Chapter 03. Procedures for Hearings Before the Secretary of Health
Regulation .01 Scope.LinkCopy Citation
A.
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.
B.
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.
C.
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.LinkCopy Citation
A.
The following terms have the meanings indicated.
B.
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.LinkCopy 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.LinkCopy Citation
The record in each case shall include:
A.
The items listed in COMAR 28.02.01.22B; and
B.
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.LinkCopy 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.LinkCopy Citation
A.
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
B.
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.
C.
The request shall include a brief statement of the basis for the request, and other information required by law.
D.
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.
E.
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.LinkCopy Citation
A.
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.
B.
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.LinkCopy 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.LinkCopy 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:
A.
To whom the copy was sent;
B.
The address to which the copy was sent;
C.
The name of the person who sent the copy; and
D.
The date the copy was sent.
Regulation .10 Continuances.LinkCopy Citation
A.
On motion or on the Secretary’s own initiative, an exceptions hearing may be continued by the Secretary as justice may require.
B.
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.LinkCopy 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.LinkCopy Citation
A.
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.
B.
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.LinkCopy Citation
A.
A party to a proceeding may be represented by an attorney, or, if allowed by law, appear in person or through another representative.
B.
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.
C.
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.
D.
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.LinkCopy Citation
A.
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.
B.
Parties are not entitled to discovery of items other than as listed in §A of this regulation.
Regulation .15 Open Hearings.LinkCopy Citation
A.
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.
B.
Cameras and other photographic equipment may be permitted in the exceptions hearing room at the discretion of the Secretary.
C.
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.
D.
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.
E.
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.LinkCopy Citation
A.
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.
B.
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.
C.
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.
D.
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.LinkCopy Citation
A.
The Secretary is not bound by the ALJ’s proposed decision even in those cases where no exceptions are filed.
B.
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.LinkCopy Citation
A.
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.
B.
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.
C.
Any party may file a written response to exceptions taken to the ALJ’s proposed decision within 14 days of the filing of exceptions.
D.
A copy of the exceptions and any response shall be served on all parties to the proceedings.
E.
The Secretary shall hear oral argument on the exceptions and may limit the time for oral argument in the discretion of the Secretary.
F.
The Secretary shall consider the exceptions filed before rendering the final agency decision.
G.
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.
H.
If all parties are in agreement, a stipulation of facts may be submitted instead of a transcript.
I.
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.
J.
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.LinkCopy Citation
A.
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.
B.
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.
C.
A request shall include a statement of the reasons a stay is sought.
D.
A request shall include a statement of the grounds for the appeal to the Board of Review or the petition for judicial appeal.
E.
The Secretary may grant a stay upon such conditions, including security or bond, as the Secretary determines to be proper.
F.
A request for stay may not operate as a stay, nor extend the time for appeal.
G.
The Secretary may hold a hearing on a request for a stay, or rule upon the request without a hearing.
Regulation .20 Judicial Review.LinkCopy 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 annotations
Authority: Health-General Article, §2-104(b); State Government Article, §§9-1607.2(b) and 10-206(b); Annotated Code of Maryland
History: Effective date: July 31, 1973
History: Regulations .01—.10 repealed and new Regulations .01—.38 adopted effective February 6, 1989 (16:2 Md. R. 158)
History: Regulations .01—.38 repealed and new Regulations .01—.20 adopted effective April 13, 2015 (42:7 Md. R. 567)