# COMAR Title 10 — Maryland Department of Health

## Subtitle 65 — Board of Massage Therapy Examiners

### Chapter 02 — Rules of Procedure for Board Hearings

**Authority:** Health Occupations Article, §§6-206, 6-309, and 6-310; State Government Article, §10-206; Annotated Code of Maryland

**Administrative History:** Effective date: January 2, 2017 (43:26 Md. R. 1446)

**Administrative History:** Regulation .06B amended effective August 5, 2024 (51:15 Md. R. 710)

**Administrative History:** Regulation .09 amended effective August 5, 2024 (51:15 Md. R. 710)

#### Regulation .01 Scope.

*COMAR 10.65.02.01*

This chapter applies to all contested case hearings before the Board of Massage Therapy Examiners or before the Office of Administrative Hearings. It does not apply to conferences or other informal investigations or proceedings.

#### Regulation .02 Notice of Hearing.

*COMAR 10.65.02.02*

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 date, time, and place of the hearing. It shall also state the issues or charges involved in the proceeding, provided, however, that if by reason of the nature of the proceeding, the issues cannot be fully 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 a 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 10.65.02.03*

Every party appearing at formal hearings has the right to appear in proper person, or by or with counsel.

#### Regulation .04 Pre-hearing Procedures.

*COMAR 10.65.02.04*

A. Pre-hearing Conferences. The Board may set a pre-hearing conference as it deems appropriate.

B. Oaths and Subpoenas. 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 President or Secretary and the seal of the Board. Upon a request by a party and statement under oath that the testimony or evidence is necessary to their defense, the Board shall issue a subpoena on their behalf.

C. All motions filed by a party with the Board or the Office of Administrative Hearings, as appropriate, shall be accompanied by a memorandum of points and authorities and shall be filed at least 15 days before the hearing. A copy shall be served on the opposing party. Any response shall be filed with the Board or the Office of Administrative Hearings, as appropriate, at least 7 days before the hearing and a copy shall be served on the opposing party.

D. Discovery on Request. By written request served on the other party and filed with the Board or the Office of Administrative Hearings, as appropriate, a party may require another party to produce, within 15 days, the following:

  (1) A list of witnesses to be called;

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

  (3) Both §A(1) and (2) of this regulation.

E. Mandatory Discovery.

  (1) 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:

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

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

  (2) If the Board or the Office of Administrative Hearings, as appropriate, finds that the report is not sufficiently specific, or otherwise fails to comply with the requirements of this section, the Board or the Office of Administrative Hearings, as appropriate, shall exclude from the hearing the testimony and any report of the expert.

  (3) The Board or the Office of Administrative Hearings, as appropriate, shall consider and decide arguments regarding the sufficiency of the report:

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

    (b) Immediately before the scheduled hearing.

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

F. Parties are not entitled to discovery of items other than as listed in §§D and E of this regulation.

G. Both parties have a continuing duty to supplement their disclosures of witnesses and documents.

H. Absent unforeseen circumstances which would otherwise impose an extraordinary hardship on a party, witnesses or documents may not be added to the list:

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

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

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

J. Construction.

  (1) In hearings conducted by an administrative law judge of the Office of Administrative Hearings, this regulation shall, whenever possible, be construed as supplementing and in harmony with COMAR 28.02.01.

  (2) In the event of a conflict between this regulation and COMAR 28.02.01, this regulation applies.

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

*COMAR 10.65.02.05*

A. Duties of Presiding Officer.

  (1) The Board shall conduct hearings before a quorum of the Board.

  (2) For purposes of a hearing under this chapter, four Board members present and entitled to vote shall constitute a quorum.

  (3) Board action shall be by majority vote of all the members then serving.

  (4) The President, or the President’s designee, shall be the presiding officer, and shall have complete charge of the hearing, permit the examination of witnesses, admit evidence, rule on the admissibility of evidence, and adjourn or recess the hearing from time to time.

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

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

B. Legal Advisor and Counsel for the Board.

  (1) The presiding officer may request the Office of the Attorney General to participate in any hearing to present the case on behalf of the Board, and, upon such a request, this counsel has all the rights with regard to the:

    (a) Submission of evidence, examination and cross-examination of witnesses;

    (b) Presentation of summation and argument; and

    (c) Filing of objections, exceptions, and motions as counsel for any party.

  (2) The presiding officer 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.

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

D. 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) Every party has the right on every genuine issue to:

    (a) Call witnesses and present evidence;

    (b) Cross-examine every witness called by the agency, or other party;

    (c) Submit rebuttal evidence, present summation and argument; and

    (d) File objections, exceptions, and motions, except that when a party is represented by counsel, all the submissions of evidence, examination and cross-examination of witnesses, and filing of objections, exceptions, and motions shall be done and presented solely by this counsel.

  (3) The presiding officer, or the presiding officer’s designee, may examine:

    (a) A witness called by a party; and

    (b) An individual in attendance at the hearing.

  (4) A member of the Board may examine a witness called by a party.

  (5) The Board may submit evidence from an investigative file to other administrative and criminal investigative offices to assist in the investigation and prosecution of a case.

#### Regulation .06 Records and Transcripts.

*COMAR 10.65.02.06*

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. If after a hearing, a licensee is found to have violated any of the provisions of Health Occupations Article, §6-308, Annotated Code of Maryland, the Board shall be entitled to reimbursement of costs by the licensee including any or all of the following items:

  (1) Services rendered by court reporters;

  (2) Transcription of the hearing record by court reporters;

  (3) Expenses related to witnesses appearing for the State;

  (4) Obtaining or reproducing documents, exhibits, or other evidentiary items;

  (5) Hearing-related per diems and expenses for Board members; and

  (6) Other expenses directly related to the investigation and prosecution of the disciplinary action against the licensee.

#### Regulation .07 Decision and Order.

*COMAR 10.65.02.07*

A. Every 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 10.65.02.08*

A. Any party aggrieved by the decision and order rendered may apply for rehearing within 10 days after service on him 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 by it 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 Appeal.

*COMAR 10.65.02.09*

Any person whose license or registration has been revoked or suspended by the Board, or any person placed on probation or reprimand under the regulations in this chapter, may appeal the Board’s decision as provided by law.