# COMAR Title 13B — Maryland Higher Education Commission

## Subtitle 04 — Rules of Procedure

### Chapter 01 — Hearings

**Authority:** Education Article, Title 11, Subtitle 2;State Government Article, Title 10, Subtitle 2; Annotated Code of Maryland

**Administrative History:** Effective date: October 20, 1986 (13:21 Md. R. 2322)

**Administrative History:** Regulations .01—.10 repealed and new Regulations .01—.30 adopted effective March 23, 1998 (25:6 Md. R. 490)

#### Regulation .01 Scope.

*COMAR 13B.04.01.01*

A. This chapter applies to contested case hearings before the Maryland Higher Education Commission.

B. Hearings before an administrative law judge of the Office of Administrative Hearings shall be conducted in accordance with the rules of procedure of the Office of Administrative Hearings in COMAR 28.02.01, and this chapter. To the extent that this chapter conflicts with COMAR 28.02.01, this chapter prevails.

#### Regulation .02 Definitions.

*COMAR 13B.04.01.02*

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

B. Terms Defined.

  (1) “Administrative law judge” has the meaning stated in COMAR 28.02.01.02.

  (2) “Authorized representative” means an attorney or, when permitted by applicable law, an individual designated by a party to represent the party.

  (3) “Commission” means the Maryland Higher Education Commission.

  (4) “Hearing” or “proceeding” means a contested case hearing as defined by the Administrative Procedure Act in State Government Article, §10-202(d), Annotated Code of Maryland.

  (5) Institution of Postsecondary Education or Institution.

    (a) “Institution of postsecondary education” or “institution” means a school or other institution that offers an educational program in the State for individuals who are 16 years old or older and who have graduated from or left elementary or secondary school.

    (b) “Institution of postsecondary education” or “institution” does not include a program conducted by a public school system of the State or program subject to approval by the Apprenticeship and Training Council.

  (6) “Party” means an individual, person, or agency, including the Secretary, named or admitted to participate in a hearing before the Secretary or the Commission.

  (7) “Person” means an individual, general or limited partnership, joint stock company, unincorporated association or society, corporation, or other entity, including a public company, or an agency or instrumentality of federal, State, or local government.

  (8) “Secretary” means the Secretary of Higher Education or a designee of the Secretary.

#### Regulation .03 Notice of the Right to a Hearing.

*COMAR 13B.04.01.03*

A. If there is a statutory right to appeal an action of the Secretary or the Commission, the Secretary or the Commission, as appropriate, shall provide notice of that action in accordance with this regulation.

B. The notice shall include:

  (1) A statement of the factual basis for the action;

  (2) A reference to the statutory or regulatory provision under which the action is being taken;

  (3) A statement of the right to a hearing upon request;

  (4) The authority of the Secretary or the Commission to hold the hearing;

  (5) A statement of the time period within which a hearing shall be requested;

  (6) A statement of the specific action a person is required to take in order to timely request a hearing; and

  (7) A statement that unless a hearing is requested the intended action of the Secretary or the Commission shall become final and binding on all parties.

#### Regulation .04 Request for a Hearing.

*COMAR 13B.04.01.04*

A. A written request for a hearing shall be filed:

  (1) Within the time period specified by relevant statute or regulation; or

  (2) If no time period is otherwise specified, not later than 30 days from the date of the notice of the contested action.

B. A request for a hearing is considered filed on the earlier of the date the request is postmarked or when actually received by the Secretary or the Commission, as appropriate.

C. The request shall include the following:

  (1) The name, mailing address, and telephone number of the person filing the request and the person's authorized representative, if any;

  (2) The action, sanction, decision, or order being appealed; and

  (3) A brief statement of the basis for the request for appeal and other information required by law.

D. Incomplete Request.

  (1) If a hearing request is received without the necessary information, or is otherwise improper, the Secretary or the Commission, as appropriate, may return the request, require submission of supplemental information, or require a revised request.

  (2) The Secretary or the Commission, as appropriate, may consider a request lacking all necessary information, or that is otherwise improper, as not properly filed and deny the request for a hearing.

#### Regulation .05 Notice of Hearing.

*COMAR 13B.04.01.05*

A. The Secretary or the Commission, as appropriate, shall serve written notice of the hearing on the parties.

B. The hearing notice shall contain:

  (1) The date, time, place, and nature of the hearing;

  (2) The legal authority and jurisdiction under which the hearing is to be held, including citation to any statute or regulation that is pertinent;

  (3) The nature and subject matter of the hearing;

  (4) A statement of the right to present witnesses and documents;

  (5) A statement that a copy of the hearing procedures is available upon request;

  (6) A statement of any right or restrictions pertaining to representation;

  (7) The name, mailing address, and telephone number of each party to whom the notice is sent;

  (8) The name, title, address, and telephone number of any attorney or Commission employee who has been designated to represent the agency at the hearing;

  (9) A statement that failure to appear for the scheduled hearing may result in an adverse action against that party; and

  (10) A statement that parties may agree to the evidence and may waive their right to appear at the hearing.

#### Regulation .06 Expedited Hearings.

*COMAR 13B.04.01.06*

A. A party may serve on the Secretary or the Commission, as appropriate, and on all parties, a request for an expedited hearing.

B. The request for an expedited hearing shall set forth the reason for the request.

C. A request for an expedited hearing shall waive applicable notice requirements.

D. The Secretary or the Commission, as appropriate, shall rule on a request for an expedited hearing within 3 working days after receipt of the request.

E. A decision granting an expedited hearing shall establish precise time frames for the conduct and completion of the hearing, and for issuance of the final decision.

F. If the Secretary, in accordance with Education Article, §11-107 or 11-204, Annotated Code of Maryland, obtains an injunction or other judicial remedy against a party before the issuance of a final decision, the Commission shall schedule the hearing within 2 weeks of the court's order, unless a party can show good cause why the hearing should be delayed.

#### Regulation .07 Time and Place For Hearings.

*COMAR 13B.04.01.07*

A. A hearing shall be conducted at a site designated by the Secretary or the Commission, as appropriate.

B. A hearing shall be held:

  (1) Within the time period specified by relevant statute or regulation; or

  (2) If no time period is otherwise specified, not later than 90 days from the date the notice of the request for a hearing is received.

C. If all parties agree, the hearing may be held on a date other than that provided by this regulation.

#### Regulation .08 Conduct of Hearings and Sanctions.

*COMAR 13B.04.01.08*

A. The Commission may, at its discretion, appoint less than a quorum of Commission members to preside at the hearing and prepare proposed findings of fact and conclusions of law. The proposed findings of fact and conclusions of law shall be presented to the Commission with a quorum of members present. At that meeting and any adjournment of that meeting, the proposed findings of fact and conclusions of law shall be considered and voted upon. The findings of fact and conclusions of law adopted by a majority of the members present shall serve as the basis for the Commission's final decision as provided in Regulation .29 of this chapter.

B. If the Commission elects not to appoint less than a quorum of Commission members to preside at the hearing, the hearing shall be conducted before the Commission and not less than a quorum of the Commission shall be present at all times during the hearing.

C. The Secretary or the Commission, whichever is presiding at a hearing, may:

  (1) Make decisions and take any appropriate actions authorized by law;

  (2) Hold prehearing conferences and require the parties to submit and exchange relevant and necessary documents and information before the beginning of the hearing;

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

  (4) Regulate the course of the hearing and take action to avoid unnecessary delay in the disposition of the proceedings;

  (5) Define the scope of the issues;

  (6) Limit the time for presentations, limit unduly repetitious testimony, and otherwise establish appropriate schedules, dates, timetables, and deadlines;

  (7) Maintain order and regulate the conduct of the witnesses and the parties and their authorized representatives, including but not limited to removing from a hearing those whose conduct impedes the orderly progress of the hearing;

  (8) Administer oaths and affirmations;

  (9) Rule on offers of proof and receive relevant and material evidence;

  (10) Admit evidence and rule on the admissibility of evidence;

  (11) Rule on motions;

  (12) Examine and call witnesses;

  (13) Grant a continuance for good cause shown;

  (14) Require parties to submit legal memoranda, proposed findings of fact, and conclusions of law; and

  (15) Impose appropriate sanctions for failure to abide by these regulations or any order of the Secretary or the Commission, including but not limited to:

    (a) Limiting the issues to be heard,

    (b) Limiting the introduction of documentary and testimonial evidence,

    (c) Dismissing all or any part of a contested case, or

    (d) Entering an order on the merits against any party.

D. The Secretary or the Commission, whichever is presiding at a hearing, may modify or waive any time periods established by this chapter. Any modifications or waivers which would result in beginning the hearing after the date required by law shall be with the consent of all parties.

#### Regulation .09 Parties; Representation.

*COMAR 13B.04.01.09*

A. The parties shall consist of:

  (1) The institution of postsecondary education or the individual requesting the hearing;

  (2) A person entitled as of right to participate as a party;

  (3) A person who applies for and is granted leave to participate as a party upon a satisfactory showing of interest in the matter, including a person admitted as a party for a limited purpose; and

  (4) The Secretary.

B. Representation.

  (1) An individual may represent himself or herself.

  (2) A person other than an individual shall be represented by an attorney authorized to practice law in Maryland.

  (3) Authorized representatives shall enter an appearance with the Secretary or the Commission, as appropriate, and shall be copied on all notices, pleadings, and other correspondence.

  (4) Unless an appearance is withdrawn in writing, all notices, pleadings, and other correspondence required to be sent to a party shall be sent to the party's representative of record.

#### Regulation .10 Discovery.

*COMAR 13B.04.01.10*

A. Not later than 20 days before the scheduled hearing, each party shall provide all other parties with a list of all witnesses, including expert witnesses, who are expected to testify for that party at the hearing.

B. With respect to any matter which is relevant to the subject matter of the hearing and which is not privileged, a party, by written request served upon all other parties and filed with the Secretary or the Commission, as appropriate, not later than 20 days before the scheduled hearing, may require any other party to:

  (1) Produce within 15 days, for inspection or copying, any file, memorandum, correspondence, document, expert report, object, or tangible thing; and

  (2) Respond to not more than 15 interrogatories, which will be counted separately irrespective of the manner in which they are grouped, combined, or arranged.

C. Stipulations. Unless the Secretary or the Commission, as appropriate, orders otherwise, the parties by written stipulation may modify the discovery procedures provided by this chapter, except that the parties may not modify any discovery procedure if the effect of the modification would be to impair or delay a prehearing conference, any order specifying the time for filing a motion or other paper, or the hearing.

D. Sanctions.

  (1) The Secretary or Commission, as appropriate, may impose sanctions against any party for failing to:

    (a) Provide all other parties with a list of all witnesses, including expert witnesses; and

    (b) Fully comply with a discovery request.

  (2) The sanctions may include, but are not limited to:

    (a) Refusing to admit the testimony of a witness who was not disclosed as required by this chapter;

    (b) Refusing to admit a report prepared by an expert;

    (c) Refusing the failing party the ability to support or oppose designated claims, defenses, or matters by introducing any documentary or testimonial evidence that was not disclosed pursuant to a discovery request; and

    (d) Dismissing the contested case.

E. Unless otherwise provided by law or by agreement of the parties, no other discovery procedure may be noticed.

F. Copies of requested documents and records shall be made at the expense of the party making the request.

#### Regulation .11 Intervention and Consolidation.

*COMAR 13B.04.01.11*

A. Upon motion filed not later than 10 days before the prehearing conference or 20 days before the hearing date, a person may be permitted to intervene in an action when the person has standing and:

  (1) An unconditional right to intervene as a matter of law; or

  (2) Claims an interest relating to the subject matter of the hearing that is:

    (a) Adversely affected, and

    (b) Not adequately represented by existing parties.

B. The motion shall state with particularity the grounds for the intervention as well as a statement setting forth the claim or defense for which intervention is sought.

C. Restrictions on Intervention.

  (1) The Secretary or the Commission, as appropriate, shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

  (2) The Secretary or the Commission, as appropriate, may at any time before or during the course of the proceedings place conditions upon an intervenor's participation in the proceedings.

D. Appeal.

  (1) The Secretary's or the Commission's denial of a motion to intervene may be appealed in accordance with law.

  (2) In the discretion of the Secretary or the Commission, as appropriate, an appeal of a denial to intervene may stay proceedings.

E. Consolidation. When proceedings involving a common question of law or fact are pending before the Secretary or the Commission, the Secretary or the Commission, as appropriate, may consolidate the proceedings pursuant to a motion or the Secretary's or Commission's own initiative. If the consolidated proceedings involve different parties or burdens of going forward or persuasion, the Secretary or the Commission may specify those procedures that will assure an expeditious and just proceeding.

#### Regulation .12 Prehearing Conference.

*COMAR 13B.04.01.12*

A. The Secretary or the Commission, as appropriate, may hold a prehearing conference to resolve matters preliminary to the hearing.

B. The Secretary or the Commission, as appropriate, may require the parties to submit information before the prehearing conference.

C. The Secretary or the Commission, as appropriate, may order that each party make available to the other parties the names and written reports of experts and other witnesses the party expects to call as well as copies of the documents that will be used for direct examination during the hearing. Failure to comply in good faith with this order is grounds to refuse to admit the oral or written testimony of that witness, to refuse to admit a report of that expert, or to refuse to admit any document not furnished to the other parties.

D. A prehearing conference may be convened to address the following matters:

  (1) Factual and legal issues;

  (2) Stipulations and admissions of fact;

  (3) Stipulations as to the authenticity and admissibility of documents;

  (4) Requests for official notice;

  (5) Identification and exchange of documentary evidence;

  (6) Admissibility of evidence;

  (7) Identification and qualification of witnesses;

  (8) Motions;

  (9) Discovery disputes;

  (10) Order of presentation;

  (11) Scheduling;

  (12) Settlement possibilities or conferences; and

  (13) Any other matter that will promote the orderly and prompt conduct of the hearing.

E. Conduct.

  (1) At the discretion of the Secretary or the Commission, as appropriate, all or part of the prehearing conference may be recorded.

  (2) The prehearing conference may be conducted by telephone, video, or other electronic means.

F. Prehearing Orders.

  (1) The Secretary or the Commission, as appropriate, may issue a prehearing order addressing any matter raised at the prehearing conference.

  (2) The prehearing order is part of the record.

  (3) Whether or not a prehearing conference is held, the Secretary or the Commission, as appropriate, may issue a prehearing order to regulate the conduct of the proceedings.

G. All parties shall be bound by the Secretary's or the Commission's prehearing order regardless of whether a party attends a prehearing conference.

#### Regulation .13 Settlement Conferences.

*COMAR 13B.04.01.13*

A. The Secretary or the Commission, as appropriate, may appoint a designee to preside at a conference to address settlement possibilities.

B. Settlement discussions are not a part of the case record.

C. The individual who presides at a settlement conference in which ex parte communications take place may not preside at any hearing in that contested case and may not advise the Secretary or the Commission regarding any decision on the merits of that case.

#### Regulation .14 Stipulations.

*COMAR 13B.04.01.14*

A. Stipulations.

  (1) The parties, by stipulation, may agree to any substantive or procedural matter.

  (2) A stipulation may be filed in writing or entered on the record at the hearing.

  (3) The Secretary or the Commission, as appropriate, may require additional development of stipulated matters.

B. Affidavits. The Secretary or the Commission, as appropriate, may admit an affidavit as evidence.

#### Regulation .15 Motions; Postponement; Failure to Prosecute.

*COMAR 13B.04.01.15*

A. Process.

  (1) Unless otherwise provided by these regulations, a party:

    (a) May move for appropriate relief before or during a hearing; and

    (b) Shall submit all motions in writing in accordance with §A(2) of this regulation, or orally at a hearing.

  (2) Written motions shall:

    (a) Be filed not later than 10 days before the date of a prehearing conference or not later than 20 days before the date of the hearing;

    (b) State concisely the question to be determined;

    (c) Be accompanied by all supporting documentation;

    (d) Be accompanied by a memorandum of points and authorities; and

    (e) Be served on each party.

  (3) A response to a written motion shall be filed on the earlier of:

    (a) 10 days after service of the motion; or

    (b) The date of the hearing.

  (4) The Secretary or the Commission, as appropriate, may schedule a hearing to consider a written motion.

  (5) Decision.

    (a) The Secretary or the Commission, as appropriate, may reserve ruling on a motion until after the hearing.

    (b) The Secretary or the Commission, as appropriate, may issue a written decision or state the decision on the record.

    (c) If a ruling on a motion is reserved, the ruling shall be in writing and may be included in the final decision.

  (6) All parties shall be bound by the Secretary's or the Commission's ruling notwithstanding their failure to attend a hearing.

  (7) Failure of a party to attend a scheduled hearing may be grounds for a decision adverse to that party.

  (8) The filing or pendency of a motion does not alter or extend any time limit otherwise established by this chapter.

  (9) A ruling on a motion shall only be reviewed as part of an appeal from a proposed decision or final decision.

B. Motion to Dismiss. Upon motion, the Secretary or the Commission, as appropriate, may issue a proposed decision or final decision dismissing a complaint, civil penalty, an order of the Secretary or other agency action, or any request for hearing which fails to state a claim for which agency relief may be granted.

C. Motion for Summary Decision.

  (1) A party may move for summary decision on any substantive issue in the case.

  (2) Upon written motion, a proposed decision or a final decision may dismiss a request for hearing if the Secretary or the Commission, as appropriate, finds that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law.

D. Postponement.

  (1) The Secretary or the Commission, as appropriate, may grant a postponement only upon written motion and for good cause shown.

  (2) The Secretary or the Commission, as appropriate, may postpone or continue a hearing on its own initiative. Any postponement which would result in beginning the hearing after the date required by law shall be with the consent of all parties.

E. Dismissal for Lack of Prosecution.

  (1) An action is subject to dismissal for lack of prosecution at the expiration of 1 year from the date of the request for a hearing.

  (2) If an action is subject to dismissal pursuant to this regulation, the Secretary or the Commission, as appropriate, upon its own initiative or upon the written motion of a party, shall notify all parties that an order of dismissal for lack of prosecution may be entered unless good cause is shown why the case should not be dismissed within 30 days after service of the notice.

  (3) The Secretary of the Commission, as appropriate, may enter an order of dismissal either with or without prejudice.

#### Regulation .16 Conduct of Hearings.

*COMAR 13B.04.01.16*

A. On a genuine issue in a contested case, each party is entitled to:

  (1) Call witnesses;

  (2) Offer evidence, including rebuttal evidence;

  (3) Cross-examine opposing witnesses; and

  (4) Make opening and closing statements.

B. Telephone Hearings.

  (1) The Secretary or the Commission, as appropriate, may conduct all or part of the hearing by telephone, video conferencing, or other electronic means.

  (2) For good cause, a party may object to the holding of a hearing by telephone, video conferencing, or other electronic means.

  (3) All substantive and procedural rights apply to telephone, video, or other electronic hearings, subject only to the limitations of the physical arrangement.

  (4) Documentary Evidence. For a telephone hearing, documentary evidence to be offered shall be provided by all parties so that it is received by each party and the Secretary or the Commission, whichever is presiding at the hearing, at least 5 days before the hearing.

  (5) Default. For a telephone hearing, the following may be considered a failure to appear and grounds for a default:

    (a) Failure to answer the telephone;

    (b) Failure to free the telephone for a hearing; or

    (c) Any other failure to be ready to proceed with the hearing as scheduled.

C. Order of Proceedings.

  (1) The Secretary or the Commission, as appropriate, shall explain briefly the purpose and nature of the hearing.

  (2) The Secretary or the Commission, as appropriate, may allow the parties to present preliminary matters.

  (3) The Secretary or the Commission, as appropriate, shall state the order of presentation of evidence.

  (4) Witnesses shall be sworn or put under affirmation to tell the truth.

#### Regulation .17 Evidence.

*COMAR 13B.04.01.17*

A. Evidence shall be admitted in accordance with this chapter and State Government Article, §10-213, Annotated Code of Maryland.

B. Evidence may not be excluded solely on the grounds that it is hearsay.

C. Exclusion of Witnesses.

  (1) Upon request by a party, the Secretary or the Commission, as appropriate, may exclude witnesses other than parties from the hearing room.

  (2) The Secretary or the Commission, as appropriate, may order the witnesses, parties, attorneys, and all others present in the hearing room not to disclose to any witness excluded under this section the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during the witness' absence.

  (3) A party that is not an individual may designate an individual to remain in the hearing room, even though the individual may be a witness.

  (4) An expert witness who is to render an opinion based on testimony given at the hearing may remain during the testimony.

D. Prefiled Testimony.

  (1) In the discretion of the Secretary or the Commission, as appropriate, testimony may be received in written form.

  (2) The testimony shall be filed with the Secretary or the Commission, as appropriate, and served on opposing parties so that it is received at least 5 days before the hearing.

#### Regulation .18 Expert Testimony.

*COMAR 13B.04.01.18*

Expert testimony may be accepted by the Secretary or the Commission, as appropriate, if the testimony, as proffered, would aid in an understanding of the case.

#### Regulation .19 Appointment of Interpreter.

*COMAR 13B.04.01.19*

A. If a party or witness cannot readily hear, speak, or understand the spoken or written English language, on motion timely submitted, the Secretary or the Commission, as appropriate, shall appoint a qualified interpreter to provide assistance during the hearing.

B. An interpreter shall take an oath or affirmation that the interpreter will accurately translate.

#### Regulation .20 Failure to Attend Hearing and Default.

*COMAR 13B.04.01.20*

A. If, after receiving notice, a party fails to attend a prehearing conference, hearing, or other proceeding scheduled by the Secretary or the Commission, as appropriate, the Secretary or the Commission may issue a proposed decision or a final decision, as appropriate, against the defaulting party.

B. Within 7 calendar days after service of a default order, the party may file a written motion requesting that the default order be vacated or modified, and stating the grounds for the request.

C. If the Secretary or the Commission, as appropriate, finds that there is a substantial and sufficient basis for an actual controversy on the merits and that there is good cause to excuse the default, the Secretary or the Commission may vacate the default order.

D. A final default order is a final decision and is reviewable as such.

#### Regulation .21 Proceedings Open to the Public.

*COMAR 13B.04.01.21*

A. Unless otherwise prohibited by federal or State law, all proceedings before the Secretary or the Commission are open to the public.

B. Unless otherwise provided by federal or State law, documents, notices, and records in the possession of the Secretary or the Commission as a result of a contested case proceeding may be inspected and copied as provided in State Government Article, Title 10, Subtitle 6, Part III, Annotated Code of Maryland, and COMAR 13B.04.03.

C. The Secretary or the Commission may:

  (1) Remove individuals whose conduct impedes the orderly progress of the hearing; and

  (2) Restrict attendance because of the physical limitations of the hearing facility.

D. Recording equipment, cameras, and other photography equipment shall be excluded from the hearing room unless permitted by the Secretary or the Commission, as appropriate.

#### Regulation .22 Burdens of Going Forward and Persuasion.

*COMAR 13B.04.01.22*

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) The party requesting a hearing following notice of the Secretary's or Commission's intent to deny or refuse to renew a permit, certification, or license bears the burden of going forward to establish a prima facie case of entitlement to the permit, certification, or license, and the burden of persuasion that the permit, certification, or license should be issued;

  (2) In a proceeding following notice by the Secretary or the Commission of an intent to revoke or suspend a permit, certification, or license, the Secretary or the Commission, as appropriate, 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 permit, certification, or license should be revoked or suspended; and

  (3) In a proceeding to issue an order or levy sanctions, the Secretary or the Commission, as appropriate, bears the burden of going forward to establish a prima facie case as to existence of grounds for issuance of an order or sanctions, and the burden of persuasion that the order be issued or sanctions be levied.

C. The Secretary or the Commission, as appropriate, shall find against a party with the burden of:

  (1) Going forward if that party has not presented sufficient evidence to establish a prima facie case for the party's claim or defense; or

  (2) Persuasion if that party has not presented evidence sufficient to establish the correctness of the party's claim or defense by a preponderance of the evidence.

#### Regulation .23 The Record.

*COMAR 13B.04.01.23*

A. The Secretary or the Commission, as appropriate, shall prepare an official record of each hearing.

B. The record shall consist of:

  (1) Any document giving rise to the proceeding;

  (2) Any request for the hearing;

  (3) Notices of all proceedings;

  (4) Any prehearing order;

  (5) Motions, pleadings, briefs, petitions, requests, and intermediate rulings;

  (6) Evidence received or considered;

  (7) A statement of each fact officially noticed;

  (8) Proffers of proof, objections, and rulings on them;

  (9) Proposed and final findings of fact, conclusions of law, and requested orders;

  (10) Matters placed on the record after an ex parte communication;

  (11) A recording of the hearing, any transcript of the recording, or any transcript prepared by a court reporting service; and

  (12) Any order.

#### Regulation .24 Service.

*COMAR 13B.04.01.24*

A. Unless otherwise required by law, service of the following documents shall be made by personal delivery or by mail:

  (1) Notices of the hearing;

  (2) Default orders;

  (3) Prehearing orders;

  (4) Final decisions; and

  (5) Exceptions to proposed decisions and appeals of final decisions.

B. Service upon a party to whom a permit, certification, or license has been issued by the Commission or Secretary may be made by delivering a copy to the most recent address provided by that party to the Commission or Secretary.

C. Proof of Service. The person serving a document shall certify:

  (1) To whom the document was sent or delivered;

  (2) The address to which the copy was sent or delivered;

  (3) The date the copy was sent or delivered;

  (4) The manner of service; and

  (5) The name of the person who sent or delivered the document.

#### Regulation .25 Delegation of Hearing Authority.

*COMAR 13B.04.01.25*

A. The Secretary or the Commission, as appropriate, may delegate all or part of the authority to hear a contested case to the Office of Administrative Hearings.

B. Authority to Revoke Delegation. The Secretary or the Commission, as appropriate, may revoke all or part of a delegation of authority to hear a contested case.

C. Criteria for Revocation. The Secretary or the Commission, as appropriate, may revoke all or part of a delegation to the Office of Administrative Hearings if the case may:

  (1) Involve novel or unanticipated factual or legal issues;

  (2) Have significant social or fiscal consequences;

  (3) Involve policy issues of general applicability; or

  (4) Be likely to have precedential value.

D. Procedures for Revocation.

  (1) The Secretary or the Commission, as appropriate, shall provide written notice of a revocation of hearing authority to all parties and the Office of Administrative Hearings. The written notice shall contain a brief statement of the reason for the revocation.

  (2) Delegation of authority to hear a contested case may be revoked at any time before the earlier of the:

    (a) Issuance of a ruling by the administrative law judge on a substantive issue; or

    (b) Taking of oral testimony from the first witness.

  (3) The Secretary or the Commission, as appropriate, shall specify whether all or part of the delegation to hear a contested case has been revoked. If only part of the delegation has been revoked, the Secretary or the Commission shall specify in the written notice of revocation the portions of the contested case for which delegation has been revoked.

  (4) A decision issued by the Secretary or the Commission, as appropriate, shall reflect the fact that delegation to the Office of Administrative Hearings was revoked and a copy of the revocation notice shall be included as part of the record.

E. Procedures upon Revocation.

  (1) If the Secretary or the Commission revokes the delegation to hear a contested case, the hearing shall be conducted by the Secretary or the Commission, as appropriate.

  (2) As soon as practicable after the conclusion of the hearing and, if required, the filing of post-hearing submissions, the Secretary or the Commission, as appropriate, shall issue a written decision.

  (3) The decision shall:

    (a) Contain findings of fact, conclusions of law, and the decision or remedy;

    (b) Include a short and plain statement of the right to appeal and the available procedures and time limitations for seeking judicial review; and

    (c) Be mailed to all parties.

#### Regulation .26 Ex Parte Communications.

*COMAR 13B.04.01.26*

A. A party or a party's representative may not communicate ex parte with the Secretary or members of the Commission, whichever is presiding at the hearing, regarding the merits of any issue in the hearing.

B. The Secretary or the members of the Commission may communicate with members of an advisory staff or the Commission, or with any counsel for the Secretary or the Commission who otherwise does not participate in the contested case.

C. Actions taken by the Secretary or the Commission, as appropriate, following an ex parte communication shall be governed by State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

#### Regulation .27 Transcripts, Costs.

*COMAR 13B.04.01.27*

A. The hearing shall be recorded by tape recording, stenographic notes, or other means, and shall be transcribed as soon as possible after the hearing.

B. A party other than the Secretary or the Commission taking exceptions or appealing a proposed decision shall request a transcript if one has not been prepared.

C. Transcript. If a party requests a transcript of the hearing, the requesting party shall bear the cost of transcription.

#### Regulation .28 Proposed Decision and Exceptions.

*COMAR 13B.04.01.28*

A. Proposed Decision. A proposed decision shall contain:

  (1) Findings of fact and conclusions of law, separately stated;

  (2) A proposed order; and

  (3) A statement of the right to file written exceptions to the proposed decision in accordance with this regulation.

B. Except in the case of an expedited hearing, a proposed decision shall be submitted to the parties within 90 days from the date of the hearing or the filing of post-hearing submissions, whichever is later.

C. Exceptions to Proposed Decision.

  (1) Timing. Within 20 days from the date of receipt of a proposed decision, each party may file written exceptions to the proposed decision with the Secretary or the Commission, as appropriate. A response to exceptions may be filed within 10 days of a party's receipt of the exceptions. These time limitations may not be extended except with the approval of the Secretary or the Commission, whichever is presiding at the exceptions hearing.

  (2) Content. The exceptions shall contain the legal and factual bases for a party's appeal. A memorandum in support of the exceptions may also be prepared and shall be filed with the Secretary or the Commission, as appropriate, within 20 days from the receipt of the proposed decision. A response to exceptions may also be accompanied by a memorandum. The exceptions, responses to the exceptions, and accompanying memoranda shall contain copies of the portions of the record referred to.

  (3) Scheduling of Oral Argument.

    (a) Upon receipt of the exceptions, the Secretary or the Commission, as appropriate, shall set aside time for the presentation of oral argument. Unless a later date is agreed to by the parties, oral argument on the exceptions may not be heard later than 60 days following the Secretary's or the Commission's receipt of the exceptions. The Secretary or the Commission, as appropriate, shall notify all parties of the date, time, and place of oral argument.

    (b) The Secretary or the Commission, whichever is presiding at the exceptions hearing, may limit the time given to each party for oral argument.

    (c) A majority of the Commission members shall be present at all times during oral argument before the Commission.

  (4) Record.

    (a) Before oral argument, the entire record shall be transmitted to the Secretary or the Commission, whichever is presiding at the exceptions hearing.

    (b) Copies of the exceptions, responses to the exceptions, accompanying memoranda, and portions of the record attached to them shall be provided to the Secretary or to each Commission member, as appropriate, at least 7 days before oral argument.

    (c) The consideration of information which is not part of the record shall be in accordance with Maryland law.

#### Regulation .29 Final Decision.

*COMAR 13B.04.01.29*

A. After hearing oral argument and considering the record, the Secretary or the Commission by majority vote of those present, as appropriate, shall:

  (1) Adopt the proposed decision as the final decision of the agency;

  (2) Modify the proposed findings of fact, proposed conclusions of law, or proposed order, in whole or in part, and then adopt the modified proposed decision as the final decision of the agency;

  (3) Reverse the proposed decision and issue its own findings of fact, conclusions of law, or order; or

  (4) Remand the matter for further proceedings.

B. If exceptions have not been filed and, after reviewing a proposed decision, the Secretary or the Commission, as appropriate, concludes that the Secretary or the Commission is unable to approve the decision as written, the Secretary or the Commission, as appropriate, may:

  (1) Notify all parties and invite arguments from the affected parties on the issues the Secretary or the Commission is reconsidering; and

  (2) Hold a hearing within 90 days of issuance of the notice.

C. If no exceptions are filed or no hearing is held, the Secretary or the Commission, as appropriate, may adopt the proposed decision without change as the final decision of the agency.

D. The decision of the Secretary or the Commission, as appropriate, is the final decision of the agency for purposes of judicial review and, unless the matter is remanded for further proceedings, the date of the written decision shall be the date of the final decision of the agency.

E. A final decision shall:

  (1) Be in writing and served on all parties; and

  (2) Contain:

    (a) Findings of fact and conclusions of law, separately stated;

    (b) An order; and

    (c) A statement of the available procedures and time limitations for judicial review.

F. In the event of fraud, mistake, or irregularity, a final decision may be corrected at any time.

G. The Secretary or the Commission, as appropriate, may not entertain motions for reconsideration or applications for stay pending judicial appeal.

#### Regulation .30 Judicial Review.

*COMAR 13B.04.01.30*

A party who is aggrieved by a final decision is entitled to judicial review in accordance with Education Article, Title 11, Subtitle 2, and State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. The Secretary or the Commission, as appropriate, shall be a party to the proceeding. The final decision shall be presumed correct and the aggrieved party shall have the burden of proving otherwise.

### Chapter 02 — Open Sessions

**Authority:** Education Article, §11-105;State Government Article, §10-507; Annotated Code of Maryland

**Administrative History:** Effective date: March 29, 1993 (20:6 Md. R. 584)

#### Regulation .01 Definitions.

*COMAR 13B.04.02.01*

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

B. Terms Defined.

  (1) “Commission” includes the Maryland Higher Education Commission, its advisory councils, its committees, and any other public bodies under the authority and acting on behalf of the Maryland Higher Education Commission.

  (2) “Open session” means a meeting of the Commission that is required to be open to the public pursuant to the Open Meetings Act, State Government Article, Title 10, Subtitle 5, Annotated Code of Maryland.

#### Regulation .02 Public Attendance.

*COMAR 13B.04.02.02*

A. The general public is invited to attend and observe any open sessions of the Commission.

B. A member of the public attending an open session may not participate in the session except when the presiding officer expressly invites public testimony, questions, comments, or other forms of public participation.

#### Regulation .03 Disruptive Conduct.

*COMAR 13B.04.02.03*

A. An individual attending an open session may not engage in any conduct, including but not limited to visual demonstrations such as the display of placards, signs, or banners, that disrupts the session or interferes with the right of members of the public to attend and observe the session.

B. Authority of the Presiding Officer.

  (1) The presiding officer may order an individual who violates Sec. A of this regulation, or who violates any other regulation or resolution concerning the conduct of the open session, to be removed from the session, and may request police assistance to restore order.

  (2) The presiding officer may recess the session while order is restored.

C. An individual who is asked to leave the session in accordance with these regulations and who refuses to do so may be subject to arrest as provided by law.

#### Regulation .04 Recording, Photographing, and Broadcasting of Open Sessions.

*COMAR 13B.04.02.04*

A. A member of the public, including a representative of the news media, may:

  (1) Record the discussions at an open session using a tape recorder or other recording device if the device used does not create excessive noise that disturbs the open session or other individuals attending the session;

  (2) Photograph or videotape the proceedings of an open session using any type of camera if the camera is operated without excessively bright artificial light or excessive noise that disturbs the open session or other individuals attending the session.

B. A representative of the news media may broadcast or televise the open session if the equipment used is operated without excessively bright artificial light or excessive noise that disturbs the open session or other individuals attending the session.

C. The presiding officer may restrict the movement of an individual who is using a recording device, camera, or broadcasting or televising equipment if the restriction is necessary to maintain the orderly conduct of the open session.

#### Regulation .05 Recordings Not Part of Record.

*COMAR 13B.04.02.05*

A recording of an open session made by a member of the public, including a representative of the news media, or any transcript derived from a recording, is not a part of the record of the open session.

### Chapter 03 — Access to Public Records

**Authority:** Education Article, § 11-105(s);State Government Article, § 10-613(b); Annotated Code of Maryland

**Administrative History:** Effective date: October 11, 1993 (20:20 Md. R. 1573)

#### Regulation .01 Purpose.

*COMAR 13B.04.03.01*

These regulations set forth procedures for the disclosure, inspection, or copying of records maintained by the Maryland Higher Education Commission. It is the policy of the Maryland Higher Education Commission to facilitate public access to the Commission's records when access is allowed by law.

#### Regulation .02 Definitions.

*COMAR 13B.04.03.02*

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

B. Terms Defined.

  (1) “Act” means State Government Article, § 10-611—10-628, Annotated Code of Maryland.

  (2) “Commission” means the Maryland Higher Education Commission, its advisory councils, its committees, any other public bodies under the authority and acting on behalf of the Maryland Higher Education Commission, the Maryland State Scholarship Administration, and any employees, agents, or contractors acting on behalf of the Commission.

  (3) “Custodian” means the head of a Commission organizational unit or authorized Commission employee having personal custody and control of the public record that is the subject of a request under the Act.

  (4) “Official custodian” means the person who is responsible for the maintenance, care, and keeping of the public records of the Commission. Unless otherwise provided by law, the Secretary is the official custodian of all public records of the Commission.

  (5) “Person in interest” means a person or governmental unit that is the subject of a public record, or an authorized designee of the person or governmental unit, or, if the person has a legal disability, a parent or legal representative of the person.

  (6) Public Record.

    (a) “Public record” means the original or any copy of any documentary material, regardless of physical form or characteristics, made or received by the Commission in connection with the transaction of public business.

    (b) “Public record” includes a document that contains the salary of an official or employee of the Commission.

  (7) “Requester” means a person or governmental unit requesting access to public records under the Act.

  (8) “Secretary” means the Secretary of Higher Education.

  (9) Sociological Information.

    (a) “Sociological information” means any of the following information requested from the Commission:

      (i) Scholarship and financial aid records of individual students or their families, except as provided by Regulation .09 of this chapter;

      (ii) Records about the biography, family, race, ethnic background, physiology, religion, academic achievement, or physical or mental ability of a student;

      (iii) Social security numbers;

      (iv) Personal addresses;

      (v) Personal phone numbers; and

      (vi) Information regarding marital status, dependents, or relatives.

    (b) “Sociological information” includes the part of a public record that contains information about the licensing of an individual in an occupation or profession, except that the custodian shall permit inspection of the part of a public record that gives:

      (i) The name of the licensee;

      (ii) The business address of the licensee or, if the business address is not available, the home address;

      (iii) The business telephone number of the licensee;

      (iv) The educational and occupational background of the licensee;

      (v) The professional qualifications of the licensee;

      (vi) Orders and findings that result from formal deficiency actions; and

      (vii) Evidence that has been provided to the custodian to meet the requirements of a statute as to financial responsibility.

  (10) “Working day” means a day other than Saturday, Sunday, or a State holiday.

#### Regulation .03 Requests to Inspect or Copy Records.

*COMAR 13B.04.03.03*

A. A person or governmental unit may request access to inspect or copy public records of the Commission.

B. A requester shall direct the request to the custodian. If the custodian is not known, the requester may direct the request to the official custodian.

#### Regulation .04 Necessity for Written Request.

*COMAR 13B.04.03.04*

A. The custodian may make public records available for inspection or copying, or both, to a requester without a written request.

B. Written requests are required when the custodian reasonably believes that:

  (1) A written application will facilitate the Commission in responding to the request; or

  (2) The Act or any other law may prohibit disclosure of the public record or parts of it.

C. The custodian may require a written request when the requester is requesting copies of a public record.

#### Regulation .05 Contents of Written Request.

*COMAR 13B.04.03.05*

A written request shall:

A. Contain the requester's name and address;

B. Reasonably identify the public record sought; and

C. Be signed by the requester.

#### Regulation .06 Response to Written Request.

*COMAR 13B.04.03.06*

A. If a requested public record is not in the custody or control of the person to whom the written request is made, that person shall, within 10 working days of the receipt of the request:

  (1) Notify the requester of that fact;

  (2) Relate to the requester the identity or location, or possible location, of the custodian, if known; and

  (3) Forward the request to the custodian, if known.

B. If the custodian decides to grant a written request, the custodian shall produce the record for inspection immediately or within a reasonable period of time that is needed to retrieve and prepare the public records, but not to exceed 30 days from the date the custodian receives the written request.

C. If the custodian decides to deny a written request, the custodian shall do so within 30 days from the date the custodian receives the written request. Upon deciding to deny the request, the custodian shall immediately notify the requester of the denial. Within 10 working days of the denial, the custodian shall transmit to the requester a written statement that sets forth the reasons and legal authority for the denial and that contains a notice of the remedies for review of the denial. The custodian shall permit inspection of any part of the public record that is subject to inspection and is reasonably severable.

D. With the consent of the requester, a time limit imposed by Sec. A—C of this regulation may be extended for an additional period not to exceed 30 days.

#### Regulation .07 Notification of Persons in Interest.

*COMAR 13B.04.03.07*

A. The custodian, unless prohibited by law, may notify a person in interest who is the subject of a public record that a request for inspection or copying of that record has been received.

B. In determining whether to notify the person in interest of the pending request, the custodian shall take into account a request from the person in interest, submitted simultaneously with information submitted to the Commission, that the information not be disclosed without consultation between the custodian and the person in interest.

C. The custodian may consider the views of the person in interest before deciding whether to disclose the record.

#### Regulation .08 Disclosure of Student Educational Records.

*COMAR 13B.04.03.08*

A. The Commission shall regularly collect, in accordance with its mandated responsibilities, information on students enrolled in secondary and postsecondary institutions within the State. This information shall be collected on an aggregated or summary basis, but the Commission may collect data on an individual basis for the purpose of evaluating and improving the instruction provided by the educational system of the State.

B. Individual Student Records.

  (1) The Commission shall recognize that the education records of State secondary and postsecondary institutions are protected under the Family Educational Rights and Privacy Act, 20 U.S.C. Sec. 1232g. Accordingly, when obtaining student records, the Commission shall abide by that statute and 34 CFR 99 (1990), which is incorporated by reference.

  (2) The Commission shall respond to all written requests to inspect, review, or correct individual student records in accordance with this chapter.

  (3) If the Commission or the Secretary determines that disclosure of student record information is necessary in order to conduct research designed to improve instruction, the disclosure shall be made in compliance with 34 CFR 99 (1990), which is incorporated by reference.

#### Regulation .09 Disclosure of Scholarship and Financial Aid Information.

*COMAR 13B.04.03.09*

A. The Commission shall provide upon request a list of scholarship recipients for all programs that it administers that are not required by law to be based wholly or in part on financial need.

B. The lists of scholarship recipients shall be by program, and shall contain names and city, county, or legislative district, as appropriate. Otherwise, all personally identifiable scholarship and financial aid information held by the Commission is considered sociological information, subject to Regulation .10 of this chapter.

#### Regulation .10 Sociological Information.

*COMAR 13B.04.03.10*

A. Except as provided in Regulations .08 and .09 of this chapter and §B of this regulation, the custodian may not disclose sociological information to a requester.

B. The custodian may disclose sociological information under the following circumstances:

  (1) To the person in interest;

  (2) Pursuant to an issued subpoena;

  (3) Disclosure which is otherwise required by law; or

  (4) The Secretary or Commission determines that disclosure is in the public's best interest.

C. For individual student education records, a disclosure made pursuant to §B(4) of this regulation shall be made in conformity with 34 CFR 99 (1990), which is incorporated by reference.

#### Regulation .11 Records Destroyed or Lost.

*COMAR 13B.04.03.11*

If a requested record has been destroyed or lost, the custodian to whom the request is made shall notify the requester of this fact as soon as possible and within 30 days of receipt of the request. The custodian shall explain in the response the reasons why the record cannot be produced.

#### Regulation .12 Records Temporarily Unavailable.

*COMAR 13B.04.03.12*

If a requested record is temporarily unavailable, the custodian shall notify the requester of this fact as soon as possible and within 30 days of receipt of the request, and shall explain in the response the reason why the record is temporarily unavailable and relate the date on which the record is expected to become available.

#### Regulation .13 Review of a Denial.

*COMAR 13B.04.03.13*

A. If the custodian denies a written request for a reason other than that the record is destroyed, lost, or temporarily unavailable, the requester may, within 30 days after receipt of a notice of denial, request an administrative hearing.

B. If the administrative hearing results in a total or partial denial of the written request, the requester may file an appropriate action in the circuit court in accordance with State Government Article, §10-623, Annotated Code of Maryland.

C. A requester who is denied access to a public record may file an action for judicial review under State Government Article, §10-623, Annotated Code of Maryland, without exhausting the administrative remedy set forth in this regulation.

#### Regulation .14 Disclosure Against Public Interest.

*COMAR 13B.04.03.14*

If, in the opinion of the Secretary, disclosure of a public record which is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the Secretary may temporarily deny the request in writing, and shall apply within 10 working days of the denial to the appropriate circuit court for an order permitting the Secretary to continue to deny or restrict the disclosure. Notice of the application filed with the circuit court shall be served upon the requester in accordance with the Maryland Rules of Procedure.

#### Regulation .15 Fees.

*COMAR 13B.04.03.15*

A. Fee Schedule.

  (1) The Commission may charge reasonable fees in accordance with the fee schedule in §A(2)—(4) of this regulation.

  (2) Copies. The fee for each copy is 25 cents per page when reproduction can be made by a photocopying machine within the Commission. When records are not reasonably amenable to photocopying within the Commission, the fee for reproducing the record is based on the actual cost of reproduction.

  (3) Certification of Copies. When a person requests that a copy of a record be certified as a true copy of the original public record, the Commission shall charge an additional cost of $1 per page.

  (4) Searching or Record Preparation. There is no charge for the first 2 hours needed to search for a public record and prepare it for inspection. The Commission may charge $20 per hour for additional time required to search for or prepare public records for inspection or copying.

B. Notwithstanding Sec. A of this regulation, if the fees for copies, printouts, photographs, or certified copies of a record are specifically required by a law other than the Act or this regulation, the specific fee contained in that law determines the amount charged for that record.

C. If the custodian is unable to copy a record within the Commission, the custodian shall make arrangements for the prompt reproduction of the record at public or private facilities outside the Commission. The custodian shall either:

  (1) Collect from the requester a fee that is sufficient to pay the actual cost of reproduction; or

  (2) Direct the requester to pay the cost of reproduction directly to the facility making the copy.

D. Before copying a record, the custodian shall estimate the cost of copying and obtain the agreement of the requester that the cost shall be paid. The custodian may demand prepayment of any estimated fee before copying the record. If prepayment is required, the time limitations contained elsewhere in these regulations do not begin until the payment is made.

E. Upon written request, the official custodian may waive or reduce a fee charged pursuant to this regulation if the custodian determines that the waiver or reduction is in the public interest. The official custodian shall consider, among other relevant factors, the ability of the requester to pay the cost or fee.

F. If a requester requests that copies be mailed or delivered, the custodian may charge the requester for the cost of postage or delivery.

#### Regulation .16 Time of Inspection.

*COMAR 13B.04.03.16*

A requester may inspect a public record to which access is granted during the normal working hours of the Commission.

#### Regulation .17 Place of Inspection.

*COMAR 13B.04.03.17*

The place of inspection is the place where the document is located unless the custodian determines that another place of inspection is more suitable.

#### Regulation .18 Corrections of Public Record.

*COMAR 13B.04.03.18*

A. A person in interest may request the Commission to correct inaccurate or incomplete information in a public record that:

  (1) Is maintained by the Commission; and

  (2) The person in interest is authorized to inspect.

B. Contents of Request. A request under this regulation shall:

  (1) Be in writing;

  (2) Describe the requested change precisely; and

  (3) State the reasons for the change.

C. Action on Request.

  (1) Within 30 days after receiving a request under this regulation, the custodian shall:

    (a) Make or refuse to make the requested change; and

    (b) Give the person in interest written notice of the action taken.

  (2) A notice of refusal shall contain the custodian's reasons for the refusal.

D. Statement of Disagreement.

  (1) If the Commission finally refuses a request under this regulation, the person in interest may submit to the Commission a concise statement that, in five pages or less, states the reasons for the request and for disagreement with the refusal.

  (2) Whenever the Commission provides the disputed information to a third party, the Commission shall provide to that party a copy of the statement submitted to the Commission by the person in interest.

E. Administrative and Judicial Review. A person in interest may seek administrative and judicial review of:

  (1) A decision of the Commission to deny a:

    (a) Request to change a public record; or

    (b) Right to submit a statement of disagreement; or

  (2) The failure of the Commission to provide the statement of disagreement to a third party.

F. Procedures. If a person in interest seeks judicial review, it shall be in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.