# COMAR Title 10 — Maryland Department of Health

## Subtitle 58 — Board of Professional Counselors and Therapists

### Chapter 04 — Hearing Procedures

**Authority:** Health Occupations Article, §§17-205, 17-509, and 17-511; State Government Article, §§10-205, 10-206, 10-216, and 10-226(c)(2); Annotated Code of Maryland

**Administrative History:** Effective date: April 2, 1990 (17:6 Md. R. 742)

**Administrative History:** Regulation .01 amended effective March 20, 2000 (27:5 Md. R. 584)

**Administrative History:** Regulation .04A amended effective March 20, 2000 (27:5 Md. R. 584)

**Administrative History:** Regulation .10 adopted effective September 14, 2015 (42:18 Md. R. 1175)

#### Regulation .01 Scope.

*COMAR 10.58.04.01*

These regulations apply to all formal hearings before the Board of Examiners of Professional Counselors.

#### Regulation .02 Notice of Hearing.

*COMAR 10.58.04.02*

A. Written notice of a hearing shall be sent by the Board to all interested parties at least 30 days before the hearing. The notice shall state the:

  (1) Date, time, and place of the hearing; and

  (2) Issues or charges involved in the proceeding, provided, however, that if by reason of the nature of the proceeding, the issues cannot be stated in advance of the hearing, or if subsequent amendment of the issues is necessary, they shall be fully stated as soon as practicable.

B. Service upon a party shall be by delivery of the charging document and copy of the complaint to the party in person. Instead of personal service, the Board may serve the charging document and a copy of the complaint by registered or certified mail, restricted delivery, return receipt requested.

#### Regulation .03 Representation of Parties.

*COMAR 10.58.04.03*

Each party appearing at a formal hearing shall have the right to appear in proper person, or by or with counsel.

#### Regulation .04 Prehearing Procedures.

*COMAR 10.58.04.04*

A. Discovery.

  (1) Discovery on Request. By written request served on the other party and filed with the Board, a party may require another party to produce, within 15 days, the following:

    (a) A list of witnesses to be called;

    (b) Copies of documents intended to be produced at the hearing; or

    (c) Both §A(1)(a) and (b) of this regulation.

  (2) Mandatory Discovery.

    (a) Each party shall provide to the other party not later than 15 days before the prehearing conference, if scheduled, or 45 days before the scheduled hearing date, whichever is earlier:

      (i) The name and curriculum vitae of any expert witness who will testify at the hearing; and

      (ii) A detailed written report summarizing the expert's testimony, which includes the opinion offered and the factual basis and reasons underlying the opinion.

    (b) If the Board finds that the report is not sufficiently specific, or otherwise fails to comply with the requirements of this section, the Board shall exclude from the hearing:

      (i) The testimony of the expert; and

      (ii) Any report of the expert.

    (c) The Board shall consider and decide arguments regarding the sufficiency of the report:

      (i) At the prehearing conference, if scheduled; or

      (ii) Immediately before the scheduled hearing.

    (d) If an expert adopts a sufficiently specific charging document as the expert's report, that adoption satisfies the requirements set forth in this section.

  (3) Parties are not entitled to discovery of items other than as listed in §A(1) and (2) of this regulation.

  (4) Both parties have a continuing duty to supplement their disclosures of witnesses and documents.

  (5) Absent unforseen circumstances which would otherwise impose an extraordinary hardship on a party, witnesses or documents may not be added to the list:

    (a) After the prehearing conference, if scheduled; or

    (b) Later than 15 days before the hearing if no prehearing conference is scheduled.

  (6) The prohibition against adding witnesses does not apply to witnesses or documents to be used for impeachment or rebuttal purposes.

B. Prehearing Conferences. The Board may set prehearing conferences as it deems appropriate.

C. Oaths and Subpoenas.

  (1) The Board may administer oaths and compel the attendance of witnesses and the production of physical evidence before it from witnesses upon whom process is served anywhere within the State, as in civil cases in the circuit court of the county or of Baltimore City, by subpoena issued over the signature of the Chairman or Secretary and the seal of the Board.

  (2) Upon a request by a party and statement under oath that the testimony or evidence is necessary to the party's defense, the Board shall issue a subpoena in the party's behalf.

D. Motions filed by a party shall be accompanied by a memorandum of points and authorities, and shall be filed with the Board at least 10 working days before the hearing, and a copy served on the opposing party. Any response shall be filed with the Board at least 5 working days before the hearing and a copy shall be served on the opposing party.

#### Regulation .05 Conduct of the Hearing.

*COMAR 10.58.04.05*

A. Board Majority. Each hearing shall be held before not less than a quorum of the Board unless the hearing authority is delegated pursuant to State Government Article, §10-207, Annotated Code of Maryland. A delegation of authority shall be subject to the provisions of State Government Article, §10-212. If hearing authority is not delegated, Board action shall be by a majority vote of those Board members then serving on the Board.

B. Duties of Presiding Officer.

  (1) The Chairman, or in the Chairman's absence a member designated by the Chairman, shall be the presiding officer, or if in a delegated hearing, an administrative law judge under State Government Article, §§9-1601—9-1610, Annotated Code of Maryland, shall be the presiding officer.

  (2) The presiding officer shall:

    (a) Have complete charge of the hearing;

    (b) Permit the examination of witnesses;

    (c) Admit evidence;

    (d) Rule on the admissibility of evidence; and

    (e) Adjourn or recess the hearing from time to time.

  (3) The presiding officer may set reasonable time limits on arguments and presentation of evidence.

  (4) The presiding officer shall be responsible for decorum in hearings and can suspend the proceedings as necessary to maintain decorum.

C. Legal Advisor and Counsel for the Board.

  (1) The Board may request the Office of the Attorney General to participate in any hearing to present the case on behalf of the Board.

  (2) The member of the Office of the Attorney General presenting the case on behalf of the Board shall have all the following rights:

    (a) The submission of evidence;

    (b) Examination and cross-examination of witnesses;

    (c) Presentation of summation and argument; and

    (d) Filing of objections, exceptions, and motions.

  (3) The Board may also request a representative of the Office of the Attorney General to act as legal advisor to the Board as to questions of evidence and law.

D. Order of Procedure. The State shall present its case first. Then the respondent shall present his case. After this the State may present rebuttal.

E. Examination of Witnesses and Introduction of Evidence.

  (1) The rules of evidence in all hearings under these regulations shall be as set forth in State Government Article, §§10-208 and 10-209, Annotated Code of Maryland.

  (2) Each party has the right to:

    (a) Call witnesses and present evidence;

    (b) Cross-examine witnesses called by the Board or other party;

    (c) Present summation and argument and file objections, exceptions, and motions.

  (3) If a party is represented by counsel, the submission of evidence, examination and cross-examination of witnesses, and filing of objections, exceptions, and motions shall be done and presented solely by counsel.

  (4) Witnesses.

    (a) The presiding officer, or any person designated by the presiding officer for the purpose, may examine any witness called to testify.

    (b) The presiding officer may call as witness any person in attendance at the hearing.

    (c) Any member of the Board may examine any witness called to testify.

  (5) If an accused or complainant fails to appear at a hearing after due notice, the Board or its designee may reschedule the hearing, or may proceed upon the available investigation, report, documents, witnesses, and records.

#### Regulation .06 Records and Transcript.

*COMAR 10.58.04.06*

A. The Board shall prepare an official record which shall include all pleadings, testimony, exhibits, and other memoranda or material filed in the proceeding.

B. A stenographic record of the proceedings shall be made at the expense of the Board. This record need not be transcribed, however, unless requested by a party, or by the Board. The cost of any typewritten transcripts of any proceedings, or part of them, shall be paid by the party requesting the transcript.

#### Regulation .07 Decision and Order.

*COMAR 10.58.04.07*

A. Each decision and order rendered by the Board shall be in writing and shall be accompanied by findings of fact and conclusions of law.

B. A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed promptly to each party or attorney of record.

#### Regulation .08 Rehearings.

*COMAR 10.58.04.08*

A. A party aggrieved by the decision and order rendered may apply for rehearing within 10 days after service on the party of the decision and order. Action on an application shall lie in the discretion of the Board.

B. Unless otherwise ordered, neither the rehearing nor the application for it shall stay the enforcement of the order, or excuse the person affected for failure to comply with its terms.

C. The Board may consider facts not presented in the original hearing, including facts arising after the date of the original hearing, and may by new order abrogate, change, or modify its original order.

#### Regulation .09 Appeals.

*COMAR 10.58.04.09*

A person whose certificate has been revoked or suspended by the Board, or a person placed on probation or reprimand under the regulations in this chapter, may appeal the Board's decision as provided by the law.

#### Regulation .10 Summary Suspension of a License or Certificate.

*COMAR 10.58.04.10*

A. Pursuant to State Government Article, §10- 226(c)(2), Annotated Code of Maryland, the Board may order the summary suspension of a license holder if the Board determines that there is substantial likelihood that a licensee or certificate holder poses a risk of harm to the public health, safety, or welfare.

B. Notice of Intent to Summarily Suspend.

  (1) Based on information gathered in an investigation or otherwise provided to the Board, the Board may vote to issue:

    (a) A notice of intent to summarily suspend a license or certificate; or

    (b) An order of summary suspension.

  (2) If the Board votes to issue a notice of intent to summarily suspend a license or certificate or an order of summary suspension, the Board shall refer the matter to an administrative prosecutor for prosecution.

  (3) A notice of intent to summarily suspend a license or certificate shall include:

    (a) A proposed order of summary suspension which is unexecuted by the Board and includes:

      (i) The statutory authority on which the action has been taken;

      (ii) Allegations of fact that the Board believes demonstrate a substantial likelihood that the licensee or certificate holder poses a risk of harm to the public health, safety, or welfare; and

      (iii) Notice to the respondent of the right to request a full hearing on the merits of the summary suspension if the Board executes the proposed order of summary suspension; and

    (b) An order or summons to appear before the Board to show cause why the Board should not execute the order of summary suspension and which notifies the respondent of the consequences of failing to appear.

  (4) Service.

    (a) The Board shall serve a respondent with a notice of intent to summarily suspend a license or certificate not later than 5 days before a predeprivation show cause hearing is scheduled before the Board.

    (b) Service of the notice of intent to summarily suspend shall be made:

      (i) Personally upon the respondent;

      (ii) By certified mail to the address the respondent is required to maintain with the Board; or

      (iii) By other reasonable means to effect service.

    (c) If the Board is unable to serve the notice of intent to summarily suspend a license or certificate upon the respondent as described in §B(4)(b) of this regulation, the Board may nevertheless proceed to prosecute the case.

C. Predeprivation Opportunity to Be Heard.

  (1) If the Board issues a notice of intent to summarily suspend a license or certificate, the respondent may request an opportunity to appear before the Board to show cause why the respondent’s license or certificate should not be suspended before the Board executes the order of summary suspension.

  (2) Predeprivation Show Cause Hearing Before Board.

    (a) The hearing shall be a nonevidentiary hearing to provide the parties with an opportunity for oral argument on the proposed summary suspension.

    (b) The Board member presiding at the hearing shall determine all procedural issues and may impose reasonable time limits on each party’s oral argument.

    (c) The presiding Board member shall make rulings reasonably necessary to facilitate the effective and efficient operation of the hearing.

    (d) The respondent and the administrative prosecutor may not exceed 30 minutes each to present oral argument.

    (e) The respondent shall proceed first and may reserve part of the allotted time for rebuttal.

  (3) The Board member who presides over the hearing:

    (a) May allow either the respondent or the administrative prosecutor to present documents or exhibits which are relevant and material to the proceedings and which are not duly repetitious, if the presiding Board member believes that such documents or exhibits are necessary for a fair hearing; and

    (b) May not allow testimony by any witness unless agreed to by the parties and approved by the Board in advance of the hearing.

  (4) A Board member may be recognized by the presiding member to ask questions of either party appearing before the Board.

D. Summary Suspension Without Prior Notice or Hearing Opportunity.

  (1) Extraordinary Circumstances. The Board may, after consultation with Board counsel, order the summary suspension of a license or certificate without first issuing a notice of intent to summarily suspend a license or certificate or providing a respondent with an opportunity for a predeprivation hearing if the Board determines that:

    (a) The public health, safety, and welfare require the immediate suspension of the license; and

    (b) Prior notice and an opportunity to be heard are not feasible.

  (2) Time — Service and Hearing.

    (a) An order of summary suspension under section §D(1) of this regulation shall be served upon the respondent within 48 hours after its execution.

    (b) The respondent may request a show cause hearing before the Board within 30 days after the effective date of the summary suspension. The request shall be made within 10 days of the date of the notice of sumary suspension.

  (3) If the respondent requests a hearing under §B(3)(a)(iii) of this regulation, that hearing shall:

    (a) Be conducted before the Board as provided in §D(2)(b) of this regulation; and

    (b) Provide the respondent with an opportunity to show cause why the Board should lift the summary suspension and reinstate the license or certificate.

E. Burdens of Production and Persuasion.

  (1) In a show cause proceeding under §C of this regulation, the respondent may present argument in opposition to the allegations presented in the order for summary suspension or which otherwise demonstrate that the public health, safety, or welfare is not at risk.

  (2) The administrative prosecutor bears the burden of demonstrating by a preponderance of the evidence that the health, safety, or welfare of the public imperatively requires the Board to summarily suspend the respondent’s license or certificate.

F. Disposition.

  (1) If the Board issues a notice of intent to summarily suspend a license or certificate before summarily suspending a license or certificate, the Board may, after the show cause hearing, vote to:

    (a) Order a summary suspension;

    (b) Deny the summary suspension;

    (c) Issue an order agreed upon by the parties; or

    (d) Issue an interim order warranted by the circumstances of the case, including an order providing for a stay of the summary suspension subject to certain conditions.

  (2) If the Board orders a summary suspension before a show cause hearing, the Board may, at the conclusion of the hearing, vote to:

    (a) Affirm its order of summary suspension;

    (b) Rescind its order of summary suspension;

    (c) Issue an order agreed upon by the parties; or

    (d) Issue an interim order warranted by the circumstances of the case, including an order providing for a stay of the summary suspension subject to certain conditions.

  (3) An order for summary suspension or other order issued by the Board after the initiation of summary suspension proceedings are final orders of the Board and public records under State Government Article, §10–611, Annotated Code of Maryland.

G. Postdeprivation Opportunity for Evidentiary Hearing.

  (1) If the Board orders the summary suspension of a license or certificate under §C or D of this regulation, the respondent may request an evidentiary hearing before the Board, or if the Board delegates the matter to the Office of Administrative hearings, before an administrative law judge.

  (2) The respondent may request an evidentiary hearing within 10 days after the Board issues the order of summary suspension.

  (3) Unless otherwise agreed by the parties, a hearing shall be provided within 45 days after the respondent’s request.

  (4) An evidentiary hearing may be consolidated with a hearing on charges issued by the Board that include the facts that form the basis for the summary suspension.

  (5) An evidentiary hearing shall be conducted under the contested case provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

  (6) If the Board delegates the matter to the Office of Administrative Hearings, the administrative law judge shall issue a recommended decision to the Board with:

    (a) Proposed or final findings of fact;

    (b) Proposed or final conclusions of law;

    (c) A proposed disposition; or

    (d) Any combination of §G(6)(a), (b), or (c) of this regulation, pursuant to the Board’s delegation of the matter to the Office of Administrative Hearings.

  (7) If the hearing is one combined with charges, the administrative law judge’s determination of the merits of the summary suspension shall be based only on the parts of the record available to the Board when the Board voted for summary suspension.

  (8) The parties may file exemptions to the recommended decision, as provided in State Government Article, §10–216, Annotated Code of Maryland.

  (9) An order issued by the Board after a post-deprivation evidentiary hearing is a final order of the Board and is a public record under State Government Article, §10–611, Annotated Code of Maryland.