a records management service that agrees to comply with and be subject to this chapter.

Medical records that have been placed in storage remain the responsibility of the health care provider, including:

(1)

Providing the patient or person in interest access to their medical records and authorized copies upon request in accordance with Health-General Article, §4-304, Annotated Code of Maryland, and 45 CFR §164.524, as amended;

(2)

Ensuring the confidentiality of the medical records;

(3)

Providing security and restricted access to the medical records; and

(4)

Protecting the medical records from:

(a)

Damage;

(b)

Loss; and

(c)

Deterioration.

If a medical record is kept in electronic form, a health care provider shall:

(1)

Maintain or have access to compatible electronic hardware and software that will enable the health care provider to generate a legible copy of the record in order to comply with patient and governmental access needs; and

(2)

Prepare and maintain a current back-up copy of electronic medical record files.

Regulation .05 Disposal of Medical Records.Link Copy Citation

A health care provider shall maintain a medical record in accordance with the records retention schedule and may dispose of the record when the minimum retention requirements as described in Regulation .04B of this chapter have been met.

For purposes of destruction, a medical record is an indivisible entity unless, in the health care provider's professional judgment, the medical record is divisible.

A health care provider shall ensure confidentiality of medical records throughout the disposal process:

(1)

For paper records, by incineration, shredding, pulping, or other comparable process which renders the records permanently unreadable;

(2)

For electronic or magnetic media, such as computer disks or magnetic tapes, by completely sanitizing the media, and not just by erasure or deletion;

(3)

For other media, such as film, photos, or compact discs, by destroying the media with no possibility of recovery; and

(4)

By complying with the HIPAA security provisions at 45 CFR §164.310(d), as amended.

Regulation .06 Instructions for Handling Medical Records Upon Discontinuation of Medical Practice.Link Copy Citation

At the time a health care provider discontinues medical practice, the health care provider shall immediately secure the medical records until one of the following options are taken:

(1)

Medical records may be transferred to a health care provider who will be assuming the medical practice;

(2)

Medical records may be given to the patient;

(3)

At the patient's direction, the medical record may be transferred to a new health care provider; or

(4)

Medical records may be destroyed in accordance with §B of this regulation, Regulation .07 of this chapter, or both.

On the death, retirement, surrender of license, or discontinuance of the practice or business of a health care provider, the administrator of the estate or a designee, who:

(1)

Agrees to provide for the maintenance of the medical records of the practice; and

(2)

States in writing to the appropriate health occupations board within a reasonable time that the medical records will be maintained in compliance with this chapter, shall:

(a)

Publish a notice in a daily newspaper that is circulated locally for 2 consecutive weeks:

(i)

Stating that the medical records will be destroyed or transferred; and

(ii)

Designating a location, date, and time when the medical records may be retrieved by the person in interest; or

(b)

Forward the notice required in §B(2)(a), of this regulation, to the patient in the following manner:

(i)

In the case of an adult, the notification shall be sent by first-class mail to the last known address of the patient; or

(ii)

In the case of a minor, notification shall be sent by first-class mail to the last known address of the parent or guardian, or if the medical care documented was provided under Health-General Article, §20-102(c) or 20-103(c), Annotated Code of Maryland, notification shall be given to the minor, by certified mail, addressee only.

Regulation .07 Prerequisites for Early Destruction of Medical Records.Link Copy Citation

Medical records that have not met the retention requirements of Regulation .04 of this chapter, may be destroyed only if:

In the case of an adult, notification is sent by first-class mail to the last known address of the patient which includes:

(1)

The proposed date of disposal; and

(2)

A statement that the record, or a synopsis of the record, may be retrieved at a designated location within 30 days of the proposed destruction; or

In the case of a minor, notification is sent by first-class mail to the last known address of the parent or guardian, or if the medical care documented was provided under Health-General Article, §20-102(c) or 20-103(c), Annotated Code of Maryland, notification is given to the minor, by certified mail, addressee only, which includes:

(1)

The proposed date of disposal; and

(2)

A statement that the record, or a synopsis of the record, may be retrieved at a designated location within 30 days of the proposed destruction.

Regulation .08 Enforcement.Link Copy Citation

For entities and individuals not regulated by the Office of Health Care Quality or the appropriate health occupations board, the Secretary shall have the authority to investigate any complaint concerning medical records that are covered by this chapter. By letter, the Secretary may delegate this authority to any unit of the Department, including a health occupations board, the Office of Health Care Quality, or the Office of the Inspector General.

To ensure compliance and enforce this chapter:

(1)

The Office of Health Care Quality shall have authority over a health care facility; and

(2)

A health occupations board shall have authority over an individual who is a health care provider.

The Office of Health Care Quality, the appropriate health occupations board, or both, shall investigate any complaint concerning medical records that are or were in the possession of a person or entity covered by this chapter.

After giving a person or entity an opportunity for a hearing to be held in accordance with the disciplinary hearing procedures that would be applicable to a health care provider who owned or possessed the medical records at issue, the Office of Health Care Quality, the appropriate health occupations board, or both, may impose any fines stated in Regulation .09B, of this chapter, as appropriate.

After giving a person or entity an opportunity for a hearing to be held in accordance with COMAR 10.01.03, the Secretary may impose any fines stated in Regulation .09B of this chapter for entities which are not regulated by the Office of Health Care Quality or an appropriate health occupations board.

Regulation .09 Penalties.Link Copy Citation

Damages. As provided in Health-General Article, §4-403(g)(1), Annotated Code of Maryland, a health care provider, record management service, or other person who knowingly violates any provision of Health-General Article, Title 4, Subtitle 4, is liable in court for actual damages.

Fines.

(1)

A health care facility that knowingly violates this chapter is subject to an administrative fine not to exceed $10,000 for all violations cited in a single day.

(2)

In addition to any other penalties provided, an individual who is a health care provider, an agent, employee, officer, or director of a health care provider, or a records management service, who knowingly violates this chapter, is subject to administrative fines as follows:

(a)

The first fine or set of fines assessed in a single day may not exceed $1,000;

(b)

The second fine or second set of fines assessed concurrently for all violations cited in a single day may not exceed $2,500; and

(c)

The third or subsequent fine assessed, or third or subsequent set of fines assessed concurrently, for all violations cited in a single day may not exceed $5,000.

Factors to be Considered in the Assessment of Penalties. When considering whether to impose an administrative penalty and the amount of the penalty, the Secretary, the Office of Health Care Quality, or the appropriate health occupations board shall consider the following factors:

(1)

The nature and seriousness of the violations;

(2)

The willfulness of the violation or violations;

(3)

The history of previous violations;

(4)

The extent of the actual harm or potential risk of divulging confidential information;

(5)

The efforts made to correct the violation or violations in a timely manner; and

(6)

The existence of mitigating factors.

Chapter 17. Fees for Food Protection, Public Pools, Public Spas, Public Spray Grounds, and Youth Camp Programs

Regulation .01 Scope.Link Copy Citation

This chapter applies to entities regulated by the Office of Food Protection and the Office of Healthy Homes and Communities.

Regulation .02 Fees.Link Copy Citation

The following fees are established by the Secretary:

Annual permit or inspection fee for:

(1)

Bobtailer — $50;

(2)

Bulk milk hauler/sampler — $50;

(3)

Certified industry dairy farm inspector — $10;

(4)

Distribution station — $25;

(5)

Farmstead cheese processor — $100;

(6)

Milk processor — $100;

(7)

Milk tank truck cleaning facility — $25;

(8)

Milk transportation company — $5, plus $5 for each milk tank truck;

(9)

Receiving station — $25; and

(10)

Transfer station — $25;

Annual youth camp application fee based on estimated camper days, that is, the estimated average number of campers enrolled each day multiplied by the estimated number of days a camp intends to operate during a camp season, for:

(1)

Except as specified in §B(2) of this regulation:

(a)

On or before December 31, 2016, day camp:

(i)

1 to 500 camper days — $200;

(ii)

501 to 2,000 camper days — $525;

(iii)

2,001 to 5,000 camper days — $700; and

(iv)

Greater than 5,000 camper days — $900;

(b)

Effective January 1, 2017, day camp:

(i)

1 to 500 camper days — $190;

(ii)

501 to 2,000 camper days — $500;

(iii)

2,001 to 5,000 camper days — $665; and

(iv)

Greater than 5,000 camper days — $855; and

(c)

Residential camp:

(i)

1 to 700 camper days — $500;

(ii)

701 to 5,000 camper days — $1,000;

(iii)

5,001 to 16,000 camper days — $1,500; and

(iv)

Greater than 16,000 camper days — $2,000; or

(2)

For a youth camp that is in good standing as defined in COMAR 10.16.06.02:

(a)

On or before December 31, 2016, day camp:

(i)

1 to 500 camper days — $50;

(ii)

501 to 2,000 camper days — $130;

(iii)

2,001 to 5,000 camper days — $175; and

(iv)

Greater than 5,000 camper days — $225;

(b)

Effective January 1, 2017, day camp:

(i)

1 to 500 camper days — $45;

(ii)

501 to 2,000 camper days — $125;

(iii)

2,001 to 5,000 camper days — $165; and

(iv)

Greater than 5,000 camper days — $215; and

(c)

Residential camp:

(i)

1 to 700 camper days — $125;

(ii)

701 to 5,000 camper days — $250;

(iii)

5,001 to 16,000 camper days — $375; and

(iv)

Greater than 16,000 camper days — $500.

Annual license fee for:

(1)

Food processing plants:

(a)

Bakery plant — $150;

(b)

Cannery — $150;

(c)

Charity deer processing plant, as defined in COMAR 10.15.04 — no fee;

(d)

Civic or nonprofit organizations that process meat for human consumption no more than three times a year for 5 days or less each time — $150;

(e)

Confectionary plant — $150;

(f)

Crab meat plant — $150;

(g)

Ice manufacturing plant — $150;

(h)

Shellfish:

(i)

Shucking, packing, or repacking plant — $150;

(ii)

Shipping or reshipping plant — $150; or

(iii)

Seasonal shellstock shipping or reshipping plant — $100;

(i)

Food manufacturing plant — $150;

(j)

A food warehouse or distribution center that distributes:

(i)

Potentially hazardous food — $150; or

(ii)

Only non-potentially hazardous food — $150;

(k)

Bottled water plant — $150;

(l)

Soft drink manufacturing plant — $150;

(m)

Frozen food manufacturing plant — $150;

(n)

Seasonal food manufacturing plant — $35;

(o)

On-farm home processing plant — $30; and

(p)

Producer mobile farmer’s market unit — $100; and

(2)

Frozen dessert mix or frozen dessert plant with manufacturing capacity of:

(a)

0 to 25,000 gallons — $10;

(b)

25,001 to 100,000 gallons — $50;

(c)

100,001 to 250,000 gallons — $100;

(d)

250,001 to 500,000 gallons — $150; and

(e)

Over 500,000 gallons — $200;

Except for a local subdivision with delegated authority, plan review fee for food processing plants:

(1)

Bakery plant — $300;

(2)

Bottled water plant — $300;

(3)

Cannery — $300;

(4)

Charity deer processing plant — no fee;

(5)

Civic or nonprofit organizations that process meat for human consumption no more than three times a year for 5 days or less each time — $150;

(6)

Confectionary plant — $300;

(7)

Crab meat plant — $300;

(8)

Food manufacturing plant — $300;

(9)

Food manufacturing plant operating in another licensed food establishment — $200;

(10)

Food warehouse or distribution center — $300;

(11)

Frozen food manufacturing plant — $300;

(12)

Ice manufacturing plant — $300;

(13)

On-farm home processing plant — no fee;

(14)

Producer mobile farmer’s market unit — no fee;

(15)

Seasonal food manufacturing plant — no fee; and

(16)

Shellfish:

(a)

Shucking, packing, or repacking plant — $300;

(b)

Shipping or reshipping plant — no fee; or

(c)

Seasonal shellstock shipping or reshipping plant — no fee;

Plan review fee for a food service facility that is a retail chain or a franchise operation planning to construct two or more facilities in the State from a single uniform set of plans — $300;

Food process or hazard analysis critical control point plan review:

(1)

In a retail facility or a food processing plant — $200; or

(2)

In a bona fide civic or nonprofit organization that processes meat for human consumption no more than three times a year for 5 days or less each time — $150; and

Except for a local subdivision with delegated authority, application review fee for:

(1)

Construction of a public pool or spa — $300;

(2)

Alterations at a public pool or spa — $200; and

(3)

Replacements at a public pool or spa — $50.

Criminal History Record Checks. Fees for criminal history record checks for youth camp personnel in accordance with COMAR 10.16.06.21 shall be:

(1)

$20 per background criminal history record check processed for a camp; and

(2)

Paid by a youth camp licensee annually.

Chapter 18. Sexual Abuse Awareness and Prevention Training

Regulation .01 Scope.Link Copy Citation

This chapter:

Prohibits inappropriate sexual behavior in covered programs; and

Adopts awareness and prevention training and reporting requirements regarding inappropriate sexual behavior that a covered program shall fulfill in order to be licensed by the Department or any of its Administrations, or approved by the Department or any of its Administrations to receive funding to provide services in Maryland.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Admission” means the process by which an individual is accepted as a resident or patient in a State facility and includes the physical act of the individual entering the State facility.

(2)

“Central coordinator” means an individual or individuals designated by the Deputy Secretary for the unit of the Department responsible for the operations of each State facility to:

(a)

Oversee development of policies and materials;

(b)

Monitor compliance; and

(c)

Identify and make recommendations for improving a State facility’s prevention and detection of, and response to, inappropriate sexual behavior in State facilities.

(3)

“Covered program” means any of the following facilities and programs:

(a)

A State facility as defined in §B(22) of this regulation;

(b)

Non-State operated residential treatment centers for emotionally disturbed children and adolescents, licensed under COMAR 10.07.04;

(c)

Vocational and day services programs, licensed by the Developmental Disabilities Administration under COMAR 10.22.02 and 10.22.07; and

(d)

The following programs licensed by the Behavioral Health Administration:

(i)

Psychiatric rehabilitation programs for adults licensed under COMAR 10.63.03.09;

(ii)

Residential rehabilitation programs licensed under COMAR 10.63.04.05;

(iii)

Supported employment programs licensed under COMAR 10.63.03.16; and

(iv)

Psychiatric rehabilitation programs for minors licensed under COMAR 10.63.03.10.

(4)

“Department” means the Maryland Department of Health.

(5)

External Law Enforcement Agency.

(a)

“External law enforcement agency” means the Department of State Police or a police agency of a county or municipal corporation.

(b)

“External law enforcement agency” does not include the police force of the Maryland Department of Health.

(6)

“Inappropriate sexual behavior” means:

(a)

Sexual abuse as defined in §B(17) of this regulation; and

(b)

Any sexual act, as defined in §B(18) of this regulation, between a staff member of a covered program and an individual receiving services at the covered program.

(7)

“Individual” means a person receiving services or treatment at a State facility.

(8)

“Initial plan of care” means the first plan of care created for an individual by the treatment team and is created at the first treatment team meeting.

(9)

“Internal complaint process” means a written policy and procedure for a covered program’s handling and investigation of reports of inappropriate sexual behavior, as defined in §B(3) of this regulation, and appropriate actions in response to verified incidents of inappropriate sexual behavior, occurring within the covered program.

(10)

“Licensed” means being licensed by the Department or approved by the Department to receive funding to provide services in Maryland.

(11)

“Peer training” means awareness and prevention training regarding inappropriate sexual behavior that is provided by a peer of the individual receiving services.

(12)

“Plan of care” means a written document addressing the needs of the individual receiving services from a covered program, and the covered program’s plan for provision of services and treatment to meet those needs, developed in accordance with applicable State and federal laws and regulations.

(13)

“Program director” means the individual who is responsible for the daily operations of a covered program as outlined in the chapter under the appropriate subtitle that delineates the requirements for a specific program.

(14)

“Protection plan” means a document created to address the individual’s needs, with respect to the individual’s:

(a)

Risk of being subjected to the perpetrator of inappropriate sexual behavior at the facility; and

(b)

Treatment team’s plan for mitigating the individual’s risk.

(15)

Reasonable Safety Precautions.

(a)

“Reasonable safety precautions” means an established set of measures, procedures, and protocols taken in order to maintain the safety of individuals upon admission to the State facility.

(b)

Reasonable safety precautions may include but are not limited to:

(i)

Unit restriction, including dining on the unit;

(ii)

Increased nursing contacts or more frequent observation by nurses;

(iii)

Restrictions on activities;

(iv)

Increased staffing assigned to the individual; and

(v)

Similar or additional measures implemented.

(c)

The type of reasonable safety precautions implemented and the reason for the reasonable safety precautions shall be documented in the individual’s records.

(16)

“Risk assessment screen” means a uniform tool, developed by the Department, used by a facility to:

(a)

Screen an individual for a history of being subjected to, or perpetrating, inappropriate sexual behavior, and related trauma; and

(b)

Assess an individual’s risk of being subjected to, or perpetrating, inappropriate sexual behavior while at the facility.

(17)

Sexual Abuse.

(a)

“Sexual abuse” means any sexual act, as defined in §B(18) of this regulation, that is made or threatened to be made without the consent of an individual who is the recipient of the action, or without the consent of an individual solicited to take the action, which occurs on the premises of a covered program or at any off-premises activity sponsored by the covered program.

(b)

“Sexual abuse” includes sexual harassment and sexual assault.

(c)

“Sexual abuse” does not include an action taken reasonably related to the provision of care, treatment, or services to an individual including:

(i)

The performance of an accepted medical or behavioral procedure pursuant to and in accordance with orders of an appropriately qualified licensed health care professional; and

(ii)

An action taken by a staff member that complies with applicable laws and policies on the use of physical intervention.

(18)

“Sexual act” means any of the following, if it can reasonably be construed to be for sexual arousal or gratification, or for the abuse of either party, and not for an accepted medical or behavioral purpose:

(a)

An act in which an object or part of an individual’s body penetrates, however slightly, into another individual’s genital opening or anus;

(b)

Intentional physical contact, or an attempt to make physical contact, either directly or through clothing, between the genitals, finger or fingers, hand or hands, or mouth of one individual and the genitals, groin, inner thigh, buttocks, anus, breast, or mouth of another individual;

(c)

Intentional physical contact, or an attempt to make physical contact, between the tongue or mouth of one individual and any part of the body of another individual;

(d)

The following nonphysical contacts:

(i)

The intentional exposure by an individual to another of the individual’s naked genitals, groin, inner thigh, buttocks, anus, or breast;

(ii)

The intentional exposure by an individual to another of photographs of an individual’s naked genitals, groin, inner thigh, buttocks, anus, or breast;

(iii)

The intentional observation by an individual of another individual’s naked genitals, groin, inner thigh, buttocks, anus, or breast;

(iv)

Verbal or written description of, questions or suggestions regarding, or requests for any of the physical contacts described in §B(18)(a)—(c) of this regulation;

(v)

Photographing, drawing, transmitting an image of, saving an image of, or recording the naked body or body parts of another individual;

(vi)

Intentionally exposing an individual to photographs, pictures, drawings, diagrams, or other graphic depictions of naked body or body parts of an individual; and

(vii)

Intentionally causing another individual to make or attempt any of the physical contacts described in §B(18)(a)—(c) of this regulation; and

(e)

Other intentional acts directed to another individual and performed for the purpose of arousing sexual thoughts or feelings and not for purposes related to the provision of care.

(19)

“Sexual assault” means any of the following:

(a)

A sexual offense as defined in Criminal Law Article, Title 3, Annotated Code of Maryland; and

(b)

Any other sexual act that is a crime under State or federal law.

(20)

“Sexual harassment” means intimidation, bullying, or coercion of a sexual nature or unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive environment.

(21)

“Staff member” means any individual employed by a covered program, whether contractually or permanently, and any individual who volunteers with, is a contractor for or consultant to, works as an intern or resident for, or otherwise is engaged by, the covered program at any facility or location in which services are provided to individuals.

(22)

“State facility” means the following institutions operated by the Department:

(a)

A psychiatric hospital, licensed pursuant to COMAR 10.07.01;

(b)

An intermediate care facility for individuals with developmental disabilities licensed pursuant to COMAR 10.07.20;

(c)

A forensic residential center, licensed pursuant to COMAR 10.07.13; and

(d)

Regional institutes for children and adolescents licensed and operated pursuant to COMAR 10.07.04 and COMAR 10.21.06.

(23)

“Treatment team” means the group of individuals at the covered program who, in accordance with applicable State and federal law and regulations, are responsible for the development and implementation of a plan of care for an individual receiving services from the covered program.

Regulation .03 Covered Program Policies.Link Copy Citation

This regulation applies to the following covered programs as defined in Regulation .02 of this chapter:

(1)

State facilities;

(2)

Vocational and day service programs;

(3)

Psychiatric rehabilitation programs for adults and minors;

(4)

Residential rehabilitation programs; and

(5)

Supported employment programs.

A covered program shall ensure that the covered program adopts and enforces policies that:

(1)

Prohibit inappropriate sexual behavior that occurs while an individual is receiving services from a covered program:

(a)

Between a staff member and an individual served by the covered program; and

(b)

On the premises of the covered program or at any off-premises activity sponsored by the covered program, between:

(i)

Individuals served by the covered program; or

(ii)

An individual served by the covered program and another individual or individuals;

(2)

Require reporting of inappropriate sexual behavior in accordance with the requirements of Regulations .05 and .06 of this chapter; and

(3)

Provide for training of staff members and individuals receiving services in accordance with Regulation .04 of this chapter.

Regulation .04 Training Requirements.Link Copy Citation

This regulation applies to the following covered programs as defined in Regulation .02 of this chapter:

(1)

State facilities;

(2)

Vocational and day service programs;

(3)

Psychiatric rehabilitation programs for adults and minors;

(4)

Residential rehabilitation programs; and

(5)

Supported employment programs.

A covered program shall include awareness and prevention training on inappropriate sexual behavior as part of the established orientation process for:

(1)

Staff members; and

(2)

Individuals receiving services from the covered program.

The inappropriate sexual behavior awareness and prevention training module:

(1)

May be provided by the covered program or its contractor; and

(2)

Shall be pre-approved by the Developmental Disabilities Administration or Behavioral Health Administration, as applicable.

Staff member training conducted in accordance with this regulation shall:

(1)

Include, but not be limited to:

(a)

An overview of inappropriate sexual behavior, including:

(i)

Types and definitions of inappropriate sexual behavior; and

(ii)

Trauma of inappropriate sexual behavior and its long-range effects;

(b)

Types and characteristics of inappropriate sexual behavior, including signs and symptoms of inappropriate sexual behavior;

(c)

Risk screening, protection plans, and prevention and detection measures for State facilities in accordance with Regulation .07 of this chapter;

(d)

Mandated reporting procedures, including the requirements of Regulations .05 and .06 of this chapter, regarding inappropriate sexual behavior; and

(e)

Confidentiality of information as it applies to inappropriate sexual behavior;

(2)

Be completed during new employee orientation;

(3)

Be updated on an annual basis; and

(4)

Be documented in the staff members’ personnel training files.

Training for Individuals.

(1)

Training conducted in accordance with this regulation for individuals receiving services shall:

(a)

Be offered in language and terms, and using methods, appropriate to the ability of the individual being served to understand;

(b)

Include an element of peer training, unless disapproved by an individual’s treatment team for reasons that are documented in the individual’s records;

(c)

Be tailored to the individual’s abilities;

(d)

Be provided to an individual served by a covered program in two stages, as follows:

(i)

Key facts regarding identifying inappropriate sexual behavior and how to report it shall be provided within 5 days after initiation of services to the individual; and

(ii)

Comprehensive training as set out in this regulation shall be provided to the individual as soon as practical but no later than 6 months after initiation of services to the individual;

(e)

Be updated on an annual basis; and

(f)

Be documented in the individual’s plan of care.

(2)

Training conducted in accordance with this regulation for individuals receiving services shall include, but not be limited to:

(a)

The individuals’ rights and responsibilities with regard to inappropriate sexual behavior, including the right to be free from retaliation and further harm for reporting inappropriate sexual behavior;

(b)

Identifying and reporting inappropriate sexual behavior;

(c)

Crisis intervention, as appropriate; and

(d)

Referral resources and methods.

Regulation .05 Mandatory Reporting Requirements.Link Copy Citation

This regulation applies to the following covered programs as defined in Regulation .02 of this chapter:

(1)

Non-State operated residential treatment centers for emotionally disturbed children and adolescents;

(2)

Vocational and day service programs;

(3)

Psychiatric rehabilitation programs for adults and minors;

(4)

Residential rehabilitation programs; and

(5)

Supported employment programs.

A covered program shall comply with the reporting requirements of:

(1)

COMAR 07.02.16.04;

(2)

COMAR 07.02.07.04;

(3)

This regulation; and

(4)

Any other applicable law or regulation requiring the reporting of inappropriate sexual behavior.

Any staff member who observes, receives a complaint regarding, or otherwise has reason to believe that an individual has been subjected to inappropriate sexual behavior shall file a report with the program director promptly, but in no circumstances more than 1 working day, after becoming aware of the situation.

Upon the receipt of a report made under §C of this regulation, the program director shall:

(1)

Immediately ensure:

(a)

The safety, security, privacy, and emotional support of the individual or individuals involved; and

(b)

That any medically appropriate and necessary care is provided to the individual or individuals involved;

(2)

Report the incident within 1 working day after receiving the report to:

(a)

The Behavioral Health Administration or the Developmental Disabilities Administration, or both, as applicable;

(b)

The Office of Health Care Quality; and

(c)

The State’s designated protection and advocacy agency.

(3)

Report the incident immediately, and in no circumstances more than 1 working day, after receiving the report to the appropriate law enforcement authorities if the reported inappropriate sexual behavior violates or may violate the law.

The report made under §B(2) of this regulation shall be made using the form required by the Department.

Promptly after completing an investigation of a report of inappropriate sexual behavior, the program director shall report the results of the investigation to:

(1)

The Behavioral Health Administration or the Developmental Disabilities Administration in accordance with applicable reporting procedures required by the Department;

(2)

The Office of Health Care Quality;

(3)

The State’s designated protection advocacy agency; and

(4)

The appropriate law enforcement authorities if the results of the covered program’s investigation indicate a violation of the law may have occurred, but the allegations were not initially reported pursuant to §D(3) of this regulation because the allegations, as initially reported, did not involve inappropriate sexual behavior that may violate the law.

Regulation .06 Reporting Requirements for State Facilities.Link Copy Citation

This regulation applies to State facilities.

For purposes of this regulation, “discovery” means staff observes, receives a complaint from an individual or other source, or otherwise has reason to believe that inappropriate sexual behavior has occurred.

A State facility shall comply with the reporting requirements of:

(1)

COMAR 07.02.16.04;

(2)

COMAR 07.02.07.04;

(3)

This chapter; and

(4)

Any other applicable law or regulation requiring the reporting of inappropriate sexual behavior.

Policies and Training.

(1)

The facility shall adopt and enforce written policies and procedures for the reporting and investigation of inappropriate sexual behavior in accordance with the requirements set forth in this regulation and Regulation .03 of this chapter.

(2)

The facility shall provide training to staff members, upon hire and annually thereafter, regarding facility policies and procedures governing the prevention, reporting, and investigation of allegations of inappropriate sexual behavior in accordance with this regulation and Regulation .04 of this chapter, including:

(a)

Understanding the provisions of the memorandum of understanding;

(b)

Transporting individuals for medical care or to a SAFE exam, including how to support the individual during transportation and actions that may be taken to avoid the use of restraint;

(c)

Preservation of evidence; and

(d)

Counseling alleged victims, including regarding emergency contraception, prophylaxes for HIV or other sexually transmitted infections, and follow-up medical care or appointments.

Reporting and Investigation of Inappropriate Sexual Behavior.

(1)

Facility staff members shall notify the administrative head of the facility, or the designee, of an allegation of inappropriate sexual behavior, immediately, but no later than 24 hours, from staff’s discovery of the allegation.

(2)

The notification required in §E(1) of this regulation shall be made on the form or in the manner designated by the Department.

(3)

Upon receipt of the notification in §E(1) of this regulation, the administrative head of the facility, or their designee, shall, within 24 hours of staff’s discovery of the allegation, provide written notice of the allegation to the:

(a)

Office of Health Care Quality;

(b)

Central coordinator;

(c)

State-designated protection and advocacy agency;

(d)

Treatment teams of the individuals involved in the allegation; and

(e)

Appropriate law enforcement agency as set forth in §F of this regulation.

(4)

If the administrative head of the facility or the central coordinator has a conflict of interest in receiving the notification, facility staff members shall report the incident to another individual designated by the facility in the event of such conflict of interest.

Notification to Law Enforcement.

(1)

The facility shall notify the appropriate external law enforcement agency, within 24 hours of discovery by the facility, of:

(a)

An allegation of sexual assault occurring on the facility premises or at any off-premises activity sponsored by the facility between individuals served by the facility or an individual served by the facility and another individual; or

(b)

An allegation of inappropriate sexual behavior between a staff member and an individual served by the State facility, regardless of the location of the incident.

(2)

Except as provided in §F(1)(b) of this regulation, allegations of inappropriate sexual behavior that are not criminal shall be reported to the Department’s police force for further investigation.

(3)

The Department’s police force shall refer the allegations to the administrative head of the facility for further investigation as appropriate.

(4)

An individual shall be permitted to report an allegation of inappropriate sexual behavior that is not criminal to an external law enforcement agency or complete a statement of charges with the District Court commissioner.

(5)

The Department police force may not investigate a report of inappropriate sexual behavior made to an external law enforcement agency in accordance with §F(1) of this regulation unless the external law enforcement agency declines to investigate the report or requests the assistance of the Department police force.

(6)

Upon the receipt of the notification made under §E of this regulation, the treatment team or teams of the alleged victim and alleged perpetrator, if applicable, shall:

(a)

Review and, if appropriate, update the risk assessment screens and protection plans of the individuals involved in the allegation in accordance with Regulation .07G of this chapter;

(b)

Review and, if appropriate, revise the plans of care of the individuals involved in the allegation in accordance with Regulation .07G of this chapter;

(c)

Notify the central coordinator of the results of the treatment team’s review and assessment under this subsection;

(d)

Take other appropriate action to ensure:

(i)

The safety, privacy, and emotional support of the individual or individuals involved; and

(ii)

That any medically appropriate and necessary care is provided to the individual or individuals involved; and

(e)

Document the reported allegations and the results of any investigation of the allegations in the record of the individuals involved.

(7)

The facility and Department police shall investigate allegations of inappropriate sexual behavior in accordance with the following requirements:

(a)

A facility staff member or Department police officer may not participate in, or conduct, an investigation of an allegation of inappropriate sexual behavior if that staff member or officer, or the staff member’s immediate family member, was involved in the incident or incidents underlying the allegation; and

(b)

The facility shall comply with applicable laws and regulations governing the confidentiality of an individual’s information.

(8)

Promptly after completing an investigation of a report of inappropriate sexual behavior, the facility shall report the results of the facility’s investigation to the:

(a)

Appropriate unit of the Department as required by applicable statutes or regulations;

(b)

Office of Health Care Quality; and

(c)

State’s designated protection and advocacy agency.

Regional Institutes for Children and Adolescents.

(1)

Allegations of inappropriate sexual behavior on the premises of a regional institute for children and adolescents that are not criminal shall be referred to the administrative head of the regional institute for children and adolescents for further investigation.

(2)

Allegations of sexual assault and inappropriate sexual behavior between an individual and a staff member shall be reported under §F(1) of this regulation.

(3)

The regional institute for children and adolescents shall report allegations of inappropriate sexual behavior to Child Protective Services pursuant to COMAR 07.02.07.

Annual Report.

(1)

The central coordinator shall report annually to the Deputy Secretary for the unit within the Department which oversees the operations of each State facility on the following:

(a)

Development of polices and materials to implement the requirements of this regulation and Regulation .07 of this chapter;

(b)

Suggested revisions to the uniform assessment and reporting forms required in this regulation and Regulation .07 of this chapter;

(c)

Compliance with the assessment and reporting requirements of this regulation and Regulation .07 of this chapter;

(d)

Compliance with the training requirements of this regulation and Regulation .07 of this chapter;

(e)

Identification of barriers to compliance with the requirements of this regulation and Regulation .07 of this chapter; and

(f)

Recommendations to improve prevention, detection, and response by State facilities to inappropriate sexual behavior.

(2)

A copy of the report shall be provided to the State designated protection and advocacy agency.

Regulation .07 Additional Requirements for State Facilities.Link Copy Citation

This regulation applies to State facilities.

Screening and Prevention Policies.

(1)

The facility shall adopt and enforce written policies and procedures for ensuring the facility screens for, and takes reasonable steps to mitigate, an individual’s risk of being subjected to, or the perpetrator of, inappropriate sexual behavior in accordance with the requirements set forth in this chapter.

(2)

The facility shall provide training to staff members, upon hire and annually thereafter, regarding:

(a)

The policies and procedures governing the risk screening and protection plans; and

(b)

Detection and prevention of inappropriate sexual behavior in accordance with this chapter.

(3)

The Department shall utilize a uniform risk assessment screening tool.

Required Processes Upon Admission to Facility.

(1)

As soon as practicable, but no later than 3 business days after the individual’s admission, the facility shall make reasonable efforts to collect the individual’s medical and treatment records in accordance with §H of this regulation.

(2)

The facility shall implement reasonable safety precautions upon the individual’s admission.

(3)

Within 48 hours of the individual’s admission, clinical staff shall:

(a)

Complete a risk assessment screen of the resident, in accordance with §D of this regulation;

(b)

Complete a suicide risk assessment; and

(c)

If necessary, modify the reasonable safety precautions to mitigate the risks identified in the risk assessment screen.

(4)

Within 5 days after the individual’s admission, the treatment team shall meet to:

(a)

Review and, if appropriate, update the risk assessment screen;

(b)

Determine if a protection plan is necessary, based upon review of the risk assessment screen and, if so, develop a protection plan, in accordance with §E of this regulation; and

(c)

Develop the initial plan of care in accordance with §F of this regulation.

Risk Assessment Screen.

(1)

To complete the risk assessment screen, clinical staff shall:

(a)

Use the form required by the Department;

(b)

Interview the individual; and

(c)

Document the individual’s responses regarding:

(i)

The individual’s history of trauma and other issues relevant to the individual’s risk of being subjected to, or the perpetrator of, inappropriate sexual behavior in the facility;

(ii)

Whether the individual feels safe in the facility, including why or why not; and

(iii)

What the individual believes would make them feel safe in the facility.

(2)

If the individual cannot be interviewed, the clinical staff shall document the reason on the risk assessment screen form.

Protection Plan.

(1)

The treatment team shall develop a protection plan if the treatment team determines that it is necessary to mitigate the risk identified in the risk assessment screen.

(2)

The protection plan shall be completed on the form required by the Department.

(3)

If a protection plan is determined to not be necessary to mitigate the risk identified in the risk assessment screen, the rationale shall be documented in the risk assessment screen.

(4)

If an individual in a State facility has a behavior plan that includes the elements required in a protection plan, the behavior plan shall satisfy the requirements of this regulation and shall be labeled as a behavior and protection plan.

Plan of Care.

(1)

When developing the initial plan of care, the treatment team shall:

(a)

Review and, if appropriate, update the risk assessment screen based upon the information available to the treatment team; and

(b)

Include a protection plan, if appropriate, pursuant to §E of this regulation.

(2)

The initial and all subsequent plans of care shall:

(a)

Incorporate the risk assessment screen and, if applicable, the protection plan;

(b)

Include consideration of the effect of trauma on the individual; and

(c)

Be authorized by a physician, psychiatrist, or other appropriately qualified person under applicable legal and operational standards.

(3)

The plan of care shall be reviewed at least every 3 months and whenever an individual’s risk assessment screen is updated.

Review and Update of Risk Assessment Screens and Protection Plans.

(1)

The treatment team shall review the risk assessment screen, and update if necessary, every 3 months as part of the plan of care review.

(2)

The risk assessment may be reviewed more frequently if warranted by any new allegation of inappropriate sexual behavior or if additional information regarding risk factors is received by the treatment team.

(3)

The plan of care shall be reviewed when the risk assessment is updated.

(4)

The protection plan shall be reviewed and updated as needed or whenever the risk assessment is updated and when the plan of care is reviewed.

(5)

When reviewing the protection plan, the treatment team shall consider:

(a)

Effectiveness of strategies to reduce risk;

(b)

Whether new or modified strategies are warranted; and

(c)

The individual’s desires regarding the protection plan.

Medical and Other Records.

(1)

The facility shall designate the staff member or members responsible for collecting the individual’s medical records in accordance with this subsection.

(2)

The facility shall make reasonable and documented efforts to collect medical records from the individual’s prior and current health care providers in accordance with this subsection, including:

(a)

Discharge summaries from all hospitals where the individual received treatment in the 3 years before the individual’s admission to the facility; and

(b)

Somatic and other health assessments performed in the 3 years before the individual’s admission to the facility.

(3)

The facility shall make reasonable and documented efforts to collect any other significant records identified by the facility that the treatment team determines are clinically necessary to develop and implement the individual’s plan of care.

(4)

Facilities shall make reasonable and documented efforts to collect information from the following sources related to the individual’s risk for being a victim or perpetrator of inappropriate sexual behavior, provision of trauma-related care or treatment, or the individual’s reduced decision-making capacity, as authorized by law:

(a)

Other State facilities;

(b)

Local jails or detention centers and facilities operated by the Department of Public Safety and Correctional Services;

(c)

The Department of Juvenile Services;

(d)

Local Departments of Social Services, to identify other sources;

(e)

Private hospitals and clinics; and

(f)

Any persons known to the Department to have knowledge to identify other sources, including sources indicated on the responses to the risk assessment screen.

(5)

Facilities shall access records in electronic databases whenever possible and as such data bases become available.

(6)

The facility shall comply with applicable laws and regulations governing the confidentiality and release of medical and other personal information pursuant to applicable State and federal laws and regulations.

Regulation .08 Internal Complaint Process.Link Copy Citation

This regulation applies to the following covered programs as defined in Regulation .02 of this chapter:

(1)

Vocational and day service programs;

(2)

Psychiatric rehabilitation programs for adults and minors;

(3)

Residential rehabilitation programs; and

(4)

Supported employment programs;

A covered program shall:

(1)

Adopt and maintain an internal complaint process as defined in Regulation .02 of this chapter;

(2)

Provide a copy of the covered program’s written internal complaint process to each individual receiving services from the covered program:

(a)

During the individual’s orientation; and

(b)

At any time upon an individual’s request;

(3)

Prominently display, in accessible, centralized locations, the covered program’s internal complaint process;

(4)

Develop and maintain a form to use to make a complaint of inappropriate sexual behavior; and

(5)

Have available a staff member who is not involved in the alleged inappropriate sexual behavior to assist the individual in completing the complaint form.

State facilities shall comply with the procedures set forth in COMAR 10.21.14.

The internal complaint process shall:

(1)

Provide procedures for making a complaint of inappropriate sexual behavior;

(2)

Permit an individual alleging that the individual was subjected to inappropriate sexual behavior to use the covered program’s grievance process to address the alleged incident;

(3)

Include procedures for investigating a complaint of inappropriate sexual behavior;

(4)

Require that the covered program’s investigation of a complaint of inappropriate sexual behavior be completed within 7 calendar days after the investigation is initiated;

(5)

Allow participation by:

(a)

Representatives of, and as designated by, the individual who allegedly was subjected to the inappropriate sexual behavior; and

(b)

Any individual who is alleged to have committed the inappropriate sexual behavior;

(6)

Allow information to be presented to support the position of:

(a)

The individual who allegedly was subjected to the inappropriate sexual behavior; and

(b)

Any individual who is alleged to have committed the inappropriate sexual behavior;

(7)

Ensure the participation of the covered program staff members who have the authority to implement corrective action;

(8)

Require that the substance of the complaint and any actions taken in response to the complaint be documented; and

(9)

Require written notification of the covered program’s determination to:

(a)

The individual who allegedly was subjected to the inappropriate sexual behavior:

(b)

Any individual who is alleged to have committed the inappropriate sexual behavior; and

(c)

Appropriate covered program staff members or other individuals as necessary to take disciplinary or corrective action, or both.

Any staff member determined to have engaged in inappropriate sexual behavior shall be permitted to make use of the covered program’s internal grievance process in any disciplinary action based upon the determination.

Regulation .09 Confidentiality.Link Copy Citation

State and federal confidentiality laws and regulations shall govern the redisclosure of information disclosed in all actions taken upon a report or complaint of inappropriate sexual behavior.

Regulation .10 Effective Date.Link Copy Citation

This chapter is effective January 1, 2015.

Chapter 19.

Vacant

Chapter 20. Nursing Facility Quality Assessment

Regulation .01 Scope.Link Copy Citation

This chapter applies to the collection by the Maryland Department of Health of a quality assessment, pursuant to Health-General Article, §19-310.1, Annotated Code of Maryland, to be paid on a quarterly basis by nursing facilities subject to the assessment.

All amounts collected under this chapter shall be distributed to a special fund to be used by the Department only to fund reimbursements to nursing facilities under the Medicaid program.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Assessment” means the quality assessment paid on a quarterly basis by each nursing facility subject to this chapter, determined by the Department for each facility based upon an amount per non-Medicare day of service for the previous quarter of the State fiscal year.

(2)

“Department” means the Maryland Department of Health.

(3)

“Medicaid” means the Medical Assistance Program in the Maryland Department of Health.

(4)

Nursing Facility.

(a)

“Nursing facility”, for purposes of this chapter, means a nursing facility, as defined in Health-General Article, §19-301, Annotated Code of Maryland, that has 45 or more beds, and operates in the State.

(b)

“Nursing facility” does not include a continuing care retirement community that has obtained a certificate of registration to provide continuing care under Human Services Article, Title 10, Subtitle 4, Annotated Code of Maryland.

Regulation .03 Collection of Nursing Facility Quality Assessment.Link Copy Citation

On or before the 60th day after each quarter of the State fiscal year, each nursing facility subject to the quality assessment shall pay the specified amount into a bank account established under the authority of the State Treasurer.

Late Charge.

(1)

Payments not postmarked on or before the 60th day after each quarter are subject to an interest amount equal to the State of Maryland General Fund investment portfolio interest rate in effect at the time the payment is due.

(2)

The late charge is a one-time imposition for each quarterly delinquent payment and shall equal the applicable interest rate multiplied by the quality assessment amount that is unpaid on the payment due date.

The amount of each facility's quarterly quality assessment shall equal the product of:

(1)

The per diem assessment amount, as annually calculated by and provided to the facility by the Department; and

(2)

The number of non-Medicare days of care provided by the facility during the previous quarter of the State fiscal year.

With each quarterly quality assessment payment, each nursing facility paying the quality assessment shall report, on a form provided by the Department, the nursing facility's total number of patient days and non-Medicare patient days for that quarter.

Effective July 1, 2012, the aggregated annual assessment collected under this chapter may not exceed 6 percent of the operating revenue for all nursing facilities subject to this assessment.

The Department shall pursue collection and referral of unpaid quality assessments in accordance with the timetables and agency collection standards set forth in COMAR 17.01.01.04.

Chapter 21. Medical Orders for Life-Sustaining Treatment (MOLST) Form — Procedures and Requirements

Regulation .01 Scope.Link Copy Citation

This chapter sets out the Medical Orders for Life-Sustaining Treatment (MOLST) form, instructions, and certain related procedures and requirements developed by the Maryland Department of Health, in conjunction with the Board of Physicians and the Maryland Institute for Emergency Medical Services Systems.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Advance directive” has the meaning stated in Health-General Article, §5-601(b), Annotated Code of Maryland.

(2)

“Assisted living program” has the meaning stated in COMAR 10.07.14.02.

(3)

“Authorized decision maker” means the health care agent, guardian of the person, or surrogate decision maker who is making health care decisions on behalf of a patient in accordance with the Health Care Decisions Act, Health-General Article, §§5-601—5-618, Annotated Code of Maryland.

(4)

“EMS DNR order” means an emergency medical services do not resuscitate order as defined in Health-General Article, §5-601(i), Annotated Code of Maryland.

(5)

“Guardian of the person” means a person appointed by a court to be a guardian of the person of a disabled individual in accordance with Estates and Trusts Article, §13-705, Annotated Code of Maryland.

(6)

“Health care” has the meaning stated in Health-General Article, §4-301(f), Annotated Code of Maryland.

(7)

“Health care agent” means an agent as defined in Health-General Article, §5-601(c), Annotated Code of Maryland.

(8)

“Health Care Decisions Act” means Health-General Article, §§5-601—5-618, Annotated Code of Maryland.

(9)

“Health care facility” has the meaning stated in Health-General Article, §5-608.1(a), Annotated Code of Maryland.

(10)

“Health care provider” has the meaning stated in Health-General Article, §5-601(l), Annotated Code of Maryland.

(11)

“Home health agency” has the meaning stated in COMAR 10.07.10.02.

(12)

“Hospice” means a hospice care program as defined in COMAR 10.07.21.02.

(13)

“Hospital” has the meaning stated in Health-General Article, §19-301(f), Annotated Code of Maryland.

(14)

“Kidney dialysis center” has the meaning stated in COMAR 10.05.04.01

(15)

“Medical Orders for Life-Sustaining Treatment (MOLST) form” means the form required to be developed pursuant to Health-General Article, §5-608.1, Annotated Code of Maryland.

(16)

“Medical record” has the meaning stated in Health-General Article, §4-301(i), Annotated Code of Maryland.

(17)

“Minor” means an individual younger than 18 years old who is not married, not the parent of a child, and not otherwise authorized by law to consent to medical treatment.

(18)

“Nurse practitioner” has the meaning stated in Health-General Article, §5-601(p), Annotated Code of Maryland.

(19)

“Nursing home” means a comprehensive care facility or extended care facility as defined in COMAR 10.07.02.01.

(20)

Patient.

(a)

Except as provided in §(20)(b), “patient” has the meaning stated in Health-General Article, §4-301(k), Annotated Code of Maryland.

(b)

“Patient” does not include someone:

(i)

Whose primary diagnosis for the current treatment is a psychiatric disorder, except for dementia, delirium, or mental disorders due to a medical condition;

(ii)

Whose primary diagnosis is related to a current pregnancy; or

(iii)

Who is younger than 18 years old and who is unlikely to require a life-sustaining treatment.

(21)

“Physician” has the meaning stated in Health-General Article, §5-601(r), Annotated Code of Maryland.

(22)

“Physician assistant” has the meaning stated in Health-General Article, §5-601(s), Annotated Code of Maryland

(23)

“Practitioner” means a physician, nurse practitioner, or physician assistant.

(24)

“Substantial change in health status” means a change in a patient’s health or functional status that:

(a)

Demonstrates an improvement or decline in the patient’s status that requires the need for interdisciplinary review or revision of the patient’s health care; and

(b)

Is not a temporary change that is self-limited.

(25)

“Surrogate” means an individual who makes health care decisions for a patient pursuant to Health-General Article, §5-605, Annotated Code of Maryland.

Regulation .03 Nature and Contents of the MOLST Form and Instructions.Link Copy Citation

The content of the form and the form’s instructions are as follows:

FORM AT END OF CHAPTER.

Regulation .04 Use of the MOLST Form.Link Copy Citation

Definitions.

(1)

In this regulation, the following terms have the meanings indicated.

(2)

Defined Terms.

(a)

“Completing a MOLST form” means:

(i)

Certifying, when applicable, the bases for the orders contained therein;

(ii)

Completing section one for all patients and only those sections two through nine of the form that are related to the patient’s current medical condition and wishes for care; and

(iii)

Signing and dating the MOLST form.

(b)

“Updating a MOLST form” means to revise an existing MOLST form by voiding the existing form and completing a new MOLST form in accordance with the form’s instructions.

Beginning July 1, 2013, the following health care facilities are required to accept, update if appropriate, and complete the MOLST form for each patient during the admission process in accordance with the form’s instructions:

(1)

An assisted living program;

(2)

A home health agency;

(3)

A hospice;

(4)

A kidney dialysis center; and

(5)

A nursing home.

An assisted living program or a nursing home shall also complete the MOLST form for a patient:

(1)

Admitted before January 1, 2013; and

(2)

Who continues to reside in the assisted living program or nursing home after July 1, 2013.

Beginning July 1, 2013, a hospital shall:

(1)

Accept and update if appropriate, a completed MOLST form in accordance with the form’s instructions; or

(2)

Complete a MOLST form for a patient during the patient’s inpatient stay if the patient is to be discharged or transferred to another health care facility.

When initially completing a MOLST form or updating an existing MOLST form, a health care facility shall:

(1)

Offer the patient or authorized decision maker the opportunity to participate in completing or updating the MOLST form, and on request of the patient, offer any physician, nurse practitioner , or physician assistant selected by the patient the opportunity to participate in updating or completing the MOLST form;

(2)

Note in the medical record when a patient or an authorized decision maker declines to participate in completing or updating the MOLST form, indicating the date and time of discussion, with whom the form was discussed, and a summary of the discussion;

(3)

Inform the competent patient or authorized decision maker that the MOLST form will become part of the medical record and can be accessed through the procedures used to access a medical record; and

(4)

Give the patient or authorized decision maker a copy of the completed form within 48 hours or sooner if the patient is discharged or transferred.

A practitioner who completes or updates a MOLST form shall do so in accordance with the form’s instructions.

Except as otherwise provided in the Health Care Decisions Act, a practitioner shall complete, or update a MOLST form in a manner that is consistent with:

(1)

The known decisions of:

(a)

A competent patient; or

(b)

An authorized decision maker; and

(2)

Any known advance directive if the patient is incapable of making an informed decision.

Any individual may request that a health care facility complete a MOLST form on his or her behalf, even if completion of a MOLST form is not required under these regulations or otherwise required by law. A health care facility that completes a MOLST form under these circumstances shall provide a copy of the completed form within 48 hours to the individual requesting completion of the form.

Regulation .05 Resolving Conflicts Between MOLST Forms.Link Copy Citation

If the medical records of a patient contain more than one MOLST form, the orders contained in the most recent MOLST form shall be followed unless and until the form is updated.

If MOLST forms completed on different dates contain conflicting orders, a health care provider shall:

(1)

To the extent feasible, discuss any conflicts with the patient or authorized decision maker; and

(2)

Complete an updated MOLST form to reflect the current wishes of the patient or authorized decision maker.

If an updated MOLST form is completed, all older forms shall be voided in accordance with the form’s instructions.

Regulation .06 Reproduction and Alteration of the MOLST Form.Link Copy Citation

A health care provider may freely copy, store electronically, and subsequently print or otherwise reproduce the form.

A health care provider may not alter the contents or format of the form.

Regulation .07 Immunity.Link Copy Citation

A health care provider that, in good faith, authorizes the provision, withholding, or withdrawing of treatment in furtherance of orders contained in a MOLST form is entitled to the immunity provided under Health-General Article, §5-609, Annotated Code of Maryland.

Chapter 22. Maryland Loan Assistance Repayment Program for Physicians and Physician Assistants

Regulation .01 Purpose.Link Copy Citation

The purpose of the Maryland Loan Assistance Repayment Program for Physicians and Physician Assistants is to improve health care access for all Marylanders by recruiting and retaining health care providers in areas of Maryland with health care professional shortages through education loan repayments assistance to program participants.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Department” means the Maryland Department of Health.

(2)

“Education loan” has the meaning stated in Health-General Article, §24-1701, Annotated Code of Maryland.

(3)

“Eligible field of employment” has the meaning stated in Health-General Article, §24–1704, Annotated Code of Maryland.

(4)

“Full-time” means an individual’s work week consists of 40 or more hours at an eligible practice site.

(5)

“Guidelines” means the Maryland Loan Repayment Programs Guidelines and any subregulatory guidance established by the Department.

(6)

“Medical resident” means an individual who has completed medical school and is participating in a post-graduate residency education program accredited by the Accreditation Council for Graduate Medical Education, or its successor, or the American Osteopathic Association, or its successor, who is not licensed to practice medicine in the State.

(7)

“Participant” means an individual who has been offered a Program award and is under a service obligation with the Program.

(8)

“Part-time” means an individual’s work week consists of between 20 to 39 hours at an eligible practice site.

(9)

“Physician” has the meaning stated in Health-Occupations Article, §14-101, Annotated Code of Maryland, who practices medicine either full-time or part-time.

(10)

“Physician assistant” has the meaning stated in Health-Occupations Article, §15-101, Annotated Code of Maryland, who practices full-time or part-time.

(11)

“Practice site” means a site where a participant provides clinical services and fulfills their service obligation.

(12)

“Primary care” has the meaning stated in Health-General Article, §24-1701, Annotated Code of Maryland.

(13)

“Program” means the Maryland Loan Assistance Repayment Program for Physicians and Physician Assistants.

(14)

“Promissory Note” means a contractual agreement between a participant and the Department describing disbursement methods, participant roles and responsibilities, compliance penalties, and other terms as determined by the Department.

(15)

“Service Obligation Agreement” means a contractual agreement between a participant and the Department specifying participant service obligations, total and annual Program award amounts, required data and verifications, penalties for breach, and other terms as determined by the Department.

Regulation .03 Program Eligibility.Link Copy Citation

Eligibility. To be eligible for the program the individual shall:

(1)

Meet the licensure requirements set forth in §B of this regulation;

(2)

Be a United States citizen or national;

(3)

Be liable and personally owe educational debt;

(4)

Have a valid employment contract with an eligible practice site in the State that will be in effect by the start of any service obligation to be fulfilled;

(5)

Provide evidence of practice as either part-time or full-time at that eligible practice site;

(6)

Practice full-time or part-time providing health care services at an eligible practice site, with at least 80 percent of time spent in direct patient care for a minimum of 45 weeks per year; and

(7)

Utilize Program funds for the repayment of eligible education loans.

Licensure Requirements. To be eligible for the program, an individual shall be one of the following:

(1)

A physician possessing active and valid licensure without restrictions or encumbrances to practice Allopathic Medicine in the State;

(2)

A physician possessing active and valid licensure without restrictions to or encumbrances to practice Osteopathic Medicine in the State;

(3)

A physician assistant possessing active and valid licensure without restriction or encumbrances in the State; or

(4)

A final year medical resident who is specializing in primary care and overseen by a postgraduate training program in the State.

Eligibility Restrictions. An individual may not be eligible for the Program if they have:

(1)

A federal or state judgment lien;

(2)

Defaulted on any federal or state payment obligations even if the governmental creditor now considers them to be in good standing;

(3)

Breached a prior service obligation to federal, state, or local government or other entity, even if the obligation is subsequently satisfied;

(4)

Any federal or non-federal debt written off as uncollectible or received a waiver of any service or payment obligation;

(5)

Any outstanding contractual obligations for a health care professional service to the federal government, another state loan repayment program, or other entity unless those service obligations are completely satisfied prior to the commencement of the Program service obligation; and

(6)

Received the two maximum awards for service obligations to the Program.

Eligible Practice Sites. An eligible practice site shall:

(1)

Be an eligible field of employment in accordance with Health-General Article, §24–1704, Annotated Code of Maryland;

(2)

Be physically located in the State;

(3)

Provide services to all patients regardless of their ability to pay; and

(4)

If the practice site charges for health care professional services:

(a)

Charge at the usual and customary prevailing rate;

(b)

Utilize a financial aid policy of discounts or sliding fee scale for individuals with limited incomes; and

(c)

Accept reimbursement from Medicare, the Maryland Medical Assistance Program, and the Maryland Children’s Health Insurance Program, if applicable to the patient type.

Regulation .04 Application Procedures.Link Copy Citation

By the published deadlines, on the form designated by the Department, an applicant shall:

(1)

Submit a complete application to the Department;

(2)

Facilitate submission of application components by all contributors; and

(3)

Submit any supporting documentation as requested by the Department.

The Department shall disapprove an application if the application:

(1)

Fails to provide sufficient information or comply with requested documentation;

(2)

Has the appropriate documentation but is determined to be ineligible; or

(3)

Does not satisfy the requirements established by law or the Department.

Regulation .05 Participant Selection.Link Copy Citation

The Department shall:

(1)

Assess applicant eligibility based on documentation received by the published deadline;

(2)

Require from an applicant additional documentation or use independent verification means to verify information in the application; and

(3)

Score an eligible application based on priority criteria in accordance with:

(a)

Health-General Article, §24–1705, Annotated Code of Maryland; and

(b)

The guidelines established by the Department.

An applicant shall respond to an award offer by submitting all required documentation to the Department within 90 calendar days of notice of award.

Failure of the applicant to provide required documentation shall result in:

(1)

An application determined as ineligible; or

(2)

Cancellation of any offered awards.

Appeal of Disapproval of Application.

(1)

(2)

If an applicant submits an appeal, the Department, within 60 calendar days, shall:

(a)

Sustain or reverse the decision on the application; and

(b)

Provide written notice to the applicant:

(i)

Indicating whether the decision on the application has been sustained or reversed; and

(ii)

Providing an explanation of the decision.

(3)

An applicant may request a hearing within 10 calendar days after the date of written notice of the Department’s disapproval of an application as stated in §D(2) of this regulation. When the Department receives the request, it will follow hearing procedures in accordance with COMAR 10.01.03.

(4)

Failure to be present for the hearing without prior notice, communication, or approval from the Department may result in:

(a)

The appeal nullified and decision sustained;

(b)

Hearing on the appeal not rescheduled; or

(c)

Appropriate sanctions taken as deemed by the Department.

Regulation .06 Award Distribution.Link Copy Citation

The distribution of Program awards shall be based on the funding prioritization in accordance with Health-General Article, §24–1704(b), Annotated Code of Maryland.

The Department shall prioritize funding for the repayment of education loans in accordance with Health-General Article, §24–1705(b), Annotated Code of Maryland.

The Department shall annually determine, based on the availability of funds:

(1)

The maximum number of participants for the Program in each priority area; and

(2)

The minimum and maximum amount of loan repayment assistance awarded.

The amount of award offered and paid shall not exceed the lesser of:

(1)

The loan repayment amount specified in the Service Obligation Agreement; or

(2)

A participant's total verified debt from eligible education loans.

Regulation .07 Participant Obligation.Link Copy Citation

A participant shall provide the Department with required documentation including:

(1)

Lender verification of education loan balance;

(2)

Documentation of employer verification;

(3)

A signed Promissory Note that includes:

(a)

The disbursement methods utilized by the Department in the repayment of education loans;

(b)

The roles and responsibilities of the participant in the disbursement of funds to the lender institution;

(c)

Penalties for failing to comply with terms and conditions of agreements with the Department; and

(d)

Other terms as determined by the Department;

(4)

A Service Obligation Agreement that includes:

(a)

Obligations of the participant;

(b)

Total and annual amounts of the Program award;

(c)

Completion of data and verifications required by the Department;

(d)

Penalties for breach of the Promissory Note and Service Obligation Agreements;

(e)

Incorporation of the Promissory Note and Program Guidelines; and

(f)

Other appropriate terms as determined by the Department; and

(5)

All other documentations as requested by the Department.

A participant shall:

(1)

Continue to meet the eligibility requirements as stated in Regulation .03A and B of this chapter; and

(2)

Serve a minimum service obligation as stipulated in the Service Obligation Agreement with the Department.

A final year medical resident shall:

(1)

Meet all requirements set forth in §A of this regulation;

(2)

Complete residency training in primary care, and begin their service obligation without interruption; and

(3)

Fulfill all requirements of §B of this regulation once the service obligation commences.

Regulation .08 Verification of Service Obligation Fulfillment.Link Copy Citation

The Department shall verify annually during Program participation, the participant’s compliance with:

(1)

The Program Promissory Note;

(2)

The Service Obligation Agreement; and

(3)

Any subregulatory guidelines developed by the Department.

A participant shall respond to annual verification by submitting all required documentation to the Department within 180 calendar days of request.

The Department shall annually receive confirmation from the:

(1)

Approved practice site that the participant provided services in the previous year and continues to practice at the practice site; and

(2)

Lender institution that the participant has an outstanding education loan balance that is not in default.

For a medical resident in their final year of medical residence, prior to the disbursement of award payment for the first obligation cycle, the Department shall:

(1)

Receive confirmation from the residency training program that the participant is specializing in primary care; and

(2)

Follow the same verification procedures stated in §§A and B of this regulation once service obligations by the participant commences.

Failure to provide required reverification documentation to the Department will constitute a breach of agreement with the Department.

Regulation .09 Breach of Agreement and Penalties.Link Copy Citation

A participant's failure to comply with the Service Obligation Agreement and Promissory Note shall constitute a breach of agreement with the Department.

A final year medical resident who fails to begin a service obligation at the start of the next obligation cycle following the completion of primary care residency training, shall be in breach of the Service Obligation Agreement and Promissory Note.

Penalties for breach of agreement with the Department shall be stated in the Service Obligation Agreement and Promissory Note, and may include:

(1)

Financial penalties dependent on the funding source of the award provided to the participant;

(2)

The elimination of future eligibility for the Program; or

(3)

Referral of the participant to the Maryland Board of Physicians for investigation of the participant's violation of breach of service obligation.

Regulation .10 Amendments to a Participant’s Service Obligation.Link Copy Citation

Practice Site Transfer.

(1)

The Department may consider practice site transfer requests during a participant’s service obligation period.

(2)

A participant shall submit a site transfer request to the Department for consideration and receive approval of the site transfer from the Department prior to a participant’s separation from an approved practice site.

(3)

A site transfer request may not be submitted until the second service obligation year.

The Department may consider deferment of a participant’s service obligation or payment obligation for up to 1 year, if determined by the Department that compliance by the participant with the terms and conditions of the Service Obligation Agreement would involve extreme hardship as evidenced through documentation provided to the Department.

Any request by a participant for service obligation amendments shall follow the written process and procedures as established by the Department in subregulatory guidance.

A decision made by the Department upon request for a service obligation amendment shall be final.

The Department may consider cancellation of a participant service obligation with evidence under the following circumstances:

(1)

Illness or injury that prohibits future possibility of service; or

(2)

Death as determined by a death certificate or other conclusive evidence of death under State law.

Chapter 23. Maryland Loan Assistance Repayment Program for Nurses and Nursing Support Staff

Regulation .01 Purpose.Link Copy Citation

The purpose of the Maryland Loan Assistance Repayment Program for Nurses and Nursing Support Staff is to improve access to care for all Marylanders by recruiting and retaining health care providers in health care professional shortage areas of Maryland through the provision of education loan repayment assistance to eligible participants in exchange for their service obligations.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Department” means the Maryland Department of Health.

(2)

“Education loan” has the meaning stated in Health-General Article, §24-1901, Annotated Code of Maryland.

(3)

“Eligible field of employment” has the meaning stated in Health-General Article, §24–1904, Annotated Code of Maryland.

(4)

“Full-time” means an individual’s work week consists of 40 or more hours at an eligible practice site.

(5)

“Guidelines” means the Maryland Loan Repayment Programs Guidelines and any subregulatory guidance established by the Department.

(6)

“Nurse” has the meaning stated in Health-General Article, §24–1901, Annotated Code of Maryland.

(7)

“Nursing Support Staff” has the meaning stated in Health-General-Article, §24–1901, Annotated Code of Maryland.

(8)

“Participant” means an individual who has been offered a Program award and is under a service obligation.

(9)

“Part-time” means an individual’s work week consists of between 20 to 39 hours at an eligible practice site.

(10)

“Practice site” means a site where a participant provides clinical services and fulfills their service obligation.

(11)

“Program” means the Maryland Loan Assistance Repayment Program for Nurses and Nursing Support Staff.

(12)

(13)

Regulation .03 Program Eligibility.Link Copy Citation

Eligibility. To be eligible for the Program, a nurse or nursing support staff shall:

(1)

Be liable and personally owe education loan debt;

(2)

Be a United States citizen or national;

(3)

Have a valid employment contract with an eligible practice site in the State that will be in effect by the start of any service obligation to be fulfilled;

(4)

Provide evidence of practice as either part-time or full-time at the eligible practice site;

(5)

Practice full-time or part-time providing health care services at an eligible practice site, with at least eighty percent of time spent in direct patient care for at least a minimum of 45 weeks per year;

(6)

Utilize Program funds for the repayment of eligible education loans; and

(7)

Possess an active and valid certificate or license to practice nursing or fulfill a nursing support staff role in the State, without restrictions or encumbrances.

Eligibility Restrictions. To be eligible for the Program, a nurse or nursing support staff may not have:

(1)

Federal or State judgment liens;

(2)

Defaulted on any federal or State payment obligations even if the governmental creditor now considers them to be in good standing;

(3)

Breached a prior service obligation to federal, State, or local government or any other entity, even if the obligation is subsequently satisfied;

(4)

Any federal or non-federal debt written off as uncollectible or received a waiver of any service or payment obligation;

(5)

Any outstanding contractual obligations for health care professional service to the federal government, another state loan repayment program, or other entities unless those service obligations are completely satisfied prior to the commencement of the Program service obligation; and

(6)

Received the two maximum awards for service obligations to the Program.

Eligible Practice Sites. An eligible practice site shall:

(1)

Be an eligible field of employment in accordance with Health-General Article, §24–1904, Annotated Code of Maryland;

(2)

Be physically located in the State;

(3)

Provide services to all patients regardless of their ability to pay;

(4)

If the practice site charges for health care professional services:

(a)

Charge at the usual and customary prevailing rate;

(b)

Utilize a financial aid policy of discounts or sliding fee scale for individuals with limited incomes; and

(c)

Accept reimbursement from Medicare, the Maryland Medical Assistance Program, and the Maryland Children’s Health Insurance Program, if applicable to the patient type.

Regulation .04 Application Procedures.Link Copy Citation

By the published deadline, on the form designated by the Department, an applicant shall:

(1)

Submit a complete application to the Department;

(2)

Facilitate submission of application components by all contributors; and

(3)

Submit any supporting documentation as requested by the Department.

The Department shall disapprove an application if the application:

(1)

Fails to provide sufficient information or comply with requested documentation;

(2)

Has the appropriate documentation but is determined to be ineligible; or

(3)

Does not satisfy the requirements established by law or the Department.

Regulation .05 Participant Selection.Link Copy Citation

The Department shall:

(1)

Assess applicant eligibility based on documentation received by the published deadline;

(2)

Require from an applicant additional documentation or use independent verification means to verify information in the application; and

(3)

Score an eligible application based on priority criteria in accordance with:

(a)

Health-General Article, §24–1905, Annotated Code of Maryland; and

(b)

The guidelines established by the Department.

An applicant shall respond to an award offer by submitting all required documentation to the Department within 90 calendar days of notice of award.

Failure of the applicant to provide required documentation shall result in:

(1)

An application determined as ineligible; or

(2)

Cancellation of any offered award.

Appeal of Disapproval of Application.

(1)

(2)

If an applicant submits an appeal, the Department, within 60 calendar days, shall:

(a)

Sustain or reverse the decision on the application; and

(b)

Provide written notice to the applicant:

(i)

Indicating whether the decision on the application has been sustained or reversed; and

(ii)

Providing an explanation of the decision.

(3)

An applicant may request a hearing within 10 calendar days after the date of written notice of the Department’s disapproval of an application as stated in §D(2) of this regulation. When the Department receives the request, it will follow hearing procedures in accordance with COMAR 10.01.03.

(4)

Failure to be present for the hearing without prior notice, communication, or approval from the Department may result in:

(a)

The appeal nullified and decision sustained;

(b)

Hearing on the appeal not rescheduled; or

(c)

Appropriate sanctions taken as deemed by the Department.

Regulation .06 Award Distribution.Link Copy Citation

The distribution of program awards shall be based on the funding prioritization in accordance with Health-General Article, §24-1904.1(a), Annotated Code of Maryland.

The Department shall prioritize funding for the repayment of education loans in accordance with Health-General Article, §24–1904.1(b), Annotated Code of Maryland.

The Department shall annually determine, based on the availability of funds:

(1)

The maximum number of participants for the Program in each priority area; and

(2)

The minimum and maximum amount of loan repayment assistance awarded.

The amount of award offered and paid shall not exceed the lesser of:

(1)

The loan repayment amount specified in the Service Obligation Agreement; or

(2)

A participant's total debt from eligible education loans.

Regulation .07 Participant Obligation.Link Copy Citation

A participant shall provide the Department with required documentation including:

(1)

Lender verification of education loan balance;

(2)

Documentation of employer verification;

(3)

A signed Promissory Note that includes;

(a)

The disbursement methods utilized by the Department in the repayment of education loans;

(b)

The roles and responsibilities of the participant in the disbursement of funds to the lender institution;

(c)

Penalties for failing to comply with terms and conditions of agreements with the Department; and

(d)

Other terms as determined by the Department;

(4)

A Service Obligation Agreement that includes;

(a)

Obligations of the participant;

(b)

Total and annual amounts of the Program award;

(c)

Completion of data and verifications required by the Department;

(d)

Penalties for breach of the Promissory Note and Service Obligation Agreements;

(e)

Incorporation of the Promissory Note and Program Guidelines; and

(f)

Other appropriate terms as determined by the Department; and

(5)

All other documentation as required by the Department.

A participant shall:

(1)

Continue to meet the eligibility requirements as stated in Regulation 03A and B of this chapter; and

(2)

Serve a minimum service obligation as stipulated in the Service Obligation Agreement with the Department.

Regulation .08 Verification of Service Obligation Fulfillment.Link Copy Citation

The Department shall verify annually during Program participation, the participant’s compliance with:

(1)

The Program Promissory Note;

(2)

The Service Obligation Agreement; and

(3)

Any subregulatory guidelines developed by the Department.

A participant shall respond to annual verification by submitting all required documentation to the Department within 180 calendar days of request.

The Department shall annually receive confirmation from the:

(1)

Approved practice site that the participant provided services in the previous year and continues to practice at the practice site; and

(2)

Lender institution that the participant has an outstanding education loan balance that is not in default.

Failure to provide required reverification documentation to the Department will constitute a breach of agreement with the Department.

Regulation .09 Breach of Agreement and Penalties.Link Copy Citation

A participant's failure to comply with the Service Obligation Agreement and Promissory Note shall constitute a breach of agreement with the Department.

Penalties for breach of agreement with the Department shall be stated in the Service Obligation Agreement and Promissory Note, and may include:

(1)

Financial penalties dependent on the funding source of the award provided to the participant;

(2)

The elimination of future eligibility for the Program; or

(3)

Referral of the participant to the Maryland Board of Nursing for further disciplinary actions.

Regulation .10 Amendments to a Participant’s Service Obligation.Link Copy Citation

Practice Site Transfer.

(1)

The Department may consider practice site transfer requests during a participant’s service obligation period.

(2)

(3)

A site transfer request may not be submitted until the second service obligation year.

The Department may consider deferment of a participant’s service obligation or payment obligation for up to 1 year if determined by the Department that compliance by the participant with the terms and conditions of the Service Obligation Agreement would involve extreme hardship as evidenced through documentation provided to the Department.

Any request by a participant for service obligation amendments shall follow the written process and procedures as established by the Department in subregulatory guidance.

A decision made by the Department upon request for a service obligation amendment shall be final.

The Department may consider cancellation of a participant service obligation with evidence under the following circumstances:

(1)

Illness or injury that prohibits future possibility of service; or

(2)

Death as determined by a death certificate or other conclusive evidence of death under State law.

Title 10 — Subtitle 01. Procedures

Chapter 01. Income Tax Credits for Preceptors in Areas with Health Care Workforce Shortages

Regulation .01 Purpose.LinkCopy Citation

Regulation .02 Definitions.LinkCopy Citation

Regulation .03 Program Eligibility.LinkCopy Citation

Regulation .04 Application Procedures.LinkCopy Citation

Regulation .05 Verification and Audit of Income Tax Credits.LinkCopy Citation

Regulation .06 Income Tax Credits.LinkCopy Citation

Regulation .07 Responsibilities of the Comptroller.LinkCopy Citation

Regulation .08 Expiration of Program.LinkCopy Citation

Chapter 02. Procedures for Public Hearings

Regulation .01 Scope.LinkCopy Citation

Regulation .02 Definitions.LinkCopy Citation

Regulation .03 Notice of Hearing.LinkCopy Citation

Regulation .04 Testimony.LinkCopy Citation

Regulation .05 Oaths and Affirmations.LinkCopy Citation

Regulation .06 Conduct and Control of Hearing.LinkCopy Citation

Regulation .07 The Transcript.LinkCopy Citation

Regulation .08 The Record.LinkCopy Citation

Regulation .09 Postponement and Continuance.LinkCopy Citation

Chapter 03. Procedures for Hearings Before the Secretary of Health

Regulation .01 Scope.LinkCopy Citation

Regulation .02 Definitions.LinkCopy Citation

Regulation .03 Sanctions.LinkCopy Citation

Regulation .04 The Record.LinkCopy Citation

Regulation .05 Notice of the Right to a Hearing.LinkCopy Citation

Regulation .06 Request for Hearing.LinkCopy Citation

Regulation .07 Delegation.LinkCopy Citation

Regulation .08 Service.LinkCopy Citation

Regulation .09 Certificates of Service.LinkCopy Citation

Regulation .10 Continuances.LinkCopy Citation

Regulation .11 Time Periods.LinkCopy Citation

Regulation .12 Appointment of Interpreter.LinkCopy Citation

Regulation .13 Appearance of Parties at Hearings; Representation.LinkCopy Citation

Regulation .14 Discovery.LinkCopy Citation

Regulation .15 Open Hearings.LinkCopy Citation

Regulation .16 Burden of Going Forward and Persuasion.LinkCopy Citation

Regulation .17 Final Decision.LinkCopy Citation

Regulation .18 Exceptions; Requests for Oral Argument.LinkCopy Citation

Regulation .19 Stays.LinkCopy Citation

Regulation .20 Judicial Review.LinkCopy Citation

Chapter 04. Fair Hearing Appeals Under the Maryland State Medical Assistance Program

Regulation .01 Definitions.LinkCopy Citation

Regulation .02 Opportunity for a Fair Hearing.LinkCopy Citation

Regulation .03 Notification of Right to Request a Fair Hearing.LinkCopy Citation

Regulation .04 Request for Fair Hearing.LinkCopy Citation

Regulation .05 Pre-Hearing Procedures.LinkCopy Citation

Regulation .06 Hearing Procedures.LinkCopy Citation

Regulation .07 The Record.LinkCopy Citation

Regulation .08 Findings, Timing of Decision, and Effect of Decision.LinkCopy Citation

Regulation .09 Confidentiality.LinkCopy Citation

Regulation .10 Benefits During Appeals Process.LinkCopy Citation

Regulation .11 Applicability of Regulations.LinkCopy Citation

Regulation .12 Authorized Representatives.LinkCopy Citation

Chapter 05. Board of Review Procedures

Chapter 06. Fair Hearing Appeals under the Special Supplemental Food Program for Women, Infants, and Children (WIC)

Regulation .01 Definitions.LinkCopy Citation

Regulation .02 Opportunity for a Fair Hearing.LinkCopy Citation

Regulation .03 Notification of Right to Request a Fair Hearing.LinkCopy Citation

Regulation .04 Request for Fair Hearing.LinkCopy Citation

Regulation .05 Acknowledgement of Request.LinkCopy Citation

Regulation .06 Redesignation of Time and Place for Hearing.LinkCopy Citation

Regulation .07 Period of Time for Requesting Hearing.LinkCopy Citation

Regulation .08 Dismissal of Request for Hearing.LinkCopy Citation

Regulation .09 Pre-Hearing Procedures.LinkCopy Citation

Regulation .10 Hearing Procedures.LinkCopy Citation

Regulation .11 The Record.LinkCopy Citation

Regulation .12 Findings, Conclusions, and Decision.LinkCopy Citation

Regulation .13 Confidentiality as to Fair Hearings.LinkCopy Citation

Regulation .14 Continuation of Benefits or Participation Pending Hearing Decision.LinkCopy Citation

Regulation .15 Criminal or Civil Sanctions.LinkCopy Citation

Chapter 07. Petitions for Adoption, Amendment, or Repeal of Regulations

Regulation .01 Scope.LinkCopy Citation

Regulation .02 Definitions.LinkCopy Citation

Regulation .03 Who May File.LinkCopy Citation

Regulation .04 Form and Submission of Petition.LinkCopy Citation

Regulation .05 Disposition and Notification Requirements.LinkCopy Citation

Regulation .06 Reasons for Denial of a Petition.LinkCopy Citation

Regulation .07 Rulemaking Proceedings.LinkCopy Citation

Regulation .08 Files of Petitions for Regulations.LinkCopy Citation

Regulation .01 Purpose.Link Copy Citation

Regulation .02 Definitions.Link Copy Citation

Regulation .03 Program Eligibility.Link Copy Citation

Regulation .04 Application Procedures.Link Copy Citation

Regulation .05 Verification and Audit of Income Tax Credits.Link Copy Citation

Regulation .06 Income Tax Credits.Link Copy Citation

Regulation .07 Responsibilities of the Comptroller.Link Copy Citation

Regulation .08 Expiration of Program.Link Copy Citation

Regulation .01 Scope.Link Copy Citation

Regulation .02 Definitions.Link Copy Citation

Regulation .03 Notice of Hearing.Link Copy Citation

Regulation .04 Testimony.Link Copy Citation

Regulation .05 Oaths and Affirmations.Link Copy Citation

Regulation .06 Conduct and Control of Hearing.Link Copy Citation

Regulation .07 The Transcript.Link Copy Citation

Regulation .08 The Record.Link Copy Citation

Regulation .09 Postponement and Continuance.Link Copy Citation

Regulation .01 Scope.Link Copy Citation

Regulation .02 Definitions.Link Copy Citation

Regulation .03 Sanctions.Link Copy Citation

Regulation .04 The Record.Link Copy Citation

Regulation .05 Notice of the Right to a Hearing.Link Copy Citation

Regulation .06 Request for Hearing.Link Copy Citation

Regulation .07 Delegation.Link Copy Citation

Regulation .08 Service.Link Copy Citation

Regulation .09 Certificates of Service.Link Copy Citation

Regulation .10 Continuances.Link Copy Citation

Regulation .11 Time Periods.Link Copy Citation

Regulation .12 Appointment of Interpreter.Link Copy Citation

Regulation .13 Appearance of Parties at Hearings; Representation.Link Copy Citation

Regulation .14 Discovery.Link Copy Citation

Regulation .15 Open Hearings.Link Copy Citation

Regulation .16 Burden of Going Forward and Persuasion.Link Copy Citation

Regulation .17 Final Decision.Link Copy Citation

Regulation .18 Exceptions; Requests for Oral Argument.Link Copy Citation

Regulation .19 Stays.Link Copy Citation

Regulation .20 Judicial Review.Link Copy Citation

Regulation .01 Definitions.Link Copy Citation

Regulation .02 Opportunity for a Fair Hearing.Link Copy Citation

Regulation .03 Notification of Right to Request a Fair Hearing.Link Copy Citation

Regulation .04 Request for Fair Hearing.Link Copy Citation

Regulation .05 Pre-Hearing Procedures.Link Copy Citation

Regulation .06 Hearing Procedures.Link Copy Citation

Regulation .07 The Record.Link Copy Citation

Regulation .08 Findings, Timing of Decision, and Effect of Decision.Link Copy Citation

Regulation .09 Confidentiality.Link Copy Citation

Regulation .10 Benefits During Appeals Process.Link Copy Citation

Regulation .11 Applicability of Regulations.Link Copy Citation

Regulation .12 Authorized Representatives.Link Copy Citation

Regulation .01 Definitions.Link Copy Citation

Regulation .02 Opportunity for a Fair Hearing.Link Copy Citation

Regulation .03 Notification of Right to Request a Fair Hearing.Link Copy Citation

Regulation .04 Request for Fair Hearing.Link Copy Citation

Regulation .05 Acknowledgement of Request.Link Copy Citation

Regulation .06 Redesignation of Time and Place for Hearing.Link Copy Citation

Regulation .07 Period of Time for Requesting Hearing.Link Copy Citation

Regulation .08 Dismissal of Request for Hearing.Link Copy Citation

Regulation .09 Pre-Hearing Procedures.Link Copy Citation

Regulation .10 Hearing Procedures.Link Copy Citation

Regulation .11 The Record.Link Copy Citation

Regulation .12 Findings, Conclusions, and Decision.Link Copy Citation

Regulation .13 Confidentiality as to Fair Hearings.Link Copy Citation

Regulation .14 Continuation of Benefits or Participation Pending Hearing Decision.Link Copy Citation

Regulation .15 Criminal or Civil Sanctions.Link Copy Citation

Regulation .01 Scope.Link Copy Citation

Regulation .02 Definitions.Link Copy Citation

Regulation .03 Who May File.Link Copy Citation

Regulation .04 Form and Submission of Petition.Link Copy Citation

Regulation .05 Disposition and Notification Requirements.Link Copy Citation

Regulation .06 Reasons for Denial of a Petition.Link Copy Citation

Regulation .07 Rulemaking Proceedings.Link Copy Citation

Regulation .08 Files of Petitions for Regulations.Link Copy Citation

Regulation .01 Scope.Link Copy Citation

Regulation .02 Definitions.Link Copy Citation

Regulation .03 Procedures Regarding Inspection or Copying of a Record.Link Copy Citation

Regulation .04 Fees.Link Copy Citation

Regulation .01 General.Link Copy Citation

Regulation .02 Definitions.Link Copy Citation

Regulation .03 Notice of Appeal.Link Copy Citation

Regulation .04 Prehearing Conference for Evidentiary Hearing.Link Copy Citation