# COMAR Title 10 — Maryland Department of Health

## Subtitle 01 — Procedures

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

**Authority:** Health-General Article, §§2-104 and 15-103, Annotated Code of Maryland

**Administrative History:** Effective date: April 1, 1971

**Administrative History:** Regulations .01C, .03C, 04A and C, .05A, .06B and D, .07B, .08, .09, .10 amended effective January 14, 1985 (12:1 Md. R. 16)

**Administrative History:** Regulations .04D and .08B amended effective December 14, 1979 (6:25 Md. R. 1980)

**Administrative History:** Chapter revised effective March 19, 2012 (39:5 Md. R. 382)

**Administrative History:** Regulation .01B amended effective April 15, 2013 (40:7 Md. R. 610)

**Administrative History:** Regulation .01B amended as an emergency provision effective October 1, 2013 (40:22 Md. R. 1871); adopted permanently effective January 6, 2014 (40:26 Md. R. 2162)

**Administrative History:** Regulation .01B amended effective October 22, 2018 (45:21 Md. R. 973); May 18, 2020 (47:10 Md. R. 515)

**Administrative History:** Regulation .02 amended effective October 22, 2018 (45:21 Md. R. 973)

**Administrative History:** Regulation .02A amended effective April 15, 2013 (40:7 Md. R. 610); May 20, 2019 (46:10 Md. R. 485)

**Administrative History:** Regulation .02A, B amended as an emergency provision effective October 1, 2013 (40:22 Md. R. 1871); amended permanently effective January 6, 2014 (40:26 Md. R. 2162)

**Administrative History:** Regulation .03 amended as an emergency provision effective October 1, 2013 (40:22 Md. R. 1871); amended permanently effective January 6, 2014 (40:26 Md. R. 2162)

**Administrative History:** Regulation .03A amended effective February 26, 2018 (45:4 Md. R. 205)

**Administrative History:** Regulation .03B amended effective November 18, 2019 (46:23 Md. R. 1065)

**Administrative History:** Regulation .04 amended as an emergency provision effective October 1, 2013 (40:22 Md. R. 1871); amended permanently effective January 6, 2014 (40:26 Md. R. 2162)

**Administrative History:** Regulation .04D amended effective February 26, 2018 (45:4 Md. R. 205)

**Administrative History:** Regulation .05A amended as an emergency provision effective October 1, 2013 (40:22 Md. R. 1871); amended permanently effective January 6, 2014 (40:26 Md. R. 2162)

**Administrative History:** Regulation .05B amended effective November 18, 2019 (46:23 Md. R. 1065)

**Administrative History:** Regulation .06 amended effective November 18, 2019 (46:23 Md. R. 1065)

**Administrative History:** Regulation .08B, C amended as an emergency provision effective October 1, 2013 (40:22 Md. R. 1871); amended permanently effective January 6, 2014 (40:26 Md. R. 2162)

**Administrative History:** Regulation .08D amended effective February 26, 2018 (45:4 Md. R. 205)

**Administrative History:** Regulation .09C amended effective November 18, 2019 (46:23 Md. R. 1065)

**Administrative History:** Regulation .10 amended as an emergency provision effective October 1, 2013 (40:22 Md. R. 1871); amended permanently effective January 6, 2014 (40:26 Md. R. 2162)

**Administrative History:** Regulation .10A amended effective November 18, 2019 (46:23 Md. R. 1065)

**Administrative History:** Regulation .12 adopted as an emergency provision effective October 1, 2013 (40:22 Md. R. 1871); adopted permanently effective January 6, 2014 (40:26 Md. R. 2162)

#### Regulation .01 Definitions.

*COMAR 10.01.04.01*

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

B. 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.

*COMAR 10.01.04.02*

A. 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.

B. 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.

*COMAR 10.01.04.03*

A. 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.

B. 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.

C. 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.

*COMAR 10.01.04.04*

A. 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.

B. 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.

C. 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.

D. 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.

E. 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.

F. 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.

*COMAR 10.01.04.05*

A. 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.

B. 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.

*COMAR 10.01.04.06*

A. 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.

B. 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.

C. 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.

D. 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.

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

F. 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.

*COMAR 10.01.04.07*

A. 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.

B. 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.

C. 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.

*COMAR 10.01.04.08*

A. 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.

B. 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.

C. 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.

D. 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.

*COMAR 10.01.04.09*

A. 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.

B. 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.

C. 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.

*COMAR 10.01.04.10*

A. 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.

B. 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.

*COMAR 10.01.04.11*

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.

*COMAR 10.01.04.12*

A. 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.

B. 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.

C. 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.

D. 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.

E. 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.

F. 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.

G. 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.