# COMAR Title 10 — Maryland Department of Health

## Subtitle 22 — Developmental Disabilities

### Chapter 16 — Informal Hearings Under the Maryland Developmental Disabilities Law

**Authority:** Health-General Article, §§7-401 and 7-406, Annotated Code of Maryland

**Administrative History:** Effective date: February 21, 1975 (2:7 Md. R. 490)

**Administrative History:** Preface amended effective December 29, 1975 (3:4 Md. R. 217)

**Administrative History:** Chapter, Public and Private Residential Care Facilities Serving the Mentally Retarded (I.C.F—M.R.), repealed effective December 28, 1987 (14:26 Md. R. 2747)

**Administrative History:** Regulations .01—.13 Informal Hearings Under the Maryland Developmental Disabilities Law, adopted effective December 25, 1989 (16:25 Md. R. 2713)

**Administrative History:** COMAR 10.22.04 recodified to COMAR 10.22.16 effective July 26, 1999 (26:15 Md. R. 1148)

**Administrative History:** Regulation .03B amended effective December 31, 2018 (45:26 Md. R. 1245)

#### Regulation .01 Scope.

*COMAR 10.22.16.01*

This chapter applies to the hearing which an applicant for or a recipient of Developmental Disabilities Administration services may request under Health-General Article, §7-406(a)(1), Annotated Code of Maryland. Nothing in these regulations shall be construed to create an entitlement to services provided or funded by the Department or the Administration.

#### Regulation .02 Purpose.

*COMAR 10.22.16.02*

The purpose of the informal hearing procedure is to seek informal and expeditious resolution when an applicant for or recipient of services is dissatisfied as a result of the Secretary's actions or inactions under Health-General Article, Title 7.

#### Regulation .03 Definitions.

*COMAR 10.22.16.03*

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

B. Terms Defined.

  (1) “Action or inaction of the Secretary” means a decision of the Deputy Secretary or an authorized representative of the Deputy Secretary, that:

    (a) Denies an application by an individual for eligibility for services;

    (b) Denies a request for services made by a recipient of services;

    (c) Terminates, reduces, suspends, or withdraws services for a recipient of services; or

    (d) Otherwise denies a request made by a recipient of services that is related to DDA services.

  (2) “Administration” means the Developmental Disabilities Administration (DDA).

  (3) “Appellant” means the person or that person's representative who has applied for or received Administration services and who has requested a hearing pursuant to Health-General Article, §7-406, Annotated Code of Maryland.

  (4) “Applicant for services” means a person who has applied for services and is subject to the Administration's determination of eligibility. In addition, the following representatives are considered applicants for the purpose of these regulations:

    (a) A parent of an applicant who is a minor;

    (b) The applicant's court-appointed guardian of the person;

    (c) An attorney representing the applicant; and

    (d) A person or agency who has a legitimate interest in the welfare of the individual applying for DDA services or being served in a DDA licensed, operated, or funded program.

  (5) “Department” means the Maryland Department of Health.

  (6) “Department's representative” means the person designated by the Director to represent the Department in the hearing and to defend the action or inaction of the Secretary.

  (7) “Director” means the Director of the Developmental Disabilities Administration.

  (8) “Hearing” means the informal hearing provided for in Health-General Article, §7-406(a)(1), Annotated Code of Maryland.

  (9) “Party” means an appellant or the Department.

  (10) “Recipient of services” means a person who has received Administration services. In addition, the following representatives are considered recipients for the purpose of these regulations:

    (a) A parent of a recipient who is a minor;

    (b) The recipient's court-appointed guardian of the person;

    (c) An attorney representing the recipient; and

    (d) A person or agency who has a legitimate interest in the welfare of the individual applying for DDA services or being served in a DDA licensed, operated, or funded program.

  (11) “Secretary” means the Secretary of Health and or a representative appointed by the Secretary.

  (12) “Secretary's designee” means the employee of the Department chosen by the Director to conduct the hearing and make administrative decisions in accordance with these regulations.

#### Regulation .04 Notification of Right to Request a Hearing.

*COMAR 10.22.16.04*

The Administration shall:

A. Provide written notification of the right to request a hearing and the method of obtaining the hearing to each applicant for or recipient of services at the time of application, and at any time the Administration decides to deny, terminate, reduce, suspend, withdraw or transfer, or otherwise significantly alter any service to an applicant or recipient;

B. Include in the notification the following statements:

  (1) That the applicant or recipient:

    (a) Has a right to a hearing upon request regarding any action or inaction of the Secretary made under Health-General Article, Title 7, Annotated Code of Maryland, which affects service provision to the applicant or recipient,

    (b) May choose to waive the right to an informal hearing, and

    (c) Has the right to a formal hearing in accordance with State Government Article, Title 10, Subtitle 2;

  (2) If a decision has been made by the Secretary, the factual basis for the decision;

  (3) That a hearing shall be requested within 45 days of the date the notification is postmarked if a decision has been made by the Department, or within 45 days following the action or inaction which is the subject of the appeal;

  (4) The procedure the applicant or recipient is required to follow in order to timely request a hearing; and

  (5) That unless an informal or formal hearing is requested within the prescribed time period, the Secretary's intended action will become final;

C. Enclose with the written notification a form to be used to request a hearing.

#### Regulation .05 Request for Hearing.

*COMAR 10.22.16.05*

A. An applicant or recipient, or the applicant's or recipient's representative, may request a hearing by mailing or delivering a clear, written statement to the Director of the Administration. The request shall state:

  (1) That the applicant or recipient desires a hearing; and

  (2) The specific action or inaction of the Secretary which the applicant or recipient seeks to challenge.

B. The Administration shall acknowledge in writing a request for a hearing within 10 days of the postmark of the request.

C. The Administration shall give reasonable advance notice in writing to the appellant of the issue or issues to be decided, the date, time, and place of the hearing, the right to be present, the right to be represented by an attorney, and the right to request and present witnesses and documentary evidence.

D. Unless agreed upon by all parties, the Administration shall hold the hearing not sooner than 10 days but not later than 30 days after the mailing of the acknowledgement. The Administration may consolidate various requests for hearings made by or on behalf of a particular individual when there is significant similarity in facts or issues to be resolved.

E. The Administration shall make reasonable efforts to schedule the hearing at a time and place convenient to all parties.

F. A request for a hearing shall be made within 45 days of the postmark of the notification specified in Regulation .04A, or if Regulation .04A does not apply, within 45 days following the action. When the subject of the appeal is an inaction, a request for a hearing shall be made within 45 days after the applicant or recipient actually knew or should reasonably have known of the inaction.

G. A request for an extension of the time to request a hearing may be granted by the Secretary's designee for good cause shown.

H. The Department may dismiss a request for a hearing when it has been withdrawn or abandoned by the appellant. The Department may find that a request for a hearing has been abandoned if, after receiving proper notice, the appellant:

  (1) Does not appear for the hearing on the established date; and

  (2) Fails to notify the Department of the reason for nonappearance.

I. The Department is only required to grant one informal hearing as to any one action or inaction of the Secretary.

#### Regulation .06 Implementation of Action of the Secretary.

*COMAR 10.22.16.06*

A. The action of the Secretary, which is the subject of a request for a hearing, may not be implemented unless the:

  (1) Secretary has determined that an emergency exists when to delay action for a hearing would have a serious and adverse affect on the health or safety of any person;

  (2) Applicant or recipient has withdrawn or abandoned the request for a hearing; or

  (3) Applicant or recipient has failed in the applicant's or recipient's challenge of any action or inaction of the Secretary under Health-General Article, §7-406, Annotated Code of Maryland, and the enforcement of the final decision has not been stayed pursuant to State Government Article, §10-215.

B. When a request for a hearing has been made and the appellant is asking that the Secretary take certain action, the requested action need not be implemented unless the appellant is successful in the appellant's challenge under Health-General Article, §7-406.

#### Regulation .07 Secretary's Designee.

*COMAR 10.22.16.07*

A. The Director shall, in response to a request for a hearing, choose an employee of the Department to conduct the hearing and issue an administrative decision.

B. An individual may not serve as the Secretary's designee if, as to this hearing, the individual:

  (1) Was involved in policy or decision-making regarding the particular action or inaction of the Secretary which is the subject of the hearing;

  (2) Has a personal financial interest in the matter; or

  (3) Is related by blood or marriage to the appellant or to the Department's representative.

C. The appellant shall be informed before the hearing of the identity of the Secretary's designee, and shall have the right to object based on factors noted in §B of this regulation.

#### Regulation .08 Powers and Duties of Secretary's Designee.

*COMAR 10.22.16.08*

A. The Secretary's designee shall have authority to:

  (1) Engage in reasonable efforts to secure the attendance of witnesses;

  (2) Conduct a full, fair, and impartial hearing;

  (3) Take action to avoid unnecessary delay and duplication in the proceedings; and

  (4) Maintain order.

B. The Secretary's designee:

  (1) Shall rule on the admissibility of any documentary evidence and on the appearance and testimony of any witness;

  (2) May question any party or witness; and

  (3) Shall permit examination of witnesses.

#### Regulation .09 Prehearing.

*COMAR 10.22.16.09*

A. The appellant and the Department's representative are encouraged to engage in informal discussions before the hearing for the purpose of sharing documentary evidence, clarifying facts, resolving issues, and making recommendations to the Secretary's designee regarding areas of agreement and disagreement and the conduct of the hearing. The appellant shall immediately notify the Secretary's designee if and when there has been a resolution of the appellant's concern which results in the appellant withdrawing the request for a hearing.

B. Written communications and substantive verbal communications between a party and the Secretary's designee shall be shared with all other parties before the hearing or, if not possible, at the hearing.

C. All parties shall make reasonable efforts to comply with the request of other parties to:

  (1) Preview relevant records and other written material and to permit discussions with relevant persons before the hearing;

  (2) Introduce into evidence at the hearing relevant records and other written material, and secure the appearance and cooperation of relevant witnesses, including the applicant or recipient.

#### Regulation .10 Hearing Procedure.

*COMAR 10.22.16.10*

A. The appellant shall have the right to request that the hearing be closed to the public. The Secretary's designee shall grant the appellant's request for a closed hearing if the Secretary's designee, after hearing from the parties, determines that the appellant's interest in confidentiality and privacy outweighs the value to the public of an open hearing.

B. The Secretary's designee shall call the case to order and explain the issue or issues to be decided and the hearing procedure.

C. The appellant shall present the reasons the appellant objects to the Secretary's actions or inactions and the appellant's argument for the relief requested.

D. All parties shall have the opportunity to present evidence, call witnesses, and question the other party's witnesses.

E. In order to clarify relevant facts, the Secretary's designee may question any person at any time during the hearing.

F. With the consent of both parties, the Secretary's designee may allow discussion of the issues among the parties and relevant witnesses in order to seek resolution.

G. The applicant or recipient and that person's representative or representatives shall have the right to testify at the hearing.

H. The Secretary's designee may, with consent of the parties, conduct all or part of a hearing by telephone if each party in the hearing has an opportunity to participate in and hear the entire proceeding while it is taking place.

#### Regulation .11 Burden of Persuasion.

*COMAR 10.22.16.11*

The appellant bears the burden of persuasion and may not prevail unless the appellant convinces the Secretary's designee by a preponderance of the evidence that the Secretary's action or inaction was incorrect.

#### Regulation .12 The Record.

*COMAR 10.22.16.12*

The Secretary's designee shall:

A. Maintain the official record of the hearing;

B. Include in the official record of the hearing:

  (1) Official correspondence regarding the hearing, including the request for the hearing and the Secretary's response,

  (2) Written material submitted by the parties,

  (3) Evidence admitted by the Secretary's designee,

  (4) A tape recording of the hearing, and

  (5) The decision of the Secretary's designee.

#### Regulation .13 Decision of the Secretary's Designee.

*COMAR 10.22.16.13*

A. The Secretary's designee shall decide a case within 14 days of the hearing based upon the entire record in the case and according to the burden of persuasion set forth in Regulation .11. The Secretary's designee may communicate with the parties for the purpose of developing a decision agreeable to all parties provided the Secretary's designee complies with Regulation .09B.

B. The Secretary's designee shall prepare a written decision which includes the following statements:

  (1) The issues presented for resolution;

  (2) Whether the appellant met the burden of persuasion as to each issue;

  (3) To what extent, if any, the relief requested by the appellant is being granted;

  (4) What, if any, action the Department is required to take and when the action shall occur; and

  (5) The appellant's right to appeal the decision of the Secretary's designee pursuant to Health-General Article, §7-406, Annotated Code of Maryland, if the relief requested was not granted.

C. The Secretary's designee shall promptly deliver or mail copies of the final decision to all parties.