Title 14. Independent Agencies

Subtitle 01 — Prescription Drug Affordability Board

Chapter 01. General Provisions

Regulation .01 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Abbreviated new drug application (ANDA)” means a submission to the FDA for the review and potential approval for marketing of a generic drug product, including bioequivalence data, as defined in 21 CFR §314.3 and described under 21 CFR §314.50.

(2)

“Accelerated approval” means the FDA drug approval process defined in 21 U.S.C. §356(c)(1)(A).

(3)

“Active ingredient” means a component of a drug that is intended to provide pharmacological activity or other direct effect in the diagnosis, cure, mitigation, treatment, or prevention of disease, or to affect the structure or any function of the body, as defined in 21 CFR §314.3.

(4)

“Active moiety” means the molecule or ion responsible for the physiological or pharmacological action of the drug substance, excluding those appended portions of the molecule that cause the drug to be an ester, salt, or other noncovalent derivative of the molecule, as defined in 21 CFR §314.3.

(5)

“Average cost share” means the sum of the cost share of a prescription drug product for each patient, divided by the number of patients.

(6)

“Average payor cost per patient” means the sum of the total dollars paid by all payors over the most recent calendar year, divided by the number of patients.

(7)

“Average sales price (ASP)” has the meaning stated in 42 U.S.C §1395w-3a(c)(1).

(8)

“Average total out-of-pocket cost” means the sum of all patient total out-of-pocket costs, divided by the number of patients.

(9)

“Average wholesale price (AWP)” means the average suggested price paid by a retailer to buy a drug from a wholesaler, excluding price concessions, discounts, and rebates.

(10)

“Biologic” means a biological product, as defined in 42 U.S.C. §262(i)(1).

(11)

“Biologics license application (BLA)” means a request to the FDA to introduce, or deliver for introduction, a biological product, as defined in 21 CFR §600.3(h), into interstate commerce, as regulated under 21 CFR §600-680.

(12)

“Biosimilar” means a biological product, as defined in 42 U.S.C. §262(i)(2), that is produced or distributed in accordance with a biologics license application approved under 42 U.S.C. §262(k)(3).

(13)

“Board” has the meaning stated in Health-General Article, §21-2C-01, Annotated Code of Maryland.

(14)

“Board staff” means an employee of the Board or a qualified independent third party that has contracted with the Board and is subject to a nondisclosure or confidentiality agreement.

(15)

“Brand name drug” has the meaning stated in Health-General Article, §21-2C-01, Annotated Code of Maryland.

(16)

“Carrier” has the meaning stated in Health-General Article, §19-132, Annotated Code of Maryland.

(17)

“Chair” means the chair of the Board, as provided in Health-General Article, §21-2C-03, Annotated Code of Maryland.

(18)

“Coinsurance” means the percentage of costs paid by the patient after meeting the deductible.

(19)

“Consumer Price Index for All Urban Consumers (CPI-U)” means the measure of the average change over time in the prices paid by urban consumers for a defined market basket of consumer goods and services.

(20)

“Copayment” means the set dollar amount that a patient pays for prescriptions or services covered by the patient’s health insurance, separate from the deductible.

(21)

“Cost share” means the patient total out-of-pocket costs divided by gross spending.

(22)

“Deductible” means the set amount a patient pays for health and medical services and products each calendar year before a health insurance plan begins to provide coverage, usually expressed in dollars.

(23)

“Discount” means a monetary adjustment that reduces the price paid or dollar amount received by an entity engaging in a prescription drug transaction that occurs during the prescription drug transaction as reflected on the invoice.

(24)

“Disease burden” means the impact of a health condition measured by financial cost, mortality, morbidity, severity, and epidemiological indicators.

(25)

“Drug class” means the grouping of medications based on a common active ingredient, or ingredients, or by pharmacologic or therapeutic class.

(26)

“Drug-specific patient access program” means a program designed to provide a patient with assistance in affording a prescription drug or paying for a prescription drug, including but not limited to the provision of a drug to a patient, coupons supplied by the manufacturer, donations to a nonprofit or foundation associated with the manufacturer, and donations to an independent nonprofit that are earmarked expressly for the manufacturer’s drugs.

(27)

“Federal Supply Schedule (FSS)” means the drug pricing program under the collection of multiple award contracts used by federal agencies, U.S. territories, Indian tribes, and other specified entities to purchase supplies and services from outside vendors.

(28)

“Food and Drug Administration (FDA)” means the federal agency of the U.S. Department of Health and Human Services tasked with protecting and promoting public health through the control and supervision of food safety, tobacco products, dietary supplements, prescription and over-the-counter pharmaceutical drugs, vaccines, biopharmaceuticals, medical devices, and certain other consumer products.

(29)

“Formulary” has the meaning stated in Insurance Article, §15-1601, Annotated Code of Maryland.

(30)

“Fund” means the Prescription Drug Affordability Fund, as provided for in Health-General Article, §21-2C-11, Annotated Code of Maryland.

(31)

“Generic drug” has the meaning stated in Health-General Article, §21-2C-01, Annotated Code of Maryland.

(32)

“Gross spending” means the sum of all monies paid for a prescription drug product for an individual patient in a calendar year.

(33)

“Health economics and outcomes research” means the form of economic analysis that compares the relative costs and outcomes of different treatments, such as cost effectiveness analysis, comparative effectiveness research, health economic information analysis, and health technology assessments.

(34)

“Health maintenance organization (HMO)” has the meaning stated in Health-General Article, §19-701, Annotated Code of Maryland.

(35)

“Indication” means labeling that discusses the disease or condition the drug product is intended to diagnose, treat, prevent, cure, or mitigate, including a description of the patient population.

(36)

“Insurance benefit design” means the rules that determine the services covered by the plan and any other cost-sharing measures.

(37)

“Managed care organization (MCO)” has the meaning stated in Health-General Article, §15-102.4, Annotated Code of Maryland.

(38)

“Manufacturer” has the meaning stated in Health-General Article, §21-2C-01, Annotated Code of Maryland.

(39)

“Maryland Medical Care Database (MCDB)” means the database established and maintained by the Maryland Health Care Commission pursuant to Health-General Article, §19-133, Annotated Code of Maryland.

(40)

“Medicaid” means the public health program jointly administered by the federal government and states that primarily serves low-income people (children, parents, and, in certain states, other adults) and some medically needy patients.

(41)

“Medicare” means the health insurance program administered by the federal government for people 65 years old or older or with certain disabilities.

(42)

“National average drug acquisition cost (NADAC)” means the pricing benchmark calculated from the Centers for Medicare & Medicaid Services’ (CMS) monthly surveys of retail pharmacies that reflects the average price pharmacies pay to acquire a drug from a wholesaler or manufacturer, excluding subsequent discounts or rebates from manufacturers to wholesalers or pharmacies.

(43)

“National Drug Code (NDC)” means the unique three-segment number used for identification and reporting as set forth in 21 CFR §207.33.

(44)

“Net cost” means the per-unit cost paid by payors and purchasers of a drug after accounting for all price concessions, discounts, and rebates.

(45)

“Net price” means the per-unit amount received by manufacturers of a drug after accounting for price concessions, discounts, and rebates.

(46)

“New drug application (NDA)” means a submission to the FDA for the review and potential approval for marketing of a drug product, which includes chemical, pharmacological, medical, biopharmaceutical, and statistical data, as defined in 21 CFR §314.3 and described under 21 CFR §314.50.

(47)

“Other cost-sharing” means a program, benefit design, or other mechanism that determines a patient’s responsibility for a prescription drug product, such as a copayment, coinsurance, deductible, formulary, or other management tool.

(48)

“Out-of-pocket costs” means the expenses for medical care, including prescription drug therapy, that are not reimbursed by insurance and are paid by a patient, including copayments, coinsurance, and deductibles for covered services, and the costs for all non-covered services.

(49)

“Patient total out-of-pocket costs” means the sum of a patient’s out-of-pocket costs, including items such as copayments, coinsurance, and deductibles, in a calendar year.

(50)

“Payor” means the entity other than the patient that is responsible for paying for health care costs, including health insurance carriers, health plan sponsors, PBMs, Medicare, Medicaid, MCOs, and HMOs.

(51)

“Person” means an individual, limited liability company, partnership, corporation, association, county, and public or private organization of any character other than an agency.

(52)

“Pharmacy benefit manager (PBM)” means a third-party administrator of prescription drug programs as stated in Insurance Article, §15-1601, Annotated Code of Maryland.

(53)

“Prescription drug product” has the meaning stated in Health-General Article, §21-2C-01, Annotated Code of Maryland.

(54)

“Price concession” means a mechanism other than a rebate or discount that reduces the price paid by a payor.

(55)

“Proprietary” means something that is used, produced, or marketed under the exclusive legal right of the inventor, maker, or owner.

(56)

“Purchaser” means an entity that purchases prescription drug products that is not a payor or patient.

(57)

“Rebate” means a monetary adjustment that reduces the price paid or dollar amount received by an entity engaging in a prescription drug transaction that occurs after the prescription drug transaction.

(58)

“Regulatory exclusivity” means any exclusive marketing rights or data exclusivity rights conferred by the FDA with respect to a pharmaceutical product other than patents, including but not limited to 180-day exclusivity, orphan drug exclusivity, new chemical entity exclusivity, data exclusivity, and pediatric exclusivity.

(59)

“Stakeholder Council” means the Prescription Drug Affordability Stakeholder Council, as provided for in Health-General Article, §21-2C-04, Annotated Code of Maryland.

(60)

“Standard medical practice” means the customary treatment by medical professionals:

(a)

Based on credible scientific evidence published in peer reviewed medical literature generally recognized by the relevant medical community;

(b)

Consistent with physician specialty society recommendations; or

(c)

Consistent with the views of physicians practicing in the relevant clinical areas.

(61)

“State actual acquisition cost (SAAC)” has the meaning stated in COMAR 10.09.03.01B(42).

(62)

“System net cost” means the sum of the net cost as defined above and the per unit patient out-of-pocket cost.

(63)

“Therapeutic alternative” means a drug product that has one or more of the same or similar indications for use as a particular drug but is not a therapeutic equivalent to that drug.

(64)

“Therapeutic class” means a group of drugs containing active moieties that share scientifically documented properties and are defined on the basis of any combination of three attributes: mechanism of action, physiologic effect, and chemical structure.

(65)

“Therapeutic equivalent” has the meaning stated in 21 CFR §314.3.

(66)

“Total gross spending” means the sum of all monies paid for a prescription drug product in a calendar year.

(67)

“Total patient out-of-pocket cost” means the sum of all patient out-of-pocket costs in a calendar year, including items such as copayments, coinsurance, and deductibles.

(68)

“Trade secret” has the meaning stated in Commercial Law Article, §11-1201, Annotated Code of Maryland.

(69)

“Wholesale acquisition cost (WAC)” means the manufacturer’s list price for a prescription drug product to wholesalers or direct purchasers in the United States, not including prompt pay or other discounts, rebates, or reductions in price, as reported in a wholesale price guide or other publication of prescription drug product pricing data.

(70)

“Wholesale distributor” has the meaning stated in Health Occupations Article, §12-6C-01, Annotated Code of Maryland.

(71)

“Utilization” means information about the use of a drug including the number of units, the number of patients and number of prescriptions or claims.

Regulation .02 Rules of Construction.Link Copy Citation

Singular and Plural. In interpreting and applying this subtitle, the singular includes the plural.

Computation of Time.

(1)

In computing a period of time prescribed by this subtitle or an applicable statute, after a day, act, or event occurs, the following rules apply:

(a)

The day of the act, event, or default after which the designated period of time begins to run is not included;

(b)

If the period of time allowed is more than 7 days, intermediate Saturdays, Sundays, and legal holidays are counted;

(c)

If the period of time allowed is 7 days or less, intermediate Saturdays, Sundays, and legal holidays are not counted; and

(d)

The last day of the computed period is included unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day that is a work day.

(2)

In computing a period of time prescribed by this subtitle or an applicable statute, before a day, act, or event occurs, the following rules apply:

(a)

In determining the latest day for performing an act that is required to be performed a prescribed number of days before a certain day, act, or event, all days preceding that day, including intervening Saturdays, Sundays, and legal holidays, are counted in the number of days so prescribed; and

(b)

The latest day is included in the determination unless it is a Saturday, Sunday, or legal holiday, in which event the latest day is the first preceding day that is a work day.

Regulation .03 Open Meetings.Link Copy Citation

Public Attendance.

(1)

The general public is invited to attend and observe an open session of the Board.

(2)

A member of the public attending an open session may not participate in the session, except when:

(a)

The Board expressly invites public testimony, questions, comments, or other forms of public participation; or

(b)

Public participation is otherwise authorized by law or regulation.

(3)

The Chair, or the Chair’s designee, may extend or waive any time requirement in this regulation.

Public Comments. A member of the public may provide oral public comment and written public comment in accordance with Regulation .05 of this chapter.

Disruptive Conduct.

(1)

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

(2)

Restoring Order. The presiding officer or Chair may:

(a)

Order an individual who persists in conduct prohibited by §C(1) of this regulation, or who has violated any other regulation concerning the conduct of the open session, to be removed or disconnected from the session, and may request police assistance to restore order; and

(b)

Recess the session while order is restored.

Regulation .04 Confidential, Trade-Secret, and Proprietary Information.Link Copy Citation

Collection of Records and Information.

(1)

Identification.

(a)

A person submitting information, including data and records, for the Board’s consideration under this subtitle and Health-General Article, Title 21, Subtitle 2C, Annotated Code of Maryland, shall:

(i)

Clearly designate the specific information the person considers to be confidential, trade-secret, or proprietary; and

(ii)

Submit a form certifying that the information so designated is not otherwise publicly available and has been handled and maintained to preserve its confidential, trade-secret, or proprietary nature.

(b)

The Board may also determine that information it has received is confidential, trade-secret, or proprietary.

(c)

The Board may seek additional information regarding whether the information is confidential, trade-secret, proprietary, or not otherwise publicly available from:

(i)

The person submitting the information; or

(ii)

To the extent the Board is able to determine who created the document or information, the person who created the document or information.

(2)

Designation. The information and data obtained by the Board under this subtitle and Health-General Article, Title 21, Subtitle 2C, Annotated Code of Maryland, that is not otherwise publicly available, is:

(a)

Considered to be a trade secret and confidential and proprietary information; and

(b)

Is not subject to inspection or disclosure under the Public Information Act.

Management of Information Received by the Board.

(1)

Access to Information.

(a)

Confidential, trade-secret, or proprietary information obtained by the Board under this subtitle and Health-General Article, Title 21, Subtitle 2C, Annotated Code of Maryland, may be accessed only by:

(i)

Board members; and

(ii)

Board staff including a qualified independent third party that has contracted with the Board and is subject to a nondisclosure agreement prohibiting disclosure of such information.

(b)

A person with access to confidential, trade-secret, or proprietary information shall maintain the confidentiality of the information in accordance with State Government Article, §10-617, and Health-General Article, §21-2C-10, Annotated Code of Maryland.

(2)

Consideration by Board.

(a)

The Board may discuss confidential, trade-secret, and proprietary information in a closed session.

(b)

The Board may not disclose confidential, trade-secret, or proprietary information in an open meeting, its public meeting materials, or its summary report of a cost review study.

Regulation .05 Public Comment Procedures.Link Copy Citation

Public Oral Comments for a Board Meeting.

(1)

A member of the public may register to provide oral comments at a Board meeting by:

(a)

Submitting a written notice that:

(i)

Contains the individual’s name and email address or phone number;

(ii)

Identifies whether the individual is affiliated with or commenting on behalf of an organization, agency, employer, or other entity; and

(iii)

Identifies the agenda item the individual wishes to address; and

(b)

Submitting the written notice to the Board at least 2 work days before the scheduled meeting.

(2)

Oral comments shall be made to the Board in open session.

Public Written Comment Procedures.

(1)

General Procedures.

(a)

Unless expressly exempted, these provisions apply to all written public comments.

(b)

Except as provided in §B(5) of this regulation, a member of the public may submit written comments to the Board by email, courier, or postal service.

(c)

An individual submitting comments on behalf of an organization, agency, employer, or other entity shall:

(i)

Submit the comments on the letterhead of the organization, agency, employer, or other entity; or

(ii)

Disclose in writing the organization, agency, employer, or other entity with which the individual is affiliated;

(d)

Written comments received by the date prescribed by regulation or set by the Board will be:

(i)

Shared with the Board;

(ii)

Where applicable, made part of the record on the issue or matter before the Board where applicable; and

(iii)

Posted on the Board’s website.

(e)

Board staff shall redact sociological information prior to posting the written comments on the Board website.

(2)

Public Written Comments for a Board Meeting.

(a)

A member of the public may submit written comments concerning any agenda item of the Board or any decision pending before the Board in accordance with the procedures in §B(1) and (5) of this regulation.

(b)

Written comments received more than 2 work days before the scheduled Board meeting will be shared with the Board prior to the Board meeting.

(c)

Written comments received less than 2 work days before the scheduled Board meeting will be shared with the Board and posted on the Board’s website after the scheduled meeting.

(d)

Written comments received less than 2 work days before the scheduled Board meeting may be considered at the next Board meeting if the issue, matter, or decision is still pending.

(3)

Public Written Comments Authorized by Regulation. If a regulation expressly provides for public written comment, a member of the public may submit written comments to the Board within the time period prescribed by regulation in accordance with the procedures in §B(1) and (5) of this regulation.

(4)

Public Written Comments Requested by the Board. If the Board requests public comment by posting notice of the request and a due date on its website, a member of the public may submit written comments to the Board within the time period prescribed by the notice in accordance with the procedures in §B(1) and (5) this regulation.

(5)

Public Written Comments Containing Confidential, Trade-Secret, and Proprietary Information.

(a)

A member of the public that wishes to submit written comments or attachments to written comments that contain confidential, trade-secret, and proprietary information shall:

(i)

Redact the specific information the person considers to be confidential, trade-secret, or proprietary from the written comments and attachments;

(ii)

Submit a form certifying that the redacted information is not otherwise publicly available and has been handled and maintained to preserve its confidential, trade-secret, or proprietary nature;

(iii)

Submit the redacted comments and attachments to the Board by email, courier, or postal service; and

(iv)

Submit the unredacted comments and attachments to the Board in paper form using a tracked common carrier, courier, or postal service, or electronically using secure file transfer.

(b)

The Board and Board staff shall use, protect, and manage written comments and attachments containing confidential, trade-secret, and proprietary information in compliance with Regulation .04 of this chapter and Health-General Article, §§21-2C-03 and 21-2C-10, Annotated Code of Maryland.

Regulation .06 Hearing Procedures.Link Copy Citation

Scope.

(1)

This regulation applies to hearings held:

(a)

To gather information from the general public before making recommendations or taking action with respect to a policy; or

(b)

For the purpose of receiving technical input, technical information or expert testimony before making recommendations or taking action with respect to a policy.

(2)

This regulation does not apply to contested case hearings, any part of an appeal process or a hearing where the purpose is other than to gather information from:

(a)

The public;

(b)

A person with a specific interest in the issue including a stakeholder; or

(c)

A person with specific knowledge, skills, expertise or technical information or input.

General Hearing Provisions.

(1)

Notice of Hearing.

(a)

The Board shall publish a notice of the hearing on the Board’s website.

(b)

The Board shall include in the notice of the hearing:

(i)

The date and time of the hearing;

(ii)

The physical location of the hearing, or link or registration information if the hearing is held remotely or live streamed;

(iii)

The purpose of the hearing;

(iv)

A statement that the Board will make reasonable accommodation for individuals with disabilities if these individuals advise the Board of their special needs by giving the Board reasonable advance notice; and

(v)

Any other applicable information.

(2)

Conducting a Quasi-Legislative Hearing.

(a)

A hearing held under this regulation is quasi-legislative and may be conducted or presided over by:

(i)

The Board Chair; or

(ii)

Designee.

(b)

The Chair or designee shall determine the conduct of the hearing, including:

(i)

The order of presentation; and

(ii)

Time limits for questions and testimony.

(c)

The Chair or designee may:

(i)

Order a person who engages in disruptive behavior that interferes with the orderly conduct of the hearing to be removed from the hearing;

(ii)

Request police assistance to assure or restore order; and

(iii)

Recess a disorderly hearing.

(d)

For hearings held under this regulation the following does not apply:

(i)

The right of cross-examination; and

(ii)

The rules of evidence.

(e)

If an exhibit is offered and is relevant to the hearing, the Chair or designee shall receive and mark the exhibit offered in testimony.

(f)

Unless the Chair or designee believes that an oath provides some assurance of veracity, formality, or decorum to the hearing, the Chair or designee may dispense with the formality of an oath.

(g)

The Chair or designee has discretion to:

(i)

Postpone or continue the hearing; and

(ii)

Accept additional materials beyond the date of the hearing.

Informational Hearings.

(1)

Convening an Informational Hearing.

(a)

The Board may, through Board staff, convene informational hearings to receive input, information, and opinions from the public and stakeholders to inform the consideration and development of a recommendation, policy, regulation or action.

(b)

The Board shall provide public notice of the hearing in accordance with §B of this regulation.

(c)

In advance of the scheduled hearing, the Board may identify and publish questions, topics or matters about which the Board would like to receive information.

(2)

Conducting an Informational Hearing.

(a)

A person who wishes to provide input, information and opinions by testifying shall:

(i)

(ii)

Provide the information requested by staff.

(b)

The Chair or designee shall give all persons who register to speak an opportunity to do so but may limit repetitious testimony.

(c)

The Chair or designee may:

(i)

Allow questions from the audience;

(ii)

Take questions from the audience and redirect the questions to others present at the hearing;

(iii)

Ask questions of anyone present at the hearing; and

(iv)

Refer questions to Board staff who may respond after the hearing.

(d)

Following an informational hearing, Board staff may provide the Board with summaries of the information received and staff’s recommendations.

Technical Hearings.

(1)

Convening a Technical Hearing.

(a)

The Board may convene a hearing for the purpose of receiving technical input, technical information or expert testimony from persons with specific knowledge, skills or expertise.

(b)

The Board shall provide public notice of the hearing in accordance with §B of this regulation.

(c)

The Board shall identify and invite a person to testify at a technical hearing to provide technical input, technical information or expert testimony on an issue the Board wishes to explore.

(d)

The Board may request that a person invited to testify submit a written statement to the Board two business days before the scheduled hearing.

(2)

Conducting a Technical Hearing.

(a)

The Chair may:

(i)

Ask questions of any person present at the hearing;

(ii)

Allow each Board member to ask questions of any person present at the hearing; and

(iii)

Refer questions to Board staff who may respond after the hearing.

(b)

Following a technical hearing, Board staff may provide the Board with summaries of the information received and staff’s recommendations.

Recordings of Quasi-Legislative Hearings.

(1)

At the Board’s discretion, the Board or court reporter service may record the hearing.

(2)

If a court reporter service records the hearing:

(a)

The Board shall arrange for the court reporter service to retain the recording for 1 year following the final decision or action; and

(b)

A person who desires a copy of the transcript may purchase a copy from the court reporter service.

(3)

If Board staff records the hearing:

(a)

The Board shall keep the recording with the original of the record; and

(b)

A person who desires a copy of the transcript may purchase a copy from the Board for a reasonable cost in accordance with COMAR 14.01.03, if a transcript has been prepared.

Hearing Record.

(1)

The Chair or designee controls the record.

(2)

The Chair or designee shall assemble a record that may include the following:

(a)

Exhibits and documents entered into the record;

(b)

Documents concerning the hearing such as a proposed regulation, the purpose of the hearing and public notice of the hearing;

(c)

Relevant supporting and opposing documentation obtained before, during, and subsequent to the hearing;

(d)

The register of persons who attended the hearing including name, address, and any affiliation relevant to the hearing;

(e)

In accordance with §E of this regulation, any:

(i)

Full or partial transcript of the hearing made or purchased by the Board, and

(ii)

A recording or stenographic notes of the hearing made by the Board; and

(f)

Board staff’s summaries of the information received and staff’s recommendations, if any.

(3)

The record of a policy action may include the hearing records of multiple hearings, public written comments, comments at Board meetings, Stakeholder Council input, any input, data, or information received and considered by the Board and any final action or decision.

Subtitle 01 — Prescription Drug Affordability Board

Chapter 02. Prescription Drug Affordability Fund

Regulation .01 Prescription Drug Affordability Fund.Link Copy Citation

The Prescription Drug Affordability Fund is a special, non-lapsing fund that is not subject to State Procurement Article, §7–302, Annotated Code of Maryland.

The Prescription Drug Affordability Fund consists of:

(1)

The assessment provided for by Regulation .02 of this chapter;

(2)

Money appropriated by the State budget;

(3)

Interest earnings; and

(4)

Any other money from any other source accepted for the benefit of the Fund.

Regulation .02 Fee Assessment, Exemption, Waiver, and Collection.Link Copy Citation

Annual Assessment.

(1)

In each State fiscal year, the Board shall issue a fee assessment to each entity identified in Health-General Article, §21-2C-11, Annotated Code of Maryland, and Regulation .03 of this chapter and collect the assessment.

(2)

Unless the entity requests and is granted an exemption from the assessment, the entity shall pay the assessment by October 1.

(3)

An entity may pay the assessment by ACH transfer, wire transfer, or check.

Exemption from Assessment.

(1)

An entity may request an exemption from the annual assessment by submitting a completed exemption form to the Board within 30 days of the Board transmitting the fee assessment.

(2)

The exemption form shall be executed under oath and attest that:

(a)

The entity is not a qualifying entity as defined in COMAR 14.01.01 and Health-General Article, §21-2C-11(b)(1), Annotated Code of Maryland;

(b)

The entity no longer does business in Maryland; or

(c)

The entity is not subject to assessment for another reason with an explanation of that reason.

(3)

The entity bears the burden of demonstrating it qualifies for the claimed exemption and shall submit documentation in support of the exemption request, as follows:

(a)

The entity shall provide an executed certificate of business record (available on the Board’s website) authenticating any business record the entity submits in support of the request for exemption.

(b)

For carriers, supporting documentation may include but is not limited to NAIC “Annual Statement” including the cover page (signature page/jurat), Maryland State page, and Schedule T, acknowledgment from Maryland Insurance Administration of merger/change in subsidiary status, and SEC 10-K (any applicable exhibits).

(c)

For manufacturers, distributors, and PBMs, supporting documentation may include but is not limited to discharge in bankruptcy, documentation of merger/change in corporate structure/subsidiary status (for example, SEC 10-K and any applicable exhibits), acknowledgment from Board of Pharmacy of expiration of license/registration, expired license/registration, documentation that manufacturer/distributor provides only non-covered products (for example, provides gases only, product or inventory lists), and documentation that the entity does not do business in Maryland.

(d)

If the entity is unable to provide any documentation supporting the claimed exemption, the entity shall provide an affidavit (form on Board’s website) from the chief operating officer, chief financial officer, or other authorized official attesting to the factual basis of the claimed exemption.

(4)

While the exemption request is pending, payment of the assessment is deferred.

(5)

The Board shall determine all requests for exemption promptly.

Reconsideration.

(1)

Within 15 days of the notice denying the exemption, an entity may file for reconsideration of the denial of a request for exemption by submitting:

(a)

A request for reconsideration on the form provided; and

(b)

Additional information or documentation in support of the claimed exemption.

(2)

A request for reconsideration that does not include additional information or additional documentation will be denied.

(3)

If the request for exemption is denied after reconsideration, the entity shall pay the assessment within 30 days of the issuance of the notice of denial.

Collection and Penalties.

(1)

Any fee assessment not paid within 30 days of the payment due date may be subject to an interest penalty to be determined and collected by the Board.

(2)

In addition to any penalties the Board may impose on an entity that fails to pay the fee assessed by the Board in a timely manner, the Board may also refer an entity’s delinquent account to the Department of Budget and Management’s Central Collection Unit, pursuant to the procedures in State Finance and Procurement Article, Title 3, Subtitle 3, Annotated Code of Maryland, and COMAR 17.01.01.

Maintenance of Assessment List.

(1)

The Board shall maintain a list of entities that are subject to assessment as identified in Health-General Article, §21-2C-11, Annotated Code of Maryland.

(2)

At any time, Board staff may:

(a)

Review the list, but staff shall review the list on at least an annual basis;

(b)

Add additional entities reported by or obtained from other agencies or identified by staff; and

(c)

Remove entities if the entity:

(i)

Is no longer a going concern; or

(ii)

Has been determined to be exempt from assessment.

Regulation .03 Amount of Assessment.Link Copy Citation

Entities identified in Health-General Article, §212C11, Annotated Code of Maryland, shall be subject to the following fee schedule:

(1)

Manufacturers engaged in wholesale distribution, as defined in Health Occupations Article, §126C01, Annotated Code of Maryland, shall pay an assessment of $1,000;

(2)

Wholesale distributors, as defined in Health Occupations Article, §126C01, Annotated Code of Maryland, that distribute prescription drugs shall pay an assessment of $1,000;

(3)

Pharmacy benefits managers, as defined in Insurance Article, §151601, Annotated Code of Maryland, shall pay an assessment of $1,000; and

(4)

Carriers that provide health benefit plans, as defined in Health-General Article, §19-132(e), Annotated Code of Maryland, shall pay an assessment of $1,000.

An entity may request to pay the annual assessment in installments by submitting a letter to the Board demonstrating significant financial hardship in paying the assessment in a single payment.

Regulation .04 Use of Funds.Link Copy Citation

The Fund may only be used to finance the operation of the Board, as permitted in Health-General Article, §21–2C–11(c)(6), Annotated Code of Maryland.

Interest earned from the monies collected through the assessment in Regulation .02 of this chapter shall be retained to the credit of the Fund.

Regulation .05 Surplus Funds.Link Copy Citation

If the amount of assessed funds collected in a calendar year exceeds the cap identified in Health-General Article, §21–2C–11(B)(4), the Board shall:

Issue a notice of such surplus; and

Remit the surplus funds in a fair and equitable manner across all qualifying entities that have paid the assessment.

Subtitle 01 — Prescription Drug Affordability Board

Chapter 03. Public Information Act

Regulation .01 Scope.Link Copy Citation

This chapter sets out procedures under the Public Information Act for filing and processing requests for the public records of the Prescription Drug Affordability Board.

Regulation .02 Policy.Link Copy Citation

It is the policy of the Board to facilitate access to the public records of the Board, if access is allowed by law, by minimizing costs and time delays to applicants.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means the Public Information Act, General Provisions Article, §§4-101—4-601, Annotated Code of Maryland.

(2)

“Applicant” has the meaning stated in General Provisions Article, §4-101(b), Annotated Code of Maryland.

(3)

“Copy” means any form of reproduction using a photocopying machine or other reproduction technology, including a paper copy, an electronic copy, a printout, or an image.

(4)

“Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

(5)

“Executive Director” means the Executive Director of the Board as provided in Health-General Article, §21-2C-03, Annotated Code of Maryland.

(6)

“Indigent” has the meaning stated in General Provisions Article, §4-206(a)(2), Annotated Code of Maryland.

(7)

“Metadata” has the meaning stated in General Provisions Article, §4-205(a), Annotated Code of Maryland.

(8)

“Official custodian” has the meaning stated in General Provisions Article, §4-101(f), Annotated Code of Maryland.

(9)

“PIA coordinator” means the Board employee who is responsible for accepting requests for public records.

(10)

“Public Access Ombudsman” means the official appointed under General Provisions Article, Title 4, Subtitle 1B, Annotated Code of Maryland, to resolve disputes under the Act.

(11)

“Public record” has the meaning stated in General Provisions Article, §4-101(j), Annotated Code of Maryland.

(12)

“Reasonable fee” has the meaning stated in General Provisions Article, §4-206(a)(3), Annotated Code of Maryland.

(13)

“Sociological information” means personal phone number, personal email address, and personal home address.

Regulation .04 Official Custodian.Link Copy Citation

Unless otherwise provided by law, the Executive Director is the official custodian of the public records of the Board.

Regulation .05 Request for Public Records.Link Copy Citation

Any person may request to inspect or copy the public records of the Board.

Regulation .06 Written Request May Be Required.Link Copy Citation

Inspection.

(1)

Except as otherwise provided in this chapter, the custodian shall make public records of the Board available for inspection by an applicant without demanding a written request.

(2)

The custodian shall require a written request if the custodian reasonably believes that:

(a)

The Act or any other law may prevent the disclosure of the public record to the applicant; or

(b)

A written request will materially assist the Board in responding.

Copies. If the applicant requests one or more copies of any public record of the Board, the custodian may require a written request.

Regulation .07 Contents of Written Request.Link Copy Citation

A written request shall:

(1)

Contain the applicant’s contact information; and

(2)

Reasonably identify, by brief description, the public record sought.

Written requests from the same requestor may be consolidated

Regulation .08 Addressee.Link Copy Citation

A request to inspect or copy a public record of the Board shall be addressed to the custodian of the record or to the Board’s PIA coordinator as designated under General Provisions Article, §4-503, Annotated Code of Maryland. If the custodian is unknown, the request may be addressed to “Executive Director” or “PIA Coordinator”.

Regulation .09 Response to Request.Link Copy Citation

Grant of Request.

(1)

If the custodian decides to grant a request for inspection, the custodian shall produce the public record for inspection:

(a)

Immediately; or

(b)

Within a reasonable time period, not to exceed 30 days after the date of the request, if that period is needed to retrieve the public record and conduct any necessary review.

(2)

If the custodian reasonably believes that it will take more than 10 working days to produce the public record, the custodian shall indicate in writing or by electronic mail within 10 working days after receipt of the request:

(a)

The amount of time that the custodian anticipates it will take to produce the public record;

(b)

An estimate of the range of fees that may be charged to comply with the request for public records; and

(c)

The reason why it will take more than 10 working days to produce the records.

Denial of Request. If the custodian decides to deny a request for inspection, the custodian shall:

(1)

Deny the request within 30 days after the request; and

(2)

Notify the applicant of the denial.

If a request is denied, the custodian shall provide the applicant, at the time of the denial or within 10 working days, a written statement that includes:

(1)

The reasons for the denial, including, for records denied under General Provisions Article, §4-343, Annotated Code of Maryland, a brief explanation of:

(a)

Why the denial is necessary, that is, why disclosure of the public record would be contrary to the public interest; and

(b)

An explanation of why redacting information would not address the reasons for the denial;

(2)

The legal authority for the denial;

(3)

Without disclosing the protected information, a brief description of the undisclosed record or records that will enable the applicant to assess the applicability of the legal authority for the denial; and

(4)

Notice of the remedies available for review of the denial.

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

(1)

Notify the applicant that the person does not have custody or control of the requested public record; and

(2)

If the person knows, include:

(a)

The name of the custodian of the public record; and

(b)

The location or possible location of the public record.

Any time limit imposed by §§A—C of this regulation may be extended, with the consent of the applicant, for an additional period of up to 30 days.

Regulation .10 Notice to Person Potentially Affected by Disclosure.Link Copy Citation

Unless prohibited by law, the custodian may provide notice of a request for inspection or copying of any public record of the Board to any person who, in the judgment of the custodian, could be adversely affected by disclosure of that public record.

The custodian may consider the views of the potentially affected person before deciding whether to disclose the public record to an applicant.

Regulation .11 Electronic Records.Link Copy Citation

Except as provided in §§C and D of this regulation, the custodian shall provide an applicant with a copy of the public record in a searchable and analyzable electronic format if:

(1)

The public record is in a searchable and analyzable electronic format;

(2)

The applicant requests a copy of the public record in a searchable and analyzable electronic format; and

(3)

The custodian is able to provide a copy of the public record, in whole or in part, in a searchable and analyzable electronic format that does not disclose information that is protected from disclosure under the Act.

The custodian shall provide a portion of the public record in a searchable and analyzable electronic format if:

(1)

Requested by the applicant; and

(2)

The custodian is able to do so by using the existing functions of the database or software program that contains the searchable and analyzable data.

The custodian is not required to:

(1)

Create or reconstruct a public record in an electronic format if the public record is not available in an electronic format;

(2)

Release an electronic record in a format that would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which the record is maintained; or

(3)

Create, compile, or program a new public record.

The custodian may remove metadata from an electronic document before providing the electronic record to an applicant by:

(1)

Using a software program or function; or

(2)

Converting the electronic record into a different searchable and analyzable format.

Regulation .12 Public Record Destroyed or Lost.Link Copy Citation

If the person to whom application is made knows that a requested public record of the Board has been destroyed or lost, that person shall promptly:

Notify the applicant that the public record is not available; and

Explain the reasons why the public record cannot be produced.

Regulation .13 Availability of Judicial and Administrative Review.Link Copy Citation

If the custodian denies a request to inspect or copy a public record of the Board, the applicant may file an action for judicial enforcement under General Provisions Article, §4-362, Annotated Code of Maryland, without pursuing the remedies set forth in General Provisions Article, Subtitles 1A and 1B, Annotated Code of Maryland.

Regulation .14 Disclosure Against Public Interest.Link Copy Citation

Denial Pending Court Order.

(1)

If, in the opinion of the Executive Director, disclosure of a public record of the Board otherwise subject to disclosure under the Act would do substantial injury to the public interest, the Executive Director may temporarily deny the request to obtain a court order allowing nondisclosure.

(2)

The temporary denial shall be in writing.

Circuit Court Review.

(1)

Within 10 working days after the denial, the Executive Director shall apply to the appropriate circuit court for an order permitting continued denial or restriction of access.

(2)

Notice of the Executive Director’s complaint shall be served on the applicant in the manner provided for service of process by the Maryland Rules of Procedure

Regulation .15 Fees.Link Copy Citation

Except as provided in §§B and C of this regulation, the fee schedule for copying and certifying copies of public records of the Board is as follows:

(1)

For each copy made by a standard printer or a photocopying machine within the Board, the fee is 25 cents per page;

(2)

For each copy made other than by a standard printer or a photocopying machine within the Board, the fee shall be based on the actual cost of reproduction; and

(3)

For a public record certified as a true copy, an additional fee of $1 per page (or, if appropriate, per item) shall be charged.

Minimum Fee. A charge may not be made if the total fee is $1 or less.

If the fee for copies or certified copies of any public record of the Board is specifically set by a law other than the Act or this regulation, the custodian shall charge the prescribed fee.

If the custodian cannot copy a public record within the Board, the custodian shall make arrangements for the prompt reproduction of the record at public or private facilities outside the Board. The custodian shall:

(1)

Collect from the applicant a fee to cover the actual cost of reproduction; or

(2)

Direct the applicant to pay the cost of reproduction directly to the facility making the copy.

Before copying a public record of the Board, the custodian shall estimate both the cost of reproduction and the search and preparation fee under §F of this regulation and either:

(1)

Obtain the agreement of the applicant to pay the cost; or

(2)

Demand prepayment of all or a portion of the cost.

Search and Preparation Fee.

(1)

Except as provided in §G of this regulation, the custodian may charge a reasonable fee for time that an official or employee of the Board spends to:

(a)

Search for requested public records;

(b)

Review requested public records for potential disclosure; and

(c)

Prepare public records for inspection and copying.

(2)

The custodian shall determine the fee under §F(1) of this regulation by multiplying the employee’s salary, prorated to an hourly basis, by the actual time attributable to the search for, review of, and preparation of public records for inspection and copying.

The custodian may not charge a search or preparation fee under §F of this regulation for the first 2 hours needed to search for and prepare a public record for inspection.

Waiver or Reduction of Fee.

(1)

The official custodian may waive or reduce any fee set under this regulation if:

(a)

The applicant requests a waiver; and

(b)

Either:

(i)

The custodian determines that the waiver or reduction is in the public interest; or

(ii)

The applicant is indigent and files an affidavit verifying the facts that support a claim of indigency.

(2)

In determining whether a fee waiver is in the public interest, the custodian shall consider, among other relevant factors, the ability of the applicant to pay the fee.

If the applicant requests that copies of a public record be mailed or delivered to the applicant or to a third party, the custodian may charge the applicant for the cost of postage or delivery.

Regulation .16 Time and Place of Inspection.Link Copy Citation

An applicant may inspect any public record of the Board that the applicant is entitled to inspect during the normal working hours of the Board.

The inspection shall occur where the public record is located unless the custodian, after taking into account the applicant's expressed wish, determines that another place is more suitable and convenient.

Regulation .17 Sociological Information.Link Copy Citation

Except for use in carrying out the custodian’s governmental functions or if disclosure is otherwise required by law, and in compliance with General Provisions Article, §4-330, Annotated Code of Maryland, a custodian may not disclose under the Act, and shall deny a request for inspection or copying of, the part of a public record that contains sociological information relating to an individual.

Subtitle 01 — Prescription Drug Affordability Board

Chapter 04. Cost Review Study Process

Regulation .01 Public Reporting of Drug Affordability Issues.Link Copy Citation

Individual members of the public may report their personal experience with a drug or drugs that have caused or are causing an affordability issue for the individual.

Individuals may report a drug:

(1)

By completing the form available on the Board’s website electronically; or

(2)

By downloading or obtaining the form from the Board, completing the form, and submitting it to the Board.

Blank forms may be requested by contacting the Board by email or phone.

Regulation .02 Identifying Drugs Eligible for Cost Review.Link Copy Citation

The Board shall apply the metrics specified in Health-General Article, §21-2C-08(c), Annotated Code of Maryland, and this regulation to the following data sets to identify drugs eligible for selection for a cost review study:

(1)

The claims data in the MCDB;

(2)

Available subsets of claims data in the MCDB, such as the commercial market, Medicaid, and Medicare; and

(3)

The data obtained from governmental and commercial databases, other databases, and other data sets as available.

The Board may identify the prescription drug products that meet these statutory metrics and regulatory criteria on at least an annual basis.

Data Management.

(1)

For any metric requiring adjustment for inflation, the adjustment for inflation shall be based on the Consumer Price Index for All Urban Consumers (CPI-U) as reported by the U.S. Bureau of Labor Statistics.

(2)

For any data-based metric, the Board may account for data errors and outliers.

To the extent practicable, and in addition to the statutory metrics set forth in Health-General Article, §21-2C-08(c), Annotated Code of Maryland, the Board may consider the following additional metrics and criteria to identify prescription drug products eligible for selection for a cost review study:

(1)

Aggregated Spending and Pricing Data:

(a)

The 100 prescription drug products with the highest total gross spending in the most recent available calendar year;

(b)

The 100 prescription drug products with the highest total gross spending per patient in the most recent available calendar year;

(c)

The 100 prescription drug products with the highest percent change increase in WAC over the most recent available calendar year;

(d)

The 100 prescription drug products with the highest percent change increase in WAC over the most recent available 5-year period;

(e)

The 100 prescription drug products with the highest dollar increase in WAC per year or course of treatment over the most recent available calendar year;

(f)

The 100 prescription drug products with the highest dollar increase in WAC over the most recent available 5-year period; and

(g)

The 100 prescription drug products with the highest percent change increase in total gross spending;

(2)

Patient Out-of-Pocket Costs:

(a)

The 100 prescription drug products with the highest total patient out-of-pocket costs in the most recent available calendar year;

(b)

The 100 prescription drug products with the highest average patient total out-of-pocket costs in the most recent available calendar year;

(c)

The 100 prescription drug products ranked at the 50th percentile for patient total out-of-pocket costs in the most recent available calendar year; and

(d)

The 100 prescription drug products ranked at the 90th percentile for patient total out-of-pocket costs; and

(3)

Any prescription drug product added by the Board to the list of prescription drug products eligible for cost review under this regulation.

At an open meeting, a Board member may propose one or more additional prescription drug products for inclusion on the list of drugs eligible for cost review by:

(1)

Moving that the prescription drug product or products be added to the eligible list; and

(2)

Identifying how the prescription drug product or products may create affordability challenges for the State health care system or patients.

After discussion at an open meeting, the Board may vote to add one or more prescription drug products to the list of drugs eligible for selection for a cost review study.

Regulation .03 Selecting Drugs for Cost Review.Link Copy Citation

Board staff may provide the Board with a dashboard containing the prescription drug products identified under the statutory metrics and regulatory criteria in Regulation .02 of this chapter.

To the extent practicable, Board staff may provide the following information for each prescription drug product in the dashboard:

(1)

FDA Approval:

(a)

The date the FDA first approved the prescription drug product;

(b)

If applicable, the date the last patent expired or will expire;

(c)

Whether the prescription drug product was approved through an FDA accelerated approval pathway; and

(d)

Whether the prescription drug product is designated by the Secretary of the FDA, under 21 U.S.C. §360bb, as a drug for a rare disease or condition;

(2)

Therapeutic Class:

(a)

The class of the prescription drug product as identified in a recognized classification system;

(b)

Whether the prescription drug product is the only prescription drug product in its class;

(c)

Any therapeutic equivalent prescription drug product identified by examination of the FDA Orange Book, FDA Purple Book, or other therapeutic equivalence databases; and

(d)

The availability and number of therapeutic equivalents for sale in the State;

(3)

Utilization, Spending and Price Data:

(a)

The patient count for the prescription drug product in the most recent available calendar year;

(b)

The total gross spending for the prescription drug product in the most recent available calendar year;

(c)

The total gross spending per patient for the prescription drug product in the most recent available calendar year;

(d)

The WAC on January 1 of the current calendar year, on January 1 of the previous calendar year, and at launch of the product;

(e)

The percent increase in WAC of the prescription drug product over the most recent available calendar year;

(f)

The percent increase in WAC of the prescription drug product over the most recent available 5-year period;

(g)

The dollar increase in WAC over the most recent available calendar year;

(h)

The dollar increase in WAC over the most recent available 5-year period;

(i)

The dollar increase in WAC per year or course of treatment over the most recent available calendar year;

(j)

The percent increase in overall total gross spending for the prescription drug product in the most recent available calendar year;

(k)

The estimated percentage of manufacturer national net sales to gross sales of a prescription drug product for the most recently reported year;

(l)

The average payor cost per patient for the prescription drug product in the most recent available calendar year; and

(m)

The average cost share for the prescription drug product;

(4)

Patient Out-of-Pocket:

(a)

The total patient out-of-pocket cost for the prescription drug product in the most recent available calendar year;

(b)

The average total out-of-pocket costs in the most recent available calendar year;

(c)

Patient total out-of-pocket costs ranked at the 50th percentile in the most recent available calendar year; and

(d)

Patient total out-of-pocket costs ranked at the 90th percentile in the most recent available calendar year;

(5)

Whether the prescription drug product is currently in active shortage status; and

(6)

Whether the prescription drug product is currently subject to or has been subject to the Medicare Drug Price Negotiation Program, under the Inflation Reduction Act (IRA) (Public Law 117-169).

Selecting Drugs for Referral to Stakeholder Council.

(1)

The Board may select one or more prescription drug products identified in Regulation .02 of this chapter as eligible for cost review to refer to the Stakeholder Council.

(2)

Prior to a Board meeting, a Board member may request that a prescription drug product or products be placed on the Board’s meeting agenda for consideration for referral to the Stakeholder Council by submitting the proprietary drug name or nonproprietary name, as applicable, and NDC to the Board Chair in writing.

(3)

The Board Chair may include the prescription drug product name and dose on the Board’s agenda.

(4)

The public may provide oral and written comments concerning the drugs proposed for referral to the Stakeholder Council and identified on the meeting agenda in accordance with the procedures and timelines in COMAR 14.01.01.05A and B(2).

(5)

Notwithstanding the pre-meeting identification of drugs for consideration, the Board may consider any drug identified in Regulation .02 of this chapter for referral to the Stakeholder Council.

(6)

At an open meeting, the Board may:

(a)

Consider the prescription drug products identified on the Board’s agenda and any eligible drug proposed for consideration by a Board member at the meeting; and

(b)

Select one or more prescription drug products by NDC to refer to the Stakeholder Council to receive input from the Stakeholder Council on the selection of prescription drug products for cost review.

In selecting one or more prescription drug products to refer to the Stakeholder Council, the Board may consider:

(1)

The prescription drug products identified under the statutory metrics and regulatory criteria in Regulation .02 of this chapter;

(2)

The information provided under §B this regulation;

(3)

The average cost share of the prescription drug product, the average patient total out-of-pocket cost, and the average total payor cost; and

(4)

Any written or oral public comment.

The Board shall post notice of the prescription drug products referred to the Stakeholder Council on its website.

The public may provide written comments concerning the list of prescription drug products referred to the Stakeholder Council by:

(1)

Complying with the procedures in COMAR 14.01.01.05B(3); and

(2)

Submitting the written comments to the Board within 30 calendar days of the date the list is posted on the Board’s website.

Stakeholder Council Input.

(1)

To the extent practicable, the Board may provide the Stakeholder Council with:

(a)

The information set forth in §B of this regulation;

(b)

Whether the prescription drug product was reported by an individual member of the public; and

(c)

Whether the prescription drug product was added by the Board for consideration under Regulation .02 of this chapter.

(2)

To the extent practicable, the Stakeholder Council shall:

(a)

Review the information provided for each referred prescription drug product; and

(b)

Discuss the referred prescription drug products at an open meeting.

(3)

Board staff may present the Stakeholder Council input discussed at the open meeting to the Board.

Therapeutic Alternatives.

(1)

Board staff may develop a list of therapeutic alternatives for each prescription drug product referred to the Stakeholder Council.

(2)

Board staff shall post a list of therapeutic alternatives developed by staff on the Board’s website for comment.

(3)

The public may provide written comments concerning the list of therapeutic alternatives by:

(a)

Complying with the procedures in COMAR 14.01.01.05B(3); and

(b)

Submitting the written comments to the Board within 30 calendar days of the date the list is posted on the Board’s website.

(4)

Board staff may modify the list of therapeutic alternatives for consideration by the Board.

(5)

The Board shall determine the therapeutic alternatives for each prescription drug product selected for a cost review study.

Board Selection of Drugs for Cost Review.

(1)

At an open meeting, the Board may select one or more prescription drug products for a cost review study.

(2)

The public may provide oral and written comments concerning the selection of a prescription drug product for cost review in accordance with the procedures and timelines in COMAR 14.01.01.05A and B(2).

(3)

In selecting a prescription drug product for cost review, the Board shall consider:

(a)

The prescription drug products referred to the Stakeholder Council from the prescription drug products identified under the statutory metrics and regulatory criteria in Regulation .02 of this chapter and the information provided under §B of this regulation;

(b)

The average cost share of the prescription drug product, the average patient total out-of-pocket cost, the average total payor cost, and publicly available data on direct-to-consumer advertising spending for the prescription drug product;

(c)

Input from the Stakeholder Council provided under §G of this regulation; and

(d)

Input from the public provided under COMAR 14.01.01.05.

(4)

During an open meeting, the Board may select one or more prescription drug products for cost review under Regulation .05 of this chapter and provide notice of the selection on its website within 3 work days of the meeting.

(5)

The prescription drug product shall be identified by:

(a)

NDC;

(b)

ANDA, NDA, or BLA, as applicable; and

(c)

Active moiety or active ingredient.

(6)

If the Board selects a prescription drug product for cost review, the Board may identify and approve all NDCs marketed under the same ANDA, NDA, or BLA to be included in the cost review.

(7)

If the Board selects a prescription drug product for cost review that is an unapproved generic within the meaning of Health-General Article, §21-2C-01(f), Annotated Code of Maryland, the Board may identify and approve all NDCs with the same active moiety and manufacturer to be included in the cost review study.

(8)

If the Board selects a prescription drug product for cost review, the Board shall approve the therapeutic alternatives to be used in conducting the cost review study.

Regulation .04 Request for Information for Cost Review.Link Copy Citation

Request for Information.

(1)

The Board shall post notice of the prescription drug product or products selected for cost review through the process outlined in Regulation .03I of this chapter on the Board’s website.

(2)

To the extent there is no publicly available information to conduct an aspect of the statutory cost review, the Board may request information to conduct a cost review study under Health-General Article, §21-2C-09(a)(2), Annotated Code of Maryland, and this regulation.

(3)

The Board may request information by sending an email or postal mail to the manufacturer, PBMs, health insurance carriers, wholesale distributors, HMOs, and MCOs.

(4)

The Board shall post notice of the request for information on its website.

(5)

An entity that has not received a request for information from the Board may submit relevant information in accordance with this regulation.

(6)

Within 30 days of the date the request for information is posted to the website or transmitted to the entity, an entity may submit the information requested by the Board, and any other relevant information, in accordance with §C of this regulation.

(7)

An entity may request one 30-day extension of time to submit information under §A(6) of this regulation.

(8)

An entity shall submit the request for a 30-day extension to the Board in writing on or before the expiration of the initial submission period.

For each prescription drug product under review, the Board may request the following information from:

(1)

Manufacturer:

(a)

Documents and research explaining the relationship between the pricing of the prescription drug product and the cost of development, the relationship between the pricing of the prescription drug product and the therapeutic benefit, and information that is otherwise pertinent to the manufacturer’s pricing decision such as:

(i)

Life cycle management;

(ii)

Net average price in the State; and

(iii)

The estimated value or cost-effectiveness of the prescription drug product;

(b)

The total amount of the price concessions, discounts, and rebates provided to each payor type operating in the State;

(c)

The total amount of the price concessions, discounts, and rebates the manufacturer is expected to provide to each payor type;

(d)

The net price received by manufacturers for the drug product in the State accounting for all price concessions, discounts, and rebates;

(e)

The units of the prescription drug product sold in the State;

(f)

The units of the prescription drug product sold nationally;

(g)

The total dollar amount of sales of the prescription drug product into the State;

(h)

The total dollar amount of sales of the prescription drug product nationally;

(i)

The invoice price per unit for the prescription drug product charged to purchasers in the United Kingdom, Germany, France, and Canada, reported in U.S. dollars;

(j)

Prices charged to purchasers in the State, including but not limited to pharmacies, pharmacy chains, pharmacy wholesalers, and other direct purchasers;

(k)

The average profit margin of the prescription drug product over the prior 5-year period and the projected profit margin anticipated for the current year for the prescription drug product;

(l)

Maryland and national gross and net manufacturer revenues for the prescription drug product under review for the most recent tax year;

(m)

Information concerning all authorized generics as defined by 42 CFR §447.502 for the prescription drug product;

(n)

Information concerning all other ANDAs, BLAs, and NDAs that pertain to the same active moiety and the same manufacturer;

(o)

The manufacturer’s research and development costs, as indicated on the manufacturer’s federal tax filing or information filed with the Federal Securities and Exchange Commission for the most recent tax year;

(p)

The portion of direct-to-consumer marketing costs eligible for favorable federal tax treatment in the most recent tax year that are specific to the prescription drug product under review; and

(q)

Any additional factors or information the manufacturer proposes that the Board consider.

(2)

Health Insurance Carrier, HMO, and MCO:

(a)

The total amount of the price concessions, discounts, and rebates the manufacturer provides to each health plan operating in the State, expressed as a percent of the WAC;

(b)

The average price concession, discount, and rebate provided in the State for therapeutic alternatives;

(c)

Placement in each formulary offered or administered in the State and the number of covered lives for each formulary;

(d)

Benefit design around the prescription drug product, including copayment and coinsurance amounts in the State;

(e)

The net cost incurred by the insurance carrier for the prescription drug product in the State; and

(f)

Any additional factors or information the health insurance carrier, HMO, or MCO proposes that the Board consider.

(3)

Pharmacy Benefits Managers:

(a)

The therapeutic alternatives for the prescription drug product(s) under review identified by each formulary administered by the PBM;

(b)

The total amount of the price concessions, discounts, and rebates the manufacturer provides to each PBM operating in the State, expressed as a percent of the WAC;

(c)

The average price concession, discount, and rebate provided in the State for therapeutic alternatives;

(d)

Placement in each formulary offered or administered in the State and the number of covered lives for each formulary;

(e)

Benefit design around the prescription drug product, including copayment and coinsurance amounts;

(f)

Maryland and national gross and net PBM revenues for the prescription drug product under review for the most recent tax year; and

(g)

Any additional factors or information the PBM proposes that the Board consider.

(4)

Wholesale Distributors:

(a)

Prices charged to purchasers in the State, including but not limited to pharmacies, pharmacy chains, pharmacy wholesalers, and other direct purchasers;

(b)

The total amount of price concessions and discounts provided by the wholesale distributor to purchasers in the State, including but not limited to pharmacies, pharmacy chains, pharmacy wholesalers, and other direct purchasers;

(c)

Units of the prescription drug product sold in the State; and

(d)

Any additional factors or information the wholesale distributor proposes that the Board consider.

Submission of Information.

(1)

An entity may submit the information requested in §A of this regulation by:

(a)

Completing the data form developed by the Board; and

(b)

Providing supporting documentation.

(2)

A person submitting information, including data and records, for the Board’s consideration shall comply with the procedures for designating confidential, trade-secret, and proprietary information set forth in COMAR 14.01.01.04.

(3)

Information may be submitted to the Board:

(a)

In paper form using a tracked common carrier, courier, or postal service; or

(b)

Electronically using secure file transfer.

Regulation .05 Cost Review Study.Link Copy Citation

The Board may determine:

(1)

Whether use of the prescription drug product has led or will lead to:

(a)

Affordability challenges to the State health care system; or

(b)

High out-of-pocket costs for patients;

(2)

Whether the use that has led to affordability challenges or high out-of-pocket costs is consistent with:

(a)

The labeling approved by the FDA; or

(b)

Standard medical practice; and

(3)

The circumstances under which the prescription drug product has or will lead to an affordability challenge to the State health care system or high out-of-pocket costs to patients under §A(1) of this regulation.

Analyses and Data Compilation.

(1)

To the extent practicable, Board staff may assemble the data and analyses specified by Health-General Article §21-2C-09(b), Annotated Code of Maryland, and this regulation for consideration by the Board, including the data elements and information provided to the Board under Regulation .03A and B of this chapter.

(2)

These data and analyses may be:

(a)

Derived from published peer-reviewed literature;

(b)

Derived from published public sources such as the FDA Orange Book, the FDA Purple Book, and other sources;

(c)

Reported by or derived from manufacturers, health insurance plans, HMOs, MCOs, PBMs, and wholesale distributors;

(d)

Produced by Board staff through analysis;

(e)

Derived from external analyses and modeling studies;

(f)

Derived from the MCDB, any claims set of the MCDB, and any other databases containing relevant information;

(g)

Derived from reports generated by U.S. governmental entities, State governmental entities, foreign governmental and quasi-governmental agencies, and U.S. and foreign non-profit organizations; or

(h)

Derived from quantitative and qualitative data collected by Board staff.

Factors Considered in Cost Review Study.

(1)

To the extent practicable, the Board may consider the following data, information, and analyses in conducting a cost review study:

(a)

Drug Pricing for Drug Product Under Review:

(i)

The WAC, AWP, NADAC, SAAC, ASP, and FSS; and

(ii)

Information estimating manufacturer net price and net sales amounts of the prescription drug product under review;

(b)

Price Concessions, Discounts, and Rebates:

(i)

The average price concession, discount, and rebate provided by the manufacturer or expected to be provided to each payor class in the State for the drug under review, expressed as a number and as a percent of the WAC; and

(ii)

The average price concession, discount, and rebate the manufacturer provided or is expected to provide for the prescription drug product under review to each PBM operating in the State, expressed as a number and as a percent of the WAC;

(c)

Therapeutic Alternatives:

(i)

The average price concession, discount, or rebate the manufacturer provides or is expected to provide to health plans in the State for therapeutic alternatives;

(ii)

The WAC, AWP, NADAC, SAAC, ASP, and FSS at which each therapeutic alternative has been sold in the State; and

(iii)

The utilization, costs, and out-of-pocket costs for therapeutic alternatives;

(d)

Patient Access:

(i)

The costs to health plans based on patient access consistent with FDA-labeled indications or standard medical practice;

(ii)

The estimated impact on patient access resulting from the cost of the prescription drug product relative to insurance benefit design; and

(iii)

The current or expected dollar value of drug-specific patient access programs that are supported by the manufacturer for the drug product under review and the policies surrounding and implementing such programs;

(e)

Cost and Comparative Effectiveness Analyses:

(i)

The incremental costs associated with a prescription drug product, including financial impacts to health, medical, or social services as can be quantified and compared to baseline effects of existing therapeutic alternatives; and

(ii)

Information derived from health economics and outcomes research that may address the effectiveness of the prescription drug product in treating the conditions for which it is prescribed or in improving a patient’s health, quality of life, or overall health outcomes, and the effectiveness of the prescription drug product compared with therapeutic alternatives or no treatment.

(f)

Cost Sharing:

(i)

The average patient copay and other cost-sharing data for the prescription drug in the State; and

(ii)

The average cost share; and

(g)

Additional Board Factors:

(i)

Clinical information, including FDA indications and doses and information concerning standard medical practice;

(ii)

The disease burden of the condition that is treated by the prescription drug product;

(iii)

In the case of generic prescription drug products, the number of pharmaceutical manufacturers that produce the prescription drug product;

(iv)

The total gross spending in the State for the prescription drug product under review, the total number of patients in the State using the prescription drug product, and the percentage of overall total prescription drug product spending that the product’s spending represents;

(v)

The change in total gross spending and utilization for a prescription drug product in the State between the two most recent available calendar years and the percent change in total gross spending for a prescription drug product in the State between the two most recent available calendar years;

(vi)

The mean, median, and 90th percentile out-of-pocket costs per patient compared to State incomes;

(vii)

An assessment of the impact of the prescription drug product’s cost to access by priority populations and the impact on equity;

(viii)

Information supplied by the manufacturer, if any, explaining the relationship between the pricing of the prescription drug product and (a) the cost of development and (b) the therapeutic benefit of the prescription drug product, or information that is otherwise pertinent to the manufacturer’s pricing decision;

(ix)

Analysis of the prescription drug product’s approval process;

(x)

Analysis of the prescription drug product’s shortage status;

(xi)

Analysis of the market context of the prescription drug product including the prescription drug product’s lifecycle management, patent management, regulatory exclusivities, and product hopping;

(xii)

The utilization and pricing of therapeutically equivalent drug products;

(xiii)

Analysis of the impact of state and federal regulatory and compliance issues related to the prescription drug product;

(xiv)

Input from state and local governmental entities and the entities’ contractors such as health plans and plan administrators;

(xv)

Impact of the utilization and spending for the prescription drug product on public budgets and comparison of the spending on the prescription drug product to relevant benchmarks;

(xvi)

Analyses and research including literature review by Board staff in response to information submitted by an entity under Regulation .04 of this chapter, or through any public comment or public input procedure

(xvii)

Input from the public; and

(xviii)

Information and analyses submitted by an entity under Regulation .04 of this chapter.

(2)

The public may provide written comments concerning the prescription drug product:

(a)

Within 60 days of the date the drug’s selection for cost review study is posted on the Board’s website; and

(b)

In accordance with the procedures in COMAR 14.01.01.05B(3).

At an open meeting, the Board may:

(1)

Hear oral public comments concerning the prescription drug product in accordance with the procedures in COMAR 14.01.01.05A;

(2)

To the extent permitted by Health-General Article, §§21-2C-03 and 21-2C-10, Annotated Code of Maryland, consider written comments submitted in accordance with the procedures in COMAR 14.01.01.05;

(3)

To the extent practicable, and in compliance with Health-General Article, §21-2C-03(e)(1)(iv), Annotated Code of Maryland, consider the data and analyses specified by §C of this regulation, including the data elements and information provided to the Board under Regulation .03 of this chapter;

(4)

Close the session to discuss confidential, trade-secret, and proprietary information; and

(5)

Preliminarily determine whether:

(a)

Use of the prescription drug product, identified by NDC, has led or will lead to:

(i)

Affordability challenges to the State health care system; or

(ii)

High out-of-pocket costs for patients; and

(b)

Whether the use that has led to affordability challenges or high out-of-pocket costs is consistent with:

(i)

The labeling approved by the FDA; or

(ii)

Standard medical practice.

If the Board is unable to determine whether a prescription drug product will produce or has produced challenges to the affordability of the prescription drug product for the State health care system, the Board may consider:

(1)

The additional factors identified in Health-General Article, §21-2C-09(b)(3)(i)—(iv), Annotated Code of Maryland; and

(2)

The following additional factors:

(a)

Federal support for the research and development of the prescription drug product; and

(b)

Pricing data from other countries for the prescription drug product.

Preliminary Determination.

(1)

In accordance with §C of this regulation, the Board may make a preliminary determination of whether use of the prescription drug product has led or will lead to affordability challenges for the State health care system or high out-of-pocket costs for patients.

(2)

A preliminary determination is non-final and subject to revision and modification.

(3)

Preliminary Determination of Affordability Challenge.

(a)

Board staff shall prepare a draft of the preliminary determination cost review report that summarizes the information considered by the Board in conducting the cost review study, the Board’s deliberations, the circumstances or indicia reflecting the affordability challenge, and the Board’s preliminary determination.

(b)

The public may comment on the draft of the preliminary determination cost review report.

Final Determination Concerning Affordability Challenge and Final Cost Review Study Report.

(1)

The Board may vote to finalize the preliminary determination and approve the draft cost review report as final.

(2)

The Board’s determination of whether a prescription drug has or will lead to an affordability challenge is not final until the final cost review report is adopted by the Board.

(3)

The Board shall create and adopt a final report of the cost review study that, to the extent permitted by Health-General Article, §§21-2C-03 and 21-2C-10, Annotated Code of Maryland, summarizes the information considered by the Board in conducting the cost review study, the Board’s deliberations, and the Board’s determination.

Subtitle 01 — Prescription Drug Affordability Board

Chapter 05. Policy Review, Final Action, Upper Payment Limits

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Driver” means a factor that causes a particular phenomenon to happen or develop.

(2)

“Eligible governmental entity” means a unit of State or local government, an organization on behalf of a unit of State or local government, or the Maryland State Medical Assistance Program, as identified in Health-General Article, §21-2C-14(a), Annotated Code of Maryland, that pays for or purchases prescription drug products.

(3)

“Eligible governmental entities upper payment limit” or “GovUPL” means upper payment limit established by the Board minus applicable patient out-of-pocket costs.

(4)

“FDA prescription drug shortage list” means the U.S. Food and Drug Administration’s Drug Shortage Database.

(5)

“Medicaid Best Price” has the meaning stated in 42 CFR §447.505.

(6)

“Medicare Maximum Fair Price” has the meaning stated in 42 USC §1320f(c)(3).

(7)

“System net ingredient cost” means the final system cost attributable to or related to the prescription drug product after accounting for all discounts and price concessions, excluding dispensing, administration and direct and indirect remuneration to pharmacies, including patient out-of-pocket costs.

(8)

“Upper payment limit” or “UPL” means the amount established by the Board and represents the system net ingredient cost.

For the purpose of this chapter, “affordability challenge” refers to either (a) high out-of-pocket costs for patients or (b) an affordability challenge for the State health care system.

Regulation .02 Criteria for Setting an Upper Payment Limit.Link Copy Citation

When determining whether to set an upper payment limit and when setting an upper payment limit amount, the Board shall apply the criteria set forth in this regulation.

The Board shall:

(1)

Consider the cost of administering the drug and delivering the drug to consumers, as well as other relevant administrative costs;

(2)

Determine whether an upper payment limit is an appropriate tool to address the drivers of the affordability challenge identified for the prescription drug product;

(3)

Set an upper payment limit in a way to minimize adverse outcomes and minimize the risk of unintended consequences; and

(4)

Prioritize drugs that have a high proportion of out-of-pocket costs compared to the system net cost of the drug.

The Board shall not set an upper payment limit if:

(1)

Spending on the prescription drug product by the eligible governmental entities is less than the administrative cost to implement an upper payment limit; or

(2)

The prescription drug product is a generic and there are nine or more marketed therapeutic equivalents for the product.

The Board shall not set an upper payment limit at an amount that:

(1)

Impacts statutory or regulatory amounts, such as Medicaid Best Price; or

(2)

Is lower than the Medicare Maximum Fair Price.

Regulation .03 Policy Review and Final Action Process Overview.Link Copy Citation

If the Board makes a preliminary determination that use of the prescription drug product has led or will lead to an affordability challenge, the Board shall commence the policy review process.

The purpose of the policy review process is to:

(1)

Based on the best available information, confirm the drivers and market conditions causing the affordability challenge phenomena; and

(2)

Identify the policies that may address those drivers and redress the affordability challenges.

The policy review process includes:

(1)

Information gathering:

(a)

Informational hearings;

(b)

Stakeholder Council input;

(c)

Expert testimony hearings;

(d)

Board staff research and analysis; and

(e)

Eligible governmental entities’ information;

(2)

Preliminary policy recommendations:

(a)

Policy actions other than UPLs; and

(b)

Policy action in the form of a UPL and the process for setting upper payment limits; and

(3)

Final actions:

(a)

Adoption of the final cost review report;

(b)

Adoption of non-UPL policy recommendations; and

(c)

Adoption of proposed regulations setting a UPL amount.

Regulation .04 Policy Review—Information Gathering.Link Copy Citation

In studying the drivers, market conditions and policy options, the Board and staff may consider the information collected through the cost review study process pursuant to Health-General Article, §21-2C-09, Annotated Code of Maryland and COMAR 14.01.04.05, including all information, analyses, and public input collected and considered during the selection of drug for the cost review study and the cost review study process.

If additional information is needed, the Board and staff may gather additional information through the tools outlined in §D of this regulation.

If additional information is needed, the Board may utilize the information-gathering tools outlined in §D of this regulation at any point in the policy review process, including the consideration and setting of a UPL.

Information Gathering Tools.

(1)

Public Informational Hearings.

(a)

The Board may, through Board staff, convene a hearing to receive input, information, and opinions from the public and stakeholders to inform the consideration and development of policy options including upper payment limits to redress an affordability challenge.

(b)

The public informational hearing shall be conducted in accordance with COMAR 14.01.01.06.

(2)

Stakeholder Council Input.

(a)

The Board may request input from the Stakeholder Council. This input can be a request for general input and ideas on policies or more specific requests for specific information.

(b)

Board staff may provide the Board with summaries of input from the Stakeholder Council.

(3)

Technical Hearings.

(a)

The Board may convene a hearing for the purpose of receiving technical input, technical information or expert testimony.

(b)

The technical hearing shall be conducted in accordance with COMAR 14.01.01.06.

(4)

Board Staff Research and Analysis.

(a)

Board staff may provide the Board with policy research and analyses related to the drivers of the potential affordability and potential options.

(b)

Research may include a literature review of available literature and original quantitative or qualitative research conducted by staff.

(5)

Eligible Governmental Entities’ Information.

(a)

Board staff may collect information concerning the prescription drug product and therapeutic alternatives from eligible governmental entities.

(b)

The information collected may include utilization, spending, costs, benefit design, formulary placement, rebates, discounts, price concessions and other relevant information.

Regulation .05 Policy Review—Preliminary Policy Recommendations.Link Copy Citation

When developing preliminary policy recommendations for the Board, Board staff may use information gathered or obtained through the:

(1)

Cost review study process under COMAR 14.01.04; and

(2)

Information gathering process under Regulation .04 of this chapter.

Policy Action Other than UPL.

(1)

Board staff may recommend policy options to redress the affordability challenge.

(2)

When recommending policy options, Board staff may analyze the:

(a)

Drivers of the affordability challenge;

(b)

How the policy addresses a driver;

(c)

Strengths and weaknesses of the policy;

(d)

Possible implementation of the policy through legislation, regulation, or enforcement; and

(e)

Potential impacts of the policy.

(3)

The Board may:

(a)

Adopt none of the non-UPL policy recommendations;

(b)

Adopt one or more policy recommendations; or

(c)

Adopt and modify one or more policy recommendations.

(4)

The Board may adopt a final policy recommendation only after the Board has:

(a)

Made a final affordability challenge determination; and

(b)

Adopted the final cost review study report under COMAR 14.01.04.05G.

(5)

The public may provide oral and written comments concerning any agenda item of the Board or any decision pending before the Board in accordance with the procedures and timelines in COMAR 14.01.01.05A and B(2).

Policy Action in the Form of an Upper Payment Limit.

(1)

Board staff may recommend a UPL as a policy option to redress an affordability challenge.

(2)

When recommending a UPL as a policy option, Board staff may analyze the:

(a)

The drivers and market conditions causing the affordability challenge phenomena;

(b)

Ability of a UPL to address these issues;

(c)

Strengths and weaknesses of the UPL policy;

(d)

Potential impacts of the UPL policy;

(e)

Possible implementation of the policy through legislation, regulation or enforcement;

(f)

Relevant regulatory criteria under Regulation .02 of this chapter; and

(g)

Use of the drug by eligible governmental entities.

(3)

Board staff may provide recommendations related to establishing a UPL including:

(a)

An assessment of the drivers of the affordability challenge; and

(b)

The extent to which a UPL may address the drivers.

(4)

The Board may pursue development of a UPL as a policy option and direct Board staff to provide recommendations concerning the frameworks and contextual information that may be used to set a UPL in accordance with the UPL process set forth in Regulation .06 of this chapter.

(5)

Regulation .06 Policy Review—Process for Establishing a UPL.Link Copy Citation

Staff Recommends Frameworks and Contextual Information.

(1)

Board staff shall recommend at least one framework, identified in §B of this regulation, for use in developing a UPL for the subject prescription drug product.

(2)

Board staff may recommend certain contextual information identified in §C of this regulation for use in developing a UPL for the subject prescription drug product.

(3)

Board staff shall:

(a)

Post staff’s recommendations on the Board’s website in advance of the Board meeting; and

(b)

Request public comment.

(4)

The public may submit written comments by the date specified in the posting in accordance with COMAR 14.01.01.05B(4).

(5)

Board staff shall present the recommendations to the Board.

Frameworks.

(1)

Cost Effectiveness Analysis.

(a)

Under this framework, a maximum UPL value may be set by:

(i)

Using a cost-effectiveness analysis to model how much additional health outcome is gained per dollar of additional spending when using a drug product compared to an alternative;

(ii)

Comparing this number to a threshold to determine if a product is “cost-effective”; and

(iii)

Then, if the product is not already cost-effective, given the specified threshold in §B(1)(a)(ii) of this regulation and the model in §B(1)(a)(i) of this regulation, calculating the maximum UPL for which it would be “cost-effective.”

(b)

When providing a UPL amount developed using this framework, Board staff shall identify the health outcome, threshold, and relevant underlying assumptions used in the analysis.

(2)

Therapeutic Class Reference Upper Payment Limit.

(a)

Under this framework, a UPL value may be set using the lowest net price or net cost among competitor products in the same therapeutic class.

(b)

The Board may limit the prescription drug products used for analysis to a subset of drugs in the same therapeutic class.

(c)

When determining whether to use a product in the same therapeutic class as a reference product, the Board may consider:

(i)

A difference in indication including a difference in the patient population and disease severity; and

(ii)

Comparative effectiveness research.

(3)

Launch Price-Based Upper Payment Limit.

(a)

Under this framework, a UPL value may be set based on the initial price at which the drug was first marketed (launch price) adjusted for inflation.

(b)

The Board shall adjust the launch price using the CPI-U.

(4)

Same Molecule Reference Upper Payment Limit.

(a)

Under the same molecule reference UPL framework, a UPL value may be set by comparing prices of certain reference drugs:

(i)

A generic drug product that is therapeutically equivalent to the product under the review;

(ii)

An authorized generic of the product under review;

(iii)

A drug product licensed under a BLA that has the same active ingredient and is approved for one or more of the same or similar indications as the product under review;

(iv)

A biosimilar for the product under review;

(v)

The reference product for the product under review; and

(vi)

A drug product approved under an NDA or ANDA that has the same active ingredient and is approved for one or more of the same or similar indications as the product under review.

(b)

When using this framework Board staff may consider:

(i)

Any differences between the product under review and the same molecule reference products; and

(ii)

The utilization of the same molecule reference products.

(5)

Domestic Reference Upper Payment Limit.

(a)

Under the domestic reference UPL framework, a UPL value may be set using the estimated net cost of a prescription drug product to other purchasers and payors for the same prescription drug product within the United States or the net price received by the manufacturer.

(b)

Under this framework, the UPL may be set using the cost of the lowest estimated net-cost purchaser or payor, excluding Medicaid.

(c)

The Board may consider information for all other payors, including information on the Medicare Maximum Fair Price.

(6)

International Reference Upper Payment Limit.

(a)

Under the international reference UPL framework, a UPL value may be set by comparing drug prices in other countries.

(b)

Under this framework, the Board may consider the lowest price received by manufacturers for sales in the United Kingdom, Germany, France, and Canada, converted to U.S. dollars.

(7)

Budget Impact-Based Upper Payment Limits.

(a)

Under the budget impact-based UPL framework, a UPL value may be set so that spending on the drug does not exceed a certain percentage of a budget as specified by the Board or have a disproportionate impact on that budget.

(b)

The Board may consider current spending, projected spending, and potential offsets in developing a UPL value.

(c)

When setting the percentage, the Board may consider the number of patients impacted, the disease burden, the current and projected future spending on other treatments and management of the disease.

(8)

Blend of Multiple Frameworks.

(a)

Under this framework, Board staff may recommend potential UPL values derived from:

(i)

A blend of frameworks; and

(ii)

A variation in implementing a framework.

(b)

When providing a blended UPL amount developed using this framework, Board staff shall identify how the potential blended UPL value was generated.

Contextual Information for the Prescription Drug Product:

(1)

Information gathered during the cost review study process or the policy review process;

(2)

Net costs for:

(a)

State health plan;

(b)

County, bicounty, and municipal health plans;

(c)

Direct government purchases; and

(d)

Medicaid;

(3)

Total out-of-pocket costs in:

(a)

State health plan;

(b)

County, bicounty, and municipal health plans; and

(c)

Medicaid;

(4)

Current coverage status of the drug in:

(a)

State health plan;

(b)

County, bicounty, and municipal health plans; and

(c)

Medicaid;

(5)

Utilization in the following program by patients and prescriptions:

(a)

State health plan;

(b)

County, bicounty, and municipal health plans; and

(c)

Medicaid;

(6)

Amount of direct government purchases by units and patients served;

(7)

For the Maryland State Medical Assistance Program:

(a)

Number of prescriptions paid;

(b)

Number of patients who received the prescription drug product; and

(c)

Total amount paid for the prescription drug product;

(8)

Budget impact analysis;

(9)

Comparisons of health system costs to research and development costs;

(10)

Life cycle revenue analysis; and

(11)

Information that can be derived from the aggregation, calculation, and comparison of available information.

UPL Values.

(1)

The Board may:

(a)

Select one or more of the frameworks and contextual information identified in §§B and C of this regulation;

(b)

Identify another framework;

(c)

Prioritize the selected and identified frameworks and contextual information; and

(d)

Direct staff to use the selected and identified frameworks and contextual information to perform analyses and calculations to obtain UPL values.

(2)

Based on guidance from the Board and the regulatory criteria under Regulation .02 of this chapter, Board staff shall perform calculations and analyses to develop a collection of potential UPL values.

(3)

These calculations and analyses may include appropriate adjustments to ensure that the UPL value:

(a)

Reflects all discounts, rebates and price concessions;

(b)

Excludes dispensing and administration fees and direct and indirect renumeration to pharmacies; and

(c)

Includes patient out-of-pocket costs other than costs attributable to dispensing fees under §D(3)(b) of this regulation.

(4)

Board staff shall post a public version of:

(a)

The UPL values developed through analysis;

(b)

Staff’s recommendation for a proposed UPL amount with a description of the calculation and analyses and relevant underlying assumptions used in the analysis such as health outcome or threshold; and

(c)

A request for public written comment on the Board’s website.

(5)

Board staff may also request public written comment addressing specific questions or proposing alternative analyses.

(6)

The public may submit written comments by the date specified in the posting in accordance with COMAR 14.01.01.05B(4).

Technical Hearing.

(1)

The Board may convene a hearing for the purpose of receiving technical input, technical information or expert testimony.

(2)

The technical hearing shall be conducted in accordance with COMAR 14.01.01.06.

Amendment of Recommendations and UPL Values.

(1)

Board staff may modify or amend the public version of the developed UPL values, and staff’s recommendations for a proposed UPL amount.

(2)

If Board staff modifies or amends the developed UPL values and staff’s recommendations, staff shall post the amendments to the Board’s website, and request public written comment by a specified date.

(3)

The public may submit written comments by the date specified in the posting in accordance with COMAR 14.01.01.05B(4).

Regulation .07 Policy Review—Final Policy Action.Link Copy Citation

Final Determination Concerning Affordability Challenge.

(1)

Prior to taking an action with respect to policy, the Board shall:

(a)

Make a final determination of whether the prescription drug has or will create an affordability challenge; and

(b)

Adopt as final a cost review study report under COMAR 14.01.04.05G.

(2)

The Board’s determination of whether a prescription drug has or will create an affordability challenge is not final until the final cost review study report is adopted by the Board.

(3)

Final Policy Action: Policy Recommendations and Proposed Regulations.

(1)

If the Board makes a final determination that the prescription drug has or will create an affordability challenge, the Board may adopt:

(a)

Non-UPL policy recommendations in accordance with Regulation .05 of this chapter;

(b)

Proposed regulations setting the UPL at the specified amount in accordance with Regulation .08 of this chapter; or

(c)

Both.

(2)

(3)

Where applicable, the adoption of the final cost review study report, non-UPL policy recommendations, and proposed regulations setting a UPL amount:

(a)

Shall be performed sequentially; and

(b)

May be taken at the same Board meeting.

Regulation .08 Establishing and Monitoring a UPL.Link Copy Citation

Adopting a Proposed Regulation Setting a UPL.

(1)

The proposed regulation shall set a specified UPL amount for specified eligible governmental entities.

(2)

The Board and staff shall work with eligible governmental entities to develop the best method for implementing the UPL for the entity and a prospective effective date that provides sufficient time for implementation.

(3)

The per unit final net cost paid by the eligible governmental entity shall not exceed the GovUPL.

(4)

The Board shall provide for the automatic suspension of the UPL for the time that the prescription drug product is on the federal Food and Drug Administration prescription drug shortage list by regulation.

Monitoring a UPL.

(1)

The Board shall develop a program for monitoring the availability of any prescription drug product for which it sets a UPL.

(2)

If monitoring discloses a shortage of the prescription drug product in the State, the Board may suspend or modify the UPL.

Regulation .09 Reconsideration.Link Copy Citation

Authority to Reconsider UPL.

(1)

The Board may reconsider a UPL for any reason.

(2)

If the Board becomes aware of a shortage of a prescription drug product in the State, for a drug that is subject to a UPL, the Board shall reconsider the UPL.

(3)

The Board may suspend a UPL at any time and may suspend the UPL for the duration of the reconsideration process by proposing an amended regulation.

(4)

Following completion of the reconsideration process the Board may:

(a)

Take no action and allow the UPL to stand;

(b)

Modify the UPL amount and propose amendment of the UPL regulation setting the new modified UPL amount;

(c)

Suspend the UPL for a specified period and propose amendment of the regulation to proscribe the suspension; and

(d)

Repeal the UPL and propose repealing the regulation setting the UPL amount.

Reconsideration Process.

(1)

General Procedures.

(a)

Board staff shall post notice of the reconsideration of the UPL on the Board’s website.

(b)

The Board may solicit patient and stakeholder feedback through written comments submitted in accordance with COMAR 14.01.01.05B(4) and informational hearings held under COMAR 14.01.01.06C.

(c)

The Board may use the information gathering process under Regulation .04 of this chapter to obtain information for the reconsideration process.

(d)

Board staff shall present to the Board:

(i)

The basis for reconsideration;

(ii)

A summary of the feedback obtained through written comments, informational hearings and the information gathering process, as applicable;

(iii)

A summary of the information generated through the UPL monitoring program, as applicable;

(iv)

Estimated impact of the UPL to date such as savings estimates, and estimated impact on access to the drug; and

(v)

Staff recommendations for Board action.

(e)

The Board may take any action specified under §A(4) of this regulation.

(2)

Modifying a UPL.

(a)

If Board staff recommends further study to support modification of the UPL, the Board shall use the procedures in Regulations .06D-F and .07B(1)(b) of this chapter to develop a new UPL amount and receive public comment.

(b)

The Board may modify the UPL amount and propose amendment of the UPL regulation setting the modified UPL amount under § A(4)(b) of this regulation.

Action on Drug where UPL was Repealed.

(1)

For any prescription drug product previously subject to a UPL that was later repealed, the Board may:

(a)

Select the prescription drug product for cost review study if the drug product meets the eligibility requirements set forth in COMAR 14.01.04.02;

(b)

Conduct a cost review study in accordance with COMAR 14.01.04.05; and

(c)

Make a preliminary determination in accordance with COMAR 14.01.04.05.

(2)

If the Board makes a preliminary determination that the prescription drug product has or will create an affordability challenge the Board may:

(a)

Consider any element or analysis from the original cost review study report;

(b)

If available, consider information from the UPL monitoring program;

(c)

Consider information obtained through the reconsideration process under §B of this regulation; and

(d)

Set a UPL or make other policy recommendations in accordance with Regulations .07—.08 of this chapter.

Subtitle 02 — State Public Information Act Compliance Board

Chapter 01. Definitions; General Provisions

Regulation .01 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Act” means the Maryland Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.

(2)

“Applicant” has the meaning stated in General Provisions Article, §4-101(b), Annotated Code of Maryland.

(3)

“Board” means the State Public Information Act Compliance Board, as described in General Provisions Article, §4-1A-02, Annotated Code of Maryland.

(4)

“Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

(5)

“Designated representative” means an attorney, an employee organization representative, or any other individual authorized in writing by a party to represent the party.

(6)

“Dispute” has the meaning stated in COMAR 14.37.01.01B.

(7)

“Exemption” has the meaning stated in COMAR 14.37.01.01B.

(8)

“Final Determination” means the written document issued by the Public Access Ombudsman pursuant to General Provisions Article, §4-1B-04(b), Annotated Code of Maryland, stating that a specific dispute has been resolved or partially resolved or not been resolved.

(9)

“Inmate” means an individual who:

(a)

Is confined in a correctional or other detention facility pursuant to a court order in a criminal or juvenile delinquency case; and

(b)

Has no direct access to the U.S. Postal Service or the ability to submit a complaint or other information electronically.

(10)

“Official custodian” has the meaning stated in General Provisions Article, §4-101(f), Annotated Code of Maryland.

(11)

“Ombudsman” means the Public Access Ombudsman, as described in General Provisions, §4-1B-03, Annotated Code of Maryland.

(12)

“Public record” has the meaning stated in General Provisions Article, §4-101(k), Annotated Code of Maryland.

(13)

“Sociological information” means any of the following information concerning a person that may be contained in a record of the Board:

(a)

Social security number;

(b)

Personal address;

(c)

Personal phone number;

(d)

Personal email address; and

(e)

Date of birth.

(14)

“Unreasonable fee” means a fee that does not bear a reasonable relationship to the recovery of actual costs incurred by a governmental unit responding to a request for a public record.

Regulation .02 Jurisdiction.Link Copy Citation

Subject to the procedure outlined in COMAR 14.02.02, the Board shall review and resolve complaints from an applicant or the applicant’s designated representative alleging that a custodian:

(1)

Denied inspection of a public record in violation of the Act;

(2)

Charged an unreasonable fee or charged an unreasonable estimated fee of more than $350 under General Provisions Article, §4-206, Annotated Code of Maryland; or

(3)

Failed to respond to a request for a public record within the time limits established under General Provisions Article, §4-203(a) or (d), Annotated Code of Maryland.

Subject to the procedure outlined in COMAR 14.02.03, the Board shall review and resolve complaints from a custodian alleging that an applicant’s request or pattern of requests is frivolous, vexatious, or in bad faith.

Regulation .03 Recusal of Board Members.Link Copy Citation

Standard for Recusal.

(1)

A Board member shall recuse himself or herself from Board proceedings that involve circumstances in which the Board member:

(a)

Has a conflict of interest; or

(b)

Cannot participate fairly and impartially.

(2)

Personal familiarity with an applicant or custodian does not, of itself, require recusal of a Board member.

The Board member who is recused from a matter before the Board may not:

(1)

Participate in the Board’s discussion or decision on the matter; or

(2)

Discuss the matter or the Board’s review of the matter with members of the Board, the parties, or staff or counsel to the Board.

The Board shall document the recusal of the Board member from a matter in its written decision on the matter.

Regulation .04 Consolidation of Complaints.Link Copy Citation

In its discretion, the Board may consolidate complaints filed under COMAR 14.02.02 and COMAR 14.02.03 if both complaints involve the same applicant and same custodian, and if consolidation will promote efficient and fair resolution of the complaints.

Regulation .05 Computation of Time.Link Copy Citation

Computation of a period of time shall be governed by General Provisions Article, §1-302, Annotated Code of Maryland.

Regulation .06 Date of Receipt.Link Copy Citation

A complaint, response, or reply to a response is deemed received on the date that it is postmarked or sent by email to the Board.

Inmate Applicants.

(1)

A complaint, response, or reply to a response is deemed received on the date that the complaint, response, or reply to a response, in mailable form and with proper postage affixed is:

(a)

Deposited by the inmate applicant into a receptacle designated by the facility for outgoing mail; or

(b)

Personally delivered to an employee of the facility authorized by the facility to collect such mail.

(2)

A date stamp affixed pursuant to COMAR 12.02.20.04A or COMAR 12.12.20.04A, or a similar date stamp affixed by a county detention center or other detention facility not within the control of the Division of Correction, is evidence of the date on which an inmate applicant sent a complaint, response, or reply to a response under §B(1) of this regulation.

Regulation .07 Record.Link Copy Citation

The Board shall maintain a record of each matter, including an index.

The Board’s internal record of a matter shall consist of the following, if filed in a matter:

(1)

The complaint;

(2)

The response to a complaint;

(3)

The reply to the response;

(4)

Written notices;

(5)

Written requests for information;

(6)

Records or additional information received by the Board pursuant to COMAR 14.02.05.03;

(7)

The recording of an informal conference; and

(8)

The Board’s written decision.

The public record of a matter shall consist of the records listed in §B of this regulation, if filed, except that records or additional information received by the Board pursuant to COMAR 14.02.05.03 may not be included.

Subtitle 02 — State Public Information Act Compliance Board

Chapter 02. Complaint Process — Applicants

Regulation .01 Filing a Complaint.Link Copy Citation

An applicant or the applicant’s designated representative may file a complaint with the Board within 30 days after receiving a Final Determination from the Ombudsman that a specific dispute has not been resolved.

The complaint shall:

(1)

Pertain only to the dispute described in the Final Determination;

(2)

Be submitted in writing; and

(3)

Be signed by the applicant.

The substance of the complaint shall, at minimum:

(1)

Identify the custodian that is the subject of the complaint; and

(2)

Describe the action of the custodian, the date of the action, and the circumstances of the action.

A complaint may be filed by email or regular mail.

Regulation .02 Documents Attached to Complaint.Link Copy Citation

If available, an applicant shall attach to the complaint:

(1)

A copy of the original request for a public record;

(2)

A copy of the custodian’s response; and

(3)

The Ombudsman’s Final Determination.

An applicant may attach to the complaint additional documents relevant to the dispute, including correspondence between the applicant and the custodian.

Regulation .03 Response to Complaint.Link Copy Citation

Upon receipt of a complaint, the Board shall:

(1)

Promptly send the complaint to the custodian identified in the complaint; and

(2)

Request that the custodian send a response to the Board.

A custodian shall file a written response to a complaint within 30 days after receiving the complaint and request for a response from the Board.

Complaints Alleging that a Custodian Denied Inspection of a Public Record in Violation of the Act.

(1)

If a complaint alleges that a custodian denied inspection of a public record in violation of the Act, the custodian’s response shall, to the extent relevant to the dispute:

(a)

Explain why denial was necessary;

(b)

Explain why redacting information would not address the reasons for denial;

(c)

Provide the legal authority for the denial; and

(d)

Without disclosing protected information or creating a descriptive index, provide a brief description of the undisclosed records that allows the Board to assess the applicability of the legal authority for the denial.

(2)

If the custodian’s response to the applicant’s request for public records contains all of the information required by §C(1) of this regulation, then it is sufficient for the custodian to attach the response.

If a complaint alleges that a custodian charged an unreasonable fee or charged an unreasonable estimated fee of more than $350 under General Provisions Article, §4-206, Annotated Code of Maryland, the response shall, to the extent relevant to the dispute, include:

(1)

The hourly salary rates for the staff who responded or who are likely to respond to the applicant’s request for a public record;

(2)

The number of hours expended by each staff, or the number of hours the custodian anticipates will be expended by each staff, to respond to the applicant’s request for a public record;

(3)

A description of the tasks each staff performed or is likely to perform to respond to the applicant’s request for public records; and

(4)

An explanation of how fees for reproduction of the records are calculated.

If a complaint alleges that a custodian failed to respond to a request for a public record within the time limits established by General Provisions Article, §4-203(a) or (d), Annotated Code of Maryland, the response shall, to the extent relevant to the dispute:

(1)

Provide the date and nature of correspondence with the applicant, if any;

(2)

Describe the circumstances that prevented the custodian from responding in a timely manner; and

(3)

Explain how the custodian intends to respond to the applicant’s request for public records.

A custodian may not attach to its response records that it claims are confidential, privileged, or otherwise exempt from disclosure.

A custodian shall send a copy of the response to the applicant.

Regulation .04 Reply to Response.Link Copy Citation

The Board may, in its discretion, permit the applicant to file a reply to the custodian’s response.

If permitted to file a reply, the applicant shall:

(1)

File the reply within 15 days after receiving the custodian’s response; and

(2)

Send a copy of the reply to the custodian.

Regulation .05 Effect of Failure to Respond.Link Copy Citation

If a written response from a custodian is not received within 30 days after the Board notifies the custodian of the complaint and requests a response and the Board has not requested any additional information, the Board shall decide the case on the facts before it.

Regulation .06 Transfer of Information from Ombudsman.Link Copy Citation

The Ombudsman may transfer basic information about a dispute to the Board, including:

(1)

The identity of the applicant and custodian;

(2)

A brief summary of the nature of the dispute; and

(3)

A copy of the Final Determination relevant to the complaint.

Confidential Communications or Information.

(1)

The Ombudsman may not disclose to the Board any confidential mediation communications or mediation information, defined in COMAR 14.37.01.01B(8) and (10), that are made or received in the course of attempting to resolve a dispute.

(2)

The Ombudsman may disclose confidential communications or information referenced in §B(1) of this regulation if all parties have consented to the disclosure in writing.

Regulation .07 Withdrawal of Complaint.Link Copy Citation

An applicant may withdraw a complaint at any time until the Board’s decision is issued.

Regulation .08 Dismissal of Complaint.Link Copy Citation

The Board shall dismiss a complaint if:

(1)

The Board lacks jurisdiction to review the complaint;

(2)

The complaint is filed more than 30 days after the applicant received the Ombudsman’s Final Determination; or

(3)

The complaint is not signed by the applicant.

If the Board dismisses a complaint because it is not signed by the applicant, the applicant may refile a signed complaint within the same 30 days of receiving the Final Determination from the Ombudsman.

Regulation .09 Effect of Filing.Link Copy Citation

A complaint, the custodian’s response to a complaint, and a reply to the custodian’s response are public records of the Board subject to inspection under the Act.

Subtitle 02 — State Public Information Act Compliance Board

Chapter 03. Complaint Process — Custodians

Regulation .01 Filing a Complaint.Link Copy Citation

A custodian may file a complaint with the Board within 30 days after receiving a Final Determination from the Ombudsman that a dispute has not been resolved.

The complaint shall:

(1)

Pertain only to the dispute described in the Final Determination;

(2)

Be submitted in writing; and

(3)

Be signed by the custodian.

The substance of the complaint shall, at minimum:

(1)

Identify the applicant that is the subject of the complaint;

(2)

Describe the action of the applicant, the date of the action, and the circumstance of the action, including:

(a)

The number and scope of the applicant’s past requests, if any;

(b)

The custodian’s responses to past requests, if any; and

(c)

Efforts to cooperate with the applicant; and

(3)

Explain why, in the custodian’s opinion, the applicant’s request or pattern of requests is frivolous, vexatious, or in bad faith.

A complaint may be filed by email or regular mail.

Regulation .02 Documents Attached to Complaint.Link Copy Citation

If available, a custodian shall attach to the complaint:

(1)

A copy of the original request for a public record;

(2)

A copy of the custodian’s response; and

(3)

The Ombudsman’s Final Determination.

A custodian may attach to the complaint additional documents relevant to the dispute, including correspondence between the applicant and the custodian.

Regulation .03 Response to Complaint.Link Copy Citation

Upon receipt of a complaint, the Board shall:

(1)

Promptly send the complaint to the applicant identified in the complaint; and

(2)

Request that the applicant send a response to the Board.

An applicant shall file a written response to a complaint within 30 days after receiving the complaint and request for a response from the Board.

An applicant shall send a copy of the response to the custodian.

Regulation .04 Reply to Response.Link Copy Citation

The Board may, in its discretion, permit the custodian to file a reply to the applicant’s response.

If permitted to file a reply, the custodian shall:

(1)

File the reply within 15 days after receiving the applicant’s response; and

(2)

Send a copy of the reply to the applicant.

Regulation .05 Effect of Failure to Respond.Link Copy Citation

If a written response from an applicant is not received within 30 days after the Board notifies the applicant of the complaint and requests a response and the Board has not requested any additional information, the Board shall decide the case on the facts before it.

Regulation .06 Transfer of Information from Ombudsman.Link Copy Citation

The Ombudsman may transfer basic information about a dispute to the Board, including:

(1)

The identity of the applicant and custodian;

(2)

A brief summary of the nature of the dispute; and

(3)

A copy of the Final Determination relevant to the complaint.

Confidential Communications or Information.

(1)

The Ombudsman may not disclose to the Board any confidential communications or information, defined in COMAR 14.37.01.01B(8) and (10), that are made or received in the course of attempting to resolve a dispute.

(2)

The Ombudsman may disclose confidential communications or information referenced in §B(1) of this regulation if all parties have consented to the disclosure in writing.

Regulation .07 Withdrawal of Complaint.Link Copy Citation

A custodian may withdraw a complaint at any time until the Board’s decision is issued.

Regulation .08 Dismissal of Complaint.Link Copy Citation

The Board shall dismiss a complaint if:

(1)

The Board lacks jurisdiction to review the complaint;

(2)

The complaint is filed more than 30 days after the custodian received the Ombudsman’s Final Determination; or

(3)

The complaint is not signed by the custodian.

If the Board dismisses a complaint because it is not signed by the custodian, the custodian may refile a signed complaint within the same 30 days of receiving the Final Determination from the Ombudsman.

Regulation .09 Effect of Filing.Link Copy Citation

A complaint, the applicant’s response to a complaint, and a reply to the applicant’s response are public records of the Board subject to inspection under the Act.

Subtitle 02 — State Public Information Act Compliance Board

Chapter 04. Informal Conference

Regulation .01 Board’s Discretion.Link Copy Citation

If the Board is unable to reach a decision based on the written submissions before it, the Board may schedule an informal conference to hear from the complainant and affected custodian or applicant, or any other person with relevant information about the subject of the complaint.

Regulation .02 Notice of Informal Conference.Link Copy Citation

After receipt of a complaint, the response, and a reply to the response, if one is filed, the Board shall notify the parties if it intends to hold an informal conference.

Notice of an informal conference shall state:

(1)

The names of the complainant and affected custodian or applicant;

(2)

The matter number;

(3)

The date and time of the informal conference; and

(4)

The location of the informal conference.

The Board may coordinate the date, time, and location of the informal conference with the complainant and the affected custodian or applicant prior to issuing the notice under §B of this regulation.

Notice of an informal conference shall be sent by email, if provided, and regular mail to the address provided.

Regulation .03 Location of Informal Conference.Link Copy Citation

An informal conference shall be held in a location that is as convenient as practicable to the complainant and the affected custodian or applicant.

An informal conference may be held by videoconference or teleconference, at the Board’s discretion.

Regulation .04 Timing of Informal Conference.Link Copy Citation

An informal conference shall be held as soon as practicably possible after receipt of all written submissions, but no later than 30 days after receipt of all written submissions unless extenuating circumstances require an extension.

Regulation .05 Procedure During Informal Conference.Link Copy Citation

Charge of Informal Conference.

(1)

The Chair of the Board shall have charge over the conduct of an informal conference.

(2)

If the Chair is recused from a matter under COMAR 14.02.01.03, then a Board member designated by the Chair shall have charge over the conduct of an informal conference.

Evidence.

(1)

Testimony.

(a)

In addition to live testimony, the Board may allow the parties to testify by teleconference or to submit written testimony by email or regular mail, provided that any written testimony is also submitted to the other party.

(b)

The Board may ask questions of and elicit testimony from the parties during the informal conference.

(c)

Cross-examination may be conducted as the Chair, or the Board member designated by the Chair to have charge over the informal conference, finds it required for full and true disclosure of the facts.

(2)

The Board may allow documentary or other nontestimonial evidence to be submitted at an informal conference, provided that it is also sent to the other party.

(3)

The strict rules of evidence observed by the courts do not apply to an informal conference.

(4)

In its discretion, the Board may exclude irrelevant or unduly repetitive evidence.

An informal conference is not a contested case within the meaning of State Government Article, §10-202(d), Annotated Code of Maryland.

Regulation .06 Record of Informal Conference.Link Copy Citation

The Board shall record an informal conference.

Subtitle 02 — State Public Information Act Compliance Board

Chapter 05. Request for Records or Additional Information

Regulation .01 Form of Request.Link Copy Citation

The Board may send a request for additional information by email or regular mail.

The Board shall send a copy of a request for additional information to all parties.

The Board may direct the party providing the additional information to send a copy of the additional information provided in response to the Board’s request to the other party.

Regulation .02 Request for Custodian’s Response to Request for Public Record.Link Copy Citation

If a complaint alleges that a custodian failed to respond to a request for a public record within the time limits established under General Provisions Article, §4-203(a) or (d), Annotated Code of Maryland, the Board may request the response to the request for a public record.

Regulation .03 Requests Related to Public Records.Link Copy Citation

If a complaint alleges that a custodian denied inspection of a public record in violation of the Act, the Board may request that the custodian provide, as appropriate in the Board’s discretion:

(1)

A copy of the public record for in camera inspection, unless the custodian’s response to the request for a public record indicated that inspection was denied under General Provisions Article, §4-301(a)(2)(ii), Annotated Code of Maryland;

(2)

A descriptive index of the public record; or

(3)

A written reason why the record cannot be disclosed.

The Board shall maintain the confidentiality of records or information provided under §A of this regulation.

Regulation .04 Request for Basis for Fee Charged.Link Copy Citation

If a complaint alleges that a custodian charged an unreasonable fee or estimated fee under General Provisions Article, §4-206, Annotated Code of Maryland, the Board may request that the custodian provide more information about the basis for the fee or estimated fee charged.

Regulation .05 Frivolous, Vexatious, or Bad Faith Requests.Link Copy Citation

If necessary to resolve the complaint, the Board may request more information related to an alleged frivolous, vexatious, or bad faith request, including information about the applicant’s pattern or history of requests.

Regulation .06 Request for Affidavit or Statement.Link Copy Citation

The Board may request that a custodian or applicant provide an affidavit, in the form provided by Maryland Rule 1-304, or a statement containing the facts that are at issue in the complaint.

Regulation .07 Timing.Link Copy Citation

The Board shall request additional records or information, if needed, as soon as practicably possible.

A custodian or applicant shall send to the Board the additional records or information requested as soon as practicably possible after receipt of the Board’s request, but no later than 30 days after receipt of the request.

Subtitle 02 — State Public Information Act Compliance Board

Chapter 06. Confidential Records or Information Provided Under COMAR 14.02.05.03

Regulation .01 General Confidentiality Provisions.Link Copy Citation

Records or Information Received by the Board.

(1)

A record or information received by the Board pursuant to COMAR 14.02.05.03 is not a public record of the Board subject to inspection under the Act.

(2)

A complaint, the response, and a reply to the response received by the Board are public records of the Board subject to inspection under the Act.

The Board shall maintain the confidentiality of a record or information received by the Board from a custodian pursuant to COMAR 14.02.05.03.

Regulation .02 Provision of Confidential Records or Information.Link Copy Citation

Records or information received by the Board pursuant to COMAR 14.02.05.03 may be sent by regular mail, certified mail, email, or hand-delivery.

Records or information sent to the Board under this regulation shall contain an inspection index.

Each individual record or information sent to the Board under this regulation shall be Bates numbered consecutively and correspond to the numbers as listed in the index.

Regulation .03 Storage of Confidential Records or Information.Link Copy Citation

Hardcopy records or information received by the Board pursuant to COMAR 14.02.05.03 shall be stored on behalf of the Board in a locked file of the Public Access Unit of the Office of the Attorney General.

Electronic records or information received by the Board pursuant to COMAR 14.02.05.03 shall be stored on behalf of the Board in a secure electronic file.

Regulation .04 Access to Confidential Records or Information.Link Copy Citation

Only the Board, an Assistant Attorney General assigned to the Public Access Unit, the administrator to the Board, and individuals working under the supervision and at the direction of the staff of the Public Access Unit may inspect records or information received by the Board pursuant to COMAR 14.02.05.03.

The individuals listed in §A of this regulation shall safeguard the confidentiality of records or information received by the Board pursuant to COMAR 14.02.05.03.

Regulation .05 Reference to Confidential Records or Information.Link Copy Citation

References in the Board’s decision to specific records or information received by the Board pursuant to COMAR 14.02.05.03 shall be by the Bates numbers or by generic descriptions or characterizations as set forth in the inspection index.

Regulation .06 Return or Destruction of Confidential Records or Information.Link Copy Citation

No Appeal of Board Decision Filed.

(1)

After 45 days from the issuance of the Board’s decision, the Board shall notify the custodian to make appropriate arrangements for the return of all records or information received by the Board pursuant to COMAR 14.02.05.03.

(2)

Destruction of Records or Information.

(a)

If a custodian fails to make arrangements for the return of records or information received by the Board pursuant to COMAR 14.02.05.03, the Board shall destroy the records or information after 90 days from the issuance of the Board’s decision.

(b)

Destruction of electronic records or information shall be accomplished by deleting the records or information from email and the internal network drive of the Public Access Unit.

(c)

Destruction of hardcopy records or information shall be accomplished by shredding the records.

Appeal of Board Decision Filed.

(1)

The Board shall continue to store records or information received by the Board pursuant to COMAR 14.02.05.03 according to Regulation .03 of this chapter.

(2)

Once the opinion of the circuit court has issued, the Board shall return or destroy the records or information received by the Board pursuant to COMAR 14.02.05.03 according to the time periods provided in §A of this regulation.

Regulation .07 Effect of Providing Confidential Records or Information.Link Copy Citation

A custodian may not be civilly or criminally liable under Maryland law for providing or describing a public record to the Board under General Provisions Article, §4-1A-06(b), Annotated Code of Maryland.

The provision of a record or a description of a record to the Board under General Provisions Article, §4-1A-06(b), Annotated Code of Maryland, may not be construed as a waiver of any applicable privilege.

Regulation .08 Record on Appeal.Link Copy Citation

The Board shall prepare and transmit the record in accordance with the Maryland Rules.

The Board shall transmit any part of the record that contains records or information received by the Board pursuant to COMAR 14.02.05.03, or that are otherwise not open to public inspection, under seal.

Subtitle 02 — State Public Information Act Compliance Board

Chapter 07. Decisions of Board

Regulation .01 Written Decision.Link Copy Citation

The Board shall issue a written decision.

In its written decision, the Board shall refer to any confidential records or information in accordance with COMAR 14.02.06.05.

A decision of the Board may state that it is unable to resolve the complaint.

The Board shall send a copy of the written decision to the complainant and the affected custodian or applicant.

The Board may send to any custodian in the State any written decision that will provide the custodian with guidance on compliance with the Act.

As required by statute, the Attorney General shall post on the website of the Office of the Attorney General all of the Board’s written decisions.

Regulation .02 Timing Generally.Link Copy Citation

Except as provided in Regulation .03 of this chapter, the Board shall issue a written decision within 30 days after receiving the written response, a reply, if filed, and all records or information requested under COMAR 14.02.05.

Except as provided in Regulation .03 of this chapter, if the Board holds an informal conference under COMAR 14.02.04, the Board shall issue a written decision within 30 days after the informal conference.

Regulation .03 Statement of Delay.Link Copy Citation

If the Board is unable to issue a decision within the time periods specified in Regulation .02 of this chapter, it shall state in writing the reason for its inability to issue a decision.

The Board shall issue a decision as soon as possible, but no later than 120 days after the filing of the complaint.

Regulation .04 Remedies.Link Copy Citation

If the Board finds that a custodian has denied inspection of all or part of a public record in violation of the Act, the Board may order the custodian to produce the public record for inspection.

If the Board finds that a custodian charged an unreasonable fee or charged an unreasonable estimated fee under General Provisions Article, §4-206, Annotated Code of Maryland, the Board may order the custodian to reduce the fee or estimated fee to an amount the Board determines is reasonable and refund the difference, if applicable.

Remedies for Custodian’s Failure to Respond.

(1)

If the Board finds that a custodian failed to respond to a request for a public record within the time limits established under General Provisions Article, §4-203(a) or (d), Annotated Code of Maryland, the Board may order the custodian to promptly respond.

(2)

The Board may order a custodian to waive all or part of the fee that the custodian is entitled to charge under General Provisions Article, §4-206, Annotated Code of Maryland, if:

(a)

The Board finds that a custodian failed to respond to a request for a public record within the time limits established under General Provisions Article, §4-203(a) or (d), Annotated Code of Maryland; and

(b)

The Board includes its reasons for ordering the waiver in its written decision.

If the Board finds that an applicant’s request is frivolous, vexatious, or in bad faith based on the totality of the circumstances, the Board may issue an order authorizing the custodian to:

(1)

Ignore the request that is the subject of the custodian’s complaint;

(2)

Ignore any future requests that are substantially the same as the request that is the subject of the custodian’s complaint; or

(3)

Respond to a less burdensome version of the request within a time frame that the Board determines is reasonable.

Regulation .05 Appeal Rights.Link Copy Citation

A complainant or custodian may appeal the Board’s decision in accordance with General Provisions, §4-362(a)(2), Annotated Code of Maryland.

An appeal filed pursuant to §A of this regulation automatically stays the Board’s decision pending the circuit court’s decision.

A party may not appeal a decision of the Board that states that the Board is unable to resolve the complaint.

Subtitle 02 — State Public Information Act Compliance Board

Chapter 08. Meetings of Board

Regulation .01 Deliberations.Link Copy Citation

To resolve a complaint, the Board may deliberate by email, teleconference, videoconference, or in person.

Deliberations under this regulation shall pertain only to the resolution of a complaint.

Regulation .02 Meetings.Link Copy Citation

The Board may elect to convene regular standing meetings to deliberate and resolve complaints, and to address any other business of the Board.

All meetings shall be held in accordance with General Provisions Article, Title 3, Annotated Code of Maryland, to the extent applicable to the meeting.

All meetings shall be governed by commonly accepted rules of parliamentary procedure as determined by the Chair of the Board.

Subtitle 03 — Commission on Human Relations

Chapter 01. Rules of Procedure; Public Hearing Process

Regulation .01 Applicability.Link Copy Citation

The rules of procedure provided in this chapter apply to the processing of complaints of discrimination under the provisions of State Government Article, Title 20, Annotated Code of Maryland, except for those covered under the “Discrimination in Housing” subtitle, State Government Article, Title 20, Subtitle 7, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

Complaint.

(1)

“Complaint” is a written statement by a person or by the Commission alleging an act of discrimination prohibited by State Government Article, Title 20, Annotated Code of Maryland, or any other statute administered or enforced by the Commission under the laws of Maryland.

(2)

No particular language or allegations may be required in a complaint for its filing, provided that its language is sufficient to apprise a reasonable person that such an act has been alleged.

(3)

A complaint may be amended as provided in these regulations to include these allegations of specific facts and particulars as will fairly inform the respondent of the unlawful conduct alleged or otherwise to conform the complaint to the requirements of law.

“Executive Director” includes the Executive Director, and, in the event of the Executive Director's absence from the offices of the Commission or other temporary inability to fulfill the functions of the Executive Director's office, the Deputy Executive Director. “Executive Director or designee” includes the Executive Director, the Deputy Executive Director, and duly appointed supervisory personnel of the Commission duly acting in a supervisory function.

“Human Relations Commission” includes any individual or body duly authorized by statute, ordinance, or other appointment or designation as provided by law, including, but not limited to, city, county, or other local human relations commissions or agencies, charged thereby with the receipt of complaints of unlawful discrimination, and any entity designated by the Governor for the administration of the Code of Fair Practices.

“Investigator” means a member of the staff of the Commission presently designated “Human Relations Representative” and all agents of the Commission acting in the same capacity as may be so designated from time to time by the Executive Director or otherwise pursuant to law.

Notice. Except where otherwise provided in these regulations, “notice” of any action, decision, or proceeding required by these regulations shall be deemed to have been properly served by:

(1)

Mailing by certified or registered mail;

(2)

A certification by an agent of the Commission that a document has been mailed; or

(3)

Personal delivery to the addressee, such that actual receipt of this notice is made within a reasonably prompt time and within any time period required by these regulations.

“Offices of the Commission” means the Commission's offices in Baltimore City and such other offices within the State as may from time to time be established by the Commission.

Party. As used in Regulation .10, the word “party” means the Maryland Commission on Human Relations, the respondent, or the complainant. As used in Regulation .11, the word “party” means the Maryland Commission on Human Relations, the respondent, and the complainant, as well as any person clearly identified in the record of the proceedings before the Office of Administrative Hearings as having an interest in the disposition of the complaint.

“Person” means one or more individuals, labor unions, partnerships, associations, corporations, successors in interest, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers.

Time.

(1)

Days.

(a)

In computing any number of “days” described in these regulations or in any Order of the Commission, the day of the act or event after which the designated number of days begins is not included, and Saturdays, Sundays, and State holidays shall be counted only when the period described is more than 7 days.

(b)

When the last day computed would fall on a Saturday, Sunday, or State holiday, the period shall extend to the first day thereafter which is not a Saturday, Sunday, or State holiday.

(2)

Six Months.

(a)

“Six months” means that period of time which begins on the day following the applicable act or event and extends to the day of the sixth month bearing the same calendar number.

(b)

When the last mentioned day would fall on a day whose number does not exist in this sixth month, the period shall extend to the applicable number of days in the next month.

(c)

When the last day so computed would fall on a Saturday, Sunday, or State holiday, the period shall extend to the first day which is not one of those days.

“Proceeding” means a conference, meeting, hearing, investigation, inquiry, or other fact-finding or decision-making procedure, including the dismissal of a complaint.

Regulation .03 Complaint Filing.Link Copy Citation

Who May File.

(1)

Any person or organization whose membership includes any person or persons, who claim to have been aggrieved by an act or acts of unlawful discrimination prohibited by State Government Article, Title 20, Annotated Code of Maryland, may file a complaint with the Commission.

(2)

The Commission may file a complaint in accordance with State Government Article, Title 20, Annotated Code of Maryland.

Manner of Filing.

(1)

Complaints shall be filed at the offices of the Commission in person, by registered, certified, or regular mail, facsimile or other electronic media, or by delivery to any duly appointed representative of the Commission.

(2)

Complaints Initiated by Telephone.

(a)

Complaints may be initiated by telephone to the Commission.

(b)

If a complaint is initiated by telephone, the Commission shall:

(i)

Reduce information provided by telephone to writing on the prescribed complaint form; and

(ii)

Send the complaint form to the aggrieved person to be signed and affirmed as provided in §D of this regulation.

(c)

A telephone-initiated complaint is considered filed only upon receipt of the form or a signed writing.

When Filed.

(1)

Individual complaints, except those involving allegations of housing discrimination, shall be filed within 6 months from the date of the occurrence of the alleged unlawful discrimination.

(2)

If the alleged unlawful discrimination practice is of a continuing nature, the date of the occurrence of this unlawful discrimination is considered to be any date up to and including that date on which the unlawful practice shall have ceased.

(3)

An individual complaint filed with a federal or a local commission within the 6-month period required under §C(1) of this regulation shall be deemed as being a timely filing in compliance with that requirement.

Form and Content of Complaint.

(1)

The original complaint and two additional copies shall be signed and affirmed by the complainant or, if the complaint is filed by the Commission, in accordance with Regulation .11 of this chapter.

(2)

An individual complaint may be filed on a form provided by the Commission.

(3)

Complaint forms will be made available to all persons at the office of the Commission in Baltimore, Maryland or other offices within the State which may be established.

(4)

Appropriate assistance in filling out forms will be rendered to complainants or to persons filing on behalf of a complainant, by personnel of the Commission.

(5)

Complaints filed on forms provided by other local commissions, including federal civil rights agencies, shall be considered complaints filed with the Commission.

(6)

Notwithstanding the requirement for using a required form, the Commission will accept a written statement which substantially sets forth the allegations of a discriminatory practice under State Government Article, Title 20, Annotated Code of Maryland.

(7)

Each complaint shall contain substantially the following information:

(a)

The name and address of the complainant;

(b)

The name and address of the respondent; and

(c)

A concise statement of facts including pertinent dates, constituting the alleged discriminatory practice.

Amendment of Complaint.

(1)

A complaint may be reasonably and fairly amended at any time.

(2)

The amendments may include but are not limited to amendments to:

(a)

Cure technical defects or omissions, including failure to sign or affirm the complaint;

(b)

Clarify and amplify any allegation made in the complaint;

(c)

Join additional or substitute respondents; or

(d)

Allege additional acts which constitute discriminatory practices under State Government Article, Title 20, Annotated Code of Maryland, which relate back to or grow out of the subject matter of the original complaint.

(3)

All amendments shall relate back to the original filing date.

Regulation .04 Complaint Processing.Link Copy Citation

Review and Authorization. After the filing of a complaint, the Executive Director or designee shall:

(1)

Review the complaint to determine whether it should issue for reasons of standing of the parties, timeliness of the filing, or other matters upon which its issuance may depend;

(2)

In cases where the complaint is acceptable, authorize an investigation by dating and signing the complaint; or

(3)

In cases where the complaint is rejected and not susceptible to amendment, serve notice on the complainant stating the reasons for the rejection.

Notice.

(1)

After the authorization of an individual complaint by the Executive Director or designee, as set forth in §A of this regulation, and not more than 120 days from the date on which this complaint was filed, the Commission staff shall provide notice of it by serving a copy of the complaint upon the respondent.

(2)

The notice shall:

(a)

Acknowledge the filing of the complaint and state the date that the complaint was accepted for filing;

(b)

Include a copy of the complaint;

(c)

Advise the respondent of the time limits applicable to complaint processing and of the procedural rights and obligations of the respondent under these regulations; and

(d)

Advise the respondent that retaliation against an individual because the individual made a complaint, testified, assisted, or participated in an investigation or conciliation under these regulations is a discriminatory practice that is prohibited by Article 49B, Annotated Code of Maryland.

Answer to Complaint.

(1)

The respondent may file an answer not later than 30 days after receipt of the notice described in §B of this regulation.

(2)

The respondent may assert any defense that might be available to a defendant in a court of law.

(3)

The answer shall be signed and affirmed by the respondent.

(4)

The affirmation shall state: “I declare under the penalty of perjury that the foregoing is true and correct.”

(5)

An answer may be reasonably and fairly amended at any time with the consent of the Executive Director or designee.

Withdrawal. A complaint filed by or on behalf of any aggrieved person may be withdrawn in writing at any time by the aggrieved person or person who filed the complaint.

Administrative Closure—Notice and Reopening.

(1)

The Executive Director or designee may administratively close a complaint under those circumstances which, by way of example but not limitation, may include absence of information which establishes the whereabouts of the complainant, or the determination that statutory requisites have not been met.

(2)

Notice of Administrative Closure.

(a)

Written notice of the administrative closure shall be provided to the complainant's last known address, informing the complainant of the right to object to this closure within 15 days of the date on which this notice was mailed.

(b)

If the complaint is withdrawn by the complainant, the 15-day notice provision to the complainant is not required.

(c)

Written notice of the closure shall be sent to the respondent upon whom the complaint has been served.

(3)

Objection to Administrative Closure.

(a)

If the complainant files a timely objection, the Executive Director or designee shall consider the closure in light of the reasons stated by the complainant, and shall make a determination.

(b)

In the absence of a timely objection, the Executive Director or designee shall close the complaint and mark the case file as administratively closed.

(4)

Request to Reopen Complaint.

(a)

A request to reopen a complaint administratively closed for lack of information establishing the whereabouts of the complainant that is received beyond the time for objecting specified in §D(2) of this regulation shall be considered only upon a showing of good cause made by the complainant.

(b)

Factors to be considered in determining whether good cause exists include but are not limited to:

(i)

The amount of time elapsed since the complainant last had contact with the Commission;

(ii)

The circumstances surrounding the complainant's failure to inform the Commission of their whereabouts; and

(iii)

Prejudice to the respondent.

Dismissal of Proceedings. As to cases which have not been filed with the Office of Administrative Hearings pursuant to Regulation .10B of this chapter, after notifying the complainant and respondent, the Executive Director or designee may dismiss without prejudice, at any stage of the proceedings, a case filed with the Commission, when the complainant has instituted an action in federal district court or State court alleging unlawful discrimination based on the same facts as those alleged in the complaint filed with the Commission.

Regulation .05 Investigative Process.Link Copy Citation

Investigation. Upon the authorization of a complaint, the Executive Director or designee shall assign, or cause to be assigned, the investigation of the complaint to a staff investigator.

Systemic Processing.

(1)

The Executive Director or designee may identify the complaint for systemic processing when the Executive Director or designee determines that:

(a)

The alleged discriminatory practices contained in a complaint are pervasive or institutional in nature;

(b)

The processing of the complaint will involve complex issues, novel questions of law or fact; or

(c)

A large number of persons will be affected.

(2)

The determination in §B(1) of this regulation may be based on the facts of the complaint or on information gathered in connection with an investigation.

(3)

Systemic investigations may focus not only on documenting facts involved in the alleged discriminatory practice that is the subject of the complaint, but also on review of other policies and procedures related to matters under investigation, to make sure they also comply with the nondiscriminatory requirements of State Government Article, Title 20, Annotated Code of Maryland.

Conduct of Investigation.

(1)

Fact-Finding Conference. The Executive Director or designee may require that the complainant and respondent appear at a fact-finding conference convened for the following purposes:

(a)

Defining the issues contained in a complaint;

(b)

Determining which elements are undisputed; and

(c)

Resolving those issues which are susceptible of resolution and ascertaining whether or not there is a basis for a negotiated settlement of the complaint.

(2)

Request for Information.

(a)

The Executive Director or designee shall require the respondent to promptly provide answers to requests for information, which will be used to assist in determining the merits of the allegations contained in the complaint.

(b)

The request for information shall be accompanied by the following:

(i)

A copy of the charge; and

(ii)

The date on which the response shall be submitted.

(c)

Additional requests for information may be made to further the investigation.

(3)

Interrogatories—Content and Response.

(a)

The investigator may, upon authorization of the Executive Director or designee, serve interrogatories on a respondent by registered or certified mail or by personal service.

(b)

These interrogatories shall be accompanied by the following:

(i)

The date by which a response is required, which date shall be not less than 30 days after the date on which these interrogatories were delivered to the respondent; and

(ii)

A statement describing the consequences to the respondent should the respondent fail to answer these interrogatories, as set forth in Regulation .06 of this chapter.

(c)

The interrogatories shall be answered within the time prescribed in the accompanying notice and shall be under oath.

(d)

Time extensions may be granted for good cause shown and upon a written request submitted to the Commission's Executive Director or designee.

(e)

Subsequent interrogatories, upon a determination that they are relevant or necessary to complete the administrative process, may be authorized and promulgated by the Commission's staff.

(f)

Motion to Strike or Exceptions.

(i)

The respondent may file a motion to strike or exceptions to the interrogatories within the time period set forth in §C(3)(b)(i) of this regulation.

(ii)

The motion or exceptions shall state the reason or reasons therefore and shall be supported by a memorandum of points and authorities.

(iii)

The Executive Director or designee will rule on the motion papers without oral argument.

(iv)

If the motion or exceptions are granted, the interrogatories may be limited, modified, or stricken in accordance with the order of the Executive Director or designee.

(v)

If the motion or exceptions are denied, or if the order of the Executive Director or designee requires the respondent to answer any portion of the interrogatories, the respondent shall be given not more than 10 days from the date of receipt of the order to answer these interrogatories.

(4)

Investigatory Subpoena.

(a)

If completion of an investigation requires the issuance of a subpoena, the investigator may, upon the written authorization of the Executive Director or designee, issue a subpoena to compel the attendance and testimony of witnesses, or a subpoena to compel the production of books, papers, records, and documents relevant or necessary to this investigation.

(b)

Service of this subpoena shall be made in accordance with State Government Article, Title 20, Annotated Code of Maryland.

(c)

The subpoena shall contain the following:

(i)

The name of the person whose testimony is required, identification of the books, papers, records, and documents to be submitted, or all of these;

(ii)

The time and date when and the place where the person subpoenaed is directed to appear and produce the information sought, which date may not be less than 15 days after the date on which the subpoena was served;

(iii)

The signature of the Executive Director authorizing the issuance of this subpoena.

(d)

Upon failure by the person subpoenaed to appear, to produce these records, documents, papers, or books, or all of these, the Executive Director or designee may apply to the circuit court in the county having jurisdiction or to the Circuit Court for Baltimore City for an order requiring the attendance and testimony of the person subpoenaed, or the production of the requested records, documents, papers, books, or both.

Regulation .06 Default Procedures.Link Copy Citation

Interrogatories — Default Procedure.

(1)

If, after a respondent has been served with duly authorized interrogatories together with a notice of the consequences of the failure to answer them, the respondent fails either to answer the interrogatories or to file a motion to strike or exceptions to the interrogatories within the time specified, the Executive Director or designee shall serve or cause to be served upon the respondent the following notice:

(a)

An admission that the interrogatories, if answered, would have established facts consistent with the claim of the complainant; and

(b)

A waiver of your right to have this Commission conduct further investigation, find whether there is probable cause, make conciliation efforts, or hold a hearing allowing the presentation of any and all defenses to the complaint which you might have otherwise raised."

(2)

Upon failure by the respondent to file full and complete answers to these interrogatories in accordance with this notice, the Executive Director or designee may certify the file and forward it to the General Counsel.

(3)

The General Counsel shall prepare for submission to the Office of Administrative Hearings the case file, together with a petition seeking a default order and an affidavit of the Executive Director or designee which shall include:

(a)

A statement that the complainant has filed the allegations of discriminatory practices within the time prescribed in State Government Article, §20-1004(c), Annotated Code of Maryland;

(b)

The date of service of the complaint and interrogatories on the respondent and the date of service of any notice requiring answer to interrogatories, or extending the time in which to answer them, or both;

(c)

The date of service of the complaint and interrogatories as appears from the return of process;

(d)

A statement that the respondent has failed to reply to the interrogatories within the time required; and

(e)

A statement that the respondent has been given notice of the consequences of failure to respond to the interrogatories.

(4)

An administrative law judge shall determine whether the respondent is in default and shall issue the appropriate order and serve a copy of the order on all parties.

(5)

If the administrative law judge determines that the respondent is in default, the administrative law judge may impose any or all of the sanctions set forth in §A(1) of this regulation as the administrative law judge finds appropriate.

(6)

If the administrative law judge determines that the respondent is not in default, the administrative law judge shall deny the petition and return the case file to the Executive Director or designee for further investigative proceedings.

Petition to Vacate Default Order.

(1)

Within 30 days after notice to the respondent of the entry of any default order, the respondent may petition the Commissioners sitting in their appellate capacity, as set forth in Regulation .12 of this chapter, to vacate the order and reopen the case for good cause shown.

(2)

The respondent's assertion of good cause shall be in the form of an affidavit and shall include full and complete answers to the unanswered interrogatories.

(3)

Oral argument is not permitted.

Issuance of Default Order. After the issuance of an order by the administrative law judge imposing sanctions:

(1)

The case shall be logged in the Commission's official docket book for the purpose of hearing the complainant's evidence in support of the allegation of discrimination;

(2)

A finding of probable cause shall be deemed made against the respondent;

(3)

A failure of conciliation shall be presumed by respondent's default;

(4)

The public hearing to be subsequently held on the merits of the complaint will be limited to whatever sanctions may be applied pursuant to §A(1) of this regulation; and

(5)

The hearing may result in the issuance of a Commission order, pursuant to State Government Article, §20-1009(e), Annotated Code of Maryland.

Regulation .07 Negotiated Settlement.Link Copy Citation

Purpose. In the interest of promoting a prompt and just resolution of complaints brought, parties to a complaint are encouraged to enter into a settlement agreement.

How Commenced.

(1)

At any time before the issuance of written finding of facts, either party to a complaint may request that negotiations be entered.

(2)

Upon receipt of this request, the Executive Director or designee shall attempt to initiate these negotiations by arranging and presiding over a meeting between the parties.

(3)

If both parties indicate a willingness to enter these negotiations, the Commission staff may require as a condition precedent to the convening of any meeting that the complainant, the respondent, or both, submit information which will facilitate an understanding of the case and promote its resolution.

Agreement. If negotiations result in a settlement of the complaint, the parties shall execute a written agreement setting forth the terms of the settlement, and the complainant shall authorize a withdrawal of the complaint.

Order of the Commission. An agreement resulting from a settlement shall be executed on behalf of the Commission by the Executive Director or designee and shall constitute an order of the Commission as provided by law.

Regulation .08 Completion of Investigation.Link Copy Citation

Written Findings.

(1)

The results of the staff's investigation shall be set forth in a written report entitled “written findings” which shall chronicle the facts found to exist and the conclusions drawn.

(2)

The findings shall be served on all parties to the complaint.

Probable Cause.

(1)

The Commission shall determine whether, based on the totality of the factual circumstances known at the time of the decision, probable cause exists to believe that a discriminatory act has occurred.

(2)

The probable cause determination shall be based solely on the facts concerning the alleged discriminatory act, provided by the complainant and respondent and otherwise, disclosed during the investigation.

(3)

If the Commission determines that probable cause exists, the Commission shall immediately give notice to the complainant, the aggrieved person, and the respondent of this determination.

(4)

If the Commission determines that no probable cause exists, the Commission shall immediately give notice to the complainant, the aggrieved person, and the respondent of this determination.

(5)

A final written finding may be amended at any time, if additional information is discovered.

Reconsideration.

(1)

If the findings conclude that there is no probable cause to believe that a discriminatory act has been or is being committed, the complainant shall be given the opportunity to apply to the Commission's Executive Director or designee for reconsideration of the Commission's written findings and recommendations.

(2)

Reconsideration Process.

(a)

The application and authority shall be in writing and shall state specifically the grounds upon which it is based.

(b)

The application and authority shall be filed with the Executive Director or designee within 15 days from the date on which the findings were mailed to the complainant.

(c)

Written notice that the complainant has requested reconsideration shall be given promptly to the respondent.

(d)

Not later than 30 days after receipt of an application, the Executive Director or designee shall review the entire file, including the request for reconsideration, and may:

(i)

Grant or deny the application for reconsideration; and

(ii)

Issue an order the Executive Director or designee considers appropriate.

(e)

Not later than 30 days after making a determination, the Executive Director or designee shall notify the complainant and respondent in writing of the determination, and do one of the following:

(i)

If the application for reconsideration is granted, remand the matter to the investigative staff for the appropriate action; or

(ii)

If the application for reconsideration is not granted, administratively close the case.

The times set forth in §C of this regulation may be extended by the Executive Director or deputy director for good cause.

Regulation .09 Conciliation Process.Link Copy Citation

Conciliation.

(1)

Upon a written finding of probable cause, the Commission, the complainant, and the respondent shall enter the conciliation process.

(2)

Written notice of the opportunity to conciliate shall be provided to the parties.

Termination of Conciliation Efforts — Respondent's Actions.

(1)

The Commission may terminate its efforts to conciliate if a respondent fails or refuses to confer with the Commission's staff, or fails or refuses to negotiate in good faith to resolve the dispute.

(2)

If a written finding of probable cause has been issued, the Executive Director or designee may terminate the efforts to conciliate, notify the parties that conciliation has failed, and certify the case for public hearing as set forth in Regulation .10 of this chapter.

Termination of Conciliation Efforts—Complainant's Actions.

(1)

The Executive Director or designee may administratively close a case if the complainant:

(a)

Fails to negotiate in good faith; or

(b)

Rejects an offer of settlement or compromise made by the respondent, in a formal offer of settlements, which provides the complainant with the full relief which is available under the laws enforced by the Commission.

(2)

Before administratively closing the case, the Executive Director or designee shall:

(a)

Provide written notice to the complainant;

(b)

Give the complainant 15 days after the mailing of the notice to object in writing and give reasons why the case should not be administratively closed;

(c)

Consider the objections filed by the complainant;

(d)

Administratively close the case if no objections are filed; and

(e)

Promptly notify both the complainant and respondent of the determination.

Prohibitions and Requirements — Disclosure of Information Obtained During Conciliation.

(1)

Except as provided in §C(2) of this regulation, nothing that is said or done in the course of conciliation under this regulation may be made public or used as evidence in a subsequent administrative hearing under State Government Article, Title 20, Annotated Code of Maryland, without written consent of the persons concerned or as otherwise permitted by law.

(2)

Conciliation agreements shall be made public, unless the aggrieved person and respondent request nondisclosure and the Commission determines that disclosure is not required to further the purposes of State Government Article, Title 20, Annotated Code of Maryland.

(3)

Notwithstanding a determination that disclosure of a conciliation agreement is not required, the Commission may publish tabulated descriptions of the results of all conciliation efforts.

Review of Compliance with Conciliation Agreements.

(1)

The Commission may, from time to time, review compliance with the terms of any conciliation agreement.

(2)

Whenever the Commission has reasonable cause to believe that a respondent has breached a conciliation agreement, the Commission general counsel may file a civil action for the enforcement of the terms of the conciliation agreement.

Order of the Commission. An agreement resulting from conciliation shall be executed on behalf of the Commission by the Executive Director or designee and shall constitute an order of the Commission as provided by law.

Regulation .10 Public Hearings — Certification and Preliminary Proceedings.Link Copy Citation

Certification of File.

(1)

Upon failure of conciliation, the Executive Director or designee shall certify the case for public hearing. An entry identifying this case shall be logged in the Commission's official docket book, which shall be maintained by the Executive Director for cases pending public hearing.

(2)

Upon certification of the file, the Executive Director or designee shall so notify the parties to an action and issue to complainant notice of opportunity for election of a civil action, pursuant to State Government Article, §20-1007, Annotated Code of Maryland, and Regulation .13 of this chapter.

(3)

The Executive Director or designee shall forward the certified case file to the Commission's general counsel for further processing.

(4)

The general counsel, on review of a file so certified, may remand the case to the Executive Director or designee for:

(a)

Further investigation and, in this case, shall state clearly the issues requiring further investigative proceedings; or

(b)

Review of the findings and, in this case, shall state clearly the reason or reasons for the review.

Statement of Charges.

(1)

The Commission shall file a statement of charges if:

(a)

The complainant elects to pursue an administrative action; or

(b)

The complainant or Commission fails to elect a civil action within the time specified under Regulation .13A of this chapter.

(2)

The Commission's general counsel shall prepare a written statement of charges in support of the complaint and forward it to the Office of Administrative Hearings together with a written request for a hearing date in accordance with COMAR 28.02.01.04.

(3)

The statement of charges shall contain:

(a)

An allegation that the person on whose behalf the complaint is issued is a proper complainant within the meaning of State Government Article, Title 20, Annotated Code of Maryland;

(b)

An allegation that the respondent is a proper respondent within the meaning of, and subject to, provisions of State Government Article, Title 20, Annotated Code of Maryland;

(c)

A factual allegation or allegations of an unlawful discriminatory practice or practices;

(d)

A prayer for relief sought.

Consolidation of Complaints. The administrative law judge may consolidate or combine several cases for purposes of hearing or other proceedings, when the administrative law judge finds that sufficient common issues of fact, or law, or both, are involved.

Prehearing Procedures.

(1)

Prehearing Conference. A prehearing conference shall be conducted in accordance with COMAR 28.02.01.13.

(2)

Notice of Prehearing Conference and Hearing.

(a)

The administrative law judge shall set the matter in for a prehearing conference, or hearing, or both, on the earliest date practicable and shall, by registered or certified mail, forward to the complainant and to the respondent a statement of charges and a notice of prehearing conference or hearing, which shall include the following:

(i)

The place, date, and hour of the prehearing conference or public hearing, or both;

(ii)

A statement advising both the complainant and respondent of their respective rights to appear and be represented in this hearing in person, by their attorneys, or both, and that the case in support of the complaint shall be presented by the Commission's general counsel;

(iii)

A statement advising the respondent of his or her right to file an answer to the statement of charges; and

(iv)

The name of the administrative law judge who shall conduct this prehearing conference or hearing or a statement that an administrative law judge will be subsequently designated.

(b)

The administrative law judge shall forward a copy of the notice of prehearing conference, or public hearing, or both, to the general counsel of the Commission.

(c)

The prehearing conference or public hearing, or both, may not be less than 20 or more than 60 days after the issuance and service of the statement of charges and notice of prehearing conference, or public hearing, or both.

(3)

Settlement Conference. When required, a settlement conference shall be conducted in accordance with COMAR 28.02.01.14.

Answer.

(1)

Any answer made to the statement of charges shall be filed within 15 days after service of the statement of charges. Upon application in writing to the administrative law judge before the end of the 15 days, the administrative law judge may, for good cause shown, extend the time within which an answer may be filed.

(2)

The answer shall be filed with the Office of Administrative Hearings and the original of the answer shall be signed under oath or affirmation of the respondent and shall contain:

(a)

The name and address of the respondent;

(b)

The name, address, and telephone number of the respondent's attorney, if any;

(c)

A specific admission or denial or assertion that the respondent is without sufficient knowledge or information to form a belief with respect to each and every allegation of the complaint;

(d)

A statement of any matter constituting a defense to any allegations in the statement of charges;

(e)

A certification that service of this answer has been made upon all other parties.

(3)

Any allegation in the statement of charges which is not denied or admitted in the answer shall be deemed admitted, unless the respondent shall state in the answer that it is without sufficient knowledge or information to form a belief with respect to this allegation.

(4)

Any allegation of new matter contained in the answer shall be deemed denied without the necessity of a reply being filed, unless a reply is ordered by the administrative law judge conducting the hearing.

Preliminary Matters—Motions.

(1)

All preliminary matters shall be raised by motion filed at either the prehearing conference or not later than 45 days before the public hearing.

(2)

The motion shall be in writing, stating briefly the relief applied for, with a memorandum stating the reasons and any law that may support the motion.

(3)

The motion and two copies together with a certificate of mailing to all parties shall be filed with the administrative law judge.

(4)

An answer to a preliminary motion shall be in writing and include:

(a)

A memorandum stating the reasons and any law that may be in support of the answer; and

(b)

Certification that a copy has been mailed to all parties.

(5)

The original and two copies of the answer shall be filed with the administrative law judge within 15 days of receipt of the original motion unless otherwise directed by the administrative law judge.

(6)

The administrative law judge shall decide all motions without oral argument on the motions, unless the administrative law judge desires oral argument or testimony.

(7)

If the administrative law judge desires oral arguments, the administrative law judge shall set the date, place, and time, and notify all parties.

Regulation .11 Administrative Hearing Proceedings.Link Copy Citation

General Information.

(1)

Location of Hearing. An administrative law judge shall conduct the hearing at a place in Baltimore City or the county in which the discriminatory practice is alleged to have occurred.

(2)

The administrative law judge shall conduct the hearing in accordance with COMAR 28.02.01.07, and State Government Article, §20-1008(a), Annotated Code of Maryland.

(3)

Time Computations.

(a)

Time computations under this regulation shall be in accordance with Article 1, §36, Annotated Code of Maryland.

(b)

Except for time periods required by statute, the administrative law judge may enlarge or reduce any time period required under this regulation when necessary to avoid prejudicing the public interest or the rights of the parties.

(c)

In computing any time period involved, the date of the issuance of an order or decision by an administrative law judge is the date the order or decision is served by the Office of Administrative Hearings.

(d)

Documents are not filed until received by the Office of Administrative Hearings.

(4)

Service and Filing.

(a)

Service of documents under this regulation shall be in accordance with COMAR 28.02.01.24.

(b)

Copies of all filed documents shall be served on all parties of record.

(c)

All filed documents shall clearly designate the docket number, if any, title of the proceeding, and certificate of service.

(d)

Parties shall file all documents with the Office of Administrative Hearings.

Administrative Law Judge.

(1)

Authority. The powers and duties of an administrative law judge shall be in accordance with COMAR 28.02.01.08A and B.

(2)

Disqualification. Any disqualification of an administrative law judge shall be in accordance with COMAR 28.02.01.08C.

(3)

Ex Parte Communications. An ex parte communication shall be defined and prohibited in accordance with State Government Article, §10-219, Annotated Code of Maryland.

Parties. Parties to the proceedings include:

(1)

The Commission that files the charge under Regulation .10 of this chapter seeking appropriate relief for an aggrieved party and the public interest;

(2)

A complainant who is the person who files a complaint of discrimination issued under Regulation .03 of this chapter;

(3)

A respondent who is a person named in the complaint issued under Regulation .03 of this chapter against whom relief is sought;

(4)

An aggrieved person who may file a request for intervention under COMAR 28.02.01.12; and

(5)

Representation of the parties which shall be in accordance with COMAR 28.02.01.09.

Pleadings and Motions.

(1)

Pleadings.

(a)

Form. Every pleading, motion, brief, or other document shall contain a caption setting forth the title of the proceeding, the case number assigned by the Commission, and the designation of the type of document (for example, charge, answer, or motion to dismiss).

(b)

Signature.

(i)

Every pleading, motion, brief, or other document filed by a party shall be signed by the party, the party's representative, or the attorney representing the party, and shall include the signer's address and telephone number.

(ii)

The signature constitutes a certification that the signer has read the document, that to the best of the signer's knowledge, information, and belief there is good ground to support the document, and that it is not interposed for delay.

(2)

Motions. All motions to an administrative law judge shall be in accordance with COMAR 28.02.01.16 except when otherwise provided in Regulation .10F of this chapter.

Discovery. Discovery shall be conducted in accordance with COMAR 28.02.01.10.

Subpoenas. Subpoenas shall be issued in accordance with State Government Article, §§20-1010 and 20-1023, Annotated Code of Maryland, and COMAR 28.02.01.11.

Hearing Procedures.

(1)

Place. The hearing shall be conducted in Baltimore City or the county where the discriminatory practice is alleged to have occurred.

(2)

Notice of Hearing. The parties shall be notified of the hearing in accordance with Regulation .10D(2) of this chapter.

(3)

Conduct of Hearing. The hearing shall be conducted in accordance with COMAR 28.02.01.17.

(4)

Evidence. Evidence shall be admitted in accordance with State Government Article, §10-213, Annotated Code of Maryland, and COMAR 28.02.01.18.

(5)

Stipulations. The administrative law judge may accept stipulations in accordance with COMAR 28.02.01.15 upon the showing of mutual consent of the parties.

(6)

Affidavits. The administrative law judge may accept affidavits in accordance with COMAR 28.02.01.15 upon showing:

(a)

Mutual consent of the parties;

(b)

That the affiant is unavailable to testify; and

(c)

That the party seeking to introduce the affidavit has exercised reasonable diligence to locate the affiant.

(7)

Failure to Attend Hearing and Default. A party's failure to attend a hearing and the subsequent default process shall be in accordance with COMAR 28.02.01.20.

(8)

Appointment of Interpreter. In situations when an interpreter is required, appointment shall be made in accordance with COMAR 28.02.01.19.

(9)

Public Hearings. Proceedings under this regulation shall be open to the public in accordance with COMAR 28.02.01.21.

(10)

Transcript of Hearing Record.

(a)

The administrative law judge shall cause the testimony taken at the hearing to be transcribed.

(b)

This transcript, together with all pleadings, exhibits, and other materials introduced into evidence shall constitute the record of the case as defined by State Government Article, §10-218, Annotated Code of Maryland.

Decision of Administrative Law Judge.

(1)

In General.

(a)

The administrative law judge shall issue a decision and order including findings of fact and conclusions of law upon each material issue of fact and law presented on the record.

(b)

Decisions by the administrative law judge shall be in accordance with COMAR 28.02.01.22.

(2)

Finding Against Respondent.

(a)

If the administrative law judge finds that a respondent has engaged in a discriminatory practice, the administrative law judge shall issue a decision against the respondent and order such relief as may be appropriate.

(b)

This order shall set out the mechanism by which its provisions shall be monitored for compliance.

(3)

Finding in Favor of Respondent. If the administrative law judge finds that a respondent has not engaged in a discriminatory practice, the administrative law judge shall make an initial decision dismissing the charge.

(4)

Service of Decision. The decision of an administrative law judge shall be delivered to all parties, the complainant, the respondent, and the Commission with a notice indicating the right of the Commission, the complainant, or the respondent to enter an appeal of this decision to an appeal board of the Commission within 30 days, in accordance with State Government Article, §20-207(f), Annotated Code of Maryland, and Regulation .12 of this chapter.

(5)

Final Decision and Order. In the absence of a timely appeal, the decision of the administrative law judge shall become the final decision and order of the Commission, signed by the chairman, and from which no further administrative appeal may be taken.

Regulation .12 Review by the Appeal Board of Decisions of the Administrative Law Judge.Link Copy Citation

Notice of Appeal.

(1)

An appeal may be taken by the Commission, the respondent, or the complainant.

(2)

An appeal to the Appeal Board of the Commission shall be taken by filing with the administrative law judge a written notice of appeal within 30 days from the date of the delivery of the decision to the appealing party.

(3)

This notice shall be sufficient if it is titled and captioned in the same manner as the case before the administrative law judge, and if it contains language indicating that the party desires a review of the decision of the administrative law judge.

(4)

The appealing party shall serve a copy of the notice of appeal upon all other parties and shall certify in the notice of appeal that this service has been made.

(5)

If a timely notice of appeal is filed by a party, any other party may file a written notice of appeal within 15 days of the date on which the first notice of appeal was filed or within the 30-day period set forth in §A(1) of this regulation, whichever is later.

(6)

The administrative law judge shall promptly forward to the Chairman the transcript of the hearing together with all pleadings, exhibits, and other materials constituting the record of the case.

(7)

If any question presented by an appeal can be determined by the Appeal Board without an examination of the entire record, the parties may prepare and sign a statement of the case showing how the question arose and was decided, setting forth only so much of the facts alleged and proved, or sought to be proved, as are essential to a decision of the question by the Appeal Board.

(8)

A statement prepared under §A(7) of this regulation, when filed with the Appeal Board, shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the decision from which the appeal is taken, and, together with this decision, shall be transmitted to the Appeal Board as the record on appeal.

Statement of Issues on Appeal.

(1)

Within 30 days after the date on which notice of appeal is mailed, the person appealing shall set forth in writing a concise statement of issues upon which this appeal is taken together with a memorandum of law in support of it.

(2)

The original and five copies of the statement and memorandum shall be mailed to the chairperson and shall include a certificate that copies of the statement and memorandum have been mailed to the appellees.

Answer.

(1)

Within 30 days from the date the statement of issues is mailed, the appellee or appellees shall file an answer to statement together with a memorandum of law.

(2)

The original and five copies of the answer and memoranda shall be mailed to the chairperson and shall include a certificate that copies have been mailed to all appellants.

Selection of Appeal Board. The chairperson of the Commission shall promptly:

(1)

Appoint an Appeal Board, which shall consist of three commissioners, to decide the appeal;

(2)

Designate one member as chairperson; and

(3)

Provide written notification to members of the board, the Commission, all respondents, and all complainants.

Hearing.

(1)

The Appeal Board shall decide whether it wishes to hear oral argument.

(2)

If the Board chooses not to hear oral argument, it shall promptly, in writing, notify the Commission, complainants, and respondents.

(3)

If the Board chooses to hear oral argument, the chairman of the board shall notify the Commission, complainants, and respondents of the time, place, and date of the hearing of oral argument.

(4)

Oral argument shall then be limited to 30 minutes for each party to the appeal, and confined to the record of the case heard by the administrative law judge.

(5)

The Appeal Board, in its discretion, may permit the admission of additional evidence not produced at a public hearing, upon a request made and good cause shown by the party proposing the admission of the new evidence.

Decision and Order.

(1)

The Appeal Board may affirm, reverse, or modify the administrative law judge's decision.

(2)

In making its determination, the Board shall consider:

(a)

The entire record; or

(b)

Upon agreement of the parties as set forth in §A(6) of this regulation, the statement of the case, including the decision of the administrative law judge.

(3)

In all appeals filed with the Appeal Board after June 1, 1989, the Appeal Board shall render its decision within 180 days after an Appeal Board has been selected pursuant to §D of this regulation.

(4)

A decision and order remanding the case for further proceedings is not a final decision and order of the Appeal Board.

(5)

A copy of the decision and order and, when applicable, a notice of the right to apply for judicial review of the order under the appropriate provisions of the Maryland Administrative Procedure Act shall be served on all parties to the case.

Failure to comply with the provisions set forth in this regulation may result in dismissal of the appeal.

A ruling on a motion to dismiss the appeal for failure to follow the provisions set forth in this regulation shall be made by the chairperson of the Appeal Board, or by the chairperson of the Commission, or a commissioner designated by the chairperson, if an appeal board has not yet been appointed.

Regulation .13 Election of a Civil Action.Link Copy Citation

Right to Election of a Civil Action.

(1)

A complainant or respondent may elect to have the Commission assert the claim in a civil action, pursuant to State Government Article, §20-1007, Annotated Code of Maryland, in lieu of an administrative action, pursuant to State Government Article, §20-1008, Annotated Code of Maryland.

(2)

The complainant or respondent shall make an election of civil action not later than 30 days after receipt of notice of opportunity for an election.

(3)

The complainant or respondent shall give notice of an election of civil action to all parties to the action, including the Commission.

Commission-Initiated Civil Actions.

(1)

Pursuant to State Government Article, §20-1007(b), Annotated Code of Maryland, the Commission may elect to file a complaint in a civil action on the Commission’s own behalf if:

(a)

The Commission determines there is probable cause to believe the respondent has engaged in or is engaging in a discriminatory act;

(b)

Conciliation efforts have failed; and

(c)

The file has been certified for public hearing.

(2)

The Commission shall make the election within 30 days after certifying the file for public hearing.

(3)

The Commission shall provide notice of the election to all parties.

Commencement of Civil Action.

(1)

If an election for a civil action is made, either by the complainant or the Commission, the Commission's General Counsel shall commence a civil action seeking relief on behalf of the aggrieved person in the appropriate circuit court.

(2)

The Commission shall file the civil action not later than 60 days after the election is made.

(3)

The Commission shall file the civil action in the circuit court of Baltimore City or the county where the alleged discriminatory act occurred.

Intervention.

(1)

Upon timely application, a person may intervene, pursuant to State Government Article, §20-1014(a), Annotated Code of Maryland, in a civil action brought by the Commission under this regulation if the action involves:

(a)

An alleged act of discrimination to which the person is a party; or

(b)

A conciliation agreement to which the person is a party.

(2)

The court may grant any appropriate relief to an intervening party that is authorized to be granted to a plaintiff in a civil action filed under §B of this regulation.

Remedies. If the court determines that the respondent has engaged in a discriminatory practice, the court may provide remedies as specified in State Government Article, §20-1009(b), Annotated Code of Maryland.

Attorney's Fees and Costs.

(1)

In an action brought under this regulation, the court, in its discretion, may award the prevailing party reasonable attorney's fees, expert witness fees, and costs.

(2)

For an intervenor, attorney's fees and costs shall be allowed in the discretion of the court as follows:

(a)

An intervenor is liable for reasonable attorney's fees and costs only to the extent that an intervenor's participation in the proceeding was frivolous or vexatious, or was for the purpose of harassment; or

(b)

To the extent that an intervenor is a prevailing party, the respondent is liable for reasonable attorney's fees.

Regulation .14 Private Right of Action.Link Copy Citation

Right to Private Right of Action. Pursuant to State Government Article, §20-1013, Annotated Code of Maryland, a complainant may file a private right of action against the respondent in the circuit court of Baltimore City or the county where the alleged discriminatory act occurred.

A complainant may file a private right of action if:

(1)

The complainant initially filed a timely administrative charge or complaint under federal, State, or local law alleging a discriminatory act by the respondent;

(2)

At least 180 days have elapsed since the date of filing of the administrative complaint; and

(3)

The civil action is filed not more than 2 years after the occurrence of the alleged discriminatory act.

Notice of Intent to File a Private Right of Action. In a complaint that is filed with the Commission, the complainant shall provide written notice of intent to file a private right of action to the Commission and all parties to the action.

Dismissal of Proceedings Pursuant to Private Right of Action.

(1)

Upon receipt of the complainant's written notice of intent to file a private right of action, the Commission shall cease further processing of the complaint provided that the prerequisites of §B of this regulation have been met.

(2)

Within 90 days after providing written notice of intent to file a private right of action, the complainant shall provide the Commission with a copy of the bill of complaint indicating that a private right of action was filed.

(3)

Upon receipt of the bill of complaint, the Executive Director shall issue written notice of dismissal of proceedings pursuant to Regulation .04F of this chapter.

(4)

The Commission shall administratively close the case pursuant to Regulation .04E of this chapter.

Intervention.

(1)

Upon timely application, the Commission may intervene, pursuant to State Government Article, §20-1014(b), Annotated Code of Maryland, in a private right of action filed under this regulation if the Commission certifies that the case is of general public importance.

(2)

The court may grant any appropriate relief to an intervening party that is authorized to be granted to a plaintiff in a civil action filed under §B of this regulation.

Remedies. If the court determines that the respondent has engaged in a discriminatory practice, the court may provide remedies in accordance with State Government Article, §20-1013(d)—(e), Annotated Code of Maryland.

Attorney's Fees and Costs. In an action brought under this regulation, the court, in its discretion, may award the prevailing party reasonable attorney's fees, expert witness fees, and costs.

Regulation .15 Special Provisions for the Commission-Initiated Complaints.Link Copy Citation

The Commission may make and file a complaint in its name in the same manner as if the complaint had been filed by an individual or individuals, when it has received reliable information that any person has been engaged or is engaged in an unlawful discriminatory practice in violation of State Government Article, Title 20, Annotated Code of Maryland.

Initiation of Commission Complaints.

(1)

Upon receipt by the Commission of reliable information that a person is engaged, or has been engaged, in unlawful discriminatory practices warranting the initiation of a Commission complaint, the Executive Director or designee shall present the information in writing to the Commission chairperson for consideration.

(2)

If, in the judgment of the chairperson, a preliminary investigation is warranted, the chairperson shall direct the Executive Director to undertake such an investigation.

(3)

Upon completion of the investigation the Executive Director shall forward to the general counsel a written summary of the investigation together with instructions to prepare a formal Commission complaint.

(4)

The general counsel shall forward this complaint to the Executive Director who shall present the complaint to the chairperson for authorization by three Commissioners which, upon this authorization, shall constitute a Commission complaint.

(5)

If the Commission authorizes a complaint under this section, it shall be forwarded to the Executive Director for processing in accordance with these regulations as otherwise applicable to complaints filed.

Regulation .16 Investigatory Hearings by Commissioners.Link Copy Citation

General.

(1)

When a problem of racial discrimination arises, the Commission immediately may hold an investigatory hearing.

(2)

The purpose of the investigatory hearing shall be to resolve the problem promptly by the gathering of all facts from all interested parties and making the recommendations as may be necessary.

(3)

The place of the hearing shall be in the area where the problem exists.

Preliminary Investigations.

(1)

Upon receipt of reliable information that a problem of racial discrimination may exist that is not covered by State Government Article, §§20-301—20-305, 20-401—20-402, 20-606—20-607, 20-703—20-706, and 20-901—20-902, Annotated Code of Maryland, the Commission may, upon a vote of the majority, appoint a committee to conduct an investigation on its own or refer the matter to the Commission staff for a prompt preliminary investigation.

(2)

In conducting the investigation the Commission or staff, or both, shall:

(a)

Contact all persons considered by the Commission to be an interested party outlining the nature of the reliable information and giving each party an opportunity to respond;

(b)

Conduct interviews or hold conferences with any person or organization who may have relevant and credible information to determine whether further investigation is warranted by the Commission;

(c)

Obtain any materials and documents relevant or necessary to clarify or resolve any potential issues;

(d)

If possible or practical, attempt to resolve the problems and issues between all interested parties by conference, conciliation, and persuasion; and

(e)

Prepare a written report of the results of the preliminary investigation which shall summarize the issues involved, present the positions of the interested parties, summarize pertinent potential witness testimony, summarize the contents of any documentary evidence obtained, and make a recommendation of further action, if any, to be taken by the Commission.

Notice of Hearings.

(1)

After the preliminary investigation is completed and the written results are submitted to the Commission, the Commission, upon a majority vote, may conduct a public hearing to fully gather all facts.

(2)

In the conduct of the hearing the Commission shall issue a public notice of the hearing which shall state:

(a)

The time, date, and place of the hearing;

(b)

The names of any designated interested parties;

(c)

A general description of the issues to be considered at the hearing;

(d)

That any party interested or member of the public may attend and present written or oral statements when the presiding officer is in attendance, concerning the announced issues; and

(e)

That presentations may be limited as to time and that the number of spokespersons representing any groups or organization may be limited.

Conduct of Public Hearings.

(1)

The chairperson of the Commission shall preside at the public hearings, which may be called to order without need for a quorum.

(2)

If the chairperson is absent or has been disqualified, the vice-chairperson or another Commissioner shall preside.

(3)

All testimony taken shall be under oath or affirmation.

(4)

The chairperson or presiding officer, with the advice of a legal advisor, if needed, shall:

(a)

Make all rulings as to evidence, testimony, and official notice;

(b)

Set the order for the testimony of the witnesses, and set time limitations for the testimony; and

(c)

Allow witnesses to make an opening statement, after which the chairperson and other Commissioners, including the Commission's general counsel, may question the witness.

(5)

All evidence and testimony shall be relevant and pertain solely to the issues being considered in a particular proceeding.

(6)

Redundant evidence or testimony may not be permitted at public hearings or in the records of proceedings.

(7)

Nonexpert opinion testimony may be considered at a hearing and documentary opinion evidence may be entered in the record of a proceeding if the testimony or evidence is based on facts and matters admissible into evidence and the facts and matters are within the personal knowledge of the submitter of the document.

(8)

Expert Testimony.

(a)

Qualification as an expert shall be within the discretion of the chairperson.

(b)

The expert qualification need not be based upon academic degrees or learning.

(c)

Reasonably extensive practical experience with the subject may be sufficient for an expert qualification.

(9)

Reliable and probative documents previously filed with or compiled by the Commission or its staff or consultants that are relevant to issues being considered by the Commission may be incorporated by reference into the record of a proceeding by the Commission or, with leave of the chairperson, by a party to the proceeding.

(10)

Transcript of Hearing Record.

(a)

The chairperson shall cause the testimony taken at the hearing to be transcribed.

(b)

This transcript, together with written testimony, exhibits, and other materials introduced into evidence, shall constitute the record of the proceedings.

Subpoenas.

(1)

At any time during the conduct of a preliminary investigation or the investigatory hearing the Commission may issue subpoenas directing a designated person to do the following:

(a)

Appear to testify at a hearing or private prehearing conference conducted by the Commission or its staff;

(b)

Appear at a specified time and date at the Commission offices or any designated place within the State, and, under oath or otherwise, give testimony and answer questions of the Commission or its staff; or

(c)

Produce documents, reports, or records of a particular activity for a specific period of time if the designated person has custody of or access to the documents, reports, or records (the records may be in any reasonable form and the production shall be made at a specified time, date, and place).

(2)

A subpoena shall be in whatever form is prescribed by the Commission and shall include:

(a)

The name, title, if any, and address of the person upon whom it is to be served and the address at which it is to be served;

(b)

The names, titles, or positions of the witnesses who shall appear and the time, date, and place of their appearance; and

(c)

A reasonable specification of the documents, reports, or records, or all of these, to be produced at the designated time and date and place.

Decision and Recommendation of the Commission.

(1)

The decision and the recommendation of the Commission shall be based solely on the testimony, examination, and evidence presented at the public hearing.

(2)

The deliberations of the Commission may be held in private executive session.

(3)

The decision shall be made by a majority of the Commission members who have attended all sessions of the public hearing, or who have read the record of hearings.

(4)

The decision or the recommendation shall be in writing and shall state the reasons and grounds for the Commission's decision.

(5)

The recommendations shall be directed to the affected interested parties as well as to any other appropriate private or public body. The Commission may also make recommendations to the Governor for additional legislation or changes in existing legislation.

(6)

The Commission shall then publish a notice that:

(a)

Copies of the Commission's decision and recommendations may be obtained by written request to the Commission offices; and

(b)

The record of the complete proceeding is open for public inspection at the Commission offices during regular business hours.

Regulation .17 Declaratory Rulings.Link Copy Citation

General.

(1)

An interested person may submit to the Commission a petition for a declaratory ruling with respect to the manner in which the Commission would apply the provisions of State Government Article, Title 20, Annotated Code of Maryland, to a person on the facts set forth in the petition.

(2)

The Commission may, in its sound discretion, declare whether any policy, practice, or conduct constitutes or would constitute unlawful discrimination within the meaning of State Government Article, §§20-301—20-305, 20-401—20-402, 20-606—20-607, 20-609, 20-701, 20-703—20-706, 20-709, and 20-901—20-902, Annotated Code of Maryland.

(3)

This section shall be invoked solely for the purpose of determining the rights of the parties in the event of a controversy or uncertainty as to applicable law. Any issue or matter which is the subject of a formal complaint or Commission investigation is outside the scope of this section.

(4)

An opinion or declaration made by any officer or employee of the Commission may not bind the Commission except as provided in this section or by Regulation .07, .09, .10, .12, or .17 of this chapter.

Contents of Petition.

(1)

A petition for declaratory ruling shall be in writing and under oath.

(2)

The petition shall contain the following:

(a)

The name and address of the petitioner;

(b)

The names of all persons or groups of persons who may have an interest which would be directly affected by the declaratory ruling;

(c)

A full disclosure of the petitioner's interest in the matter and how this interest would be affected by the declaratory ruling;

(d)

The precise reasons why a declaratory ruling is necessary and appropriate in this case;

(e)

A detailed statement of the facts giving rise to the controversy or uncertainty;

(f)

The specific declaratory ruling sought; and

(g)

Argument in support of the ruling, with citation of all relevant statutory provisions.

Filing of Petition; Notice.

(1)

Petitions under this section shall be filed with the Office of Administrative Hearings.

(2)

The petitioner shall serve by registered or certified mail a copy of the petition upon the general counsel and all persons having an interest in the matter.

(3)

A certification of service shall be filed with the petition.

(4)

If the controversy or uncertainty is one affecting a class or subclass of persons, the administrative law judge may require that written notice of the petition be given to some or all members in the manner the administrative law judge considers appropriate.

Parties; Intervention.

(1)

Parties. For purposes of this section, a party includes:

(a)

A person or organization whose membership includes any persons who, as a result of the declaratory ruling, may gain or be deprived of a legal right, privilege, or benefit;

(b)

One or more representatives of a class or subclass whose members may, as a result of the declaratory ruling, gain or be deprived of legal rights, privileges, or benefits; and

(c)

The Commission.

(2)

Joinder and Intervention of a Party.

(a)

A person having a substantial interest in the controversy or uncertainty shall be permitted to join or intervene in the proceeding as a party.

(b)

A representative may be joined or permitted to intervene as a party if:

(i)

The class is so numerous that joinder of all members is impracticable;

(ii)

There are questions of law or fact common to the class;

(iii)

The claims or defenses of the representative party are typical of the claims or defenses of the class; or

(iv)

The representative party will fairly and adequately protect the interests of the class.

(3)

In proceedings under this section, the Commission shall be represented by the General Counsel.

Motion to Dismiss; Grounds.

(1)

Within 30 days from the date the petition is served, any party may file a motion to dismiss the petition on the grounds that a declaratory ruling is inappropriate.

(2)

Within 90 days from the date the petition is filed, the administrative law judge shall make a written determination that the matter is appropriate for resolution through declaratory ruling or dismiss the petition on the grounds that a declaratory ruling is inappropriate.

(3)

Grounds for dismissal include, but are not limited to the following:

(a)

Petitioner has failed to follow the rules of procedure or petition requirements set forth in this regulation;

(b)

Petition does not raise a substantial question of law or fact with respect to the provisions of State Government Article, Title 20, Annotated Code of Maryland;

(c)

Controversy or uncertainty is more appropriately resolved through the complaint resolution procedures of Title 20 of the State Government Article;

(d)

Controversy or uncertainty is the subject of proceedings in another forum or can be resolved by resort to other statutory or administrative remedies; or

(e)

Contemplated proceedings do not constitute an efficient utilization of agency resources.

Briefs on Merits of Petition; Oral Argument.

(1)

If the case is determined by the administrative law judge to be appropriate for declaratory ruling, the petitioner shall file within 30 days a brief setting forth argument in support of the petition or, if the petitioner so desires, can notify the administrative law judge in writing that the petitioner is relying upon the arguments set forth in its original petition.

(2)

Within 30 days from the date the petitioner's brief is filed, or from the date that written notification is given that petitioner is relying upon the argument set forth in its petition, any party may file a reply brief setting forth the party's argument in support of or in opposition to the declaratory ruling.

(3)

The administrative law judge may permit oral argument on the questions of law or fact set forth in the petition and briefs.

(4)

The petitioner and all parties shall have the right to be represented by counsel and to be present.

Decision; Effect of Ruling.

(1)

The administrative law judge may grant the petition, deny the petition, or alternatively, dismiss the petition on the grounds that a declaratory ruling is inappropriate.

(2)

A declaratory ruling, if issued, shall declare the rights of the parties or express the opinion of the administrative law judge on the question presented.

(3)

The decision shall be in the form of a decision and shall state the conclusions of law.

(4)

As to the petitioner, a declaratory ruling shall bind the Commission on the facts set forth in the petition.

(5)

A declaratory ruling may be prospectively revoked, altered, or amended by the Commission at any time.

Appeal; Judicial Review.

(1)

An appeal to the Appeal Board of the Commission shall be taken and decided in accordance with the procedures set forth in Regulation .12 of this chapter.

(2)

In the absence of a timely appeal, the decision of the administrative law judge shall become the final order of the Commission.

(3)

A declaratory ruling by the Commission is subject to review in circuit court.

Regulation .18 Public Information Act Requests.Link Copy Citation

General.

(1)

This regulation sets out the procedures for filing requests with the Maryland Commission on Human Relations for the inspection and copying of records under the Public Information Act, State Government Article, §§10-611—10-630, Annotated Code of Maryland.

(2)

It is the policy of the Commission to facilitate public access to the records of the Commission, when that access is allowed by law, by minimizing costs and time delays to persons requesting information.

(3)

It is also the policy of the Commission to safeguard and preserve the confidentiality of investigations of complaints made under State Government Article, Title 20, Annotated Code of Maryland, by restricting access to records when access is prohibited or restricted by law.

Definitions.

(1)

“Act” means the Public Information Act, State Government Article, §§10-611—10-628, Annotated Code of Maryland.

(2)

“Applicant” means a person requesting disclosure of public records.

(3)

“Commission” means the Maryland Commission on Human Relations.

(4)

Custodian or Official Custodian.

(a)

“Custodian” or “official custodian” means the person who is responsible for the maintenance, care, and keeping of the public records of the Commission.

(b)

Unless otherwise provided by law, the Executive Director or designee is the official custodian of the Commission's records.

(5)

“Executive Director” means the Executive Director of the Maryland Commission on Human Relations, or designee.

(6)

“Final disposition” means the:

(a)

Commission has found no probable cause, or has otherwise terminated its investigation;

(b)

Administrative law judge and, if applicable, the Commission's Appeal Board have rendered their decisions; or

(c)

Time to note an appeal to the Commission's Appeal Board has passed.

(7)

“Investigative case file” means any record, regardless of physical form, generated or received by Commission staff in the course of the investigation of a complaint alleging a violation of State Government Article, §§20-301—20-305, 20-401—20-402, 20-602, 20-606—20-607, 20-705—20-706, and 20-901—20-902, or Health-General Article, §19-355, Annotated Code of Maryland, or the Governor’s Code of Fair Employment Practices, Order 01.01.2007.16 (August 22, 2007), as amended, including the complaint itself and any documents indicating the identity of a complainant or respondent until the stage of public hearing.

(8)

“Public hearings” means any public hearing before either the Office of Administrative Hearings or any federal or State court of law.

(9)

Public Records.

(a)

“Public records” means all papers, correspondence, forms, books, photographs, photostats, films, microfilms, sound recordings, video recordings, maps, drawings, or other written documents, regardless of physical form or characteristics.

(b)

“Public records” includes all copies made or received by the Commission in connection with “investigative case files” as defined in §B(7) of this regulation, and as set forth in Regulation .19E of this chapter.

(c)

“Public records” includes salaries of all employees of the Commission.

(10)

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

(11)

“Written documents” means all books, papers, maps, photographs, cards, tapes, recordings, computerized records, and other documentary materials, regardless of physical form or characteristics.

Retention of Investigative Case Files. The custodian shall maintain, as a public record of the Commission, all documents made or received by the Commission contained in the investigative case files, for a period of 18 months from the date of final disposition of the respective discrimination charge.

Records Temporarily Unavailable. If a requested public record is in the custody or under the control of the person to whom written application is made but is not immediately available for inspection or copying, the custodian shall, within 10 working days of the receipt of the request, so notify the applicant and set a date and hour within a reasonable time for inspection or copying.

Records Destroyed or Lost. If a requested record has been destroyed or lost, the custodian to whom the application is made shall, within 10 working days of the request, notify the applicant of this fact and explain in the response the reasons why the record cannot be produced.

Who May Request. Any person may request to inspect or copy public records of the Commission.

Regulation .19 Application and Processing of Public Information Act Requests.Link Copy Citation

Applications.

(1)

A person or governmental unit that wishes to inspect a public record shall submit a written application to the custodian.

(2)

If the individual to whom the application is submitted is not the custodian of the record, within 10 working days after receiving the application, the individual shall give the applicant notice of that fact and, if known, shall provide the name of the custodian and the location or possible location of the public record.

Contents of Written Application. A written application shall contain the applicant's name and address, shall be signed by the applicant, and shall reasonably identify by brief description the record sought.

Response to Written Application.

(1)

Granting of Request. If the custodian decides to grant a written application for inspection, the custodian shall produce the record for inspection immediately or within a reasonable period that is needed to retrieve the public record, not to exceed 30 days from the date of the application.

(2)

Denial of Request.

(a)

If the custodian denies the application, the custodian immediately shall notify the applicant and within, 10 working days, give the applicant a written statement that states the reason for the denial, the legal authority for the denial, and notice of the remedies under State Government Article, §§10-622 and 10-623, Annotated Code of Maryland, for review of denial.

(b)

The custodian shall permit inspection of any part of the record that is subject to inspection and reasonably severable from the material to which access is denied by the custodian.

(3)

Request Made to an Individual Who is Not the Custodian of the Request Record.

(a)

(b)

If the person to whom the application is made knows the name of the custodian of the record or the location or possible location of the record sought, this information also shall be given to the applicant.

(4)

With the consent of the applicant, any time limit imposed under this section may be extended for not more than 30 days.

Notification of Persons Who May be Affected by Disclosure.

(1)

Unless prohibited by law, the custodian may notify any person who could be adversely affected by disclosure that an application for inspection or copying of the record has been made.

(2)

The custodian may consider the comments of that person before deciding whether to disclose the record of the applicant.

Precertification Production of Investigative Case Files.

(1)

Pursuant to State Government Article, §20-1101, Annotated Code of Maryland, during the investigation of any complaint alleging a violation of State Government Article, §§20-301—20-305, 20-602, 20-606—20-607, 20-705—20-706, and 20-901—20-902, Annotated Code of Maryland, and until the matters reach the stage of public hearings, the Commission is required to hold confidential any information in relation to investigative case files.

(2)

Release of Information.

(a)

Any request for information relating to investigative files before the charge has reached the public hearing stage will be denied, except those made pursuant to provisions of State Government Article, §20-1101, Annotated Code of Maryland.

(b)

Any information may be released at any time if the release has been agreed to in writing by both complainant and respondent.

(c)

The identity of the complainant may be disclosed to the respondent at any time.

Certified Investigative Case Files.

(1)

The custodian may deny inspection of:

(a)

Cases which have been certified for public hearings under Regulation .10A of this chapter, and any other requests for information, in accordance with State Government Article, §10-618, Annotated Code of Maryland; and

(b)

An investigative case file or other document if the custodian believes it would be against public interest, subject to the provisions of §E(2) of this regulation.

(2)

The custodian may deny inspection by a person in interest only to the extent it would:

(a)

Interfere with a valid and proper law enforcement proceeding;

(b)

Deprive another person of a right to a fair trial or an impartial adjudication;

(c)

Constitute an unwarranted invasion of personal privacy;

(d)

Disclose the identity of a confidential source;

(e)

Disclose an investigative technique or procedure;

(f)

Prejudice an investigation; or

(g)

Endanger the life or physical safety of an individual.

Privileged Information. A person may not inspect or copy any information which is privileged by law.

Regulation .20 Review of the Denial of Public Information Act Request.Link Copy Citation

Request for Review.

(1)

If a written application is denied by the custodian for a reason other than that the record is temporarily unavailable, the applicant may, within 30 days after receipt of the notice of the denial, request administrative review of the denial, as described in §A(2) of this regulation.

(2)

An applicant shall request administrative review of denial of an application for information by filing a written request within 30 days of the denial with the Chairperson of the Commission on Human Relations.

(3)

In the written request for review, the applicant shall state their name, shall sign the request, shall identify by brief description the record sought, and include a copy of the writing from the custodian denying the request.

(4)

The Chairperson shall issue the final decision of the Commission within 60 days of the request for review, unless the applicant requests a hearing as described in §A(5) of this regulation.

(5)

Request for Administrative Hearing.

(a)

If the applicant requests a hearing, the hearing shall be conducted by an administrative law judge designated by the chairperson.

(b)

The hearing shall be governed by the Commission's rules of procedure in Regulation .11G of this chapter.

(c)

After the hearing, the administrative law judge shall prepare a recommended decision for the Chairperson.

(d)

The Chairperson shall issue the final decision of the Commission within 60 days of the date of the hearing.

(6)

Request for Judicial Enforcement. If the applicant chooses not to request an administrative review under §A(1) of this regulation, the applicant may file an action for judicial enforcement under State Government Article, §10-623, Annotated Code of Maryland, without exhausting that administrative remedy, as provided by State Government Article, §§10-622 and 10-623, Annotated Code of Maryland.

Disclosure Against Public Interest.

(1)

If, in the opinion of the Executive Director, disclosure of any public record that is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the Executive Director may temporarily deny the request in writing and apply within 10 working days of the denial to the appropriate court for an order permitting continued denial or restriction of access.

(2)

Notice of the application filed with the circuit court shall be served on the applicant in the same manner that is provided for service of process by the Maryland Rules of Procedure.

Fees.

(1)

The custodian shall provide copies, printouts, or photographs only upon payment of the applicable fee by the applicant.

(2)

The fees to be charged for any copies, printouts, or photographs shall be established by the Executive Director.

(3)

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.

(4)

In a situation pursuant to §C(3) of this regulation, the custodian shall either collect from the applicant a fee to cover the actual cost of reproduction or direct the applicant to pay the cost of reproduction directly to the facility making the copy.

(5)

Before copying a record, the custodian shall estimate the cost of reproduction and either obtain the agreement of the applicant to pay the cost or demand prepayment of any estimated fee before reproducing the record.

(6)

The official custodian may charge reasonable fees for an official's or employee's time expended searching for requested records or for any time expended preparing records for inspection and copying, except for the first 2 hours of official or employee time that is needed to respond to a request for information.

(7)

Fee Waiver or Reduction.

(a)

Upon request, the official custodian may waive or reduce any fee charged pursuant to this section if the custodian determines that the waiver or reduction is in the public interest.

(b)

The custodian shall consider, among other relevant factors, the ability of the applicant to pay the cost or fee.

(8)

If the applicant requests that copies be mailed or delivered to the applicant, the custodian may charge the applicant for the cost of postage or delivery to the applicant.

Time of Inspection. An applicant may inspect any public record that the applicant is entitled to inspect during the normal working hours of the Commission.

Place of Inspection. The place of inspection shall be the place where the document is located unless the custodian, after taking into account the applicant's expressed wish, determines that another place of inspection is more suitable and convenient.

Regulation .21 Amendments to These Regulations.Link Copy Citation

Process.

(1)

Pursuant to State Government Article, §10-123, Annotated Code of Maryland (Administrative Procedure Act), an interested person may petition this agency requesting the promulgation, amendment, or repeal of any regulation.

(2)

Within 60 days after receipt of the petition, the Commission will either deny the petition in writing, stating the reasons for the denial, or initiate the rule-making proceedings which would accomplish the promulgation, amendment, or repeal.

(3)

The petition shall be addressed to the Executive Director, shall state clearly the intent and, when possible, the wording of the proposal, as well as a concise statement of the reason or reasons.

(4)

The Executive Director or designee shall submit the petition, along with recommendations, to the Commissioners for their consideration.

(5)

A written report of the Commission's action shall be sent to the petitioner within 60 days of its receipt by the Commission.

If, in response to this petition, the Commission decides to promulgate, amend, or repeal a regulation, it shall follow the procedures set forth by Maryland law.

The Commission reserves the right to edit the language or style to comport with the style of its regulations, to the extent that the editing does not interfere with the substance of any promulgation or amendment proposed through the petition process, as set out in §§A—C of this regulation.

Regulation .22 State Waiver of Sovereign Immunity.Link Copy Citation

If an award is made against the State under this title, the State shall pay the award as soon as practicable within 20 days after the award is final, provided that the State has sufficient money available at the time an award is made.

Payment of an award made against the State under this title shall be made in accordance with State Government Article, §20-904, Annotated Code of Maryland.

Subtitle 03 — Commission on Human Relations

Chapter 02. Anti-Discrimination Relating to Persons with Disabilities

Regulation .01 Statement of General Purpose.Link Copy Citation

These regulations were adopted to contribute to the implementation of nondiscriminatory policies in employment and public accommodations with respect to persons with disabilities as required by State Government Article, Title 20, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Commission” means the Maryland Commission on Human Relations.

(2)

“Covered entity” means a person or entity subject to the jurisdiction of the Commission under State Government Article, §§20-301—20-305, 20-601, 20-606—20-607, 20-609, 20-801, 20-901—20-904, or 20-1017, Annotated Code of Maryland.

(3)

“Facility” means all or a portion of a building, structure, site, complex, equipment, bus, heavy or light rail, or other conveyance, road, walkway, passageway, parking lot, or other real or personal property, including the real property where the building, property, structure, or equipment is located.

(4)

“ADAAG” means the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities developed by the United States Architectural and Transportation Barriers Compliance Board, and adopted by the United States Department of Justice in Appendix A to 28 CFR Part 36.

(5)

“Disabled individual” means an individual with a disability as defined in §B(6) of this regulation.

(6)

“Disability” means, with respect to an individual:

(a)

Epilepsy, infection with the human immunodeficiency virus, paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impediment, physical reliance on a seeing eye dog, wheelchair, or other remedial appliance or device, or mental retardation or other mental impairment or deficiency which necessitates remedial or special education and related services;

(b)

A physical or mental impairment, other than those enumerated in §B(6)(a) of this regulation, that is caused by bodily injury, birth defect, or illness, which substantially limits one or more of an individual's major life activities;

(c)

A record of a physical or mental impairment as set forth in §B(6)(a) or (b) of this regulation, including having a history of, or being misclassified as having, such an impairment;

(d)

Being regarded as having a physical or mental impairment as set forth in §B(6)(a) or (b) of this regulation, including one that:

(i)

Does not substantially limit major life activities, if the individual is treated by a covered entity as having such a limitation; or

(ii)

Substantially limits major life activities as a result of the attitude of the covered entity or of others towards the impairment; or

(e)

Being treated by a covered entity as having an impairment, even if there is no physical or mental impairment.

(7)

“Major life activities” includes, but is not limited to, functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, driving a vehicle, socializing, and engaging in procreation and recreation.

(8)

“Place of public accommodation” has the meaning stated in State Government Article, §20-301, Annotated Code of Maryland.

(9)

“Physical or mental impairment” means:

(a)

A physiological disorder or condition, cosmetic disfigurement, or anatomical loss, affecting one or more of the following bodily systems:

(i)

Neurological;

(ii)

Musculoskeletal;

(iii)

Special sense organs;

(iv)

Respiratory, including speech organs;

(v)

Cardiovascular;

(vi)

Reproductive;

(vii)

Digestive;

(viii)

Genitourinary;

(ix)

Hemic and lymphatic; or

(x)

Skin and endocrine; or

(b)

A mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

(10)

“Qualified individual with a disability” means an individual with a disability who:

(a)

With or without reasonable accommodation can perform the essential functions of the job in question; or

(b)

Is otherwise qualified for the benefit, term, condition, or privilege of employment at issue.

(11)

“Qualified historic building or facility” means a building or facility that is:

(a)

Listed in or eligible for listing in the National Register of Historic Places under the National Historic Preservation Act of 1966, 16 U.S.C. §470a(a);

(b)

Listed in or eligible for listing in the Maryland Register of Historic Properties under State Finance and Procurement Article, §5A-323, Annotated Code of Maryland; or

(c)

Designated as historic under a local law.

(12)

“Remedial appliance or device” means wheelchairs, prosthetic limbs and devices, braces, crutches, hearing aids, corrective lenses, and such other appliances or devices, which ameliorate or compensate for the limitations imposed by a physical or mental impairment, and which are acquired by an individual for such purpose.

(13)

“Service animal” means a guide dog, signal dog, or other animal, individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to:

(a)

Guiding an individual with impaired vision;

(b)

Alerting an individual with impaired hearing to intruders or sounds;

(c)

Alerting an individual with seizures to the onset of a seizure;

(d)

Providing minimal protection or rescue work;

(e)

Pulling a wheelchair; or

(f)

Retrieving items.

(14)

“Structural changes” means any physical alterations or removal of barriers to a facility that would cause the facility to be accessible to an individual with a disability.

(15)

“Teleworking” means an arrangement whereby an employee performs some or all of the employee's job duties at a work station located in the employee's residence, or at a designated location other than the employer's usual and customary worksite.

Regulation .03 Verification of a Disability.Link Copy Citation

The Commission may require the complainant to sign a waiver for the Commission to obtain verification of the existence, nature, and extent of the complainant's disability from a physician or other health care provider, based on medically accepted clinical or laboratory diagnostic techniques.

The determination of whether an individual has a physical or mental impairment, or is substantially limited in a major life activity, or both, shall be made on a case-by-case basis and without regard to the mitigating effects of any remedial appliance or device.

Regulation .04 Employment.Link Copy Citation

Unlawful Employment Practices Generally. It is an unlawful employment practice for a covered entity to discriminate on the basis of disability against a qualified individual with a disability with regard to:

(1)

Recruitment, advertising, and job application procedures;

(2)

Hiring, upgrading, promotion, tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

(3)

Rate of pay, other form of compensation, and change in compensation;

(4)

Job assignment, job referral, job classification, organizational structure, position description, line of progression, and seniority list;

(5)

Leave of absence, sick leave, family leave, or other leave;

(6)

Fringe benefits available by reason of employment, whether administered by the covered entity, except for underwriting or rate-setting practices of an insurer, as that term is defined in Insurance Article, §1-101(v), Annotated Code of Maryland;

(7)

Union membership;

(8)

Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, and selection for leave of absence to pursue training;

(9)

Employer-sponsored activities, including social or recreational programs; and

(10)

Any other term, condition, or privilege of employment.

Unlawful Employment Practices Specifically. A covered entity may not:

(1)

Limit, segregate, or classify a job applicant or employee in a way that adversely affects the individual's employment opportunities or status, on the basis of disability prohibited by this chapter;

(2)

Participate in a contractual or other arrangement or relationship that has the effect of subjecting an applicant or employee to the discrimination, on the basis of disability prohibited by this chapter; or

(3)

Fail to make an individualized assessment of a qualified individual with a disability's ability to perform the essential functions of a job, unless the qualification standard, employment test, or other selection criteria under which the individual was disqualified meet the requirements of a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular business or program.

Regulation .05 Reasonable Accommodation in Employment.Link Copy Citation

A covered entity:

(1)

Shall make a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability;

(2)

Is not required to provide an accommodation, if it demonstrates that the accommodation would impose undue hardship on the operation of its business or program; and

(3)

May not deny an employment opportunity to a qualified individual with a disability, if the basis for the denial is the need to accommodate the individual's physical or mental limitations, and this accommodation, if attempted, would be reasonable.

Examples of a reasonable accommodation include, but are not limited to:

(1)

Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities;

(2)

Providing or modifying equipment or devices;

(3)

Job restructuring;

(4)

Part-time or modified work schedules;

(5)

Reassigning or transferring an employee to a vacant position, light duty job, different work location, or other alternative employment opportunity which is available under the employer's existing policies or practices;

(6)

Teleworking;

(7)

Permitting an employee to use paid or unpaid sick leave, disability leave, medical leave, or other leave which is available under the employer's existing policies or practices;

(8)

Adjusting or modifying examinations, training materials, or policies;

(9)

Waiving a no pet requirement to allow use of a service animal;

(10)

Providing applicants or employees with a disability with an opportunity to demonstrate their pertinent knowledge, skills, and abilities by testing methods adapted to their special circumstances if employment tests are used;

(11)

Making reasonable modifications in the covered entity's rules, policies, and practices if the modification may enable an applicant or employee with a disability to perform the essential functions of the job; and

(12)

Reanalyzing, with full consideration to the needs of the applicant or employee with a disability, job specifications, qualifications, or criteria to determine if they may be waived or modified.

Regulation .06 Undue Hardship in Employment.Link Copy Citation

The covered entity has the burden of proving an inability to accommodate a qualified individual with a disability.

In determining whether an accommodation would impose an undue hardship on the covered entity's business or program, the following factors shall be considered:

(1)

The nature and cost of the accommodation needed;

(2)

The financial resources of the covered entity, and any parent corporation if applicable;

(3)

The size of the business with respect to the number and type of facilities;

(4)

The type of business or program, including the composition and structure of the work force;

(5)

The ability of the covered entity to conduct business or operate programs with the accommodation;

(6)

The effect of the accommodation on other employees' performance; and

(7)

Legitimate safety concerns.

Safety requirements shall be based on actual information or data, not speculation, conjecture, stereotypes, or generalizations about individuals with disabilities.

Regulation .07 Preemployment Inquiries.Link Copy Citation

Except as provided in §C of this regulation, a covered entity may not conduct a preemployment inquiry or medical examination to ascertain the existence of or the severity of a disability.

A covered entity may make a preemployment inquiry into an applicant's ability to perform job-related functions.

This section does not prohibit a covered entity from conditioning an offer of employment on the results of a medical examination conducted before the employee's entrance on duty, if:

(1)

All entering employees in the same job category are subjected to the examination regardless of disability; and

(2)

The results of the examination are used only in accordance with the requirements of §D of this regulation.

Information obtained in accordance with this section as to the condition or history of the employee or applicant shall be collected and maintained on separate forms in separate files that are accorded confidentiality as medical records, except that:

(1)

Supervisors and managers may be informed regarding restrictions on the work or duties of an employee with a disability, and necessary accommodations;

(2)

First aid and safety personnel may be informed, when appropriate, if the condition may require emergency treatment; and

(3)

The staff of the Commission investigating compliance with State Government Article, §20-606, Annotated Code of Maryland, shall be provided medical information upon request.

Regulation .08 Affirmative Defenses.Link Copy Citation

Bona Fide Occupational Qualification.

(1)

A covered entity may take discriminatory actions otherwise prohibited under this chapter if mental or physical ability is a bona fide occupational qualification (BFOQ), reasonably necessary to the normal operation of the business or program.

(2)

A covered entity has the burden of establishing the existence of a BFOQ. In determining whether the BFOQ defense, narrowly construed, has been met, a covered entity shall show that the particular standard or regulation is reasonably necessary to the normal operation of that business, and that:

(a)

All or substantially all individuals with the particular disability would be unable, even with reasonable accommodation, to perform the duties of the job in question; or

(b)

It is impossible or highly impractical to determine, on an individual basis, whether an individual with the particular disability would be able to perform the duties of the job in question.

Future Hazard.

(1)

A covered entity may take discriminatory actions otherwise prohibited by this chapter, if the applicant's or employee's disability would create a future hazard to health or safety.

(2)

To establish a future hazard defense, a covered entity shall show that:

(a)

It conducted an individualized assessment of the individual's ability to perform the essential functions of the job in question; and

(b)

To a reasonable probability, the individual's disability, even with reasonable accommodation, would render the individual unable to perform the duties of the position in question without endangering the health or safety of the individual with a disability or others.

Regulation .09 Public Accommodations Practices.Link Copy Citation

Unlawful Practices in Public Accommodations Generally. An owner, operator, manager, or lessor of a place of public accommodation may not discriminate on the basis of disability against an individual in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations.

Unlawful Practices in Public Accommodations Specifically.

(1)

Unlawful Denial of Participation. An owner, operator, manager, or lessor of a place of public accommodation may not deny an individual with a disability, directly or indirectly, or through contractual, licensing, or other arrangements, the opportunity to participate in, or benefit from, a good, service, facility, privilege, advantage, or accommodation of a place of public accommodation.

(2)

Unequal Participation. An owner, operator, manager, or lessor of a place of public accommodation may not deny an individual with a disability, directly or indirectly, or through contractual, licensing, or other arrangements, the opportunity to participate in, or benefit from, a good, service, facility, privilege, advantage, or accommodation of a place of public accommodation that is equal to that afforded to an individual without a disability.

(3)

Separate Benefit. A public accommodation may provide separate benefits for individuals with disabilities only if requiring that individuals with disabilities be provided the same benefits as provided to individuals without disabilities would in effect create a barrier to full accessibility for the individual with a disability.

(4)

Examples of when a public accommodation is permitted to provide a separate benefit include, but are not limited to:

(a)

An athletic club which may provide a separate basketball league for wheelchair users, because integrating wheelchair users with nondisabled persons in the same game would create a barrier to full accessibility for the wheelchair users; and

(b)

A museum which may provide a separate benefit to blind visitors through a separate tour in which they touch objects because the general rule that prohibits touching would create a barrier to full accessibility for blind visitors.

(5)

The example in §B(4)(b) of this regulation may not be construed to deny blind visitors the right to go on the standard tour observing the general rules applicable to all visitors.

(6)

Eligibility Criteria. An owner, operator, manager, or lessor of a place of public accommodation may not impose, or apply eligibility criteria, that screen out or tend to screen out an individual with a disability from fully and equally participating in a good, service, facility, privilege, advantage, or accommodation, unless this criteria can be shown to be necessary for the provision of the good, service, facility, privilege, advantage, or accommodation.

(7)

Surcharge. An owner, operator, manager, or lessor of a place of public accommodation may not impose a surcharge on an individual with a disability to cover the costs of complying with State Government Article, §§20-301—20-305, Annotated Code of Maryland.

Regulation .10 Reasonable Accommodation in Public Accommodations.Link Copy Citation

An owner, operator, manager, or lessor of a place of public accommodation, shall make a reasonable accommodation for an individual with a disability.

For the purposes of this section, reasonable accommodation means to make a building or facility suitable for access, use, and patronage by an individual with a disability without danger to the individual's health or safety, and without undue hardship or expense to the business, or other activity making such an accommodation.

Examples of a reasonable accommodation include, but are not limited to:

(1)

Providing at least one accessible route consisting of a continuous unobstructed path connecting all accessible elements and spaces of a building or facility which shall include compliance with:

(a)

ADAAG §4.6, parking and passenger loading zones, or other reasonable number of accessible parking spaces and passenger loading zones for individuals with physical disabilities;

(b)

ADAAG §4.7, curb ramps, or other curb ramps or sloped areas in sidewalks, paths, and entrances to buildings or facilities;

(c)

ADAAG §4.14, entrances, and §4.3, accessible route, or other accessible primary public entrance on at least the ground floor of the building or facility which allows safe and unobstructed passage by an individual using a wheelchair, which may be a service entrance only if the service entrance is the sole entrance for everyone;

(d)

ADAAG §4.13, doors, or other doorways at the entrance and leading to each accessible space of sufficient clear width, and maneuvering clearances to allow safe and unobstructed passage by an individual using a wheelchair;

(e)

ADAAG §4.2, space allowance and reach ranges, §4.3, accessible route, §4.4, protruding objects, and §4.5, ground and floor surfaces, or other walks, halls, corridors, passageways, aisles, and other spaces of sufficient clear width and maneuvering clearances, level grading with firm, stable, slip-resistant surfaces, and sufficient head room, to allow safe and unobstructed passage by an individual using a wheelchair;

(f)

Where necessary to provide safe access to floor spaces of higher or lower levels, ADAAG §4.8, ramps, or the installation of a ramp;

(g)

Where necessary to provide access over changes in floor levels too great for a ramp, or to provide vertical access to upper or lower floors, ADAAG §4.10, elevators, §4.11, platform lifts, or both, or the installation of a wheelchair lift or elevator;

(h)

ADAAG §4.3.10, egress, or §4.3.11, areas of rescue assistance, or other accessible means of egress for emergencies, with the doors of sufficient clear width and maneuvering clearances to allow safe and unobstructed passage by an individual using a wheelchair, or an accessible area of rescue assistance or approved alternative;

(2)

If the building or facility has public toilet facilities, compliance with ADAAG §4.22, toilet rooms, §4.16, water closets, §4.17, toilet stalls, §4.18, urinals, and §4.19, lavatories, or otherwise providing a facility with at least one water closet, lavatory and toilet stall, with grab bars, on an accessible route, and with sufficient clear doorway and floor space to accommodate a person using a wheelchair;

(3)

If the building or facility has a public bathroom, bathing facility, shower room, or any of these, compliance with ADAAG §4.23, bathrooms, bathing facilities, and shower rooms, or otherwise providing a facility with grab bars, on an accessible route, and with sufficient clear doorway and floor space to accommodate a person using a wheelchair;

(4)

If the building or facility has a public drinking fountain or water cooler, compliance with ADAAG §4.15, drinking fountains and water coolers, or otherwise providing at least one on accessible route with sufficient clear knee, or floor space, or both, at a height which allows an individual in a wheelchair to approach and use the drinking fountain or water cooler;

(5)

If the building or facility has fixed or built-in storage facilities such as cabinets, shelves, closets, or drawers in accessible spaces, compliance with ADAAG §4.25, storage, or providing at least one of each type on an accessible route with sufficient clear floor space, and at a height which allows an individual in a wheelchair to approach and use the storage facility;

(6)

If the building or facility has fixed or built-in seating, tables or counters in accessible public or common use areas, compliance with ADAAG §4.32, fixed or built-in seating and tables, or otherwise providing a reasonable number of seats, tables or counters on an accessible route with sufficient clear floor space and knee clearances, and at a height which allows an individual in a wheelchair to approach and use them;

(7)

If the building or facility is a place of assembly with fixed seating, compliance with ADAAG §4.33, assembly areas, or otherwise providing a reasonable number of wheelchair seating locations on an accessible route with sufficient clear floor space and level surface for an individual in a wheelchair to comfortably view the performing areas with lines of sight comparable to those for members of the general public;

(8)

Compliance with ADAAG §4.27, controls and operating mechanisms, or otherwise providing controls and operating mechanisms such as light switches and dispenser controls on an accessible route with sufficient clear floor space, and at a height which allows an individual in a wheelchair to approach and use the control or mechanism with limited force from one hand;

(9)

If the building or facility has an emergency warning system, compliance with ADAAG §4.28, alarms, or otherwise installing a system with both audible and visual alarms of sufficient intensity, and at locations from which they will be heard or seen by individuals with sensory impairments;

(10)

Compliance with ADAAG §4.29, detectable warnings, or otherwise installing detectable warnings on pedestrian walking surfaces that cross or adjoin vehicular ways, which are not separated by curbs, railings, or other elements; and

(11)

In addition to the above actions, taking other steps to remove architectural and communication barriers and to facilitate physical access to goods and services, including, but not limited to, the following:

(a)

Repositioning shelves;

(b)

Rearranging tables, chairs, vending machines, display racks, and other furniture;

(c)

Repositioning telephones;

(d)

Installing flashing alarm lights or visual alarms;

(e)

Adding raised markings on elevator control buttons;

(f)

Providing Brailled and raised character signage;

(g)

Waiving a no-pet requirement to allow the use of a service animal;

(h)

Maintaining in operable working condition those features of facilities and equipment that are required to be readily accessible to, and usable by an individual with a disability, except an owner, operator, manager, or lessor of a place of public accommodation may temporarily fail to have its facilities or equipment accessible due to short term maintenance or repair;

(i)

Modifying policies, practices and procedures to afford goods, services, facilities, privileges, advantages, or accommodations to an individual with a disability; and

(j)

Providing an individual with a disability integrated settings.

Regulation .11 Undue Hardship or Expense in Public Accommodations.Link Copy Citation

An owner, operator, manager, or lessor of a place of public accommodation is not required to make a reasonable accommodation, if it is demonstrated that the accommodation would impose undue hardship or expense to the operation of the business or program.

The owner, operator, manager, or lessor of a place of public accommodation has the burden of proving an inability to accommodate an individual with a disability because of undue hardship or expense.

In determining if an accommodation would impose undue hardship or expense, the following factors shall be considered:

(1)

The nature and cost of the accommodation needed;

(2)

The financial resources of the individual or entity that owns, operates, manages, or leases the place of public accommodation, and a parent corporation, if applicable;

(3)

The overall size of the place of public accommodation, and number and type of facilities;

(4)

The type of business or program of the public accommodation; and

(5)

Legitimate safety requirements that are necessary for safe operation.

Safety requirements referred in §C(5) of this regulation shall be based on actual information or data, not speculation, conjecture, stereotypes, or generalizations about individuals with disabilities.

Regulation .12 Qualified Historic Buildings and Facilities.Link Copy Citation

An owner, operator, manager, or lessor of a qualified historic building or facility that is a place of public accommodation shall comply with the reasonable accommodation requirements of Regulation .10 of this chapter.

In determining whether a particular accommodation is reasonable, in addition to the factors set forth in Regulation .11 of this chapter, the impact of the accommodation on the historical significance of a qualified historic building or facility shall be considered. A public accommodation is not required to take any action that would threaten, or destroy the historical significance of the building or facility.

In making this determination, the Commission staff shall:

(1)

Identify the historically significant features, finishes, materials, spaces, and spatial relationships that characterize the property, as well as the secondary features, finishes, materials, spaces, and spatial relationships, including previously altered areas and later additions, that may be less important to historic character;

(2)

Consult with the appropriate federal, State, or local government officials or agencies with oversight responsibilities, or all of these officials, including but not limited to, the State Historic Preservation Officer, the Maryland Historical Trust, the Maryland Advisory Council on Historic Preservation, the National Advisory Council on Historical Preservation, or all of these. Other interested persons shall be invited to participate in the consultation process, including State or local accessibility officials, individuals with disabilities, and organizations representing individuals with disabilities;

(3)

Seek accessibility solutions that:

(a)

Do not cause damage to, permanently alter, or require the removal of, historically significant features, finishes, materials, spaces, or spatial relationships;

(b)

Are in scale with the historic property; and

(c)

Are visually compatible with the historic property.

Examples of accessibility modifications to a qualified historic building or facility may include, but are not limited to:

(1)

Regrading the entrance when the entrance steps and landscape are not highly significant;

(2)

Incorporating an entrance ramp or interior ramps, carefully designed and appropriately located to minimize the loss of historical features and preserve the overall historic setting and character;

(3)

Installing a vertical or inclined wheelchair lift or a portable wheelchair lift if appropriate to make an entrance accessible, or to overcome changes in elevation within the building or facility, preferably in unobtrusive locations;

(4)

Retrofitting nonhistorically significant doors, adapting door hardware and altering door thresholds to increase the size of the door opening and upgrade door pressure;

(5)

Upgrading historic elevators by modifying control panels and adjusting timing devices;

(6)

Modifying interior stairs by adding hand railings and beveled or closed risers; and

(7)

Constructing a new addition to the building or facility with an accessible entrance and access to public levels via a ramp, wheelchair lift or elevator, where such addition is carefully located and compatible with the size, scale, and proportions of the property's historic features and materials.

If it is determined that modifications necessary to provide physical access to all public areas of a qualified historic building or facility would threaten or destroy the historic significance of the property, the extent of physical access to the property may be limited as follows:

(1)

At least one accessible route from a site access point to an accessible entrance, which may be a ramp with a slope greater than that normally required if appropriate safety measures, such as handrails and nonskid surfaces, are used;

(2)

At least one accessible entrance which is used by the public, or if not feasible:

(a)

Access at any unlocked entrance not used by the general public with directional signage at the primary entrance and a notification system; or

(b)

If security is a problem, remote monitoring may be used;

(3)

If the building or facility has public toilets, at least one accessible toilet facility along an accessible route; and

(4)

Accessible routes from the entrance to all publicly used spaces on at least the level of the accessible entrance, and if practical, to all levels of a building or facility.

With respect to historically significant public areas or spaces, in which physical access cannot be provided without threatening or destroying the historical significance of the building or facility, alternative methods of programmatic access shall be provided, for example:

(1)

Using audio-visual materials and devices, interpretive panels, tactile models, Brailled exhibits, and other media to depict those portions of an historic building or facility that cannot otherwise be made accessible;

(2)

Assigning persons to guide individuals with disabilities into or through portions of historic buildings or facilities that cannot otherwise be made accessible; and

(3)

Adopting other innovative measures.

Regulation .13 More Stringent Laws.Link Copy Citation

These regulations do not exempt compliance with State, federal or local laws requiring more stringent structural changes, modifications, or additions to buildings or vehicles.

Regulation .14 Affirmative Action to Inform.Link Copy Citation

A person engaged in a business which falls within the areas covered by State Government Article, Title 20, Annotated Code of Maryland, shall take affirmative action to inform individuals with disabilities, as well as the public in general, of nondiscriminatory policies with respect to individuals with disabilities.

Subtitle 03 — Commission on Human Relations

Chapter 03. Penalties

Regulation .01 Scope.Link Copy Citation

These regulations apply whenever an administrative law judge intends to impose a financial penalty.

Regulation .02 Requirements.Link Copy Citation

In determining the amount of financial penalty to be imposed, an administrative law judge shall consider the following:

The seriousness of the violation;

The good faith of the violator;

The harmful effect of the violation on the public or the harmful effect of the violator's actions on the investigatory process of the Commission on Human Relations; and

The assets of the violator.

Subtitle 03 — Commission on Human Relations

Chapter 04. Fair Housing Regulations

Regulation .01 Scope.Link Copy Citation

It is the policy of the State to provide for fair housing throughout Maryland, to all its citizens, regardless of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation, and to that end to prohibit discriminatory practices with respect to residential housing by a person or group of persons, in order that the peace, health, safety, prosperity, and general welfare of all inhabitants of the State may be protected and insured.

These regulations provide the Commission's interpretation of the coverage of the Maryland Fair Housing Law regarding discrimination related to the sale or rental of dwellings, the provision of services in connection with the sale or rental of dwellings, and the availability of residential real estate related transactions.

Nothing in this regulation relieves persons participating in a federal or federally assisted or State or State-assisted program or activity from other requirements applicable to buildings and dwellings.

Regulation .02 Exemptions.Link Copy Citation

These regulations do not:

(1)

Prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society from limiting the sale, rental, or occupancy of dwellings that it owns or operates for other than a commercial purpose to individuals of the same religion, or from giving preference to these individuals, unless membership in the religion is restricted because of race, color, or national origin;

(2)

Prohibit a private club, not in fact open to the public, which as an incident to the club's primary purposes provides lodgings that it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of the dwellings to its members or from giving preference to its members;

(3)

Limit the applicability of any reasonable local, State, or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling;

(4)

Prohibit conduct against an individual because the individual has been convicted by a court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance as defined in 21 U.S.C. §802(c), or a controlled dangerous substance as defined in Criminal Law Article, §5-101(f), Annotated Code of Maryland.

Nothing in these regulations regarding discrimination based on familial status applies to housing for older persons as defined in Regulation .03B of this chapter.

Nothing in these regulations, other than the prohibitions against discriminatory advertising, applies to the sale or rental of a single family dwelling, if the dwelling is sold or rented without the use of the sales or rental facilities or services of any:

(1)

Real estate broker, agent, or salesman;

(2)

Agent of any real estate broker, agent, or salesman;

(3)

Person in the business of selling or renting dwellings; or

(4)

Agent of a person in the business of selling or renting dwellings.

Nothing in these regulations with respect to discrimination on the basis of sex, marital status, or sexual orientation applies to the rental of:

(1)

Rooms in any dwelling, if the owner maintains the dwelling as the owner's principal residence; or

(2)

Any apartment in a dwelling that contains not more than 5 rental units, if the owner maintains the dwelling as the owner's principal residence.

Threat to Health, Safety, or Property.

(1)

Nothing in these regulations shall require that a dwelling be made available to an individual whose tenancy would:

(a)

Constitute a direct threat to the health or safety of another individual; or

(b)

Result in substantial physical damages to the property of others.

(2)

The determination that an individual poses a threat to health, safety, or property shall be made on a case-by-case basis, and consist of an individualized assessment of:

(a)

The nature, duration, and severity of the risks of injury or harm;

(b)

The probability that injury or harm will actually occur; and

(c)

Whether the threat can be eliminated through the provision of a reasonable accommodation.

Regulation .03 Definitions.Link Copy Citation

In this chapter, the following words have the meanings indicated.

Terms Defined.

(1)

“Accessible” means the public or common use areas of a building can be approached, entered, and used by individuals with physical disabilities and comply with the appropriate requirements of the American National Standard, “Specifications for Making Buildings and Facilities Accessible to and Usable by Physically Disabled People” (ANSI A117.1-1980), as incorporated by reference in COMAR 05.02.02.05B, or another standard that affords disabled persons access equivalent to or greater than that required by ANSI A117.1.

(2)

“Accessible route” means a continuous unobstructed path connecting accessible elements and spaces in a building or within a site that can be negotiated by an individual with a disability using a wheelchair, in addition to being safe for and usable by people with other disabilities.

(3)

“Agent” or “broker” means a person authorized to perform an action on behalf of another person or acting with apparent authority regarding any matter related to the sale or rental of dwellings.

(4)

“Aggrieved person” has the meaning stated in State Government Article, §20-1020(b), Annotated Code of Maryland.

(5)

“ANSI A117.1-1980” means the American National Standard, “Specifications for Making Buildings and Facilities Accessible to and Usable by Physically Handicapped People”, as incorporated by reference in COMAR 05.02.02.05B.

(6)

“Commission” means the Maryland Commission on Human Relations.

(7)

“Complaint” has the meaning stated in COMAR 14.03.01.02A.

(8)

“Complainant” has the meaning stated in State Government Article, §20-101(c), Annotated Code of Maryland.

(9)

“Conciliation” has the meaning stated in State Government Article, §20-1020(c), Annotated Code of Maryland.

(10)

“Conciliation agreement” has the meaning stated in State Government Article, §20-1020(d), Annotated Code of Maryland.

(11)

“Charge” means a written statement prepared by the Commission's general counsel and issued under State Government Article, §20-1025(b)(2), Annotated Code of Maryland, which contains a factual allegation or allegations of an unlawful discriminatory housing practice or practices.

(12)

“Covered multifamily dwelling” has the meaning stated in State Government Article, §20-706(a), Annotated Code of Maryland.

(13)

Disability.

(a)

“Disability” has the meaning stated in State Government Article, §20-701(b), Annotated Code of Maryland.

(b)

“Disability” does not include current illegal use of, or addiction to, a controlled dangerous substance defined under Criminal Law Article, §5-101, Annotated Code of Maryland.

(14)

“Discriminatory housing practice” has the meaning stated in State Government Article, §20-701(c), Annotated Code of Maryland.

(15)

“Dwelling” has the meaning stated in State Government Article, §20-701(d), Annotated Code of Maryland.

(16)

Dwelling Unit.

(a)

“Dwelling unit” means a single unit of residence for one or more individuals.

(b)

“Dwelling unit” includes:

(i)

A single family home;

(ii)

An apartment unit within an apartment building; and

(iii)

Other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room, portion of the dwelling, or rooms within which people sleep, for example, dormitory rooms, sleeping accommodations in shelters intended for occupancy, and a residence for homeless persons.

(17)

“Executive Director” has the meaning stated in COMAR 14.03.01.02B.

(18)

“Familial status” has the meaning stated in State Government Article, §20-701(e), Annotated Code of Maryland.

(19)

“Family” has the meaning stated in State Government Article, §20-701(f), Annotated Code of Maryland.

(20)

“Housing for older persons” has the meaning stated in State Government Article, §20-704(c)(1), Annotated Code of Maryland.

(21)

“Human Relations Commission” has the meaning stated in COMAR 14.03.01.02C.

(22)

“In the business of selling or renting a dwelling” has the meaning stated in State Government Article, §20-701(g), Annotated Code of Maryland.

(23)

“Investigator” has the meaning stated in COMAR 14.03.01.02D.

(24)

Landlord.

(a)

“Landlord” means anyone other than the occupant of real property, who attempts to control or controls the use of the property under claim or right arising out of an ownership interest in the real property by that person or another person for whom that person acts.

(b)

“Landlord” includes owners of rental property, trustees, receivers, persons controlling the common areas used in connection with condominiums, homeowners associations, and agents or others acting in the interest of any of these persons.

(25)

“Marital status” has the meaning stated in State Government Article, §20-701(h), Annotated Code of Maryland.

(26)

“Notice” has the meaning stated in COMAR 14.03.01.02E.

(27)

“Offices of the Commission” has the meaning stated in COMAR 14.03.01.02F.

(28)

“Party” has the meaning stated in COMAR 14.03.01.02G.

(29)

“Person” has the meaning stated in State Government Article, §1-101, Annotated Code of Maryland.

(30)

“Prevailing party” has the meaning stated in State Government Article, §20-1020(f), Annotated Code of Maryland.

(31)

“Proceeding” means a conference, meeting, hearing, investigation, inquiry, or other fact-finding or decision-making procedure, including the dismissal of a complaint.

(32)

“Real property” includes dwellings, parking lots, interests in real estate corporeal or incorporeal, tenements, leaseholds, cooperatives, condominiums, and hereditaments.

(33)

“Residential real estate related transaction” has the meaning stated in State Government Article, §20-707(a), Annotated Code of Maryland.

(34)

“Respondent” has the meaning stated in State Government Article, §20-101(e), Annotated Code of Maryland.

(35)

“Sexual orientation” means the identification of an individual as to male or female homosexuality, heterosexuality, or bisexuality.

(36)

“Time” has the meaning stated in COMAR 14.03.01.02I.

(37)

“To rent” has the meaning stated in State Government Article, §20-701(i), Annotated Code of Maryland.

Regulation .04 Unlawful Practices Generally.Link Copy Citation

Real Estate Practices Prohibited. In accordance with the Commission's interpretation of discriminatory housing practices, under State Government Article, §§20-705 and 20-707—20-708, Annotated Code of Maryland, it shall be unlawful for a person to:

(1)

Refuse to sell or rent a dwelling after the making of a bona fide offer, refuse to negotiate for the sale or rental of a dwelling or otherwise make unavailable or deny a dwelling to a person because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(2)

Make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates a preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(3)

Represent to a person because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation that a dwelling is not available for sale or rental when the dwelling is in fact available;

(4)

Induce or attempt to induce for a profit a person to sell or rent a dwelling by representations regarding the entry or prospective entry into a neighborhood of a person of a particular race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(5)

Discriminate against a person in making a real estate related transaction available or in the terms or conditions of a real estate related transaction because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(6)

Deny a person access to, or membership or participation in, a multi-listing service, real estate brokers' organization, or other service, organization, or facility relating to the business of selling or renting dwellings, or discriminate against a person in the terms or conditions of access, membership, participation in such an organization or service, or facility because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(7)

Intimidate or interfere with or attempt to intimidate or interfere with a person intentionally because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation whether acting under color of law, by force or threat of force:

(a)

Because the person is or has been selling, purchasing, renting, financing, or occupying, contracting or negotiating for the sale, purchase, rental, financing, or occupation of a dwelling or for applying for or participating in a service, organization, or facility relating to the business of selling or renting dwellings, or

(b)

Because a person has made a complaint, testified, assisted, or participated in any manner in a proceeding under State Government Article, Title 20, Annotated Code of Maryland.

Unlawful Refusal to Sell or Rent or to Negotiate.

(1)

It shall be unlawful for a person to refuse:

(a)

To sell or rent a dwelling to a person who has made a bona fide offer because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(b)

To negotiate with a person for the sale or rental of a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

(2)

Prohibited actions under this section include, but are not limited to:

(a)

Imposing different sales prices or rental charges for the sale or rental of a dwelling upon a person because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(b)

Using different qualification criteria, applications, sale or rental standards or procedures such as income standards, application requirements, application fees, credit analysis, approval procedures, or other requirements, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(c)

Evicting tenants because of their race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Discrimination in Terms, Conditions, and Privileges and in Services and Facilities.

(1)

It shall be unlawful, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation to:

(a)

Impose different terms, conditions, or privileges relating to the sale or rental of a dwelling; or

(b)

Deny or limit services or facilities in connection with the sale or rental of a dwelling.

(2)

Prohibited actions under this section include, but are not limited to:

(a)

Using different provisions in leases or contracts of sale, such as those relating to rental charges, security deposits, and the terms of a lease, and those relating to down payment and closing requirements, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(b)

Failing or delaying maintenance or repairs of sale or rental dwellings because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(c)

Failing to process an offer for the sale or rental of a dwelling or to communicate an offer accurately because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(d)

Limiting the use of privileges, services, or facilities associated with a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation of an owner or tenant; or

(e)

Denying or limiting services or facilities in connection with the sale or rental of a dwelling because an individual failed or refused to provide sexual favors.

Other Prohibited Sale and Rental Conduct. It shall be unlawful, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation to restrict or attempt to restrict the choice of a person by word or conduct in connection with seeking, negotiating for, buying, or renting a dwelling so as to:

(1)

Perpetuate, or tend to perpetuate, segregated housing patterns; or

(2)

Discourage or obstruct choices in a community, neighborhood, or development.

Prohibited Practices Under §D of This Regulation. Section D of this regulation generally refers to unlawful steering practices that include, but are not limited to:

(1)

Discouraging a person from inspecting, purchasing, or renting a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(2)

Discouraging a person because of the race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation of individuals in a community, neighborhood, or development;

(3)

Discouraging the purchase or rental of a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation by exaggerating drawbacks or failing to inform a person of desirable features of a dwelling, community, neighborhood, or development;

(4)

Communicating to a prospective purchaser that the person would not be comfortable or compatible with existing residents of a community, neighborhood, or development because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(5)

Assigning a person to a particular section of a community, neighborhood, or development or to a particular floor of a building because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Unlawful Conduct Related to Provision of Housing, Services, or Facilities. Prohibited sales and rental practices under this section of the regulation include, but are not limited to:

(1)

Discharging or taking other adverse action against an employee, broker, or agent because the individual refused to participate in a discriminatory housing practice;

(2)

Employing codes or other devices to segregate or reject applicants, purchasers, or renters because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(3)

Refusing to take or to show listings of dwellings in certain areas because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(4)

Refusing to deal with certain brokers or agents because the brokers or agents or one or more of their clients are of a particular race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(5)

Denying or delaying the processing of an application made by a purchaser or renter or refusing to approve an individual for occupancy in a cooperative or condominium dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(6)

Refusing to provide municipal service, or property or hazard insurance for a dwelling, or providing it differently because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Regulation .05 Unlawful Practices Specifically.Link Copy Citation

Discriminatory Advertisements, Statements, and Notices.

(1)

The prohibitions in this section shall apply to all written or oral notices or statements by a person engaged in the sale or rental of a dwelling.

(2)

Written notices and statements include any applications, flyers, brochures, deeds, signs, banners, posters, billboards, or any other documents used with respect to the sale or rental of a dwelling.

(3)

Discriminatory notices, statements, and advertisements include, but are not limited to:

(a)

Using words, phrases, photographs, illustrations, symbols, or forms which convey that dwellings are available or not available to a particular group of individuals because of race, color, religion, sex, disability, familial status, marital status, national origin, and sexual orientation;

(b)

Expressing to agents, brokers, employees, prospective sellers or renters, or other persons a preference for or limitation on any purchaser or renter because of race, color, religion, sex, disability, familial status, marital status, national origin, and sexual orientation;

(c)

Selecting, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation, media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities; or

(d)

Refusing to publish advertising for the sale or rental of dwellings or requiring different charges or terms for advertising because of race, color, religion, sex, disability, familial status, marital status, national origin, and sexual orientation.

Discriminatory Representations on the Availability of Dwellings. Prohibited actions under this section of this regulation include, but are not limited to:

(1)

Indicating through words or conduct that a dwelling which is available for inspection, sale, or rental has been sold or rented, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(2)

Representing that covenants or other deed, trust, or lease provisions which purport to restrict the sale or rental of dwellings because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation preclude the sale or rental of a dwelling to a person;

(3)

Enforcing covenants or other deed, trust, or lease provisions which preclude the sale or rental to a person because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(4)

Limiting information, by word or conduct, regarding suitably priced dwellings available for inspection, sale, or rental because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(5)

Providing false or inaccurate information regarding the availability of a dwelling for sale or rental to an individual, including testers, regardless of whether the individual is actually seeking housing, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Blockbusting.

(1)

In establishing a discriminatory housing practice under this section, it is not necessary that there was in fact profit as long as profit was a factor for engaging in the blockbusting activity.

(2)

Prohibited actions under this section include, but are not limited to:

(a)

Engaging, for profit, in conduct (including uninvited solicitations for listings) which conveys to a person that a neighborhood is undergoing or is about to undergo change in the race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation of persons residing in it, in order to encourage the person to offer a dwelling for sale or rental; or

(b)

Encouraging, for profit, a person to sell or rent a dwelling through assertions that the entry or prospective entry of individuals of a particular race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation, can or will result in undesirable consequences for the project, neighborhood, or community, such as lowering of property values, an increase in criminal or antisocial behavior, or decline in the quality of schools or other services or facilities.

Discrimination in the Provision of Brokerage Services. Prohibited actions under this section include, but are not limited to:

(1)

Setting different fees for access to or membership in a multiple listing service because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(2)

Denying or limiting benefits accruing to members in a real estate broker's organization because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(3)

Imposing different standards or criteria for membership in a real estate sales or rental organization because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(4)

Establishing geographic boundaries, office locations, or residence requirements for access to membership or participation in a multiple listing service, real estate broker's organization or other service, organization or facility relating to the business of selling or renting dwellings, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Regulation .06 Discrimination in Real Estate Related Transactions.Link Copy Citation

Discriminatory Practices in Residential Real Estate Related Transactions.

(1)

This regulation provides the Commission's interpretation of the conduct that is unlawful housing discrimination under State Government Article, §20-707, Annotated Code of Maryland.

(2)

It shall be unlawful for a person whose business includes engaging in residential real estate related transactions to discriminate against a person in making available a transaction, or terms or conditions of such a transaction, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Discrimination in the Making of Loan and Other Financial Assistance.

(1)

It shall be unlawful for a person whose business includes engaging in the making of residential real estate related transactions, loans, or other financial assistance to discriminate against a person in making available loans or other financial assistance for a dwelling, or which is or is to be secured by a dwelling, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

(2)

Prohibited practices under this section include, but are not limited to:

(a)

Failing or refusing to provide to a person, in connection with a residential real estate related transaction, information regarding the availability of loans or other financial assistance, application requirements, or procedures or standards for the review and approval of loans or financial assistance because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(b)

Providing information which is inaccurate or different from that provided others, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Discrimination in the Purchasing of Loans.

(1)

It shall be unlawful for a person engaged in the purchasing of loans, debts, or security which support the purchase, construction, improvement, repair, or maintenance of a dwelling, or which are secured by residential real estate to:

(a)

Refuse to purchase a loan, debt, or security; or

(b)

Impose different terms or condition for the purchase, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

(2)

Unlawful conduct under this section includes, but is not limited to:

(a)

Purchasing loans, other debts, or securities which relate to, or are secured by dwellings in certain communities or neighborhoods but not in others, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation of individuals in the neighborhoods or communities;

(b)

Pooling or packaging loans, other debts, or securities which relate to, or which are secured by dwellings differently, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(c)

Imposing or using different terms or conditions on the marketing or sale of securities issued on the basis of loans or other debts, or securities which relate to or which are secured by dwellings, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

(3)

Exclusions.

(a)

This section does not prevent consideration, in the purchasing of loans, of factors justified by business necessity, including requirements of law, relating to a transaction's financial security, protection against default, or reduction in value of the security.

(b)

This regulation does not preclude considerations employed in normal and prudent transactions, provided that factors do not in any way relate to race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Discrimination in the Terms and Conditions for Making Available Loans or Other Financial Assistance.

(1)

It shall be unlawful for a person engaged in the making of loans or in the provision of other financial assistance relating to the purchase, construction, improvement, repair, or maintenance of dwellings or which are secured by residential real estate to impose different terms or conditions for the availability of loans or other financial assistance because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

(2)

Unlawful conduct under this section includes, but is not limited to:

(a)

Using different policies, practices, or procedures in evaluating or in determining creditworthiness of a person in connection with the provision of a loan or other financial assistance which is secured by residential real estate because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

(b)

Determining the type of loan or other financial assistance to be provided with respect to a dwelling, fixing the amount, interest rate, duration, other terms for a loan or other financial assistance for a dwelling, or which is secured by residential real estate, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Unlawful Practices—Selling, Brokering, or Appraising of Residential Real Property.

(1)

It shall be unlawful for a person whose business includes engaging in the selling, brokering, or appraising of residential real property to discriminate against a person in making available the services, or in the performance of the services, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

(2)

Appraisal.

(a)

For the purpose of this section, the term “appraisal” means an estimate or opinion of the value of a specified residential real property made in a business context in connection with the sale, rental, financing, or refinancing of a dwelling or in connection with any activity that otherwise affects the availability of a residential real estate related transaction, whether the appraisal is oral or written, or transmitted formally or informally.

(b)

The appraisal includes all written comments and other documents submitted as support for the estimate or opinion of value.

(3)

Nothing in this section prohibits a person engaged in the business of making or furnishing appraisals of residential real property from taking into consideration factors other than race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

(4)

Practices which are unlawful in this section include, but are not limited to, using an appraisal of residential real property in connection with the sale, rental, or financing of any dwelling when the person knows or reasonably should know that the appraisal improperly takes into consideration race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

Regulation .07 Prohibition Against Discrimination Because of Disability.Link Copy Citation

This regulation provides the Commission's interpretation of the conduct that is unlawful housing discrimination against an individual who has a disability under State Government Article, §20-706, Annotated Code of Maryland.

General Prohibitions Against Discrimination Because of Disability.

(1)

It shall be unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny a dwelling to a buyer or renter, because of a disability of:

(a)

The buyer or renter; or

(b)

An individual residing in or intending to reside in that dwelling after it is sold, rented, or made available.

(2)

It shall be unlawful to discriminate against an individual in the terms, conditions, or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection with the dwelling, because of a disability of:

(a)

The buyer or renter; or

(b)

An individual residing in or intending to reside in that dwelling after it is sold, rented, or made available.

(3)

It shall be unlawful to make an inquiry to determine whether an applicant for a dwelling or an individual intending to reside in that dwelling after it is sold, rented, or made available has a disability or to make inquiry as to the nature or severity of a disability of that individual.

(4)

This subsection does not prohibit the following inquiries, provided these inquiries are made of all applicants, with or without disabilities:

(a)

Inquiry into an applicant's ability to meet the requirements of ownership or tenancy;

(b)

Inquiry to determine whether an applicant is qualified for a dwelling available to individuals with disabilities or to an individual with a particular type of disability;

(c)

Inquiry to determine whether an applicant for a dwelling is qualified for a priority available to individuals with disabilities or to individuals with a particular type of disability;

(d)

Inquiring whether an applicant for a dwelling is a current illegal abuser or addict of a controlled dangerous substance; or

(e)

Inquiring whether an applicant has been convicted of the illegal manufacture or distribution of a controlled dangerous substance.

Reasonable Accommodations.

(1)

It shall be unlawful for a person to refuse to make a reasonable accommodation in rules, policies, practices, or services when the accommodation may be necessary to afford a disabled individual an equal opportunity to use and enjoy a dwelling, including public and common use areas.

(2)

A person is not required to provide a reasonable accommodation if providing the accommodation would impose an undue hardship.

(3)

A person may not refuse to sell or rent a dwelling or otherwise make unavailable or deny a dwelling to an individual based upon the individual's need for a reasonable accommodation.

Reasonable Modifications.

(1)

It shall be unlawful for a person to refuse to permit, at the expense of a disabled individual, reasonable modifications of existing premises, occupied or to be occupied by a disabled individual, if the proposed modifications may be necessary to afford the disabled individual full enjoyment of the premises of a dwelling.

(2)

In the case of a rental, the landlord may, when it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear expected.

(3)

The landlord may reserve the right to approve the design, quality, and construction of the alterations or additions in order to minimize the damage to the building and enforce standards of quality and architectural responsibility.

(4)

The landlord may not increase for disabled individuals any customarily required security deposit.

(5)

Notwithstanding §D(4) of this regulation, when it is necessary in order to ensure with reasonable certainty that funds will be available to pay for restorations at the end of the tenancy, the landlord may:

(a)

Negotiate as part of a restoration agreement, a provision requiring that the tenant pay into an interest-bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of restorations; or

(b)

Negotiate for the establishment of an escrow account, but the interest in the account shall accrue to the benefit of the tenant.

Examples of Appropriate Modifications. The following are examples of modifications used to make real property accessible by individuals with disabilities:

(1)

Ramps for wheelchairs or walkers;

(2)

Lights to indicate to a deaf person that the doorbell or telephone is ringing;

(3)

Grab bars in bathrooms;

(4)

Roll-out shelves in kitchens;

(5)

Height-sensitive electrical outlets and switches; and

(6)

Simplified locking systems for use by mentally disabled individuals.

Design and Construction Requirements.

(1)

Covered multifamily dwellings for first occupancy after July 1, 1991, shall be designed and shall be constructed to have at least one building entrance on an accessible route unless it is impractical to do so because of terrain or unusual characteristics of the site.

(2)

For purposes of this section, a covered multifamily dwelling shall be considered to be designed and to be constructed for first occupancy on or before July 1, 1991, or if they are occupied by that date.

(3)

The burden of establishing impracticality because of terrain or unusual site characteristics is on the person or persons who designed and constructed the housing facility.

(4)

All covered units of multifamily dwellings shall comply with the appropriate requirements of the American National Standard of Buildings and Facilities Providing Accessibility and Usability for Physically Handicapped People (commonly cited as ANSI A117.1) or the federal law, regulations, and guidelines on disabled accessibility adopted under the Fair Housing Act Amendments of 1988 and incorporated by reference in COMAR 05.02.02.

(5)

This section does not invalidate or limit any law of a state or political subdivision of a state that requires dwellings to be designed and constructed in a manner that affords disabled individuals greater access than is required by this section.

Regulation .08 Housing for Older Persons.Link Copy Citation

Purpose. The purpose of this regulation is to effectuate the exemption in State Government Article, §20-704(c), Annotated Code of Maryland, that relates to housing for older persons.

Exemption.

(1)

The provisions regarding familial status in these regulations do not apply to housing which satisfies the requirements of §§C—E of this regulation.

(2)

Nothing in this regulation limits the applicability of any reasonable local, State, or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

State and Federal Elderly Housing Programs. The provisions regarding familial status in these regulations do not apply to housing provided under any federal or State program that the Commission determines is specifically designed and operated to assist elderly individuals, as defined in the State and federal program.

62 or Over Housing.

(1)

The provisions regarding familial status in these regulations do not apply to housing intended for, and solely occupied by, an individual 62 years old or older.

(2)

This housing satisfies the requirements of this regulation even though there are:

(a)

Individuals residing in the housing on September 13, 1988, who are under 62 years old, provided that all new occupants are individuals 62 years old or older;

(b)

Unoccupied units, provided that the units are reserved for occupancy by individuals 62 years old or older; or

(c)

Units occupied by employees of the housing (and family members residing in the same unit) who are under 62 years old provided they perform substantial duties directly related to the management or maintenance of the housing.

55 or Over Housing. The provisions regarding familial status do not apply to housing intended and operated for occupancy by at least one individual 55 years old or older per unit, if the housing satisfies the following requirements:

(1)

At least 80 percent of the units in the housing facility are occupied by at least one individual 55 years old or older per unit, except a newly constructed housing facility for first occupancy after July 1, 1991, need not comply with this subsection until 25 percent of the units in the facility are occupied; and

(2)

The owner or manager of a housing facility publishes and adheres to policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years old or older.

The following factors, among others, are relevant in determining whether the owner or manager of a housing facility has complied with the requirements of §E(2) of this regulation:

(1)

The manner in which the housing facility is described to prospective residents;

(2)

The nature of any advertising designed to attract prospective residents;

(3)

Age verification procedures;

(4)

Lease provisions;

(5)

Written rules and regulations;

(6)

Actual practices of the owner or manager in enforcing relevant lease provisions and relevant rules and regulations; and

(7)

Whether the housing satisfies the requirements of the following:

(a)

At least 80 percent of the units are occupied by at least one individual 55 years old or older,

(b)

There are unoccupied units, provided that at least 80 percent of these units are reserved for occupancy by at least one individual 55 years old or older, or

(c)

There are units occupied by employees of the housing (and family members residing in the same unit) who are under 55 years old provided they perform substantial duties directly related to the management or maintenance of the housing.

Regulation .09 Prohibited Interference, Coercion, Intimidation, or Retaliation.Link Copy Citation

It shall be unlawful housing discrimination to coerce, intimidate, threaten, or interfere with a person in the exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that person having aided or encouraged another person in the exercise or enjoyment of, a right granted or protected by State Government Article, Title 20, Annotated Code of Maryland.

Unlawful conduct under this regulation includes, but is not limited to:

(1)

Coercing a person, either orally, in writing, or by other means, to deny or limit the benefits provided that person in connection with the sale or rental of a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(2)

Threatening, intimidating, or interfering with persons in their enjoyment of a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation of these persons, or of visitors or associates of these persons;

(3)

Threatening an employee or agent with dismissal or an adverse employment action, or taking an adverse employment action, for any effort to assist a person seeking access to the sale or rental of a dwelling or seeking access to any residential real estate related transaction, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

(4)

Intimidating or threatening a person because that person is engaging in activities designed to make other persons aware of, or encouraging the other persons to exercise, rights granted or protected in these regulations; or

(5)

Retaliating against a person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under State Government Article, Title 20, Annotated Code of Maryland.

Regulation .10 Fair Housing Complaint.Link Copy Citation

Who May File.

(1)

Any person who claims to have been aggrieved by an act or acts of unlawful housing discrimination prohibited by State Government Article, Title 20, Annotated Code of Maryland, may file a complaint with the Commission.

(2)

The complaint may be filed with the assistance of an authorized representative of an aggrieved person, including any organization acting on behalf of an aggrieved person.

(3)

Commission-Initiated Complaints. In accordance with Article State Government Article, §20-1004(d), Annotated Code of Maryland, the Commission may initiate a complaint in its own name if the Commission:

(a)

Receives reliable information from an individual that a person has been engaged or is engaged in a discriminatory housing practice;

(b)

Authorizes a preliminary investigation; and

(c)

By action of not less than three Commissioners, determines that the information gathered during the preliminary investigation warrants the filing of a complaint.

Persons Against Whom Complaints May Be Filed. A complaint may be filed against:

(1)

A person alleged to be engaged or to have engaged in a discriminatory housing practice; or

(2)

A person who directs or controls, or has the right to direct or control, the conduct of another person with respect to any aspect of the sale, rental, advertising, financing of dwellings, or the provisions of brokerage services relating to the sale or rental of dwellings if that other person, if acting within the scope of their authority as an employee or agent of the directing or controlling person, is engaged or has engaged in a discriminatory housing practice.

Manner of Filing.

(1)

(2)

Complaints Initiated by Telephone.

(a)

Complaints may be initiated by telephone to the Commission.

(b)

If a complaint is initiated by telephone, the Commission shall:

(i)

Reduce information provided by telephone to writing on the prescribed complaint form; and

(ii)

Send the complaint form to the aggrieved person to be signed and affirmed as provided in §E of this regulation.

(c)

A telephone-initiated complaint is considered filed only upon receipt of the form or a signed writing.

When Filed.

(1)

Individual complaints shall be filed not later than 1 year after an alleged discriminatory housing practice has occurred or terminated, whichever is later.

(2)

Discriminatory Housing Practices of a Continuing Nature.

(a)

If the alleged discriminatory housing practice is of a continuing nature, the date of the occurrence of this discriminatory practice shall be considered to be the date up to and including that date on which the unlawful practice shall have ceased.

(b)

The complaint will be timely if filed within 1 year of the last alleged occurrence of that practice.

(3)

An individual complaint filed with a federal or local human relations commission not later than the 1-year period required in this regulation shall be considered as being a timely filing in compliance with that requirement.

Form and Content of Complaint.

(1)

Each complaint shall be in writing and shall be signed and affirmed by the aggrieved person filing the complaint.

(2)

The affirmation shall state “I declare under the penalty of perjury that the foregoing is true and correct”.

(3)

A complaint filed by the Commission shall be filed in accordance with COMAR 14.03.01.03.

(4)

An individual complaint may be filed on a form provided by the Commission.

(5)

Complaint forms will be made available to all persons at the office of the Commission in Baltimore, Maryland, or other offices within the State which may be established.

(6)

Appropriate assistance in filling out forms will be rendered to complainants or to individuals filing on behalf of a complainant, by the personnel of the Commission.

(7)

Complaints filed on forms provided by other local commissions, including federal civil rights agencies, shall be considered complaints filed with the Commission.

(8)

Notwithstanding the requirement for using a prescribed form, the Commission may accept a written statement which substantially sets forth the allegations of a discriminatory housing practice under State Government Article, Title 20, Annotated Code of Maryland.

(9)

Each complaint shall contain substantially the following information:

(a)

The name and address of the aggrieved person;

(b)

The name and address of the respondent;

(c)

A description and the address of the dwelling which is involved, if appropriate; and

(d)

A concise statement of facts including pertinent dates, constituting the alleged discriminatory housing practice.

Amendment of Complaint.

(1)

A complaint may be reasonably and fairly amended at any time.

(2)

The amendments may include but are not limited to:

(a)

Amendments to cure technical defects or omissions, including failure to sign or affirm the complaint;

(b)

Amendments to clarify and amplify any allegation made in the complaint;

(c)

Amendments to join additional or substitute respondents; or

(d)

Amendments to allege additional acts which constitute discriminatory housing practices under State Government Article, Title 20, Annotated Code of Maryland, which relate back to or grow out of the subject matter of the original complaint.

(3)

All amendments will relate back to the original filing date.

Regulation .11 Complaint Processing.Link Copy Citation

Review, Authorization, and Expedition.

(1)

After the filing of a housing complaint, the Executive Director or designee shall:

(a)

Review the complaint to determine whether it should issue for reasons of standing of the parties, timeliness of the filing, or other matters upon which its issuance may depend;

(b)

If the complaint is rejected and not susceptible to amendment, serve notice on the complainant stating the reasons for rejection; and

(c)

If the complaint is considered acceptable:

(i)

Authorize an investigation by dating and signing the complaint; and

(ii)

If the Executive Director or designee determines and states in writing that the complaint should be expedited based on a showing of good cause or because justice requires, expedite the complaint.

(2)

If a complaint is expedited under §A(1)(c)(ii) of this regulation, the Executive Director or designee may shorten time frames set forth in Regulation .12 of this chapter.

Notification of Aggrieved Person.

(1)

Upon the filing of a complaint, the Commission shall give notice to each aggrieved person on whose behalf the complaint was filed.

(2)

The notice shall:

(a)

Acknowledge the filing of the complaint and state the date that the complaint was accepted for filing;

(b)

Include a copy of the complaint;

(c)

Advise the aggrieved person of the time limits applicable to complaint processing and of the procedural rights and obligations of the aggrieved person under these regulations;

(d)

Advise the aggrieved person of the right to commence a civil action under State Government Article, §20-1035, Annotated Code of Maryland, in an appropriate State court, not later than 2 years after the occurrence or termination of the alleged discriminatory housing practice, noting that:

(i)

The computation of this 2-year period excludes any time during which an administrative proceeding is pending with respect to a complaint or charge based on the alleged discriminatory housing practice; and

(ii)

The time period includes the time during which an action arising from a breach of conciliation agreement under Regulation .13 of this chapter, and State Government Article, §20-1024, Annotated Code of Maryland, is pending; and

(e)

Advise the aggrieved person that retaliation against a person because the person made a complaint, testified, assisted, or participated in an investigation or conciliation under these regulations is a discriminatory housing practice that is prohibited by State Government Article, Title 20, Annotated Code of Maryland.

Notification of Respondent; Joinder of Additional or Substitute Respondents.

(1)

Within 10 days of the filing of a complaint or the filing of an amended complaint, including authorization, the Commission will serve a notice on each respondent by certified mail or personal service.

(2)

A person who is not named as a respondent in the complaint, but who is identified in the course of the investigation as a person who is alleged to be engaged or to have engaged in the discriminatory housing practice upon which the complaint is based, may be joined as an additional or substitute respondent by service of a notice on the person under this regulation within 10 days of the identification.

(3)

At a minimum, the notice shall:

(a)

Identify the alleged discriminatory housing practice upon which the complaint is based, and include a copy of the complaint;

(b)

State the date that the complaint was accepted for filing;

(c)

Advise the respondent of the time limits applicable to complaint processing under this chapter and of the procedural rights and obligations of the respondent under State Government Article, §§20-701—20-710 and 20-1020—20-1037, Annotated Code of Maryland, including the opportunity to submit an answer to the complaint within 10 days of the receipt of the notice;

(d)

Advise the respondent of the aggrieved person's right to commence a civil action in an appropriate State court, not later than 2 years after the occurrence or termination of the alleged discriminatory housing practice and state:

(i)

(ii)

The time period includes the time during which an action arising from a breach of a conciliation agreement under State Government Article, §20-1024, Annotated Code of Maryland, is pending;

(e)

If the person is not named in the complaint, but is being joined as an additional or substitute respondent, explain the basis for the Commission's belief that the joined person is properly joined as a respondent;

(f)

Advise the respondent that retaliation against a person because the person made a complaint, testified, assisted, or participated in an investigation or conciliation is a discriminatory housing practice that is prohibited under State Government Article, Title 20, Annotated Code of Maryland, and these regulations; and

(g)

Invite the respondent to enter into a conciliation agreement for the purpose of resolving the complaint.

Answer to Complaint.

(1)

The respondent may file an answer not later than 10 days after receipt of the notice described in §C of this regulation.

(2)

The respondent may assert any defense that might be available to a defendant in a court of law.

(3)

The answer shall be signed and affirmed by the respondent.

(4)

The affirmation shall state: “I declare under the penalty of perjury that the foregoing is true and correct”.

(5)

An answer may be reasonably and fairly amended at any time with the consent of the Executive Director or designee.

Withdrawal. A complaint filed by or on behalf of an aggrieved person may be withdrawn in writing at any time by the aggrieved person who filed the complaint.

Administrative Closure — Notice and Reopening.

(1)

(2)

Written notice of the administrative closure shall be provided to the complainant at the last known address informing the complainant of the right to object to this closure within 15 days of the date on which the notice was mailed.

(3)

If the complainant files a timely objection, the Executive Director or designee shall consider the closure in light of the reasons stated by the complainant and make a determination.

(4)

In the absence of a timely objection, the Executive Director or designee shall close the complaint and so mark the subject case file.

(5)

Written notice of the closure shall be sent to the respondent upon whom the complaint was served.

(6)

In those cases when a complaint has been withdrawn by a complainant, the 15-day notice provision to the complainant is not required.

(7)

A request to reopen a case administratively closed for lack of information establishing the whereabouts of the complainant that is received beyond the time for objecting specified in §F(2) of this regulation shall be considered only upon a showing of good cause made by the complainant.

Regulation .12 Investigative Process.Link Copy Citation

Investigations.

(1)

The Executive Director or designee shall authorize a complaint within 30 days after the filing of the complaint, or the notification or referral of a complaint, from the United States Department of Housing and Urban Development.

(2)

Upon the authorization of a complaint, the Executive Director or designee shall assign, or cause to be assigned, the investigation of the complaint to a staff investigator.

(3)

The investigative process involves:

(a)

Promptly gathering information necessary and relevant to make a fair determination on the events or transactions that relate to the alleged discriminatory housing practice identified in the complaint;

(b)

Documenting policies or practices of the respondent involved in the alleged discriminatory housing practice raised in the complaint;

(c)

Developing factual data necessary for a determination whether probable cause exists to believe that a discriminatory housing practice has occurred or is about to occur and to take other actions provided under this chapter and State Government Article, Title 20, Annotated Code of Maryland; and

(d)

Concluding the investigation, in accordance with this regulation, with the issuance of written findings of probable cause or no probable cause.

Systemic Processing.

(1)

The Executive Director or designee may identify the complaint for systemic processing when the Executive Director or designee determines:

(a)

That the alleged discriminatory practices contained in a complaint are pervasive or institutional in nature;

(b)

That the processing of the complaint will involve complex issues, or novel questions of law or fact; or

(c)

That a large number of individuals will be affected.

(2)

The determination in §B(1) of this regulation may be based on the face of the complaint or on information gathered in connection with an investigation.

(3)

Systemic investigations may focus not only on documenting facts involved in the alleged discriminatory housing practice that is the subject of the complaint, but also on review of other policies and procedures related to matters under investigation, to make sure they also comply with the nondiscrimination requirements of State Government Article, Title 20, Annotated Code of Maryland.

Conduct of Investigation.

(1)

Fact-Finding Conference. A conference may be convened for the purpose of defining the issues contained in the complaint in accordance with COMAR 14.03.01.05C(1).

(2)

Request for Information.

(a)

(b)

The request for information shall be accompanied by the following:

(i)

A copy of the charge; and

(ii)

The date on which the response shall be submitted.

(c)

Additional requests for information may be made to further the investigation.

(3)

Interrogatories—Content and Response. An investigator may serve interrogatories on a respondent, upon authorization by the Executive Director or designee in accordance with COMAR 14.03.01.05C(3).

(4)

Interrogatories—Default Procedure. Failure of the respondent to either answer the interrogatories or to file a motion to strike or exceptions within the time specified will activate the default proceedings in accordance with COMAR 14.03.01.06.

(5)

Investigatory Subpoena.

(a)

In accordance with COMAR 14.03.01.05C(4), the Commission may, upon written authorization of the Executive Director or designee, issue a subpoena to compel the attendance and testimony of witnesses or to compel the production of books, papers, and documents relevant or necessary to an investigation or hearing.

(b)

The Commission may bring an action to enforce the subpoena in the circuit court for the county in which the person to whom the subpoena is addressed resides, was served, or transacts business.

Cooperation of Federal, State, or Local Agencies. The Commission, in processing fair housing complaints, may seek the cooperation and utilize the services of federal, State, or local agencies, including any agency having regulatory or supervisory authority over financial institutions.

Completion of Investigation.

(1)

The investigation shall remain open until:

(a)

A written finding of probable cause or no probable cause is made, in accordance with COMAR 14.03.01.08A;

(b)

A conciliation agreement is executed and approved; or

(c)

A withdrawal or an administrative closure is made in accordance with Regulation .11E and F of this chapter.

(2)

Probable Cause.

(a)

The Commission shall determine whether, based on the totality of the factual circumstances known at the time of the decision, probable cause exists to believe that a discriminatory housing practice has occurred.

(b)

The probable cause determination shall be based solely on the facts concerning the alleged discriminatory housing practice, provided by complainant and respondent, and otherwise disclosed during the investigation.

(c)

If the Commission determines that probable cause exists, the Commission shall immediately give notice to the complainant, the aggrieved person, and the respondent of this determination.

(d)

If the Commission determines that no probable cause exists, the Commission shall immediately give notice to the complainant, the aggrieved person, and the respondent of this determination.

(e)

A final written finding may be amended at any time, if additional information is discovered.

(3)

Unless it is impracticable to do so, the Commission shall complete the investigation of the alleged discriminatory housing practice within 100 days of the filing of the complaint.

(4)

If the Commission is unable to complete the investigation within the 100-day period, the Commission shall give notice to the aggrieved person and the respondent of the reasons for the delay.

Reconsideration.

(1)

(2)

Reconsideration Process.

(a)

The application and authority shall be in writing and shall state specifically the grounds upon which it is based.

(b)

The application and authority shall be filed with the Executive Director or designee within 15 days from the date on which the findings were mailed to the complainant.

(c)

Written notice that the complainant has requested reconsideration shall be given promptly to the respondent.

(d)

Not later than 30 days after receipt of an application, the Executive Director or designee shall review the entire file, including the request for reconsideration, and may:

(i)

Grant or deny the application for reconsideration; and

(ii)

Issue an order the Executive Director or designee considers appropriate.

(e)

Not later than 30 days after making a determination, the Executive Director or designee shall notify the complainant and respondent in writing of the determination, and do one of the following:

(i)

If the application for reconsideration is granted, remand the case to the investigative staff for the appropriate action; or

(ii)

If the application for reconsideration is not granted, administratively close the case.

(3)

The times set forth in §F of this regulation may be extended by the Executive Director or deputy director for good cause.

Dismissal of Proceedings. The Executive Director or designee may dismiss cases which have not been certified for public hearing, at any stage of the proceedings in accordance with COMAR 14.03.01.04F.

Regulation .13 Conciliation Process.Link Copy Citation

Conciliation.

(1)

During the period beginning with the initial filing of a complaint and ending with the certification of the file for processing for hearing or dismissal of the complaint, the Commission shall, to the extent feasible, attempt to conciliate the complaint.

(2)

Written notice of the opportunity to conciliate shall be provided to the parties.

(3)

In conciliating a complaint, the Commission shall attempt to achieve a just resolution of the complaint and to obtain assurances that the respondent will satisfactorily remedy any violations of the rights of the aggrieved person, and take such action as well as assure the elimination of discriminatory housing practices, or the prevention of their occurrence in the future.

Conciliation Agreement.

(1)

The terms of a settlement of a complaint will be reduced to a written conciliation agreement.

(2)

The conciliation agreement shall seek to protect the interests of the aggrieved person, other persons similarly situated, and the public interest.

(3)

The types of relief that may be sought for the aggrieved person are described in §C of this regulation.

(4)

The provisions that may be sought for the vindication of the public interest are described in Regulation .17B(3) of this chapter.

(5)

The agreement shall be executed by the respondent and the complainant.

(6)

The agreement is subject to the approval of the Executive Director or designee who shall indicate approval by signing the agreement.

(7)

The Executive Director or designee shall approve an agreement and shall execute the agreement only if:

(a)

The complainant and the respondent agree to the relief accorded the aggrieved person; and

(b)

The provisions of the agreement will adequately vindicate the public interest.

Relief Sought for Aggrieved Persons.

(1)

Administrative Relief. In conciliation, the Commission may seek any relief in accordance with Regulation .17B of this chapter.

(2)

Arbitration.

(a)

The conciliation agreement may provide for binding arbitration of the dispute arising from the complaint.

(b)

Arbitration may award appropriate relief as described in §C(1) of this regulation.

(c)

The aggrieved person and the respondent may, in the conciliation agreement, limit the types of relief that may be awarded under binding arbitration.

Termination of Conciliation Efforts—Respondent's Actions.

(1)

The Commission may terminate its efforts to conciliate if a respondent fails or refuses to confer with the Commission's staff, or fails or refuses to negotiate in good faith to resolve the dispute.

(2)

Termination of Conciliation Efforts—Complainant's Actions.

(1)

The Executive Director or designee may administratively close a case if the complainant:

(a)

Fails to negotiate in good faith; or

(b)

(2)

Before administratively closing the case, the Executive Director or designee shall:

(a)

Provide written notice to the complainant;

(b)

Give the complainant 15 days after the mailing of the notice to object in writing and give reasons why the case should not be administratively closed;

(c)

Consider the objections filed by the complainant;

(d)

Administratively close the case if no objections are filed; and

(e)

Promptly notify both the complainant and respondent of the determination.

When the aggrieved person has commenced a civil action under federal law or State law seeking relief with respect to the alleged discriminatory housing practice, and the trial in the action has commenced, the Commission will terminate conciliation unless the court specifically requests assistance from the Commission.

Prohibitions and Requirements—Disclosure of Information Obtained During Conciliation.

(1)

Except as provided in §G(2) of this regulation, nothing that is said or done in the course of conciliation under this regulation may be made public or used as evidence in a subsequent administrative hearing or civil action under State Government Article, Title 20, Annotated Code of Maryland, without the written consent of the persons concerned.

(2)

(3)

Notwithstanding a determination that disclosure of a conciliation agreement is not required, the Commission may publish tabulated descriptions of the results of all conciliation efforts.

Review of Compliance with Conciliation Agreements.

(1)

The Commission may, from time to time, review compliance with the terms of any conciliation agreements.

(2)

Whenever the Commission has reasonable cause to believe that a respondent has breached a conciliation agreement, the Commission through its general counsel may file a civil action for the enforcement of the terms of the conciliation agreement.

Regulation .14 Certification for Hearing Processing.Link Copy Citation

Upon failure of conciliation, the Executive Director or designee shall certify the case for hearing processing.

An entry identifying this case shall be logged in the Commission's official docket book, which shall be maintained by the Executive Director for cases pending hearing.

The Executive Director or designee shall forward the certified case file to the Commission's general counsel for further processing.

The General Counsel, on review of a certified file, may remand the case to the Executive Director or designee for:

(1)

Further investigation and, in this case, shall state clearly the issues requiring further investigative proceedings; or

(2)

Review of the findings and, in this case, shall state clearly the reason or reasons for the review.

The General Counsel, on review of a certified file, shall determine whether the matter involves the legality of local zoning or land use laws or ordinances and shall do the following:

(1)

Immediately refer the investigative materials to the Attorney General for appropriate action in accordance with State Government Article, §20-1025(c)(1), Annotated Code of Maryland; and

(2)

Notify the complainant, the aggrieved person, and the respondent of this action by certified mail or personal service.

Not less than 60 days after the General Counsel refers the matter to the Attorney General under §E of this regulation, the Commission may issue a charge or take other appropriate action in the matter.

If a federal or State civil action is commenced prior to the filing of the statement of charges alleging unlawful housing discrimination under the same facts, the Commission shall dismiss the case prior to the filing of the statement of charges pursuant to COMAR 14.03.01.04F.

Regulation .15 Election of Civil Action or Provision of Administrative Proceeding.Link Copy Citation

Election Process.

(1)

When a complaint is certified for further processing pursuant to State Government Article, §20-1025(a), Annotated Code of Maryland, a complainant, respondent, or aggrieved person on whose behalf the complaint was filed may elect to have the claims asserted in the complaint decided in a civil action under State Government Article, §20-1032, Annotated Code of Maryland, instead of by an administrative hearing under State Government Article, §20-1027, Annotated Code of Maryland.

(2)

The election authorized under State Government Article, §20-1026, Annotated Code of Maryland, shall be made not later than:

(a)

20 days after the complainant, respondent, or aggrieved person on whose behalf the complaint was filed receives service under State Government Article, §20-1025(e), Annotated Code of Maryland; or

(b)

In the case of the Commission, 20 days after service is made to all other parties under State Government Article, §20-1025(e), Annotated Code of Maryland.

(3)

A person who makes an election under State Government Article, §20-1026, Annotated Code of Maryland, shall give notice of the election to the Commission and to all other complainants, respondents, and aggrieved persons on whose behalf the complaint was filed or to whom the complaint relates.

Civil Action by the Commission.

(1)

Action Brought on Behalf of Aggrieved Person.

(a)

Commencement. In accordance with State Government Article, §20-1032, Annotated Code of Maryland, if an election is made to pursue judicial action under State Government Article, §20-1026, Annotated Code of Maryland, the Commission's General Counsel shall commence and maintain, not later than 60 days after the election is made, a civil action seeking relief under State Government Article, §20-1026, Annotated Code of Maryland, on behalf of the aggrieved person in the circuit court for the county where the dwelling that is the subject of the alleged discrimination is located.

(b)

A hearing under Regulation .16 of this chapter and State Government Article, §20-1027, Annotated Code of Maryland, may not continue regarding an alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved person under federal law or State law seeking relief with respect to that discriminatory housing practice.

(c)

Relief. Relief and civil penalties shall be awarded in accordance with State Government Article, §20-1032(b), Annotated Code of Maryland.

(d)

Intervention. Any aggrieved person with respect to the issues to be determined in a civil action under State Government Article, §20-1032 may intervene as of right.

(2)

Commission-Initiated Civil Action.

(a)

Commencement. Pursuant to State Government Article, §20-1036(a), Annotated Code of Maryland, the Commission may commence a civil action in the appropriate circuit court if the Commission has probable cause to believe that:

(i)

A person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by State Government Article, Title 20, Subtitle 7 and Subtitle 10, Part II, Annotated Code of Maryland, or any group of persons has been denied any of the rights granted by State Government Article, Title 20, Subtitles 7 and Subtitle 10, Part II, Annotated Code of Maryland; and

(ii)

The resistance and denial raises an issue of general public importance.

(b)

A hearing under Regulation .16 of this chapter and State Government Article, §20-1027, Annotated Code of Maryland, may not continue regarding an alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the Commission under federal law or State law seeking relief with respect to that discriminatory housing practice.

(c)

Relief and attorney’s fees shall be awarded in accordance with State Government Article, §20-1036(c), Annotated Code of Maryland.

(d)

Intervention.

(i)

On timely application, a person may intervene in a civil action commenced by the Commission under §B(2)(a)—(b) of this regulation if the action involves an alleged discriminatory housing practice to which the person is an aggrieved person or a conciliation agreement to which the person is a party.

(ii)

A court may grant relief to an intervening party in accordance with State Government Article, §20-1036(d)(2), Annotated Code of Maryland.

Civil Action by Aggrieved Person; Private Right of Action.

(1)

Pursuant to State Government Article, §20-1035, Annotated Code of Maryland, an aggrieved person may file a civil action against the respondent in the appropriate State court to obtain relief for an alleged discriminatory housing practice, or the breach of a conciliation agreement entered into under State Government Article, Title 20, Subtitle 7, Annotated Code of Maryland.

(2)

Filing Period.

(a)

The action shall be filed within 2 years after the occurrence or termination of the alleged discriminatory housing practice, or the breach of a conciliation agreement, whichever is later.

(b)

The 2-year period does not include any time during which an administrative proceeding was pending for a complaint based on the alleged discriminatory housing practice under State Government Article, Title 20, Subtitle 7, Annotated Code of Maryland.

(3)

Exceptions.

(a)

Except for the purposes of enforcing a conciliation agreement, an aggrieved person may not commence a civil action for the alleged discriminatory housing practice that forms the basis of the complaint if the Commission or a State or local unit has obtained a conciliation agreement with the consent of the aggrieved person.

(b)

If an administrative law judge has commenced a hearing on the record under Regulation .16 of this chapter with respect to the charge, an aggrieved person may not commence a civil action for the alleged discriminatory housing practice that forms the basis of the charge issued by the Commission.

(4)

A hearing under Regulation .16 of this chapter and State Government Article, §20-1027, Annotated Code of Maryland, may not continue regarding an alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by an aggrieved person under federal or State law seeking relief with respect to that discriminatory housing practice.

(5)

Relief.

(a)

Relief shall be awarded in accordance with State Government Article, §20-1035(e), Annotated Code of Maryland.

(b)

Relief granted under State Government Article, §20-1035, Annotated Code of Maryland, may not affect any contract, sale, encumbrance, or lease consummated before the granting of relief and involving a bona fide purchaser, encumbrancer, or tenant without actual notice of the filing of a complaint with the Commission or civil action under State Government Article, §20-1035, Annotated Code of Maryland.

(6)

Intervention by the Commission. If the Commission certifies that the case is of general public importance and upon timely application, the Commission may intervene in a civil action brought under State Government Article, §20-1035, Annotated Code of Maryland, and obtain any relief available under State Government Article, §20-1036(c), Annotated Code of Maryland.

Provision of Administrative Proceeding.

(1)

Issuance of Statement of Charges.

(a)

When a party does not elect a civil action, the Commission's General Counsel shall serve a copy of the statement of charges to each respondent and each aggrieved person on whose behalf the complaint was filed by certified mail or personal service.

(b)

The Commission’s General Counsel shall file the statement of charges not later than 30 days after the case is certified for public hearing and service is made to all parties under State Government Article, §20-1025(e), Annotated Code of Maryland.

(c)

The statement of charges shall contain:

(i)

An allegation that the person on whose behalf the complaint is filed is a proper complainant within the meaning of State Government Article, Title 20, Annotated Code of Maryland;

(ii)

An allegation that the respondent is a proper respondent within the meaning of, and subject to, provisions of State Government Article, Title 20, Annotated Code of Maryland;

(iii)

A factual allegation or allegations of an unlawful discriminatory housing practice or practices; and

(iv)

A prayer for relief sought.

(d)

The Commission's General Counsel may not issue a charge under this regulation after the beginning of the trial of a civil action that is commenced by an aggrieved party under federal law or State law and that seeks relief for the same discriminatory housing practice alleged in that aggrieved party's complaint.

(2)

Answer.

(a)

Any answer made to the statement of charges shall be filed within 15 days after the notice provided in accordance with §B(3) of this regulation.

(b)

Upon application in writing to an administrative law judge, and before the end of the 15 days, an administrative law judge may, for good cause shown, extend the time within which an answer may be filed.

(c)

The answer shall be filed with the Office of Administrative Hearings and the original of the answer shall be signed under oath or affirmation of the respondent and shall contain:

(i)

The name, address, and email address of the respondent;

(ii)

The name, address, telephone number, and email address of the respondent's attorney, if any;

(iii)

A specific admission or denial or assertion that the respondent is without sufficient knowledge or information to form a belief with respect to each and every allegation of the complaint;

(iv)

A statement of any matter constituting a defense to any allegations in the statement of charges; and

(v)

A certification that service of this answer has been made upon all other parties.

(d)

Any allegation in the statement of charges which is not denied or admitted in the answer shall be considered admitted, unless the respondent states in the answer that it is without sufficient knowledge or information to form a belief with respect to this allegation.

(e)

Regulation .16 Administrative Hearing Proceedings.Link Copy Citation

General Information.

(1)

Scope.

(a)

This regulation contains the rules of practice and procedure established by the Maryland Commission on Human Relations and the Office of Administrative Hearings, under COMAR 28.02.01 in accordance with State Government Article, §20-1034, Annotated Code of Maryland, for administrative proceedings before an administrative law judge.

(b)

This regulation applies only to an administrative law judge adjudication of a complaint asserted in a charge issued under State Government Article, §20-1027, Annotated Code of Maryland, when:

(i)

An election to civil court has not been filed in accordance with Regulation .15 of this chapter; or

(ii)

The Commission determines that the action is warranted.

(2)

Location of Hearing. An administrative law judge shall conduct the hearing at a place in Baltimore City or the county in which the discriminatory housing practice is alleged to have occurred and in accordance with COMAR 28.02.01.07.

(3)

Time Computation.

(a)

Time computations under this regulation shall be in accordance with Article 1, §36, Annotated Code of Maryland.

(b)

(c)

Documents are not filed until received by the Office of Administrative Hearings.

(4)

Service and Filing.

(a)

Service of documents under this regulation shall be in accordance with COMAR 28.02.01.24.

(b)

Copies of all filed documents shall be served on all parties of record.

(c)

All filed documents shall clearly designate the docket number, if any, title of the proceeding, and certificate of service.

(d)

Parties shall file all documents with the Office of Administrative Hearings.

Administrative Law Judge.

(1)

Authority. The powers and duties of an administrative law judge shall be in accordance with COMAR 28.02.01.08A and B.

(2)

Disqualification. Any disqualification of an administrative law judge shall be in accordance with COMAR 28.02.01.08C.

(3)

Ex Parte Communications. An ex parte communication shall be defined and prohibited in accordance with State Government Article, §10-219, Annotated Code of Maryland.

Parties; Intervention.

(1)

Parties to the proceedings include:

(a)

The Commission, which files the charge under Regulation .15 of this chapter seeking appropriate relief for an aggrieved party and the public interest;

(b)

A complainant, who is the person who files a complaint of discrimination issued under Regulation .10 of this chapter;

(c)

A respondent, who is a person named in the complaint issued under Regulation .10B of this chapter against whom relief is sought;

(d)

An intervenor, who is an aggrieved person that filed a request for intervention under COMAR 28.02.01.12; and

(e)

Representation of the parties, which shall be in accordance with COMAR 28.02.01.09.

(2)

Intervention.

(a)

A request for intervention shall be made by motion in accordance with §D(2) of this regulation.

(b)

Intervention shall be permitted if the request is timely and:

(i)

The intervenor is the aggrieved person on whose behalf the complaint is issued; or

(ii)

The intervenor is an aggrieved person who claims an interest in the property or transaction that is the subject of the complaint, and the disposition of the complaint may as a practical matter impair or impede the aggrieved person's ability to protect that interest, unless the aggrieved person is adequately represented by the existing parties.

Pleadings and Motions.

(1)

Pleadings.

(a)

(b)

Signature.

(i)

(ii)

(2)

Motions.

(a)

All motions to an administrative law judge shall be in accordance with COMAR 28.02.01.16 except if otherwise provided in §G(4) of this regulation.

(b)

Motions for intervention shall be in accordance with COMAR 28.02.01.12 except if otherwise provided in §G(4) of this regulation.

Discovery. Discovery shall be conducted in accordance with COMAR 28.02.01.10.

Subpoenas. Subpoenas shall be issued in accordance with State Government Article, §20-1023, Annotated Code of Maryland, and COMAR 28.02.01.11.

Prehearing Procedures.

(1)

Prehearing Conference. A prehearing conference shall be conducted in accordance with COMAR 28.02.01.13.

(2)

Notice of Prehearing Conferences and Hearings.

(a)

The administrative law judge shall set the matter in for a prehearing conference, hearing, or both, on the earliest date practicable.

(b)

The administrative law judge shall, by registered or certified mail, forward to the complainant and to the respondent a statement of charges and a notice of prehearing conference or hearing, which shall include the following:

(i)

The place, date, and hour of the prehearing conference, public hearing, or both;

(ii)

(iii)

A statement advising the respondent of the right to file an answer to the statement of charges; and

(iv)

The name of the administrative law judge who conducts the prehearing conference or hearing or a statement that an administrative law judge will be subsequently designated.

(c)

The administrative law judge shall forward a copy of the notice of prehearing conference, public hearing, or both, to the General Counsel of the Commission.

(d)

The prehearing conference, public hearing, or both, may not occur less than 20 or more than 60 days after the issuance and service of the statement of charges and notice of prehearing conference, public hearing, or both.

(3)

Prehearing Memorandum.

(a)

Before the commencement of a prehearing conference, the administrative law judge may direct parties to file a prehearing memorandum.

(b)

Contents of Memorandum. The memorandum shall state the name of the party or parties presenting the statement and, unless otherwise directed by the administrative law judge, briefly set forth the following:

(i)

Issues involved in the proceeding;

(ii)

Facts stipulated by the parties and a statement that the parties have made a good faith effort to stipulate to the greatest extent possible;

(iii)

Facts in dispute;

(iv)

Witnesses and exhibits to be presented at the hearing;

(v)

A brief statement of applicable law;

(vi)

Conclusions to be drawn;

(vii)

Estimated time required for presentation of the party's case; and

(viii)

Such other information as may assist in the disposition of the proceeding.

(4)

Preliminary Matters — Motions.

(a)

All preliminary matters shall be raised by motion filed at either the prehearing conference or not later than 45 days before the public hearing.

(b)

The motion shall be in writing, stating briefly the relief applied for, with a memorandum stating the reasons and any law that may be in support of the motion.

(c)

The motion and two copies together with a certificate of mailing to all parties shall be filed with the administrative law judge.

(d)

An answer to a preliminary motion shall be in writing and shall include:

(i)

A memorandum stating the reasons and any law that may be in support of the answer; and

(ii)

Certification that a copy has been mailed to all parties.

(e)

The original and two copies of the answer shall be filed with the administrative law judge within 15 days of receipt of the original motion unless otherwise directed by the administrative law judge.

(f)

All motions shall be decided by the administrative law judge without oral argument on the motions, unless the administrative law judge desires oral argument or testimony.

(g)

If the administrative law judge desires oral arguments, the administrative law judge shall set the date, place, and time, and notify all parties.

(5)

Settlement Conference. If required, a settlement conference shall be conducted in accordance with COMAR 28.02.01.14.

Hearing Procedures.

(1)

Date.

(a)

In accordance with State Government Article, §20-1027(b), Annotated Code of Maryland, the hearing shall commence not later than 120 days following the filing of the charge under Regulation .15 of this chapter, unless it is impracticable to do so.

(b)

If the hearing cannot be commenced within this time period, the administrative law judge shall notify in writing all parties, the aggrieved persons on whose behalf the charge was filed, the respondent, and the Commission, of the reasons for the delay.

(2)

Place. The hearing shall be conducted in Baltimore City or the county where the discriminatory housing practice is alleged to have occurred.

(3)

Notice of Hearing. The parties shall be notified of the hearing in accordance with §G(2) of this regulation.

(4)

Effect of a Civil Action on Administrative Proceeding.

(a)

An administrative law judge may not continue an administrative proceeding under this regulation regarding an alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved person or the Commission under an act of Congress or State law seeking relief with respect to that discriminatory housing practice.

(b)

If such a trial is commenced, the administrative law judge shall dismiss the administrative proceeding.

(c)

The commencement and maintenance of a civil action for appropriate temporary or preliminary relief under State Government Article, §20-1037, Annotated Code of Maryland, does not affect administrative proceedings under this regulation.

(5)

Conduct of Hearing. The hearing shall be conducted in accordance with COMAR 28.02.01.17.

(6)

Evidence. Evidence shall be admitted in accordance with State Government Article, §10-213, Annotated Code of Maryland, and COMAR 28.02.01.18.

(7)

Stipulations. The administrative law judge may accept stipulations in accordance with COMAR 28.02.01.15 upon the showing of mutual consent of the parties.

(8)

Affidavits. The administrative law judge may accept affidavits in accordance with COMAR 28.02.01.15 upon showing:

(a)

Mutual consent of the parties;

(b)

The affiant is unavailable to testify; and

(c)

The party seeking to introduce the affidavit has exercised reasonable diligence to locate the affiant.

(9)

Failure to Attend Hearing and Default. A party's failure to attend a hearing and the subsequent default process shall be in accordance with COMAR 28.02.01.20.

(10)

Appointment of Interpreter. In situations when an interpreter is required, appointment shall be made in accordance with COMAR 28.02.01.19.

(11)

Public Hearings. Proceedings under this regulation shall be open to the public in accordance with COMAR 28.02.01.21.

(12)

Transcript of Hearing Record.

(a)

The administrative law judge shall cause the testimony taken at the hearing to be transcribed.

(b)

Regulation .17 Dismissals and Decisions.Link Copy Citation

Dismissals. If the trial of a civil action that is commenced by an aggrieved party under an act of Congress or a State law and seeks relief for an alleged discriminatory housing practice has begun, an administrative law judge shall dismiss the administrative proceeding.

Decision of Administrative Law Judge.

(1)

In General.

(a)

Within the time period set forth in §B(6) of this regulation and State Government Article, §20-1028(a), Annotated Code of Maryland, the administrative law judge shall issue a decision and provisional order including findings of fact and conclusions of law upon each material issue of fact and law presented on the record.

(b)

Decisions and provisional orders by the administrative law judge shall be in accordance with COMAR 28.02.01.22.

(2)

Finding Against Respondent.

(a)

If the administrative law judge finds that a respondent has engaged in a discriminatory housing practice, the administrative law judge shall issue a decision against the respondent and order such relief as may be appropriate.

(b)

The relief may include, but is not limited to, the following:

(i)

Actual damages suffered by the complainant or the aggrieved person including damages caused by humiliation or embarrassment;

(ii)

Injunctive relief or such other equitable relief including, but not limited to, access to the dwelling at issue, or to a comparable dwelling, the provision of services or facilities in connection with a dwelling, or other specific relief;

(iii)

Civil penalty against the respondent in accordance with State Government Article, §20-1028(b)(2), Annotated Code of Maryland; and

(iv)

In a proceeding involving two or more respondents, a civil penalty as provided under §B(2)(b)(iii) of this regulation assessed against each respondent found to be engaged in a discriminatory housing practice.

(3)

Relief vindicating the public interest includes:

(a)

Civil penalties;

(b)

Remedial affirmative activities to overcome discriminatory housing practices;

(c)

Reporting requirements; or

(d)

Monitoring and enforcement activities.

(4)

The administrative law judge may assess a civil penalty against the respondent in an amount that does not exceed:

(a)

$10,000, if the respondent has not been adjudged by order of the administrative law judge or a court to have committed a prior discriminatory housing practice;

(b)

Except as provided in §B(5) of this regulation, $25,000 if the respondent has been adjudged by order of the administrative law judge or a court to have committed one other discriminatory housing practice during the 5-year period ending on the date of the filing of the charge; or

(c)

Except as provided in §B(5) of this regulation, $50,000 if the respondent has been adjudged by order of the administrative law judge or a court to have committed two or more discriminatory housing practices during the 7-year period ending on the date of the filing of the charge.

(5)

If the acts constituting the discriminatory housing practice that is the object of the charge are committed by the same individual who has been previously adjudged to have committed acts constituting a discriminatory housing practice, the civil penalties in §§B(4)(b)—(c) of this regulation may be imposed without regard to the period of time within which any other discriminatory housing practice occurred.

(6)

All civil penalties shall be awarded in accordance with COMAR 14.03.03.02.

(7)

At the request of the Commission, the Commission's General Counsel shall sue to recover a civil penalty due under this section.

(8)

Restrictions on Relief. In accordance with State Government Article, §20-1028(c), Annotated Code of Maryland, an order issued by the administrative law judge may not affect any contract, sale, encumbrance, or lease consummated before the issuance of the decision and provisional order that involved a bona fide purchaser, encumbrancer, or tenant without actual knowledge of the charges filed under Regulation .15 of this chapter.

(9)

Finding in Favor of Respondent.

(a)

If the administrative law judge finds that a respondent has not engaged in a discriminatory housing practice, the administrative law judge shall make a decision and provisional order dismissing the charge.

(b)

The Commission shall make public disclosure of each dismissal.

(10)

Date of Issuance.

(a)

In accordance with State Government Article, §20-1028(a), Annotated Code of Maryland, the administrative law judge shall issue a decision and provisional order within 60 days after the end of the hearing, unless it is impracticable to do so.

(b)

If the administrative law judge is unable to issue the decision and provisional order within the time period (or within any succeeding 60-day period), the administrative law judge shall notify in writing all parties, the aggrieved person on whose behalf the charge was filed, and the Commission of the reasons for the delay.

Service of Decision and Provisional Order. In accordance with State Government Article, §20-1029(b), Annotated Code of Maryland, the decision and provisional order of an administrative law judge shall be delivered to all parties, the aggrieved person on whose behalf the charge was filed, the respondent and the Commission with a notice indicating the right of the Commission, the aggrieved person, or the respondent to enter an appeal of this decision and provisional order to an appeal board of the Commission within 30 days.

Review by the Appeal Board. An appeal to an appeal board of the Commission shall be in accordance with COMAR 14.03.01.12.

Final Decision and Order.

(1)

In the absence of a timely appeal, the decision and provisional order of the administrative law judge shall become the final decision and order of the Commission signed by the chairman and from which no further administrative appeal may be taken.

(2)

Appeal Noted.

(a)

If an appeal is noted, the appeal board of the Commission in accordance with COMAR 14.03.01.12F may review any finding of fact, conclusions of law, or order contained in the decision and provisional order of the administrative law judge and issue a final decision in the proceedings.

(b)

The appeal board may affirm, reverse, or modify, in whole or in part, the decision and provisional order or remand the decision and provisional order for further proceedings.

(c)

In making its determination, the appeal board shall consider the entire record, including the decision of the administrative law judge.

(d)

The final decision and order shall be served on all parties, the aggrieved person on whose behalf the charge was filed, and the Commission's staff.

Action Upon Issuance of a Final Decision and Order — Licensed or Regulated Businesses.

(1)

If a final decision and order includes a finding that a respondent has engaged, or is about to engage, in a discriminatory housing practice in the course of a business that is subject to licensing or regulation by a federal, State, or local governmental agency, the Commission shall:

(a)

Notify the governmental agency of the decision by sending copies of the findings of fact and conclusions of law and the final decision to the governmental agency by certified mail;

(b)

Recommend appropriate disciplinary action to the governmental agency, including, when appropriate, the suspension or revocation of the license of the respondent; or

(c)

Recommend the suspension or disbarment of the respondent from participation in State and local loan, grant, or other regulated programs.

(2)

Petition for Judicial Review.

(a)

The Commission shall give notice of the appropriate disciplinary action to the governmental agencies within 30 days after the issuance of the final decision, unless a petition for judicial review of the final decision and order as described in Regulation .18 of this chapter has been filed before the issuance of the notification of the agency.

(b)

If a petition for judicial review has been filed, the Commission shall provide the notification to the governmental agency within 30 days of the date that the final decision and order is affirmed on review.

(c)

If a petition for judicial review is timely filed following the notification of the governmental agency, the Commission shall promptly notify the governmental agency of the petition and withdraw the recommendation.

Attorney's Fees and Costs.

(1)

Following the issuance of the final decision and order under §E of this regulation, any prevailing party, including the Commission, may apply for attorney's fees and costs.

(2)

The administrative law judge shall issue a decision and provisional order awarding or denying these fees and costs.

Final Administrative Disposition.

(1)

The final disposition of a complaint by the administrative process shall be within 1 year of receipt of the complaint unless it is impracticable to do so.

(2)

If the administrative disposition of the complaint does not occur within 1 year, the Commission shall notify in writing all parties, including the aggrieved person on whose behalf the charge was filed, of the reason for the delay.

Effect of Commission Order. A Commission order under State Government Article, §§20-1026—20-1034, Annotated Code of Maryland, and these regulations does not affect a contract, sale, encumbrance, or lease that was consummated before the Commission issued the order, and involved a bona fide purchaser, encumbrancer, or tenant who did not have actual notice of the charge filed under State Government Article, Title 20, Annotated Code of Maryland, or these regulations.

Regulation .18 Judicial Review and Enforcement of Final Decision and Order.Link Copy Citation

Judicial Review of Final Decision and Order.

(1)

Petition for Review.

(a)

Any party adversely affected by a final decision and order under Regulation .17E of this chapter may file a petition in the circuit court of the judicial circuit in which the discriminatory housing practice is alleged to have occurred under State Government Article, §20-1030(a), Annotated Code of Maryland.

(b)

The petition shall be filed within 30 days of the date of issuance of the final decision.

(2)

No Petition for Review. If no petition for review is filed under §A(1) of this regulation within 30 days after the final decision and order is entered, the findings of facts and final decision and order shall be conclusive in connection with any petition for enforcement described under this section filed by the General Counsel, and in connection with any petition for enforcement described under §B of this regulation after the end of the 45th day after the final decision and order is entered.

Enforcement of Final Decision.

(1)

Enforcement by the Commission. Following the issuance of a final decision and order under Regulation .17E of this chapter, the General Counsel may petition the appropriate circuit court for the enforcement of the final decision and order and for appropriate temporary relief or restraining order in accordance with State Government Article, §20-1031(a), Annotated Code of Maryland.

(2)

Enforcement by Others. If before the expiration of 60 days from the date of issuance of the final decision and order under Regulation .17E of this chapter, no petition for review of the final decision and order described under this regulation has been filed, and the General Counsel has not sought enforcement of the final decision and order as described under §B(1) of this regulation, a person entitled to relief under the final decision and order may petition the appropriate circuit court for enforcement of the final decision in accordance with State Government Article, §20-1031(e), Annotated Code of Maryland.

Regulation .19 Pattern and Practice.Link Copy Citation

Engagement in Pattern and Practice Discrimination. In accordance with State Government Article, §20-1036(a), Annotated Code of Maryland, the Commission may take action upon the finding by the Commission that it has probable cause to believe that:

(1)

A person or group of persons is engaged in a pattern and practice of resistance to the full enjoyment of any of the rights granted by State Government Article, §§20-701—20-710 and 20-1020—20-1037, Annotated Code of Maryland; or

(2)

Any group of persons has been denied any of the rights granted by State Government Article, §§20-701—20-710 and 20-1020—20-1037, Annotated Code of Maryland, and that the denial or resistance raises an issue of general public importance.

Enforcement. The Commission may commence a civil action in the appropriate circuit court.

Subpoena. A subpoena issued under this regulation and State Government Article, §20-1036(b), Annotated Code of Maryland, may be enforced by the Commission or other party at whose request the subpoena is issued in appropriate proceedings in the circuit court for Baltimore City or the county in which the person to whom the subpoena was addressed resides, was served, or transacts business.

Relief. The court, in accordance with State Government Article, §20-1036(c), Annotated Code of Maryland, may:

(1)

Award preventive relief, including a permanent or temporary injunction, restraining order, or other order against the person responsible for a violation of State Government Article, §§20-701—20-710 and 20-1020—20-1037, Annotated Code of Maryland, as is necessary to assure the full enjoyment of the rights granted by State Government Article, Title 20, Annotated Code of Maryland;

(2)

Award other relief as the court deems appropriate, including monetary damages to persons aggrieved; and

(3)

To vindicate the public interest, assess a civil penalty against the respondent:

(a)

In an amount not exceeding $50,000 for a first violation, and

(b)

In an amount not exceeding $100,000 for any subsequent violation.

Attorney's Fees and Cost. The Court, in its discretion, may allow the prevailing party, including the Commission, reasonable attorney's fees and costs.

Intervention.

(1)

Upon timely application, a person may intervene in a civil action commenced by the Commission under State Government Article, §20-1036(d), Annotated Code of Maryland, and this regulation, if the action involves:

(a)

An alleged discriminatory housing practice to which the person is an aggrieved person; or

(b)

A conciliation agreement to which the person is a party.

(2)

The court may grant appropriate relief to any intervening party as is authorized to be granted to a plaintiff in a civil action under State Government Article, §20-1035(e), Annotated Code of Maryland.

(3)

Attorney's fees and cost shall be allowed in the discretion of the court or administrative law judge as follows:

(a)

An intervenor shall be liable for reasonable attorney's fees and costs only to the extent that an intervenor's participation in the administrative proceeding was frivolous or vexatious, or was for the purpose of harassment; or

(b)

To the extent that an intervenor is a prevailing party, the respondent shall be liable for reasonable attorney's fees.

Subtitle 03 — Commission on Human Relations

Chapter 05. Commercial Nondiscrimination Policy

Regulation .01 Scope.Link Copy Citation

It is the policy of the State not to enter into a contract with any business entity that has discriminated in the solicitation, selection, hiring, or commercial treatment of vendors, suppliers, subcontractors, or commercial customers on the basis of race, color, religion, ancestry, or national origin, sex, age, marital status, sexual orientation, or disability, or any otherwise unlawful use of characteristics regarding the vendor's, supplier's, or commercial customer's employees or owners.

These regulations provide the Commission's interpretation and regulations to implement the commercial nondiscrimination policy, as required by State Finance and Procurement Article, §19-119(a), and pursuant to State Government Article, §§10-110—10-112, Annotated Code of Maryland.

The rules of procedure provided in this chapter apply to the processing of complaints of commercial discrimination and retaliation filed under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

Rules of procedure for directing and conducting investigations of discrimination and retaliation complaints filed under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, shall be in a manner consistent with State Government Article, §§20-207, 20-1005, and 20-1006, Annotated Code of Maryland.

These regulations may not be construed to prohibit or limit otherwise lawful efforts to remedy the effects of discrimination that have occurred or are occurring in the marketplace.

Regulation .02 Exemptions.Link Copy Citation

This chapter does not apply to:

(1)

Any real property acquisition by the State, including property subject to condemnation, other than a lease of real estate for the State's use;

(2)

The settlement of litigation;

(3)

The settlement of judicial or administrative enforcement proceedings by or on behalf of the State, except for proceedings to enforce State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland; and

(4)

Agreements concerning standards for locating facilities in a State right-of-way if a business entity has a statutory right to be in the right-of-way.

A government entity receiving federal financial assistance under Title VI of the Civil Rights Act of 1964 is not covered under this chapter unless the government entity is participating in an economic development project.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Administrative law judge” means the individual assigned by the Office of Administrative Hearings to conduct a hearing under this chapter.

(2)

“Aggrieved person” means any business entity that claims to have been injured by a discriminatory commercial practice.

(3)

“Business entity” means any person, as defined in State Finance and Procurement Article, §1-101(d), Annotated Code of Maryland, firm, sole proprietorship, partnership, corporation, limited liability company, or other business entity, or a combination of any of these entities, including any financial institution, developer, consultant, prime contractor, subcontractor, supplier, or vendor, that has submitted a bid or proposal for, has been selected to engage in, or is engaged in providing goods or services to the State.

(4)

“Charge” means a written statement prepared by the Commission's general counsel and issued under this chapter that contains a factual allegation of an unlawful discriminatory commercial practice.

(5)

“Commercial customer” means a business entity that procures or attempts to procure goods or services from a business entity for business use as opposed to personal, family, or household use.

(6)

“Commercial nondiscrimination policy” means the provisions under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, and any regulation, or documentation requirement, adopted by the Maryland Commission on Human Relations.

(7)

“Commercial treatment” means the treatment of a vendor, supplier, subcontractor, or commercial customer by a business entity that affects the conduct of business and the terms and conditions under which business is transacted between two or more business entities.

(8)

“Commission” means the Maryland Commission on Human Relations.

(9)

“Commission staff” means employees of the Maryland Commission on Human Relations designated by the Commission to process, investigate, and pursue complaints filed under these regulations.

(10)

“Complainant” means the person or business entity who files a complaint of discriminatory commercial practice or practices under these regulations.

(11)

“Complaint” means a written statement by a person or business entity alleging an act or acts of commercial discrimination as prohibited by State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

(12)

“Conciliation” means the attempted resolution of issues raised by a complaint or by investigation of a complaint through informal negotiations involving the complainant, the respondent, and the Commission.

(13)

“Conciliation agreement” means a written agreement setting forth the resolution of the issues in conciliation.

(14)

“Contract” means an agreement with a business entity that is awarded by or on behalf of the State for that business entity to sell or lease supplies or goods, or to provide construction, real estate development, financial, insurance, professional, or other services to the State in return for a fee, or any other form of compensation to be paid or provided by the State.

(15)

Discrimination.

(a)

“Discrimination” means any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or commercial treatment of a vendor, supplier, subcontractor, or commercial customer on the basis of race, color, religion, ancestry, national origin, sex, age, marital status, sexual orientation, disability, or any other unlawful use of characteristics regarding the vendor's, supplier's, or commercial customer's employees or owners.

(b)

“Discrimination” does not include lawful efforts to remedy the effects of discrimination that have occurred or are occurring in the marketplace.

(16)

“Economic development project” means a real estate development, construction, or renovation project for which the State provides:

(a)

Funding or other financial assistance, other than payments in exchange for goods or services;

(b)

Land;

(c)

Road improvements;

(d)

Tax credits; or

(e)

A below market purchase price.

(17)

“Executive Director” has the meaning stated in COMAR 14.03.01.02.

(18)

Financial Institution.

(a)

“Financial institution” means a person:

(i)

Engaged in the business of lending money, guaranteeing loans, extending credit, securing bonds, or providing venture or equity capital; or

(ii)

That offers financial services in connection with State projects or the administration of State government.

(b)

“Financial institution” includes banks, savings and loans, venture capital companies, insurance companies, bonding companies, mortgage companies, credit unions, and brokers.

(19)

“Investigator” has the meaning stated in COMAR 14.03.01.02.

(20)

“Notice” has the meaning stated in COMAR 14.03.01.02.

(21)

“Party” means:

(a)

A person who has filed a complaint under this chapter;

(b)

A respondent business entity that has been alleged to have violated State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland; or

(c)

The Commission, which is responsible for investigating the complaint and rendering the initial findings.

(22)

“Proceeding” means a conference, meeting, hearing, investigation, inquiry, or other fact-finding or decision-making procedure, including the dismissal of a complaint.

(23)

“Respondent” means a person or business entity:

(a)

Accused in a complaint of a discriminatory commercial practice; or

(b)

Identified during an investigation of a complaint and joined as an additional or substitute respondent under this chapter.

(24)

“Services” includes construction, real estate development, financial, insurance, professional, and other services.

(25)

“State subcontract” means an agreement for the provision of goods or the performance of a particular portion of work to be performed under a contract with the State, where:

(a)

The party providing the goods or services is on reasonable notice that the work is to be performed under a State contract; and

(b)

The amount to be paid for the goods and services is material with respect to the overall amount of the contract.

(26)

“State subcontractor” means the party providing goods or services under a State subcontract.

(27)

“Time” has the meaning stated in COMAR 14.03.01.02.

Regulation .04 Unlawful Practices Generally.Link Copy Citation

Commercial Discrimination Practices Prohibited.

(1)

It is unlawful for a business entity that has entered into a contract with the State to discriminate in the solicitation, selection, hiring, or commercial treatment of vendors, suppliers, subcontractors, or commercial customers.

(2)

A business entity may not discriminate on the basis of race, color, religion, ancestry, national origin, sex, age, marital status, sexual orientation, disability, or any other unlawful use of characteristics regarding the vendor's, supplier's, or commercial customer's employees or owners.

Retaliation Prohibited. It is unlawful for a business entity that has entered into a contract with the State to take any action that has a material negative effect against any person, business, or other entity for:

(1)

Reporting any incident of discrimination;

(2)

Testifying as a witness at a hearing; or

(3)

Providing requested assistance to Commission staff in any investigation of an incident of discrimination under these regulations.

Regulation .05 Commercial Discrimination or Retaliation Complaint—Filing.Link Copy Citation

Who May File. Any business entity who claims to have been aggrieved by an act or acts of unlawful commercial discrimination or retaliation prohibited by State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, may file a complaint with the Commission.

Persons Against Whom Complaint May Be Filed. A complaint may be filed against any business entity that has entered into a contract with the State and is alleged to have engaged in commercial discrimination or retaliation as prohibited by State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

Manner of Filing.

(1)

A complaint shall be filed at the offices of the Commission in person, by registered, certified, or regular mail, facsimile or other electronic media, or by delivery to any duly appointed representative of the Commission.

(2)

Telephone Initiated Complaints.

(a)

A complaint may be initiated by telephone to the Commission.

(b)

If a complaint is issued by telephone:

(i)

The Commission shall reduce information provided by telephone to writing on the prescribed complaint form; and

(ii)

The Commission shall send the complaint form to the aggrieved person to be signed and affirmed as provided in §E of this regulation.

(c)

A telephone initiated complaint is considered filed only upon receipt of the signed form or signed writing.

When Filed.

(1)

A complaint shall be filed within 4 years after an alleged unlawful commercial discrimination or retaliation practice has occurred or terminated.

(2)

If the alleged commercial discrimination or retaliation is of a continuing nature, the date of the occurrence of the unlawful practice shall be considered to be the date up to and including that date on which the unlawful practice ceased.

(3)

A complaint is timely if filed within 4 years of the last alleged occurrence of an unlawful commercial discrimination or retaliation practice.

Form and Content of Complaint.

(1)

A complaint shall be in writing and shall be signed and affirmed by the aggrieved person filing the complaint.

(2)

The affirmation shall state “I declare under the penalty of perjury that the foregoing is true and correct.”

(3)

Complaint Forms.

(a)

A complaint may be filed on a form provided by the Commission.

(b)

A complaint form shall be made available to all persons at the Commission in Baltimore, Maryland, or other offices within the State that may be established.

(c)

Personnel of the Commission shall render appropriate assistance to a complainant in filling out forms.

(d)

Notwithstanding the availability of a Commission form, the Commission shall accept a written statement which substantially sets forth under this section the allegations of commercial discrimination or retaliation practices prohibited under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

(4)

Each complaint shall contain substantially the following information:

(a)

The name and address of the aggrieved person;

(b)

The name and address of the respondent; and

(c)

A concise statement of facts to include:

(i)

A description of the activities constituting the alleged unlawful commercial discrimination or retaliation practice;

(ii)

Pertinent dates showing that the alleged unlawful practice occurred within the past 4 years; and

(iii)

A statement indicating that the discrimination or retaliation occurred in the State pursuant to State Finance and Procurement Article, §19-107(f)(2), Annotated Code of Maryland.

Amendment of Complaint.

(1)

A complaint may be reasonably and fairly amended at any time.

(2)

The amendments may include, but are not limited to:

(a)

Curing technical defects or omissions, including failure to sign or affirm the complaint;

(b)

Clarifying and amplifying an allegation made in the complaint;

(c)

Joining additional or substitute respondents; or

(d)

Alleging additional acts that constitute unlawful commercial discrimination or retaliation practices under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, and that relate back to or grow out of the subject matter of the original complaint.

(3)

All amendments shall relate back to the original filing date.

Regulation .06 Commercial Discrimination or Retaliation Complaint—Processing.Link Copy Citation

Review and Authorization. After the filing of a complaint, the Executive Director or designee shall:

(1)

Review the complaint to determine whether it should be issued for reasons of standing of the parties, timeliness of the filing, or other matters upon which its issuance may depend; and

(2)

Do one of the following:

(a)

If the complaint is acceptable, authorize an investigation by dating and signing the complaint; or

(b)

If the complaint is unacceptable and not susceptible to amendment, reject the complaint and serve notice on the complainant stating the reasons for rejection.

Notification of Respondent.

(1)

Within 10 days of the filing of a complaint or an amended complaint, including authorization, the Commission shall serve notice on each respondent by certified mail or personal service.

(2)

The notice shall:

(a)

Acknowledge the filing of the complaint;

(b)

State the date that the complaint was accepted for filing;

(c)

Include a copy of the complaint;

(d)

Identify the alleged commercial discrimination or retaliation practice upon which the complaint is based;

(e)

Advise the respondent of the time limits applicable to complaint processing, and the procedural rights and obligations of the respondent under this chapter;

(f)

Advise the respondent that retaliation against an aggrieved person because the person made a complaint or testified, assisted, or participated in an investigation or conciliation under this chapter is an unlawful commercial practice prohibited by State Finance and Procurement Article, §19-106(a), Annotated Code of Maryland; and

(g)

Inform the respondent of the opportunity to enter into mediation for the purpose of resolving the complaint.

Joinder of Additional or Substitute Respondents. A person who is not named as a respondent in the complaint, but who is identified in the course of the investigation as a person who is alleged to be engaged or have engaged in commercial discrimination or retaliation upon which the complaint is based, may be joined as an additional or substitute respondent by service of notice on the person under this regulation within 10 days of the identification.

Answer to Complaint.

(1)

A respondent may file an answer not later than 10 days after receipt of the notice described in §B of this regulation.

(2)

A respondent may assert any defense that might be available to a defendant in a court of law.

(3)

The answer shall be signed and affirmed by the respondent, as described in Regulation .05E(1) and (2) of this chapter.

(4)

An answer may be reasonably and fairly amended at any time with the consent of the Executive Director or designee.

Withdrawal. A complaint filed by an aggrieved person may be withdrawn in writing at any time by the aggrieved person who filed the complaint.

Administrative Closure—Notice and Reopening.

(1)

The Executive Director or designee may administratively close a complaint under those circumstances, which, by way of example but not limitation, may include:

(a)

Absence of information that establishes the whereabouts of the complainant; or

(b)

A determination that statutory requisites have not been met.

(2)

Notice of Administrative Closure.

(a)

The Commission shall provide written notice of the administrative closure to the complainant at the last known address informing the complainant of the right to object to this closure within 15 days of the date on which the notice was mailed.

(b)

In a case where the complaint has been withdrawn by a complainant, the 15-day notice provision to the complainant is not required.

(c)

Written notice of the closure shall be sent to the respondent upon whom the complaint has been served.

(3)

Objection to Administrative Closure.

(a)

If the complainant files a timely objection, the Executive Director or designee shall consider the closure in light of the reasons stated by the complainant and make a determination.

(b)

In the absence of a timely objection, the Executive Director or designee shall:

(i)

Close the complaint and mark the complaint file closed; and

(ii)

Send written notice of the closure to the respondent upon whom the complaint was served.

(4)

Request to Reopen Case.

(a)

(b)

Factors to be considered in determining whether good cause exists include but are not limited to:

(i)

The amount of time elapsed since the complainant last had contact with the Commission;

(ii)

The circumstances surrounding the complainant's failure to inform the Commission of their whereabouts; and

(iii)

Prejudice to the respondent.

Dismissal of Proceedings. The Executive Director or designee may dismiss cases which have not been certified for public hearing, at any state of the proceeding in accordance with COMAR 14.03.01.04E.

Regulation .07 Mediation Process.Link Copy Citation

Mediation.

(1)

To promote a prompt and just resolution of a complaint, parties to a complaint are encouraged to enter into mediation to settle the complaint.

(2)

Before the commencement of an investigation of a complaint, Commission staff shall review the complaint to determine whether mediation would be appropriate.

(3)

The Commission shall provide each party with written notice of the opportunity to mediate.

Process.

(1)

Participation in mediation is voluntary. Before mediation may occur, all parties shall sign a request form indicating their intent to mediate the complaint.

(2)

Upon receipt of a signed mediation request from all parties, the Commission shall suspend the normal investigation process and the parties shall be assigned to a neutral mediator in an attempt to resolve the complaint.

(3)

As a condition precedent to the convening of any mediation meeting, the Commission may require a party to submit information which will facilitate an understanding of the case and promote its resolution.

(4)

Information shared with the mediator during the mediation meeting may not become a part of the investigative record and may not be used against any party.

Agreement. If the parties reach an agreement to settle the complaint:

(1)

The terms of the agreement shall be put in a written document and signed by all parties; and

(2)

The complainant shall authorize a withdrawal of the complaint.

Order of the Commission. An agreement resulting from the mediation shall be executed on behalf of the Commission by the Executive Director or designee and shall constitute an order of the Commission as provided by law.

Termination of Mediation Efforts.

(1)

If no agreement is reached within 20 days of the initial meeting, the mediator shall refer the complaint back to the Commission for processing. The mediator may extend the 20-day period with the consent of the parties.

(2)

The mediator shall destroy all information gathered during the mediation meeting.

Regulation .08 Investigative Process.Link Copy Citation

Investigations.

(1)

Upon the authorization of a complaint, the Executive Director or designee, within 30 days after the filing of the complaint, shall assign, or cause to be assigned, the investigation of the complaint to an investigative unit.

(2)

Commission staff shall direct and conduct investigations in a manner consistent with State Government Article, §§20-207, 20-1005, and 20-1006, Annotated Code of Maryland.

(3)

In determining whether to proceed further with an investigation and in making findings, the Commission staff may consider any evidence provided by the complainant or the respondent as to the following factors:

(a)

Whether there was an intent to discriminate on the part of the respondent;

(b)

Whether there was a pattern and practice of discrimination on the part of the respondent;

(c)

Any actions taken by the respondent to remedy the alleged discrimination;

(d)

The effectiveness of any prior attempts by the respondent to remedy the discrimination;

(e)

Whether the respondent has procured goods or services from or otherwise engaged in business with persons or entities of the same protected class as the complainant to an extent sufficient to demonstrate that the respondent has not discriminated against that protected class in the overall context of its business; and

(f)

Any other evidence considered relevant by the Commission.

(4)

The Commission may request assignment of additional State personnel or outside consultants as may be reasonably necessary or appropriate to conduct an investigation.

Systemic Processing.

(1)

The Executive Director or designee may identify the complaint for systemic processing when the Executive Director or designee determines that:

(a)

The alleged commercial discrimination or retaliation practices contained in the complaint are pervasive within a particular industry or institutional in nature;

(b)

The processing of the complaint will involve complex issues, or novel questions of law or fact; or

(c)

A large number of business entities within a particular industry will be affected.

(2)

The determination in §B(1) of this regulation may be based on the facts of the complaint or on information gathered in connection with an investigation.

(3)

A systemic investigation may focus on:

(a)

Documenting facts involved in the alleged commercial discrimination or retaliation practice that is the subject of the complaint; and

(b)

Reviewing other policies and procedures related to the matters under investigation, to ensure their compliance with the commercial nondiscrimination and retaliation requirements of State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

Conduct of Investigation.

(1)

Fact-Finding Conference. The Commission staff may require that the complainant and respondent appear at a fact-finding conference convened to:

(a)

Define the issues contained in a complaint;

(b)

Determine which elements are undisputed; and

(c)

Resolve those issues that can be resolved and ascertain whether or not there is a basis for a negotiated settlement of the complaint.

(2)

Request for Information.

(a)

The Commission staff shall exercise reasonable judgment in seeking relevant evidence from the complainant, the respondent, and as necessary, external sources.

(b)

The Commission staff shall require the respondent or an external source to promptly provide answers to requests for information that will be used to assist in determining the merits of the allegations contained in the complaint.

(c)

The request for information shall be accompanied by the following:

(i)

A copy of the charge; and

(ii)

The date on which the response shall be submitted.

(d)

Additional requests for information may be made to further the investigation.

(3)

Interrogatories—Content and Response.

(a)

The Commission staff may serve, upon authorization by the Executive Director or designee, interrogatories on a respondent by registered or certified mail, or by personal service.

(b)

The interrogatories shall be accompanied by the following:

(i)

The date by which a response is required, which date may not be less than 30 days after the date on which the interrogatories were delivered to the respondent; and

(ii)

A statement describing the consequences to the respondent if the respondent fails to answer the interrogatories, as set forth in Regulation .09 of this chapter.

(c)

The interrogatories shall be answered within the time prescribed in the accompanying notice and shall be under oath.

(d)

Time extensions shall be granted for good cause shown and upon a written request submitted to the Commission's Executive Director or designee.

(e)

Upon a determination that they are relevant or necessary to complete the administrative process, subsequent interrogatories may be authorized and promulgated by the Commission's staff.

(4)

Motion to Strike or Exceptions.

(a)

The respondent may file a motion to strike or exceptions to the interrogatories within the time period set forth in §C(3)(b)(i) of this regulation.

(b)

The motion or exceptions shall state the reason for them and be supported by a memorandum of points and authorities.

(c)

The Executive Director or designee shall rule on the motion papers without oral argument.

(d)

If the motion or exceptions are granted, the interrogatories may be limited, modified, or stricken in accordance with the order of the Executive Director or designee.

(e)

(5)

Investigatory Subpoena.

(a)

Pursuant to its authority under State Government Article, §20-1010, Annotated Code of Maryland, Commission staff may issue a subpoena upon written authorization of the Executive Director or designee.

(b)

If completion of an investigation requires the issuance of a subpoena, the Commission staff may, upon written authorization of the Executive Director or designee, issue a subpoena to compel the:

(i)

Attendance and testimony of a witness; or

(ii)

Production of books, papers, records, and documents relevant or necessary to the investigation.

(c)

Service of this subpoena shall be made in accordance with State Government Article, §20-1010(b), Annotated Code of Maryland.

(d)

The subpoena shall contain the following:

(i)

The name of the person whose testimony is required;

(ii)

Identification of the books, papers, records, and documents to be submitted;

(iii)

The time, date, and location where the person subpoenaed is directed to appear and produce the information sought, which date may not be less than 15 days after the date on which the subpoena was served; and

(iv)

The signature of the Executive Director authorizing the issuance of the subpoena.

(e)

Upon failure by the person subpoenaed to appear, or to produce the requested records, documents, papers, or books, the Executive Director or designee may apply to the circuit court in the city or county having jurisdiction for an order requiring the attendance and testimony of the person subpoenaed, or the production of the requested records, documents, papers, or books.

(6)

Confidentiality.

(a)

In accordance with State Government Article, §20-1101, Annotated Code of Maryland, the Public Information Act, and the Open Meetings Act, the Commission shall protect the confidential nature of information relating to an investigation.

(b)

Permissive Disclosure of Information. Information relating to an investigation may be disclosed in the following circumstances:

(i)

Any information may be released at any time if the release has been agreed to in writing by both the complainant and the respondent;

(ii)

The identity of the complainant may be disclosed to the respondent at any time; and

(iii)

Information may be disclosed if a party requests a contested case hearing.

(c)

Protective Orders.

(i)

The Commission may issue a protective order for good cause to limit, or otherwise impose conditions on, access by any person to any document in the possession of a party.

(ii)

A protective order issued under this regulation may include a document in the possession of the State or otherwise in the record that is not a public record and information disclosed in accordance with State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

Regulation .09 Interrogatories — Default Procedure.Link Copy Citation

(1)

An admission that the interrogatories, if answered, would have established facts consistent with the claim of the complainant; and

(2)

Upon failure by the respondent to file full and complete answers to the interrogatories in accordance with this notice, the Executive Director or designee may certify the file and forward it to the general counsel.

The general counsel shall prepare the following for submission to the Office of Administrative Hearings:

(1)

The case file;

(2)

A petition seeking a default order; and

(3)

An affidavit of the Executive Director or designee.

The affidavit shall include:

(1)

A statement that the complainant has filed the allegations of commercial discrimination or retaliation within the time prescribed in the State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland;

(2)

The date of service of the complaint and interrogatories on the respondent;

(3)

The date of service of any notices requiring an answer to the interrogatories, or extending the time in which to answer;

(4)

The date of service of the complaint and interrogatories as appears from the return of process;

(5)

A statement that the respondent has failed to reply to the interrogatories within the time required; and

(6)

A statement that the respondent has been given notice of the consequences of failure to respond to the interrogatories.

Administrative Determination.

(1)

An administrative law judge shall determine whether the respondent is in default, issue the appropriate order, and serve a copy of the order on all parties.

(2)

(3)

If the administrative law judge determines that the respondent is in default, the administrative law judge may impose any or all of the sanctions set forth in §A of this regulation as the administrative law judge finds appropriate.

Petition to Vacate Default Order.

(1)

Within 30 days after notice to the respondent of the entry of any default order, the respondent may petition the Commissioners sitting in their appellate capacity, as set forth in COMAR 14.03.01.12, to vacate the order and reopen the case for good cause shown.

(2)

The respondent's assertion of good cause shall be in the form of an affidavit and shall include full and complete answers to the unanswered interrogatories.

(3)

Oral argument may not be permitted.

Issuance of Default Order. After the issuance of an order by the administrative law judge imposing sanctions:

(1)

The case shall be logged in the Commission's official docket book for the purpose of certifying the case for public hearing of the complainant's evidence in support of the allegation of commercial discrimination or retaliation;

(2)

Finding of probable cause shall be considered made against the respondent; and

(3)

Failure of conciliation shall be presumed by respondent's default.

Public Hearing.

(1)

The public hearing to be subsequently held on the merits of the complaint shall be limited to whatever sanctions may be applied pursuant to §A of this regulation.

(2)

The hearing may result in the issuance of a commission order, pursuant to State Government Article, §20-1009(e), Annotated Code of Maryland.

Regulation .10 Completion of Investigation.Link Copy Citation

Written Findings.

(1)

The Commission shall set forth the results of its investigation in a written report entitled “written findings” which shall chronicle the facts found to exist and the conclusions drawn.

(2)

The Commission staff shall make an initial finding of each allegation stated in the complaint, to include a finding of:

(a)

Probable cause;

(b)

No probable cause;

(c)

False or frivolous;

(d)

Settled; or

(e)

Withdrawn.

(3)

Except as provided in §A(4) of this regulation, the Commission shall make the initial findings and issue recommendations for appropriate action within 120 calendar days of the receipt of the complaint.

(4)

The Commission may extend the time limit set forth in §A(3) of this regulation if:

(a)

Good cause exists; or

(b)

The parties agree to mediate a settlement to the complaint.

(5)

The Commission shall serve written findings on all parties to the complaint.

Probable Cause.

(1)

The Commission shall determine whether, based upon a preponderance of the evidence and the totality of the factual circumstances known at the time of the decision, probable cause exists to believe that a commercial discrimination or retaliation practice has occurred.

(2)

The Commission shall base a probable cause determination on the facts concerning the alleged commercial discrimination or retaliation practice, provided by the complainant, respondent, or otherwise obtained and disclosed during the investigation.

(3)

If the Commission determines that probable cause exists, the Commission shall notify the complainant and respondent within 5 business days of the issuance of initial findings and recommendations and include an explanation of the reasons justifying the initial findings.

No Probable Cause.

(1)

If, based upon a preponderance of the evidence, the investigation fails to produce sufficient evidence to find that the alleged commercial discrimination or retaliation occurred, the Commission may issue a finding of no probable cause.

(2)

If the Commission determines that no probable cause exists, the Commission shall notify the complainant and respondent within 5 business days of the issuance of initial findings and recommendations and include an explanation of the reasons justifying the initial findings.

False or Frivolous Claim.

(1)

Based upon a preponderance of the evidence, the Commission may issue a finding that the claim is false or frivolous if:

(a)

The investigation produced sufficient evidence to establish that the complainant knowingly made one or more false or frivolous allegations; and

(b)

Further investigation does not appear likely to produce sufficient evidence that the alleged commercial discrimination or retaliation occurred.

(2)

If the Commission determines that the claim is false or frivolous, the Commission shall notify the complainant and respondent within 5 business days of the issuance of initial findings and recommendations and include an explanation of the reasons justifying the initial findings.

Recommendation for Appropriate Action.

(1)

Upon completion of the investigation, the Commission staff shall recommend to the Commission the appropriate action to be taken.

(2)

Commission staff may recommend the following actions:

(a)

Additional investigation of the complaint;

(b)

The Commission's adoption of the initial findings rendered by the Commission staff;

(c)

Imposition of sanctions;

(d)

Imposition of remedies; or

(e)

Other action consistent with State Finance and Procurement Article, §19-108(d), Annotated Code of Maryland.

(3)

In determining appropriate action on a commercial discrimination claim, the Commission may take into account evidence provided or discovered in the course of the investigation regarding:

(a)

The impact of the discrimination on affected parties;

(b)

The impact of any authorized remedy on the State or any other party;

(c)

Actions taken by the respondent to remedy the alleged discrimination;

(d)

The effectiveness of any prior attempts by the respondent to remedy the discrimination;

(e)

(f)

The number and scope of prior violations of this policy by the respondent; and

(g)

Any other evidence determined to be relevant by the Commission.

(4)

Unless a contested case hearing is requested in accordance with Regulation .12 of this chapter, the Commission's findings and recommendations shall become the final administrative decision of the State, subject to judicial review pursuant to Regulation .16 of this chapter.

Reconsideration.

(1)

If the findings conclude that there is no probable cause to believe that a discriminatory or retaliatory act has been or is being committed, the complainant shall be given the opportunity to apply to the Commission's Executive Director or designee for reconsideration of the Commission's written findings and recommendations.

(2)

Reconsideration Process.

(a)

The application and authority shall be in writing and shall state specifically the grounds upon which it is based.

(b)

The application and authority shall be filed with the Executive Director or designee within 15 days from the date on which the findings were mailed to the complainant.

(c)

The Commission shall promptly give the respondent written notice that the complainant has requested reconsideration.

(d)

Not later than 30 days after receipt of an application, the Executive Director or designee shall review the entire file, including the request for reconsideration, and may:

(i)

Grant or deny the application for reconsideration; and

(ii)

Issue an order the Executive Director or designee considers appropriate.

(e)

Not later than 30 days after making a determination, the Executive Director or designee shall notify the complainant and respondent in writing of the determination, and do one of the following:

(i)

If the application for reconsideration is granted, remand the matter to the investigative staff for the appropriate action; or

(ii)

If the application for reconsideration is not granted, administratively close the case.

(3)

The times set forth in §F of this regulation may be extended by the Executive Director or designee for good cause.

Regulation .11 Conciliation Process.Link Copy Citation

Upon a written finding of probable cause, the Commission, the complainant, and the respondent shall enter the conciliation process.

Written notice of the opportunity to conciliate shall be provided to the parties.

Termination of Conciliation Efforts—Respondent's Actions.

(1)

The Commission may terminate its efforts to conciliate if a respondent fails or refuses to:

(a)

Confer with Commission staff; or

(b)

Negotiate in good faith to resolve the dispute.

(2)

If the prerequisites listed in §C(1) of this regulation are met, the Executive Director or designee may:

(a)

Terminate the efforts to conciliate;

(b)

Notify the parties that conciliation has failed; and

(c)

Certify the case for public hearing as set forth in Regulation .13 of this chapter.

Termination of Conciliation Efforts—Complainant's Actions.

(1)

The Executive Director or designee may administratively close a case if the complainant:

(a)

Fails to negotiate in good faith; or

(b)

Rejects an offer of settlement or compromise made by the respondent, in a formal offer of settlement, which provides the complainant with the full relief which is available under State Finance and Procurement Article, §§19-108(d) and 19-110, Annotated Code of Maryland.

(2)

Before administratively closing the case, the Executive Director or designee shall:

(a)

Provide written notice to the complainant;

(b)

Give the complainant 15 days after the mailing of the notice to object in writing and give reasons why the case should not be administratively closed;

(c)

Consider the objections filed by the complainant;

(d)

Administratively close the case, if no objections are filed; and

(e)

Promptly notify both the complainant and the respondent of the determination.

Prohibitions and Requirements—Disclosure of Information Obtained During Conciliation.

(1)

Except as provided in §E(2) of this regulation, nothing that is said or done in the course of conciliation under this regulation shall be made public or used as evidence in a subsequent administrative hearing under State Finance and Procurement Article, §19-109, Annotated Code of Maryland, without written consent of the persons concerned or as otherwise permitted by law.

(2)

Conciliation agreements shall be made public unless:

(a)

The aggrieved person and respondent request nondisclosure; and

(b)

The Commission determines that disclosure is not required to further the purposes of State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

(3)

Notwithstanding a determination that disclosure of a conciliation agreement is not required, the Commission may publish tabulated descriptions of the results of all conciliation efforts.

Review of Compliance with Conciliation Agreement.

(1)

The Commission may review compliance with the terms of any conciliation agreement.

(2)

Order of the Commission. An agreement resulting from conciliation shall be executed on behalf of the Commission by the Executive Director or designee and shall constitute a final order of the Commission as provided by law.

Regulation .12 Request for Contested Case Hearing.Link Copy Citation

Who May Request. A request to submit a matter to an administrative hearing as a contested case hearing under this chapter may be made by a:

(1)

Respondent upon a Commission determination of probable cause for one or more of the allegations stated in the complaint against the respondent, and the failure of timely conciliation; or

(2)

Complainant if the Commission determines that one or more allegations contained in the complaint were knowingly false or frivolous when made.

Manner of Request.

(1)

A party shall request a contested case hearing by filing a written notice with the Commission within 15 calendar days of notice of the initial findings and recommendations.

(2)

The notice shall contain the following information:

(a)

A demand that the matter be referred to the Office of Administrative Hearings for a contested case hearing in accordance with State Government Article, §10-205(c)(2), Annotated Code of Maryland;

(b)

The names, addresses, and telephone numbers of the Commission, the business entity's representatives, and any other parties;

(c)

A reference to State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland; and

(d)

A summary of the Commission's findings and recommendations that are being submitted for resolution to the administrative law judge for the contested case hearing.

(3)

The requesting party shall immediately serve notice of the request for a contested case hearing upon all other parties.

Failure to Properly Request Hearing.

(1)

If a respondent fails to properly request a contested case hearing:

(a)

The initial findings and recommendations of the Commission shall become the final administrative decision of the State; and

(b)

The Commission shall then be authorized to enter any order and to take any action reasonably necessary or convenient to:

(i)

Implement remedies under State Finance and Procurement Article, §19-110, Annotated Code of Maryland;

(ii)

Impose sanctions under State Finance and Procurement Article, §19-111, Annotated Code of Maryland; and

(iii)

Govern the conduct of the parties in the manner described under State Finance and Procurement Article, §19-112, Annotated Code of Maryland, so that the purposes of the commercial nondiscrimination policy are achieved.

(2)

If a complainant fails to properly request a contested case hearing regarding a determination that a claim is false or frivolous, the initial findings and recommendations of the Commission shall become the final administrative decision of the State.

When a Request for Contested Case Hearing Is Not Made.

(1)

If a timely contested case hearing is not requested, the Commission may vacate the Commission staff's recommended remedy on written notice to all parties within 5 business days after the time for requesting a contested case hearing has expired.

(2)

In the absence of such notice as described in §D(1) of this regulation, the Commission is considered to have approved the Commission staff's recommended remedy.

Regulation .13 Certification for Hearing and Preliminary Proceedings.Link Copy Citation

Certification of File.

(1)

Upon receipt of a request for a contested case hearing, the Executive Director or designee shall certify the case for public hearing.

(2)

An entry identifying this case shall be logged in the Commission's official docket book, which shall be maintained by the Executive Director for cases pending public hearing.

(3)

The Executive Director or designee shall forward the certified file to the Commission's General Counsel for further processing.

(4)

The General Counsel, on review of a file so certified, may remand the case to the Executive Director or designee for:

(a)

Further investigation and, in this case, shall state clearly the issues requiring further investigative proceedings; or

(b)

Review of the findings and, in this case, shall state clearly the reason for the review.

Statement of Charges.

(1)

For each contested case hearing properly requested, the Commission shall:

(a)

File a statement of charges with the Office of Administrative Hearings; and

(b)

Request a hearing before an administrative law judge in a manner consistent with the requirements of COMAR 28.02.01.04.

(2)

The statement of charges shall contain:

(a)

An allegation that the person on whose behalf the complaint is being issued is a proper complainant within the meaning of State Finance and Procurement Article, §19-106, Annotated Code of Maryland;

(b)

An allegation that the respondent is the proper respondent within the meaning of, and subject to provisions of State Finance and Procurement Article, §19-102, Annotated Code of Maryland;

(c)

A factual allegation or allegations of an unlawful commercial discrimination or retaliation practice or practices; and

(d)

A request for relief sought.

Answer.

(1)

Any answer made to the statement of charges shall be filed within 15 days after service of the statement of charges.

(2)

Upon application in writing to the administrative law judge before the end of the 15 days, the administrative law judge may extend the time within which the answer may be filed upon a showing of good cause.

(3)

The answer shall be filed with the Office of Administrative Hearings and the original of the answer shall be signed under oath or affirmation of the respondent and shall contain:

(a)

The name and address of the respondent;

(b)

The name, address, and telephone number of the respondent's attorney, if any;

(c)

A specific admission, denial, or assertion that the respondent is without sufficient knowledge or information to form a belief with respect to each and every allegation of the complaint;

(d)

A statement of any matter constituting a defense to any allegations in the statement of charges; and

(e)

A certification that service of this answer has been made upon all other parties.

(4)

Any allegation in the statement of charges which is not denied or admitted in the answer is considered admitted, unless the respondent states in the answer that it is without sufficient knowledge or information to form a belief with respect to this allegation.

(5)

Any allegation of new matter contained in the answer is considered denied without the necessity of a reply being filed, unless a reply is ordered by the administrative law judge conducting the hearing.

Regulation .14 Administrative Hearing Proceedings.Link Copy Citation

General Information.

(1)

Scope. This regulation applies only to an administrative law judge adjudication of a request for a contested case hearing filed in accordance with Regulation .12 of this chapter pursuant to State Finance and Procurement Article, §19-109, Annotated Code of Maryland.

(2)

Venue. The Commission may designate the venue for the contested case hearing, taking into consideration the convenience of the parties and the location of the evidence.

(3)

Burden of Proof. The Commission shall bear the burden of proof by a preponderance of the evidence.

(4)

The Office of Administrative Hearings shall conduct a contested case hearing in accordance with its rules of procedure under COMAR 28.02.01.

(5)

Time Computation.

(a)

Time computations under this regulation shall be in accordance with Article 1, §36, Annotated Code of Maryland.

(b)

(c)

In computing any time period involved, the date of issuance of an order or decision by an administrative law judge is the date the order or decision is served by the Office of Administrative Hearings.

(d)

A document is not filed until received by the Office of Administrative Hearings.

(6)

Service and Filing.

(a)

Service of a document under this regulation shall be in accordance with COMAR 28.02.01.24.

(b)

A copy of all filed documents shall be served on all parties of record.

(c)

All filed documents shall clearly state:

(i)

The docket number, if any;

(ii)

The title of the proceeding; and

(iii)

Certificate of service.

(d)

A party shall file all documents with the Office of Administrative Hearings.

Administrative Law Judge.

(1)

Authority. The powers and duties of an administrative law judge shall be in accordance with COMAR 28.02.01.08A and B.

(2)

Disqualification. A disqualification of an administrative law judge shall be in accordance with COMAR 28.02.01.08C.

(3)

Ex Parte Communications. An ex parte communication shall be defined and prohibited in accordance with State Government Article, §10-219, Annotated Code of Maryland.

Parties. Parties to the proceeding shall include:

(1)

The Commission that files the charge under Regulation .13B of this chapter seeking appropriate relief for an aggrieved party and the public interest;

(2)

A complainant who is the person who files a complaint of commercial discrimination or retaliation issued under Regulation .05 of this chapter;

(3)

A respondent who is the person named in the complaint of commercial discrimination or retaliation issued under Regulation .05 of this chapter against whom relief is sought; and

(4)

Representation of the parties, which shall be in accordance with COMAR 28.02.01.09.

Pleadings and Motions.

(1)

Pleadings.

(a)

Form. Every pleading, motion, brief, or other document shall contain a caption setting forth the:

(i)

Title of the proceeding;

(ii)

Case number assigned by the Commission; and

(iii)

Designation of the type of document, for example, charge, answer, or motion to dismiss.

(b)

Signature.

(i)

(ii)

(2)

Motions. All motions to an administrative law judge shall be in accordance with COMAR 28.02.01.16 except as otherwise provided in §G(4) of this regulation.

Discovery. Discovery shall be conducted in accordance with COMAR 28.02.01.10.

Subpoenas. A subpoena shall be issued in accordance with State Government Article, §20-1010, Annotated Code of Maryland, and COMAR 28.02.01.11.

Prehearing Procedures.

(1)

Prehearing Conference. A prehearing conference shall be conducted in accordance with COMAR 28.02.01.13.

(2)

Notice of Prehearing Conference and Hearing.

(a)

The administrative law judge shall set the matter in for a prehearing conference, hearing, or both, on the earliest date practicable.

(b)

The administrative law judge shall, by registered or certified mail, forward to the complainant and to the respondent, a statement of the charges and a notice of prehearing conference or hearing, which shall include the following:

(i)

The place, date, and hour of the prehearing conference, public hearing, or both;

(ii)

(iii)

A statement advising the respondent of the right to file an answer to the statement of charges; and

(iv)

The name of the administrative law judge designated to conduct the prehearing conference or hearing, or a statement that an administrative law judge will be subsequently designated.

(c)

The administrative law judge shall forward a copy of the notice of prehearing conference, public hearing, or both, to the General Counsel of the Commission.

(d)

(3)

Prehearing Memorandum.

(a)

Before the commencement of a prehearing conference, the administrative law judge may direct parties to file a prehearing memorandum.

(b)

(i)

Issues involved in the proceeding;

(ii)

Facts stipulated by the parties and a statement that the parties have made a good faith effort to stipulate to the greatest extent possible;

(iii)

Facts in dispute;

(iv)

Witnesses and exhibits to be presented at the hearing;

(v)

A brief statement of applicable law;

(vi)

Conclusions to be drawn;

(vii)

Estimated time required for presentation of the party's case; and

(viii)

Such other information as may assist in the disposition of the proceeding.

(4)

Preliminary Matters—Motions.

(a)

All preliminary matters shall be raised by motion filed at either the prehearing conference or not later than 45 days before the public hearing.

(b)

The motion shall be in writing, stating briefly the relief applied for, with a memorandum stating the reasons and any law that may support the motion.

(c)

The motion and two copies together with a certificate of mailing to all parties shall be filed with the administrative law judge.

(d)

An answer to a preliminary motion shall be in writing and include:

(i)

A memorandum stating the reasons and any law that may be in support of the answer; and

(ii)

Certification that a copy has been mailed to all parties.

(e)

The original and two copies of the answer shall be filed with the administrative law judge within 15 days of receipt of the original motion unless otherwise directed by the administrative law judge.

(f)

The administrative law judge shall decide all motions without oral argument on the motions, unless the administrative law judge desires oral argument or testimony.

(g)

If the administrative law judge requests oral arguments, the administrative law judge shall set the date, place, and time, and notify all parties.

(5)

Settlement Conference. If required, a settlement conference shall be conducted in accordance with COMAR 28.02.01.14.

Hearing Procedures.

(1)

Date. All parties shall cooperate in good faith to have the contested case hearing concluded within 180 days after the issuance of a notice for a contested case hearing.

(2)

Place. The Commission may designate the venue for the contested case hearing, taking into consideration the convenience of the parties and the location of the evidence pursuant to State Finance and Procurement Article, §19-109(d)(1)(ii), Annotated Code of Maryland.

(3)

Notice of Hearing. The parties shall be notified of the hearing in accordance with §G(2) of this regulation.

(4)

Conduct of Hearing. The hearing shall be conducted in accordance with COMAR 28.02.01.17.

(5)

Evidence. Evidence shall be admitted in accordance with State Government Article, §10-213, Annotated Code of Maryland, and COMAR 28.02.01.18.

(6)

Stipulations. The administrative law judge may accept stipulations in accordance with COMAR 28.02.01.15 upon the showing of mutual consent of all parties.

(7)

Affidavits. The administrative law judge may accept affidavits in accordance with COMAR 28.02.01.15 upon showing:

(a)

Mutual consent of the parties;

(b)

The affiant is unavailable to testify; and

(c)

The party seeking to introduce the affidavit has exercised reasonable diligence to locate the affiant.

(8)

Failure to Attend Hearing and Default. The failure of a party to attend a hearing and the subsequent default process shall be in accordance with COMAR 28.02.01.20.

(9)

Appointment of Interpreter. In situations where an interpreter is required, appointment shall be made in accordance with COMAR 28.02.01.19.

(10)

Public Hearings. Proceedings under this regulation shall be open to the public in accordance with COMAR 28.02.01.21.

(11)

Transcript of Hearing Record.

(a)

The administrative law judge shall cause the testimony taken at the hearing to be transcribed.

(b)

The transcript, together with all pleadings, exhibits, and other materials introduced into evidence, shall constitute the record of the case as defined in State Government Article, §10-218, Annotated Code of Maryland.

Regulation .15 Administrative Decisions and Orders.Link Copy Citation

Decision of Administrative Law Judge.

(1)

In General.

(a)

At the conclusion of the contested case hearing, the administrative law judge shall issue a written decision and order including findings of fact and conclusions of law upon each material issue of fact and law presented on record.

(b)

A decision and order of the administrative law judge shall be in accordance with COMAR 28.02.01.22.

(c)

The written decision may:

(i)

Affirm or reject all or part of the statement of charges; or

(ii)

Substitute different findings and recommend appropriate remedies.

(d)

The administrative law judge shall base the decision solely on a preponderance of the evidence contained in the record of the contested case hearing and shall reflect the evidentiary basis for its findings.

(e)

An administrative law judge may consider any evidence regarding the factors described in Regulation .08A(3) of this chapter when determining whether to sustain an allegation presented in a statement of charges.

(2)

Finding Against Complainant—False or Frivolous Complaint. If the administrative law judge finds that the complainant knowingly made a false or frivolous allegation, the administrative law judge shall make an initial decision dismissing the charge and order such relief as may be appropriate.

(3)

Finding Against Respondent.

(a)

If the administrative law judge affirms all or part of an allegation contained in the statement of charges, the administrative law judge may take additional evidence on the appropriate remedy to be recommended pursuant to State Finance and Procurement Article, §19-110(a), Annotated Code of Maryland.

(b)

The administrative law judge may consider:

(i)

Evidence relating to the factors described in Regulation .10E(3) of this chapter; and

(ii)

Other evidence considered relevant by the administrative law judge.

(c)

Recommendations for Appropriate Action. If the administrative law judge affirms all or part of an allegation contained in the statement of charges, the administrative law judge may order any one or more of the following actions:

(i)

Any remedy agreed upon by the respondent, complainant and the Commission;

(ii)

Referral of the complainant to the Board of Public Works for a determination of disbarment pursuant to State Finance and Procurement Article, §§16-306 and 16-307, Annotated Code of Maryland, to preclude the business entity from bidding on or receiving contract awards on State projects, and participating in State contracts as a subcontractor, vendor, or supplier for a period of not more than 3 years;

(iii)

Rescission, suspension, or termination of any current contract between the respondent and the State under the terms of that contract;

(iv)

Exercise any other rights or remedies available to the State under any current contract between the respondent and the State;

(v)

Finding that the respondent is not a “responsible bidder” within the meaning of State Finance and Procurement Article, §11-101(r), Annotated Code of Maryland, with respect to specific contracts that the State has put out for bids or intends to put out for bids;

(vi)

Referral of the matter for criminal prosecution of fraud and other violations under State law if appropriate under the circumstances; or

(vii)

Mediation.

(4)

Finding in Favor of Respondent. If the administrative law judge determines that the respondent has not engaged in an unlawful act of commercial discrimination or retaliation, the administrative law judge shall make an initial decision dismissing the charge.

Service of Decision. The decision of the administrative law judge shall be delivered to all parties with a notice indicating the right of any party to appeal the decision in accordance with State Finance and Procurement Article, §19-113, Annotated Code of Maryland, and Regulation .16 of this chapter.

Final Decision and Order.

(1)

The written opinion of the administrative law judge shall become the final administrative decision of the State, subject to judicial review pursuant to Regulation .16 of this chapter.

(2)

On issuance of the final decision, the Commission or the administrative law judge may enter any order reasonably necessary or convenient to govern the conduct of the State and the parties so that the purposes of the commercial nondiscrimination policy are achieved.

Costs.

(1)

Notwithstanding any contrary provision contained in these regulations or State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, each party shall bear the costs of its own legal representation and expert witness fees.

(2)

If the administrative law judge finds that one or more allegations giving rise to the Commission's findings or the respondent's challenge to the findings were knowingly false or frivolous when made, the administrative law judge may require the party who made the knowingly false or frivolous allegations to bear all or a portion of the other party's legal fees and expert witness fees.

Applicable Provisions. To the extent that procedures and standards stated in this regulation differ from those contained in Title 10, Subtitle 2 of the State Government Article, these regulations shall govern, but in all other respects, the provisions in the State Government Article shall govern.

Regulation .16 Judicial Review and Enforcement of Final Decision and Order.Link Copy Citation

Judicial Review of Final Decision and Order. Any party who, after having exhausted all administrative remedies available, is aggrieved by a final decision of the Commission or the administrative law judge issued under this chapter may seek judicial review pursuant to State Government Article, §10-222, Annotated Code of Maryland.

Enforcement of Final Decision and Order. Following the issuance of a final decision and order under this chapter, the Commission’s General Counsel may petition the appropriate circuit court for the enforcement of the final decision and order and for appropriate temporary relief or restraining order in accordance with State Government Article, §20-1011, Annotated Code of Maryland.

Regulation .17 Required Language in State Contracts.Link Copy Citation

Every contract that the State enters into shall contain the commercial nondiscrimination policy clause, as written in State Finance and Procurement Article, §19-116, Annotated Code of Maryland.

Regulation .18 Public Information Act Requests.Link Copy Citation

General.

(1)

(2)

It is the policy of the Commission to facilitate public access to records of the Commission, if that access is allowed by law, by minimizing costs and time delays to persons requesting information.

(3)

It is the policy of the Commission to safeguard and preserve the confidentiality of investigations of complaints made under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, by restricting access to records when access is prohibited or restricted by law.

Definitions.

(1)

“Act” means the Public Information Act, State Government Article, §§10-611—10-628, Annotated Code of Maryland.

(2)

“Applicant” means a person requesting disclosure of public records.

(3)

“Commission” means the Maryland Commission on Human Relations.

(4)

Custodian or Official Custodian.

(a)

“Custodian” or “official custodian” means the person who is responsible for maintenance, care, and keeping of the public records of the Commission.

(b)

Unless otherwise provided by law, the Executive Director or designee is the official custodian of the Commission's records.

(5)

“Executive Director” means the Executive Director of the Maryland Commission on Human Relations, or designee.

(6)

“Investigative case file” means any record, regardless of physical form, generated or received by Commission staff during the course of the investigation until the stage of public hearing of a complaint alleging a violation of the Commercial Nondiscrimination Policy pursuant to State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, including the complaint itself and any documents indicating the identity of a complainant or respondent.

(7)

“Public hearing” means any public hearing or trial before either the Office of Administrative Hearings or any federal or State court of law.

(8)

Public Record.

(a)

“Public record” means all papers, correspondence, forms, books, photographs, photostats, films, microfilms, sound recordings, video recordings, maps, drawings, or other written documents, regardless of physical form or characteristics.

(b)

“Public record” includes all copies made or received by the Commission in connection with “investigative case files” as defined in §B(6) of this regulation, and as set forth in Regulation .19E of this chapter.

(c)

“Public record” includes salaries of all employees of the Commission.

(9)

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

(10)

“Written document” means all books, papers, maps, photographs, cards, tapes, recordings, computerized records, and other documentary material, regardless of physical form or characteristics.

Retention of Investigative Case Files.

(1)

The custodian shall maintain, as a public record of the Commission, all documents made or received by the Commission contained in the investigative case files, for a period of 18 months from the date of final disposition.

(2)

Final disposition means the:

(a)

Commission has found no probable cause, or has otherwise terminated the investigation;

(b)

Administrative law judge has rendered their decision; or

(c)

Time to request judicial review pursuant to Regulation .16 of this chapter has passed.

Records Temporarily Unavailable. If a requested public record is in the custody or under the control of the person to whom written application is made but is not immediately available for inspection or copying, the custodian shall, within 10 working days of receipt of the request, so notify the applicant and set a date and hour within a reasonable time for inspection or copying.

Records Destroyed or Lost. If a requested record has been destroyed or lost, the custodian to whom written application is made shall, within 10 working days of receipt of the request, notify the applicant of this fact and explain in the response the reasons why the record cannot be produced.

Who May Request. Any person may request to inspect or copy a public record of the Commission.

Regulation .19 Application and Processing of Public Information Act Requests.Link Copy Citation

Applications.

(1)

A person or governmental unit that wishes to inspect a public record shall submit a written application to the custodian.

(2)

Response to Written Application.

(1)

(2)

Denial of Request.

(a)

If the custodian denies the application, the custodian immediately shall notify the applicant and within 10 working days, give the applicant a written statement that states the reason for the denial, the legal authority for the denial, and notice of the remedies under State Government Article, §§10-622 and 10-623, Annotated Code of Maryland, for review of denial.

(b)

The custodian shall permit inspection of any part of the record that is subject to inspection and reasonably severable from the material to which access is denied by the custodian.

(3)

Request Made to an Individual Who Is Not the Custodian of the Request Record.

(a)

(b)

(4)

With the consent of the applicant, any time limit imposed under this section may be extended for not more than 30 days.

Notification of Persons Who May Be Affected by Disclosure.

(1)

Unless prohibited by law, the custodian may notify any person who could be adversely affected by disclosure that an application for inspection or copying of the record has been made.

(2)

The custodian may consider the comments of that person before deciding whether to disclose the record of the applicant.

Precertification Production of Investigative Case Files.

(1)

Pursuant to State Government Article, §20-1101, Annotated Code of Maryland, during the investigation of any complaint alleging a violation of State Government Article, §§20-301—305, 20-602, 20-606—20-607, 20-705—20-706, and 20-901—20-902, Annotated Code of Maryland, and until the matters reach the stage of public hearings, the Commission is required to hold confidential any information in relation to investigative case files.

(2)

Release of Information.

(a)

Any request for information relating to investigative files before the charge has reached the public hearing stage shall be denied, except those made pursuant to provisions of State Government Article, §20-1101, Annotated Code of Maryland.

(b)

Any information may be released at any time if the release has been agreed to in writing by both complainant and respondent.

(c)

The identity of the complainant may be disclosed to the respondent at any time.

Certified Investigative Case Files.

(1)

The custodian may deny inspection of:

(a)

Cases which have been certified for public hearings under Regulation .13 of this chapter, and any other requests for information, in accordance with State Government Article, §10-618, Annotated Code of Maryland; and

(b)

An investigative case file or other document if the custodian believes it would be against public interest, subject to the provisions of §E(2) of this regulation.

(2)

The custodian may deny inspection by a person in interest only to the extent it would:

(a)

Interfere with a valid and proper law enforcement proceeding;

(b)

Deprive another person of a right to a fair trial or an impartial adjudication;

(c)

Constitute an unwarranted invasion of personal privacy;

(d)

Disclose the identity of a confidential source;

(e)

Disclose an investigative technique or procedure;

(f)

Prejudice an investigation; or

(g)

Endanger the life or physical safety of an individual.

Privileged Information. A person may not inspect or copy any information which is privileged by law.

Regulation .20 Review of the Denial of Public Information Act Requests.Link Copy Citation

Request for Review.

(1)

If a written application is denied by the custodian for a reason other than the record is temporarily unavailable, the applicant may, within 30 days after receipt of the notice of the denial, request administrative review of the denial, as described in §A(2) of this regulation.

(2)

An applicant shall request administrative review of denial of application for information by filing a written request within 30 days of the denial with the Chairperson of the Commission on Human Relations.

(3)

In the written request for review, the applicant shall:

(a)

State their name;

(b)

Sign the request;

(c)

Identify, by brief description, the record sought; and

(d)

Include a copy of the writing from the custodian denying the request.

(4)

The chairperson shall issue the final decision of the Commission within 60 days of the request for review, unless the applicant requests a hearing as described in §A(5) of this regulation.

(5)

Request for Administrative Hearing.

(a)

If the applicant requests a hearing, the hearing shall be conducted by an administrative law judge designated by the chairperson.

(b)

The hearing shall be governed by the Commission's rules of procedure pursuant to COMAR 14.03.01.11G.

(c)

After the hearing, the administrative law judge shall prepare a recommended decision for the chairperson.

(d)

The chairperson shall issue the final decision of the Commission within 60 days of the date of the hearing.

(6)

Request for Judicial Enforcement. If the applicant chooses not to request administrative review under §A(1) of this regulation, the applicant may file an action for judicial enforcement under State Government Article, §10-623, Annotated Code of Maryland, without exhausting that administrative remedy, as provided by State Government Article, §§10-622 and 10-623, Annotated Code of Maryland.

Disclosure Against Public Interest.

(1)

If, in the opinion of the Executive Director, disclosure of a public record that is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the Executive Director may temporarily deny the request in writing and apply within 10 working days of the denial to the appropriate court for an order permitting continued denial or restriction of access.

(2)

Notice of an application filed with the circuit court shall be served on the applicant in the manner that is provided for service of process by the Maryland Rules of Procedure.

Fees.

(1)

The custodian shall provide copies, printouts, or photographs only upon payment of the applicable fee by the applicant.

(2)

The fees to be charged for any copies, printouts, or photographs shall be established by the Executive Director.

(3)

(4)

In a case as described in §C(3) of this regulation, the custodian shall either collect from the applicant a fee to cover the actual cost of reproduction or direct the applicant to pay the cost of reproduction directly to the facility making the copy.

(5)

Before copying a record, the custodian shall estimate the cost of reproduction and either obtain the agreement of the applicant to pay the costs or demand prepayment of any estimated fee before reproducing the record.

(6)

(7)

Fee Waiver or Reduction.

(a)

Upon request, the official custodian may waive or reduce any fee charged pursuant to this section if the custodian determines that the waiver or reduction is in the public interest.

(b)

The custodian shall consider, among other relevant factors, the ability of the applicant to pay the costs or fee.

(8)

If the applicant requests that copies be mailed or delivered to the applicant, the custodian may charge the applicant for the costs of postage or delivery to the applicant.

Time of Inspection. An applicant may inspect any public record that the applicant is entitled to inspect during the normal working hours of the Commission.

Place of Inspection. The place of inspection shall be the place where the document is located unless the custodian, after taking into account the applicant's expressed wish, determines another place of inspection is more suitable and convenient.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 01. Definitions

Regulation .01 Definitions.Link Copy Citation

Except as otherwise provided in this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Act” means Economic Development Article, Title 10, Subtitle 4, Annotated Code of Maryland, and Title 10, Subtitle 4A, Annotated Code of Maryland.

(2)

“Applicant” means a business that applies for an investment from TEDCO.

(3)

“Board” means the Board of Directors of TEDCO.

(4)

“Business” means an enterprise for profit, including a partnership, a limited partnership, a corporation, or a limited liability company.

(5)

“Bylaws” means the bylaws of TEDCO.

(6)

Capital Investment.

(a)

“Capital investment” means an expenditure by a business for the purchase, improvement, or maintenance of a long-term asset providing value for more than a year to enhance the growth potential of the business.

(b)

“Capital investment” includes land and buildings, construction, improvements, furniture and fixtures, machines, computing, vehicles, software development, software, branding, intellectual property, patents, product development, copyrights, franchise rights, and licenses.

(7)

“Chief Executive Officer” means the individual who is named as the Chief Executive Officer of TEDCO by the TEDCO Board and employed by TEDCO.

(8)

Debt.

(a)

“Debt” means a debt security.

(b)

“Debt” includes a convertible note.

(9)

“Economic disadvantage” means the impairment of the ability to compete in the free enterprise system due to social disadvantage resulting in diminished capital and credit opportunities as compared to others in the same or similar line of business, as such term is interpreted under 13 CFR §124.104.

(10)

“Early-stage business” means a business that:

(a)

Except for businesses applying for investment under COMAR 14.04.03 and .04 or as otherwise provided in COMAR 14.04.05, commenced operations not more than 7 years before the date on which the business submits an application for an investment by TEDCO;

(b)

Has received not more than $30,000,000 in investment by persons other than TEDCO as of the date that the business submits an application for an investment by TEDCO; and

(c)

Has no more than 250 employees.

(11)

“Employee” means a full-time or full-time equivalent W-2 reporting worker of a business.

(12)

Equity Financing.

(a)

“Equity financing” means the purchase of:

(i)

Shares, units, or interests in a business; or

(ii)

Rights to ownership of shares, units, interests, or rights, such as options or warrants, in a business.

(b)

“Equity financing includes debt financing that is convertible into equity.

(13)

“Follow-on investment” means TEDCO’s investment in a business in which TEDCO, at the time of the investment, holds debt or equity.

(14)

“Founder” means an individual who establishes a business by:

(a)

Assuming a portion of the risk of the business; and

(b)

Having the initial rights to a portion of the profits of the business.

(15)

Intellectual Property.

(a)

“Intellectual property” means the intangible value developed by human creativity that is protected by the legal mechanisms of patents, trademarks, copyrights, service marks, trade secrets, mask works, and plant variety protection certificates.

(b)

“Intellectual property” includes inventions, discoveries, know-how, show-how, processes, unique materials, copyrightable works, original data, and other creative or artistic works that have commercial value.

(c)

“Intellectual property” also includes the physical embodiments of intellectual effort such as models, machines, devices, designs, apparatus, instrumentation, circuits, computer programs and visualizations, biological materials, chemicals, other compositions or matter, plants, and records of research.

(16)

“Investment” means equity financing by TEDCO in a qualified business.

(17)

“Investment Committee” has the meaning stated in §10-401(e) of the Act.

(18)

“Investment program” means any TEDCO investment program or fund authorized by or under the Act.

(19)

“Office of the Attorney General” means Office of the Attorney General of Maryland.

(20)

“Person” has the meaning stated in General Provisions Article, §1-114, Annotated Code of Maryland.

(21)

“Product” means an item, process, or service for sale that is developed through or relies on technological innovation.

(22)

“Qualified business” has the meaning stated in §§10-401(g) and 10-487(a)(4) of the Act, except as otherwise stated in this subtitle.

(23)

“Rural area” has the meaning stated in State Finance and Procurement Article, §2-207, Annotated Code of Maryland.

(24)

“Rural community” has the meaning stated in State Finance and Procurement Article, §2-207, Annotated Code of Maryland.

(25)

“Social disadvantage” means subject to racial or ethnic prejudice or cultural bias within American society because of identity as a member of a group and without regard to individual qualities, as such term is interpreted under 13 CFR §124.103.

(26)

Technology.

(a)

“Technology” means the application of science for practical purposes.

(b)

“Technology” includes products and processes that are, or will be, protectable as intellectual property.

(27)

“Technology-based business” means a business that relies on technology to provide proprietary competitive advantage in the market.

(28)

TEDCO.

(a)

“TEDCO” means Maryland Technology Development Corporation established under the Act.

(b)

For purposes of an investment program, TEDCO includes each entity owned by TEDCO through which investments are made under the investment program.

(29)

“Workforce” means founders and employees of a business when determining:

(a)

Whether a business is a qualified business; and

(b)

The impact or potential impact of an investment on the State, a community in the State, or an area or region of the State.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 02. Investment Programs

Regulation .01 Purpose.Link Copy Citation

Except as otherwise provided in this subtitle, these regulations prescribe the policies and procedures applicable to all TEDCO investment programs.

Regulation .02 Objective.Link Copy Citation

The objective of TEDCO’s investment programs is to foster the growth of early-stage technology-based businesses in the State.

Regulation .03 Investment Philosophy and Types of Qualified Business.Link Copy Citation

TEDCO seeks and makes investments that align the objectives of economic development in the State and return on investment. The balance of these objectives varies from investment program to investment program. Except for follow-on investments and for all investments under COMAR 14.04.09, TEDCO’s investments are limited to early-stage technology-based businesses.

Regulation .04 Eligibility.Link Copy Citation

Eligibility Criteria. Except as provided in §C of this regulation, TEDCO may invest in an applicant if TEDCO determines the applicant meets all of the following criteria:

(1)

The applicant is a technology-based business;

(2)

Except for applicants applying for investment under COMAR 14.04.09, over half of the applicant’s workforce works at and from a physical location in the State;

(3)

An applicant’s principal business operations are conducted from a physical location in the State;

(4)

The applicant agrees to execute a securities repurchase agreement or an equivalent commitment, each with a duration of five years, subject to the terms and in the form approved by the Office of the Attorney General;

(5)

The applicant agrees to use the investment primarily to:

(a)

Support business operations in the State; or

(b)

In the case of a start-up business, establish and support business operations in the State;

(6)

The applicant employs not more than 250 employees;

(7)

The applicant is not primarily engaged in retail sales, real estate development, insurance, banking, or lending;

(8)

The applicant is not primarily engaged in the provision of professional services by accountants, attorneys, or physicians; and

(9)

Other eligibility criteria for each investment program under COMAR 14.04.03—.06 and.09;

Qualified Business Information. Except as required under §C of this regulation, in order to be considered for an investment by TEDCO, an applicant shall submit to TEDCO a written application in accordance with Regulation .05 of this chapter with sufficient information for TEDCO to establish eligibility under §A of this regulation, including:

(1)

Except for applicants applying for investment under COMAR 14.04.09, the total number of the applicant’s founders and employees and the number of the applicant’s founders and employees working in the State;

(2)

The address of the applicant’s principal business operations in the State and a copy of the lease, license agreement, deed, or other document that evidences the applicant’s right to occupy the physical location of the principal business operations;

(3)

Addresses of all the physical locations of the applicant; and

(4)

Any other information required by TEDCO as necessary to establish that the applicant is a qualified business.

Substantial Economic Impact Information. In lieu of the information provided in §B(1)—(3) of this regulation, the applicant may submit to TEDCO information that the applicant’s business will have a substantial economic impact in the State as set forth in COMAR 14.04.07. After reviewing information submitted by an applicant under this section, TEDCO may request additional information or conduct its own investigation of the applicant’s potential for substantial economic impact in the State. In its sole discretion, TEDCO may submit information provided under this section to the Investment Committee for its consideration. This section does not apply to applicants applying for investment under COMAR 14.04.09.

Verification of Information Submitted to TEDCO. An applicant shall verify, in a form approved by the Office of the Attorney General, the information the applicant submits to TEDCO in an application for an investment.

State Small Business Credit Initiative Funds. All investments using proceeds allocated under the federal State Small Business Credit Initiative shall comply with 12 U.S.C. 5701 et seq., as amended.

Regulation .05 Procedures and Guidelines for Investment Decisions.Link Copy Citation

In General. In its sole discretion, TEDCO shall select eligible applicants for investment based on a written application and investment diligence. Each investment program shall have a separate application, application process, and submission deadlines.

Application Process.

(1)

In General. TEDCO shall make available to the public on or through its website:

(a)

An application process for each investment program; and

(b)

Deadlines, if any, to submit applications to an investment program.

(2)

Required Information. Through an application, an applicant shall provide information sufficient for TEDCO to:

(a)

Determine whether the applicant meets the eligibility requirements as set forth in the Act and the specific requirements of the applicable investment program set forth in COMAR 14.04.03—.06 and .09; and

(b)

Evaluate TEDCO’s investment criteria and, if applicable, diversity and inclusion criteria under §B(5) of this regulation.

(3)

Preliminary Evaluation of Eligibility. TEDCO’s investment program staff:

(a)

Shall perform an initial review of each application in accordance with the Act and Regulation .04 of this chapter; and

(b)

May review the application for investment criteria in accordance with this regulation and may examine the applicant’s books and records, business plan, and other business documents.

(4)

Eligibility Determination. Within 30 days from the date an applicant submits the application to TEDCO, TEDCO shall notify the applicant if TEDCO finds the applicant ineligible for investment under Regulation .04 of this chapter.

(5)

Investment Criteria, Diversity and Inclusion Criteria, and Diligence for all Investment Programs.

(a)

If the applicant is eligible for investment by TEDCO, TEDCO shall consider the investment criteria as set forth in §B(5)(b) of this regulation and diversity and inclusion criteria as set forth in §B(5)(c) of this regulation and shall conduct diligence as set forth in §B(5)(d) of this regulation.

(b)

Investment Criteria. TEDCO shall use the following investment criteria as the basis of a scoring rubric to evaluate eligible applicants:

(i)

The growth potential of the applicant based on a credible and sustainable business model;

(ii)

The degree to which the applicant’s proposed product or service addresses a need in the market and brings value to customers;

(iii)

Size of the total addressable market for the applicant’s product or services;

(iv)

The analysis of competitors in the market and sustainability of the applicant’s competitive advantage;

(v)

The strength of the applicant’s management team including the team’s technical competence, entrepreneurial experience, business experience, and ability to grow the business;

(vi)

The potential of the applicant or the applicant’s management team, as applicable, to raise follow-on capital, increase revenues, and create jobs;

(vii)

Stage of development for product or services including market testing, customer discovery, and scientific validation;

(viii)

The applicant’s plan to deliver product or services to the market including manufacturing, marketing, partnering and as applicable, regulation strategies;

(ix)

The amount of funds the applicant has raised as of the date of application;

(x)

The applicant’s future financing plan including financial models, employment plan, strategic milestones, and capital needs;

(xi)

The applicant demonstrates a reasonable opportunity that TEDCO will receive a positive return on its investment;

(xii)

The applicant’s satisfaction of specific investment program criteria as specified under each investment program, as applicable;

(xiii)

The time period from which the business commenced operations; and

(xiv)

Adherence to the application process.

(c)

Diversity and Inclusion Criteria. TEDCO shall consider whether:

(i)

The investment has the potential to result in a positive economic development impact for a region or an area which is economically distressed or a rural area or a rural community; and

(ii)

A founder of the applicant or a member of the applicant’s executive leadership has self-identified as a member of a group that is economically disadvantaged.

(d)

Diligence. TEDCO’s investment diligence may include:

(i)

Review of the applicant’s books and records and business plan;

(ii)

One or more site visits;

(iii)

Discussion with customers and competitors;

(iv)

Evaluation of intellectual property;

(v)

Independent review of scientific data;

(vi)

Validation of claims and assumptions made in the application; and

(vii)

At TEDCO’s sole discretion, an applicant’s presentation and interview.

(6)

Follow-On Investments. To the extent that TEDCO already has information and documents to evaluate eligibility and investment criteria for a follow-on investment, TEDCO may accept a follow-on investment application requiring only the additional information and documents TEDCO needs to make the determinations under §B(2) of this regulation. At the time of the follow-on application and investment, TEDCO shall reconfirm the business’s eligibility as required under this regulation. All information determining eligibility of the business shall be verified as provided under Regulation .04D of this chapter.

Scoring. TEDCO shall score each applicant in accordance with a uniform scoring rubric adopted for each investment program based on the investment criteria and diversity and inclusion criteria.

Final Approval. The Chief Executive Officer, in the Chief Executive Officer’s sole discretion, shall base TEDCO’s final decision regarding an investment in an eligible applicant on:

(1)

The application;

(2)

The aggregate scores from the evaluation of investment criteria and diversity and inclusion criteria under §C of this regulation;

(3)

The relative strength of the applicant in comparison to other applicants;

(4)

The likelihood that the investment in the applicant will lead to economic growth in the State;

(5)

The amount of money available for the specific TEDCO investment program from which the investment will be made; and

(6)

An analysis of the potential of the investment in the applicant to positively impact economically disadvantaged individuals, economically distressed areas or regions, or rural areas or rural communities.

Closing Conditions. After final approval, TEDCO may release the funds to invest in an applicant if the following closing conditions are met:

(1)

At the time of the investment, the applicant remains eligible;

(2)

The applicant executes a securities repurchase agreement or an equivalent commitment as set forth in Regulation .04 of this chapter before the receipt of the investment proceeds;

(3)

The applicant agrees to use the proceeds of the investment to establish and support operations in the State and in accordance with any requirements of the applicable investment program; and

(4)

The applicant satisfies other closing conditions as required by the Office of the Attorney General and other terms and conditions that TEDCO, in its sole discretion, may require.

Rejected Applicants. If an applicant is rejected for an investment, TEDCO shall notify the applicant in writing.

Regulation .06 Amount of Money Available for Investment.Link Copy Citation

In General. The amount of money available for investment shall vary from investment program to investment program.

Amount for Each Investment Program.

(1)

Pre-Seed Builder Fund and Inclusion Fund. TEDCO may make an investment of up to $500,000 in each business selected for participation in the Pre-Seed Builder Fund or the Inclusion Fund.

(2)

Rural Business Innovation Initiative Program. TEDCO may invest up to $25,000 per investment.

(3)

Seed Funds. TEDCO may invest:

(a)

For Cybersecurity Investment Fund and Technology Commercialization Fund, up to $500,000 per investment;

(b)

For the Life Science Investment Fund, up to $500,000 per investment; and

(c)

For the GAP Fund, up to $750,000 per investment.

(4)

Maryland Venture Fund. TEDCO may invest $250,000 to $1,500,000 per investment.

(5)

Maryland Equity Investment Fund. TEDCO may invest up to $2,000,000 per investment.

Exceptions.

(1)

The Board may increase or decrease the investment cap described in §B of this regulation at the request of the Chief Executive Officer and in accordance with any limitations of the appropriation.

(2)

If the Board modifies an investment cap under §B of this regulation in accordance with this §C of this regulation, TEDCO shall publish the modified investment cap on its website..

Regulation .07 Inclusive and Diverse Entrepreneurship — All Investment Programs.Link Copy Citation

In order to foster inclusive and diverse entrepreneurship and innovation throughout the State, including initiatives to raise awareness of investment programs to assist small minority and women-owned businesses, TEDCO shall:

Establish bench-marks for diversity and inclusion for each investment program;

Provide in the application process an opportunity for applicants to self-identify economic disadvantage;

Consider historical data on investments in comparison to the bench-marks; and

Develop outreach marketing targeted to economically disadvantaged groups in the State.

Regulation .08 Nondiscrimination.Link Copy Citation

An applicant shall comply with all applicable federal, State, and local laws regarding discrimination and equal opportunity in employment.

Regulation .09 Investment Program Administration.Link Copy Citation

An action or decision required or permitted to be taken or made by TEDCO under the Act or these regulations, including execution of equity financing documents, may be taken by the Chief Executive Officer or Chief Executive Officer’s designee.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 03. Pre-Seed Builder Fund and Inclusion Fund

Regulation .01 Purpose.Link Copy Citation

These regulations prescribe the objectives and investment policy of the Pre-Seed Builder Fund and the Inclusion Fund, the standards for qualification and investment criteria for participation in the Pre-Seed Builder Fund and the Inclusion Fund, and procedures and guidelines for TEDCO’s selection of businesses to receive Pre-Seed Builder Fund and Inclusion Fund investment.

Regulation .02 Objective.Link Copy Citation

The objective of the Pre-Seed Builder Fund is to make pre-seed investments in and to support the development of technology-based start-up businesses owned and managed by individuals who demonstrate economic disadvantage. The objective of the Inclusion Fund is to make investments in technology-based businesses that have grown since their pre-seed stage and are owned and managed by individuals who demonstrate economic disadvantage.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Executive support” includes assistance in and support for management and implementation, planning, tracking and analysis, networking support, mentoring, coaching, advisory, facilitation, instruction or observation and feedback provided to a business.

(2)

“Inclusion Fund” means the program established by §§10-481—10-483 of the Act.

(3)

“Pre-Seed Builder Fund” means the program established by §10-486 of the Act.

Regulation .04 Investment Philosophy and Types of Qualified Businesses.Link Copy Citation

The Pre-Seed Builder Fund and Inclusion Fund each identify investment opportunities in businesses that are often overlooked by traditional sources of investment and financing because of economic disadvantage and seek to invest in early-stage technology-based businesses that have the potential, with the Pre-Seed Builder Fund investment, the Inclusion Fund investment, or other TEDCO services, to create jobs in the State and become attractive targets for follow-on financing or investment.

Regulation .05 Eligibility.Link Copy Citation

In General. TEDCO shall be satisfied that the applicant meets the eligibility requirements set forth in COMAR 14.04.02.04.

Eligibility Requirements Specific to Pre-Seed Builder Fund. In addition to the requirements set forth in COMAR 14.04.02.04, TEDCO shall be satisfied that:

(1)

At the time of TEDCO's investment, at least one owner or executive manager who has demonstrated economic disadvantage works at the applicant full-time;

(2)

At the time of TEDCO's investment, at least 50 percent of the applicant is owned by one or more individuals who have demonstrated economic disadvantage; and

(3)

If required by TEDCO, the founders, owners, managers, or officers agree to receive executive support.

Eligibility Requirements Specific to Inclusion Fund. In addition to the requirements set forth in COMAR 14.04.02.04 and §B(1) and (3) of this regulation, TEDCO shall be satisfied that:

(1)

At the time of TEDCO's investment, at least 30 percent of the applicant is owned by one or more individuals who have demonstrated economic disadvantage; and

(2)

For at least 1 year after the time of TEDCO's investment, the applicant is controlled and managed by one or more individuals who have demonstrated economic disadvantage.

Regulation .06 Procedures and Guidelines for Investment Decisions.Link Copy Citation

In General. Except as provided in §§B and C of this regulation, TEDCO shall select businesses for investment by the Pre-Seed Builder Fund or the Inclusion Fund in accordance with the application process as set forth in COMAR 14.04.02.

Investment Criteria.

(1)

In addition to the investment criteria described in COMAR 14.04.02.05, the following investment criteria shall form the basis of TEDCO’s determination of the applicant’s potential to attract subsequent financing or investment after participating in the Pre-Seed Builder Fund or the Inclusion Fund and to create jobs in the State:

(a)

Whether the applicant has or does not have available to it other means of financing; and

(b)

Whether the applicant has secured, through verifiable documentation:

(i)

Expressions of interest in providing financing to the applicant from sources of institutional venture investment or other financing sources, based on specified milestones; or

(ii)

Network opportunities, including introductions to customers, employees, and partners.

(2)

TEDCO shall use the investment criteria to evaluate applicants to determine:

(a)

Whether an applicant advances in the application process; and

(b)

The extent to which the achievement of milestones determined by TEDCO or the receipt of executive support will be a condition of investment by the Pre-Seed Builder Fund or Inclusion Fund.

(3)

TEDCO may require:

(a)

Eligible applicants to interview with TEDCO program staff; and

(b)

Finalists for investment to make in-person presentations to TEDCO program staff.

Re-application After Initial Rejection. If TEDCO rejects a business for investment by the Pre-Seed Builder Fund or by the Inclusion Fund after the business submits a first application to TEDCO, the business may re-apply to TEDCO upon the later of:

(1)

120 days after the date on which TEDCO issues a written rejection to the business; or

(2)

The satisfaction of recommendations by TEDCO, if any.

Re-application After Subsequent Rejection. If TEDCO rejects a business for investment by the Pre-Seed Builder Fund or by the Inclusion Fund any time after the business submits a second application to TEDCO, the business may re-apply to TEDCO upon the later of:

(1)

1 year after the date on which TEDCO issues a written rejection to the business; or

(2)

The satisfaction of any recommendations by TEDCO, if any.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 04. Rural Business Innovation Initiative

Regulation .01 Purpose.Link Copy Citation

These regulations prescribe the objectives and investment policy of the RBII Fund, the standards for qualification and investment criteria for a business to receive investment from the RBII Program, and procedures and guidelines for TEDCO’s selection of businesses to receive investment from the RBII Fund.

Regulation .02 Objective.Link Copy Citation

The objective of the RBII Fund is to make pre-seed investments in technology-based businesses that maintain principal business operations in rural areas or rural communities.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“RBII Fund” is part of the RBII Program through which TEDCO provides pre-seed investments to small or early-stage technology-based businesses in rural areas or rural communities.

(2)

“RBII Program” means the Rural Business Innovation Initiative Program through which TEDCO provides pre-seed investment, technical and business assistance, mentoring services, and operational support to small or early-stage technology-based businesses in rural areas or rural communities.

Regulation .04 Investment Philosophy and Types of Qualified Businesses.Link Copy Citation

The RBII Fund identifies pre-seed investment opportunities in small or early-stage technology-based businesses in rural areas and rural communities that are often overlooked by traditional sources of pre-seed investment because of the location of the businesses’ principal business operations in a rural area or a rural community. The RBII Fund seeks to make investments that TEDCO determines have the potential to enable the business to advance to the next-stage of venture investment and to become an attractive applicant for other TEDCO investment programs not less than 12 to 24 months after investment by the RBII Fund.

Regulation .05 Eligibility.Link Copy Citation

In General. TEDCO shall be satisfied that the applicant meets the eligibility requirements set forth in COMAR 14.04.02.04.

Location and Other Requirements. In addition to the requirements set forth in COMAR 14.04.02.04, TEDCO shall be satisfied that:

(1)

The applicant’s principal business operations are located in a rural area or a rural community; and

(2)

At the time of the application, the applicant has received mentoring services from the RBII Program for a period of not less than 90 days.

Regulation .06 Procedures and Guidelines for Investment Decisions.Link Copy Citation

In General. TEDCO shall select a business for investment from the RBII Program in accordance with the application process set forth in COMAR 14.04.02.

Investment Criteria. In addition to the investment criteria described in COMAR 14.04.02.05, TEDCO shall consider the following investment criteria:

(1)

Whether the applicant has previously received a grant from the RBII Program; and

(2)

Whether the applicant has the potential to grow and to receive an investment from other TEDCO investment programs not less than 12 to 24 months after receipt of RBII Fund investment proceeds.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 05. Seed Funds

Regulation .01 Purpose.Link Copy Citation

These regulations prescribe the objectives and investment policy of the Seed Funds, the eligibility requirements and criteria for investment by the Seed Funds, and procedures and guidelines for TEDCO’s investment in early-stage businesses.

Regulation .02 Objective.Link Copy Citation

Through Seed Funds investment, TEDCO seeks to strengthen and grow early-stage technology-based businesses with the goal of creating a State-wide environment that encourages and supports emerging businesses and maximizes economic impact in the State.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Cybersecurity Investment Fund” means the investment program established by §10-464 of the Act.

(2)

“GAP Fund” means the investment program established in accordance with the Act to make investments in businesses between seed-stage and venture investment.

(3)

“Life Science Investment Fund” means the investment program established in accordance with the Act to make investments in businesses that develop products for commercialization which address human health and require approval from the United States Food and Drug Administration.

(4)

“Seed Funds” means the Life Science Investment Fund, the Cybersecurity Investment Fund, the Technology Commercialization Fund, and the GAP Fund.

(5)

“Technology Commercialization Fund” means the investment program established in accordance with the Act to make investments in businesses that develop and commercialize new technology-based products in all fields of technology.

Regulation .04 Investment Philosophy and Types of Qualified Businesses.Link Copy Citation

TEDCO seeks investment opportunities in early-stage technology-based businesses with demonstrable potential to secure next-stage investment and grow with a positive economic impact in the State.

Regulation .05 Eligibility.Link Copy Citation

In General. TEDCO shall be satisfied that the applicant meets the requirements under COMAR 14.04.02.04. In addition to the requirements set forth in COMAR 14.04.02.04, TEDCO shall be satisfied that the business is based on the validation of a minimum viable product or, in the case of life sciences, proof of concept data with validation from in vitro or in vivo models or patient samples.

Eligibility for Specific Seed Funds.

(1)

For Technology Commercialization Fund investments, at the time of the application and initial investment, the business:

(a)

Has raised not more than $10,000,000 of dilutive funding, not including the investment; and

(b)

Employs not more than 30 employees.

(2)

For Cybersecurity Investment Fund investments, the business:

(a)

Shall be focused on information technology security, including the protection of networked devises, networks, programs, and data from unintended or unauthorized access, change, or destruction; and

(b)

At the time of the application and initial investment:

(i)

Has raised not more than $10,000,000 of dilutive funding, not including the investment; and

(ii)

Employs not more than 30 employees.

(3)

For GAP Fund investments, the business:

(a)

Shall have secured verifiable funding commitments from non-government sources for a $1:1 ratio match to TEDCO’s investment, the receipt of which by the business shall be a condition of closing the TEDCO investment;

(b)

Shall receive the non-governmental source of funding specified in §B(3)(a) of this regulation not more than 90 days before TEDCO’s investment and in connection with the same financing round in which TEDCO invests; and

(c)

Shall use the proceeds from TEDCO’s investment for payroll to compensate new employees in the State hired by the applicant after or not more than 90 days before TEDCO’s release of the investment proceeds; and

(d)

At the time of application and initial investment:

(i)

Has raised not more than $10,000,000 of dilutive funding, not including the investment; and

(ii)

Shall employ not more than 30 employees.

(4)

For Life Science Investment Fund:

(a)

The business shall be considered an early-stage business if the business submits an application for investment to TEDCO:

(i)

Not more than 7 years after the date on which the business commenced operations or not more than 5 years after the date on which the business received its final approval from the United States Food and Drug Administration for the product or device the business is developing, whichever is later; and

(ii)

Otherwise meets the requirements of an early-stage business;

(b)

The business shall be in the process of developing a technology for a product for human health that requires approval from the United States Food and Drug Administration prior to market; and

(c)

At the time of the application and initial investment, the business:

(i)

Has raised not more than $10,000,000 of dilutive funding, not including the investment; and

(ii)

Employs not more than 30 employees.

Regulation .06 Investment Criteria.Link Copy Citation

In addition to the investment criteria set forth in COMAR 14.04.02.05, TEDCO shall consider whether:

The market opportunity is appropriate for a seed-stage investment;

The applicant has the potential to secure institutional venture capital from other investors; and

The management team has the skills and ability to effectively secure an institutional venture investment.

Regulation .07 Procedures and Guidelines for Investment Decisions.Link Copy Citation

In General. Except as provided in §§B and C of this regulation, TEDCO shall select businesses for investment by the Seed Funds in accordance with the application process set forth in COMAR 14.04.02.

Reapplication after Initial Rejection. If TEDCO rejects a business for investment by the Seed Funds after the business submits a first application to TEDCO, the business may re-apply to TEDCO upon the later of:

(1)

90 days after the date on which TEDCO issues a written rejection to the business; or

(2)

The business’s consultation with TEDCO’s advisory services, if required by TEDCO, and satisfaction of any recommendations by TEDCO.

Reapplication after Subsequent Rejection. If TEDCO rejects a business for investment by the Seed Funds any time after the business submits a second application to TEDCO, the business may re-apply to TEDCO upon the later of:

(1)

180 days after the date on which TEDCO issues a written rejection to the business; or

(2)

The business’s consultation with TEDCO’s advisory services, if required by TEDCO, and satisfaction of any recommendations by TEDCO.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 06. Maryland Venture Fund

Regulation .01 Purpose.Link Copy Citation

These regulations prescribe the objectives and investment policy of the Maryland Venture Fund, and the eligibility requirements, criteria, procedures and guidelines for investment by the Maryland Venture Fund.

Regulation .02 Objective.Link Copy Citation

Through the Maryland Venture Fund, TEDCO seeks to support the State’s innovation and entrepreneurship environment by investing in opportunities that will have the potential to:

Generate financial returns to sustain the investment programs that constitute the Maryland Venture Fund; and

Foster economic growth throughout the State.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Enterprise Fund” means the investment program established by §10-469 of the Act.

(2)

“Invest Maryland Program” means the investment program established under §§10-4A-01—10-4A-28 of the Act.

(3)

“Maryland Venture Fund” means the Enterprise Fund and the Invest Maryland Program.

Regulation .04 Investment Philosophy and Types of Qualified Businesses.Link Copy Citation

TEDCO seeks to invest in businesses that have demonstrated financial success and continued growth potential appropriate for subsequent venture investments.

Regulation .05 Eligibility.Link Copy Citation

TEDCO shall be satisfied that the applicant meets the requirements under COMAR 14.04.02.04.

Regulation .06 Investment Criteria.Link Copy Citation

In General. In addition to the investment criteria set forth in 14.04.02.05, TEDCO shall consider the following investment criteria:

Whether the market opportunity is appropriate for venture-stage investment;

Whether the applicant, at the time it submits an application to TEDCO, is raising a minimum investment round of $2 million;

Except for life sciences businesses, whether the applicant’s quarterly revenues equal or exceed $250,000;

Whether the investment has the potential to generate returns of two times the amount of TEDCO’s invested capital not more than 8 years from the date of the investment;

Whether the applicant presents a plausible exit strategy for investors;

Whether the applicant can provide access to or information about its partners and customers;

Whether the management team has the skills and ability to effectively secure an institutional venture investment or effectuate a successful exit for investors;

Whether the applicant has the potential to secure institutional venture capital from other investors concurrent with Maryland Venture Fund; and

Except for life science businesses, whether the applicant’s annual growth rate equals or exceeds 20 percent.

Regulation .07 Procedures and Guidelines for Investment Decisions.Link Copy Citation

In General. Except as provided in §§B and C of this regulation, TEDCO shall select businesses for investment by Maryland Venture Fund in accordance with the application process set forth in COMAR 14.04.02.

Enterprise Fund. For Enterprise Fund investments:

(1)

TEDCO may not acquire an ownership interest in a business that exceeds 25 percent of the business; and

(2)

Within 15 years of making the investment, TEDCO shall divest itself of the investment.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 07. Investment Committee

Regulation .01 Purpose.Link Copy Citation

These regulations establish the Investment Committee of the Board and prescribe the responsibilities of the Investment Committee and the procedures of the Board to appoint the members of the Investment Committee.

Regulation .02 Objective.Link Copy Citation

The objective of the Investment Committee is to advise on and approve the investments as required under the Act.

Regulation .03 Investment Committee Established.Link Copy Citation

Established. There is an Investment Committee of the Board.

Composition. The Investment Committee shall consist of three directors. Each member of the Investment Committee shall serve for a term of 1 year and until the director’s successor is duly appointed and qualifies.

Procedures for Appointment. The Board shall elect the members of the Investment Committee by the same procedures as set forth in the TEDCO Bylaws that the Board uses for the election of officers. In considering directors for appointment to the Investment Committee, the Board and any nominating committee of the Board shall consider appropriate qualifications for serving on the Investment Committee, including:

(1)

Relevant professional experience or education in economic development, economics, public policy, investment, finance, or diverse communities; and

(2)

Potential conflicts that may impair the director’s ability to participate in the matters before the Investment Committee.

Procedures of Investment Committee. A majority of Investment Committee members present in person shall constitute a quorum for the transaction of business at a meeting. All matters brought before the Investment Committee at a properly constituted meeting shall be approved by a majority of the Investment Committee members present. All other procedures of the Committee, including procedures for consents without a meeting and remote meetings, shall be governed by the TEDCO Bylaws or the Investment Committee charter.

Regulation .04 Standards for Review and Approval of Investments.Link Copy Citation

Responsibilities of the Committee.

(1)

Consider and Determine Substantial Economic Impact. Upon request by Chief Executive Officer of TEDCO, the Investment Committee shall determine whether an investment in a business will have a substantial economic impact in the State. If the Investment Committee determines that an investment will have a substantial economic impact in the State, the Investment Committee shall authorize TEDCO to make the investment. If the Investment Committee does not determine that the investment will have a substantial economic impact in the State, the Investment Committee may not authorize TEDCO to make the investment.

(2)

Monitor Investments. In addition to any other meeting for the purpose of approving an investment under §A(1) of this regulation, the Investment Committee shall meet at least two times per year to review:

(a)

Investments in businesses which TEDCO staff has determined are no longer qualified businesses or no longer satisfy §10-401(g)(1)(i) of the Act; and

(b)

Reports issued by TEDCO in accordance with §10-415 of the Act.

(3)

Post-Investment Determinations. For the first 5 years after making an investment, if TEDCO identifies a business that ceases to be a qualified business, TEDCO shall notify the Investment Committee. To the extent possible and available, TEDCO shall deliver to the Investment Committee information sufficient for the Investment Committee to determine whether the business has had a substantial economic impact in the State or is reasonably projected to have a substantial economic impact in the State.

(4)

Information Considered. In considering whether an investment has had or will have a substantial economic impact in the State, the Investment Committee may rely on information provided by TEDCO and may conduct its own investigation.

Substantial Economic Impact in the State. The Investment Committee shall determine that a proposed investment in a business will have a substantial economic impact in the State if the proposed investment is reasonably projected to meet the following measures:

(1)

For the first $100,000 to be invested by TEDCO, the business will create at least five jobs in the State within 3 years from the date of the investment;

(2)

For each $20,000 to be invested in addition to $100,000, the business will create at least one job within 3 years of the investment;

(3)

The business will make capital investments in the State in an amount not less than two times the dollar value of the investment by TEDCO within 3 years from the date of the investment; and

(4)

The business shall make a contribution to the State’s technology ecosystem in terms of:

(a)

A return on the investment to TEDCO to be used for subsequent investment in the State;

(b)

The development of products and services beneficial to companies and other persons in the State;

(c)

The potential to attract management or additional venture financing to businesses based in the State; or

(d)

The development of successful entrepreneurs from diverse communities in the State or the support of communities whose economic development has been impeded by economic distress.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 08. Stem Cell Research Commission

Regulation .01 Purpose.Link Copy Citation

This chapter describes the policies and procedures for State-funded stem cell research in Maryland.

Regulation .02 Program Objective.Link Copy Citation

The basic objective of the Program is to provide financial assistance to qualified applicants to advance stem cell research and its therapeutic applications.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

Applicant.

(a)

“Applicant” means a person located in Maryland who applies for the financial assistance provided pursuant to this chapter.

(b)

“Applicant” includes a public or private institution of higher education and a public or private corporation.

(2)

“Commission” means the Stem Cell Research Commission created under §10-431 of the Act.

(3)

“Corporation” means the Maryland Technology Development Corporation.

(4)

“Financial assistance” means a grant or loan from the Fund.

(5)

“Fund” means the Maryland Stem Cell Research Fund created under §10-434 of the Act.

(6)

“Grantee” means an applicant who has been awarded financial assistance, whether in the form of a grant or a loan.

(7)

“Human stem cell” means a stem cell derived from human tissue.

(8)

“Institutional Review Board (IRB)” has the meaning stated in 45 CFR §46.102.

(9)

“Program” means the program for State-funded stem cell research authorized by the Act.

(10)

“Stem cell research” means basic, translational, or clinical research that:

(a)

Is conducted in Maryland; and

(b)

Uses human stem cells derived from:

(i)

Tissue obtained after the birth of a human being; or

(ii)

Unused IVF material.

(11)

“State-funded stem cell research” means, in addition to the meaning stated in §10-429(i) of the Act, stem cell research that receives financial assistance.

(12)

“Stem cell” has the meaning stated in §10-429(j) of the Act.

(13)

“Unused IVF material” means the unused material described in §§10-438 and 10-439 of the Act.

Regulation .04 Eligible Applicants.Link Copy Citation

To be eligible for financial assistance, an applicant shall certify to the Commission and the Corporation that the applicant:

(1)

Will use the financial assistance solely in accordance with the requirements of the Program;

(2)

Will conduct the stem cell research for which financial assistance is requested in Maryland;

(3)

Has the legal capacity and all necessary legal authorization to incur the obligations related to the financial assistance; and

(4)

Will comply with all applicable State and federal laws, including the requirement that stem cell research receiving financial assistance be conducted only after the approval of an Institutional Review Board.

This chapter does not preclude an applicant from conducting otherwise lawful research that is ineligible for financial assistance.

Regulation .05 Financial Assistance Criteria.Link Copy Citation

The Commission shall consider the following factors in determining whether to award financial assistance to an applicant:

The scientific merit of the stem cell research described in the application, taking into account the evaluation, rankings, and recommendations of an independent scientific peer review committee pursuant to §10-435 of the Act;

The ethical implications of the stem cell research described in the application;

The relationship between the stem cell research described in the application and the etiology, prevention, diagnosis, or treatment of a disease;

The potential impact of the stem cell research described in the application on technological innovation and the advancement of biotechnology in Maryland's academic, business, and nonprofit sectors; and

The relationship between the stem cell research described in the application and other research and sources of research funding.

Regulation .06 Financial Assistance Terms.Link Copy Citation

The financial assistance may be used for the purposes stated in the application, including the cost of facilities, capital leases, and capital equipment at a place where stem cell research is conducted.

The amount of indirect, unspecified, or overhead costs included in an application may not exceed the percentage of the total cost of the research identified by the Commission in a request for applications.

Regulation .07 Application.Link Copy Citation

An application for financial assistance shall be in the form and with the content identified by the Commission in a request for applications.

An application shall categorize the stem cell research described in the application by reference to the categories of research identified by the Commission in a request for applications.

An application shall state the intended duration of the State-funded stem cell research.

Regulation .08 Agreement Following Award of Financial Assistance.Link Copy Citation

A grantee shall execute a grant agreement or loan agreement with the Corporation, in a form prescribed by the Corporation, that:

(1)

Makes disbursement of financial assistance contingent on evidence of IRB approval of the State-funded stem cell research described in the application;

(2)

Acknowledges, as appropriate, that an award of financial assistance beyond the current fiscal year may be contingent on future appropriations to the Fund;

(3)

Establishes the scope of the State's ownership or other financial interest in the commercialization and other benefits of the results, products, inventions, and discoveries of the State-funded stem cell research described in the application;

(4)

Discusses, as appropriate, other matters related to intellectual property; and

(5)

Contains other assurances, as determined by the Corporation, related to the grantee's compliance with applicable law and the terms of the financial assistance.

A grantee shall, upon request, provide information to the Commission and Corporation reasonably related to the oversight of an award of financial assistance and the progress and results of the State-funded stem cell research.

Regulation .09 Nondiscrimination.Link Copy Citation

An applicant shall comply with all applicable federal, State, and local laws regarding discrimination and equal opportunity in employment.

Regulation .10 Drug-Free and Alcohol-Free Workplace.Link Copy Citation

An applicant shall comply, and remain in compliance, with the State's policy concerning drug-free and alcohol-free workplaces, as set forth in Executive Order 01.01.1989.18, and shall make a good-faith effort to eliminate illegal drug use and alcohol and drug abuse from places at which work is performed that has been financed in whole or in part with financial assistance.

Regulation .11 Waiver.Link Copy Citation

The Corporation, in consultation with the Commission, may waive or vary particular provisions of these regulations to the extent that the waiver is not inconsistent with the Act if:

Conformance to the requirements of any federal, State, or local programs in connection with State-funded stem cell research necessitates waiver or variance of a regulation; or

In the determination of the Corporation, the application of a regulation in a specific case or in an emergency situation would be inequitable or contrary to the purposes of the Act.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 09. Maryland Equity Investment Fund

Regulation .01 Purpose.Link Copy Citation

These regulations prescribe the objectives and investment policy of the Maryland Equity Investment Fund, and the eligibility requirements, criteria, procedures, and guidelines for investment by the Maryland Equity Investment Fund.

Regulation .02 Objective.Link Copy Citation

Through the Maryland Equity Investment Fund, TEDCO seeks to invest in qualified businesses with a goal to increase private equity and venture capital in the State that will have the potential to:

Generate financial returns to the benefit of the participants of the several pension systems managed by the State Retirement and Pension System; and

Foster economic growth throughout the State.

Regulation .03 DefinitionsLink Copy Citation

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

Terms Defined.

(1)

“Maryland Equity Investment Fund” means the investment program established by §10-487 of the Act.

(2)

“Qualified business” has the meaning stated in §10-487(a)(4) of the Act..

Regulation .04 Investment Philosophy and Types of Qualified Businesses.Link Copy Citation

TEDCO seeks to invest in businesses that have demonstrated financial success and continued growth potential appropriate for subsequent venture investments or a public offering.

Regulation .05 Eligibility.Link Copy Citation

TEDCO shall be satisfied that the applicant is a qualified business and meets the requirements under COMAR 14.04.02.04.

Regulation .06 Investment Criteria.Link Copy Citation

In General. In addition to the investment criteria set forth in COMAR 14.04.02.05, TEDCO shall consider the following investment criteria:

Whether the market opportunity is appropriate for venture capital;

Whether the applicant, at the time it submits an application to TEDCO, is raising a minimum investment round of $2,000,000;

Whether the investment has the potential to generate returns of two times the amount of TEDCO’s invested capital not more than 8 years from the date of the investment;

Whether the applicant presents a plausible exit strategy for investors; and

Whether the management team has the skills and ability to effectively secure an institutional venture investment concurrent with the investment of the Maryland Equity Investment Fund.

Regulation .07 Procedures and Guidelines for Investment Decisions.Link Copy Citation

TEDCO shall select businesses for investment by the Maryland Equity Investment Fund in accordance with the application process set forth in COMAR 14.04.02.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 10. Equitech Growth Fund

Regulation .01 Definitions.Link Copy Citation

Except as otherwise provided in this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Award” means grants, equity financing, debt financing, and other financial assistance.

(2)

“Commission” means the Equitech Growth Commission.

(3)

“Equitech Growth Fund” means the fund described in §10-488 of the Act.

(4)

“Infrastructure” means to build or expand equipment, systems, resources, and facilities in the State to support, attract, and retain businesses in the State.

(5)

Metrics.

(a)

“Metrics” means performance criteria and measures established by the applicant for the applicant’s project.

(b)

“Metrics” may include but is not limited to the project’s potential impact on businesses, industry growth, jobs, diversity, equity and inclusion, and economic development in the State.

(c)

“Metrics” shall be consistent with the 10-year goals in the strategic plan developed by the Commission.

(6)

“Nonprofit” means a tax-exempt entity under the Internal Revenue Code, organized for charitable, educational, or socially beneficial purposes.

(7)

“Other sources of funding” means funding received from a non-profit or a public entity.

(8)

“Private entity” or “private sector” means a non-governmental enterprise for profit that is not affiliated, through ownership or control with the federal, state, or a local government.

(9)

Public Entity

(a)

“Public entity” means a unit of the State or a local government.

(b)

“Public entity” includes political subdivision, trusts, and instrumentalities of the State.

(10)

“State” means the State of Maryland.

(11)

Workforce Development.

(a)

“Workforce development” means a coordination of programs and policies to create, sustain, and retain a viable workforce.

(b)

“Workforce development” includes educational programs, degree and non-degree programs, certifications, training, and exposure to career pathways in Science, Technology, Engineering, Arts, or Math for all ages.

Regulation .02 Eligibility.Link Copy Citation

Eligibility Criteria. TEDCO may make an award to an applicant, if TEDCO determines the applicant meets all of the following criteria:

(1)

The applicant is a public, nonprofit, or private entity in the State, including institutions of higher education and public-private partnerships;

(2)

The applicant’s proposed project is primarily focused on workforce development or infrastructure in the State;

(3)

The applicant shall use the award proceeds and the leveraged funds in the State;

(4)

The applicant shall have secured verified funding commitments from the private sector, federal sources, and other sources of funding in an amount to be approved by TEDCO, the receipt of which by the applicant shall be a condition of disbursing the TEDCO funds; and

(5)

The applicant’s proposal shall be consistent with the 10-year goals in the strategic plan developed by the Commission.

Regulation .03 Procedures and Guidelines for Award Decisions.Link Copy Citation

In General. In its sole discretion, TEDCO shall select eligible applicants for an award under the Equitech Growth Fund based on a written application, applicant’s proposal, and TEDCO’s diligence.

Application Process.

(1)

In General. TEDCO shall make available to the public on or through its website:

(a)

An application process for awards under the Equitech Growth Fund; and

(b)

Deadlines, if any, to submit the applications.

(2)

Required Information. Through an application, an applicant shall provide a proposal for its project with information sufficient for TEDCO to establish eligibility for an award, including:

(a)

Whether the applicant meets the eligibility requirements as set forth in the Act and under Regulation .02 of this chapter;

(b)

Detailed description of the proposed project including, but not limited to, current and proposed financial budgets, and the project’s goals to support workforce development or infrastructure in the State;

(c)

Reasonable metrics of the project’s potential impact on the State’s ecosystem; and

(d)

Any other information required to evaluate program criteria and, if applicable, diversity and inclusion criteria under §B(5) of this regulation.

(3)

Preliminary Evaluation of Eligibility. TEDCO's program staff:

(a)

Shall perform an initial review of each application in accordance with the Act and Regulation .02 of this chapter; and

(b)

May review the application for program criteria under §B(5) of this regulation and may examine the applicant’s project proposal, budgets, metrics, and other documents.

(4)

Eligibility Determination. Within 45 days from the date an applicant submits the application to TEDCO, TEDCO shall notify the applicant if TEDCO finds the applicant ineligible for an award under Regulation .02 of this chapter.

(5)

Program Criteria, Diversity and Inclusion Criteria, and TEDCO’s Diligence.

(a)

If the applicant is eligible for an award by TEDCO, TEDCO shall consider the program criteria as set forth in §B(5)(b) of this regulation and diversity and inclusion criteria as set forth in §B(5)(c) of this regulation and shall conduct diligence as set forth in §B(5)(d) of this regulation.

(b)

Program Criteria. TEDCO shall use the following criteria as the basis of a scoring rubric to evaluate eligible applicants:

(i)

Whether the applicant’s project is viable, sustainable, and has a high probability for success;

(ii)

The degree to which the applicant’s project addresses a need in the State’s ecosystem;

(iii)

The degree to which the applicant’s project will leverage funding from private sector, federal sources, or other sources of funding;

(iv)

The extent to which the applicant’s project is consistent with the 10-year goals in the strategic plan developed by the Commission;

(v)

The analysis of the project’s metrics and potential impact on the State’s ecosystem; and

(vi)

Adherence to the application process.

(c)

Diversity and Inclusion Criteria. TEDCO shall consider whether:

(i)

The applicant’s project has the potential to result in a positive economic development impact for a region or an area which is economically distressed or a rural area or a rural community; and

(ii)

A founder of the applicant or a member of the applicant’s executive leadership has self-identified as a member of a group that is economically disadvantaged.

(d)

Diligence. TEDCO’s diligence may include:

(i)

Review of applicant’s proposal, budgets, and metrics;

(ii)

Site visits;

(iii)

Validation of claims and assumptions made in the application; and

(iv)

At TEDCO’s sole discretion, an applicant’s presentation and interview.

Scoring. TEDCO shall score each applicant in accordance with a uniform scoring rubric based on the program criteria and diversity and inclusion criteria.

Final Approval. The Chief Executive Officer, in the Chief Executive Officer’s sole discretion, shall base TEDCO’s final decision regarding an award to an eligible applicant on:

(1)

The application;

(2)

The aggregate scores from the evaluation of the program criteria and diversity and inclusion criteria under §C of this regulation;

(3)

The likelihood that applicant’s project will lead to economic growth through workforce development or infrastructure in the State; and

(4)

The amount of money available for this program.

Rejected Applicants. If an applicant is rejected for an award, TEDCO shall notify the applicant in writing.

Regulation .04 Process for Monitoring.Link Copy Citation

Project Work-In-Progress. When the applicant’s project is work-in-progress, the applicant shall provide interim and final progress reports of the project including a detailed description of the use of award funds on a regular basis, as required from time to time by TEDCO.

Project Completion. Upon completion of the project, the applicant shall provide impact reports to TEDCO annually for a period of up to 5 years following the completion, in such form as TEDCO may specify from time to time. Impact reports shall include an analysis of the achievement of the project’s metrics.

Regulation .05 Nondiscrimination.Link Copy Citation

An applicant shall comply with all applicable federal, State, and local laws regarding discrimination and equal opportunity in employment.

Regulation .06 Program Administration.Link Copy Citation

An action or decision required or permitted to be taken or made by TEDCO under the Act or these regulations, including execution of award financing documents, may be taken by the Chief Executive Officer or Chief Executive Officer’s designee.

Subtitle 04 — Maryland Technology Development Corporation

Chapter 11. Pava LaPere Innovation Acceleration Grant Program

Regulation .01 Definitions.Link Copy Citation

Except as otherwise provided in this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Award” means a $50,000 grant to a qualifying applicant.

(2)

“Baltimore-Columbia-Towson MSA” means the Metropolitan Statistical Area in Maryland, as defined by the United States Office of Budget and Management.

(3)

“Chief Executive Officer designee” means a TEDCO employee to whom the TEDCO’s Chief Executive Officer has designated decision making authority.

(4)

Metrics.

(a)

“Metrics” means performance criteria and measures established by the applicant for the applicant’s grant proposal.

(b)

“Metrics” may include but is not limited to the project’s potential impact on fostering growth of the entrepreneurial innovation ecosystem in the State.

(5)

“Postsecondary institution located in the Baltimore-Columbia-Towson MSA” means universities and colleges stated in §10-462.1 of the Act.

(6)

“Program” means the Pava LaPere Innovation Acceleration Grant Program.

Regulation .02 Eligibility.Link Copy Citation

Eligibility Criteria. TEDCO may make an award to an applicant, if TEDCO determines the applicant meets all of the following criteria:

(1)

The applicant is a technology-based start-up company;

(2)

The founder of the applicant are students of a postsecondary institution located in the Baltimore-Columbia-Towson MSA;

(3)

The applicant has its principal place of business located in the Baltimore-Columbia-Towson MSA; and

(4)

The applicant agrees to use at least 20 percent of the award to hire third-party consultants for planning, development, regulatory compliance, or other technical assistance related to establishing a start-up company unless upon applicant’s request, TEDCO provides a waiver thereto.

Regulation .03 Procedures and Guidelines for Award Decisions.Link Copy Citation

In General. TEDCO shall select eligible applicants for an award under the Program based on a written application, applicant’s proposal, and TEDCO’s diligence.

Application Process.

(1)

In General. TEDCO shall make available to the public on or through its website:

(a)

An application process for awards under the Program; and

(b)

Deadlines, if any, to submit the applications.

(2)

Required Information. Through an application, an applicant shall provide a grant proposal including information sufficient for TEDCO to establish eligibility for an award, including:

(a)

Whether the applicant meets the eligibility requirements as set forth in the Act and under Regulation .02 of this chapter;

(b)

Detailed description of the grant proposal including, but not limited to, current and proposed financial budgets, business proposal, and the project’s potential impact on growth of the entrepreneurial innovation ecosystem in the State;

(c)

The address of applicant’s principal business operations in the Baltimore-Columbia-Towson MSA and a copy of the lease, license agreement, deed, or other document that evidences the applicant’s right to occupy the physical location of the principal business operations;

(d)

Reasonable metrics of the project’s potential impact; and

(e)

Any other information required to evaluate program criteria.

(3)

Preliminary Evaluation of Eligibility. The Program:

(a)

Shall perform an initial review of each application in accordance with the Act and Regulation .02 of this chapter; and

(b)

May review the application for program criteria under §B(5) of this regulation and may examine the applicant’s grant proposal, business plan, budget, metrics, and other information.

(4)

Eligibility Determination. Within 45 days from the date an applicant submits the application to the program, the program shall notify the applicant if TEDCO finds the applicant ineligible for an award under Regulation .02 of this chapter.

(5)

Program Criteria. The Program shall consider the following criteria as the basis of a scoring rubric to evaluate eligible applicants:

(a)

Whether the applicant’s grant proposal is viable, and has a reasonable probability for success;

(b)

The analysis of the grant proposal’s metrics and potential impact; and

(c)

Adherence to the application process.

(6)

Diligence. Program diligence may include:

(a)

Review of applicant’s grant proposal, budgets, and metrics;

(b)

Validation of claims and assumptions made in the application; and

(c)

An applicant’s presentation and interview.

Scoring. The Program shall score each applicant in accordance with a uniform scoring rubric based on the program criteria.

Final Approval. The Chief Executive Officer or a Chief Executive Officer’s designee, shall base TEDCO’s final decision regarding an award to an eligible applicant on:

(1)

The application; and

(2)

The aggregate scores from the evaluation of the program criteria under §C of this regulation.

Rejected Applicants. If an applicant is rejected for a grant award, the program shall notify the applicant in writing.

Award Amount. In accordance with the Act, program award amounts are $50,000 to each qualifying applicant, subject to funding availability.

Regulation .04 Nondiscrimination.Link Copy Citation

An applicant shall comply with all applicable federal, State, and local laws regarding discrimination and equal opportunity in employment.

Regulation .05 Program Administration.Link Copy Citation

Subtitle 04 — Maryland Technology Development Corporation

Chapter 12. Maryland Small Business Innovation Research and Technology Transfer Incentive Program

Regulation .01 Definitions.Link Copy Citation

Except as otherwise provided in this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Award” means grants, equity financing, debt financing, and other financial assistance provided under the Program.

(2)

“Fund” means the Maryland Small Business Innovation Research and Technology Transfer Incentive Matching Fund as described in §§10-473—10-478 of the Act.

(3)

“Fiscal year” means the 12-month period from July 1 through the following June 30.

(4)

“Program” means the Maryland Small Business Innovation Research and Technology Transfer Incentive Program as described in §§10-473—10-478 of the Act.

(5)

“Proposal” means the proposal submitted by the business to an agency of the federal government for a SBIR or STIR award.

(6)

“Qualified business” has the meaning stated in §10-401(g) of the Act.

(7)

“SBIR award” means the small business innovation research award and has the meaning stated in §10-473 of the Act.

(8)

“STTR award” means the small business technology transfer award and has the meaning stated in §10-473 of the Act.

Regulation .02 Purpose and Objective.Link Copy Citation

These regulations prescribe the objectives of the Program and the procedures and guidelines for TEDCO’s selection of businesses to receive an award under the Program. The purpose of the program is to foster job creation and economic development in the State by promoting the commercialization of research conducted by small businesses in the State and facilitating the transfer of technology from universities and federal research laboratories to small businesses.

Regulation .03 Eligibility.Link Copy Citation

Eligibility Criteria. TEDCO may make an award to an applicant, if TEDCO determines the applicant meets all of the following criteria:

(1)

Over half of the applicant’s workforce works at and from a physical location in the State;

(2)

The applicant’s principal business operations are conducted from a physical location in the State;

(3)

The applicant agrees to execute a securities repurchase agreement or an equivalent commitment, in the form determined and approved by the Office of the Attorney General, requiring the applicant to return to the Fund any money from an award including accrued interest and fees, if the applicant does not remain a qualified business for at least 2 years after receiving the award;

(4)

The applicant agrees to return the award if the applicant fails to fulfill the eligibility and maintenance requirements of the Program as set forth in the Act and §A of this regulation;

(5)

The applicant agrees to use the award primarily to:

(a)

Support business operations in the State; or

(b)

In the case of a start-up business, establish and support business operations in the State;

(6)

The applicant employs not more than 250 employees;

(7)

The applicant is not primarily engaged in retail sales, real estate development, insurance, banking, or lending;

(8)

The applicant is not primarily engaged in the provision of professional services by accountants, attorneys, or physicians;

(9)

The applicant has received a Phase I or Phase II SBIR award or STTR award during the 6 months immediately preceding the submission of the applicant’s application under the Program;

(10)

The applicant has received no prior award under the Program in the current fiscal year; and

(11)

The applicant has received less than three awards under the Program.

Eligibility Information. In order to be considered for an award by TEDCO, an applicant shall submit to TEDCO a written application in accordance with Regulation .04 of this chapter with sufficient information for TEDCO to establish eligibility under §A of this regulation, including:

(1)

The total number of the applicant’s founders and employees and the number of the applicant’s founders and employees working in the State;

(2)

(3)

Addresses of all the physical locations of the applicant;

(4)

A copy of the applicant’s proposal submitted to a federal agency for a SBIR award or a STTR award;

(5)

A copy of the applicant’s SBIR award or STTR award notification; and

(6)

Any other information required by TEDCO as necessary to establish that the applicant is eligible for an award under the Program.

Regulation .04 Procedures and Guidelines for Award Decisions.Link Copy Citation

In General. In its sole discretion, TEDCO shall select eligible applicants for an award under the Program based on a written application, applicant’s proposal, and TEDCO’s diligence.

Application Process.

(1)

In General. TEDCO shall make available to the public on or through its website:

(a)

An application process for awards under the Program; and

(b)

Deadlines, if any, to submit the applications.

(2)

Required Information. Through an application, an applicant shall submit information sufficient for TEDCO to:

(a)

Determine whether applicant meets the eligibility requirements as set forth in the Act and under Regulation .03 of this chapter; and

(b)

Any other information required to evaluate program criteria and, if applicable, diversity and inclusion criteria under §B(5) of this regulation.

(3)

Preliminary Evaluation of Eligibility. TEDCO's program staff:

(a)

Shall perform an initial review of each application in accordance with the Act and Regulation .03 of this chapter; and

(b)

May review the application for program criteria under §B(5) of this regulation and may examine the applicant’s proposal, budgets, economic impact, and other documents.

(4)

(5)

Program Criteria, Diversity and Inclusion Criteria, and TEDCO’s Diligence.

(a)

(b)

Program Criteria. TEDCO shall use the following criteria as the basis of a scoring rubric to evaluate eligible applicants:

(i)

Whether the applicant’s business promotes commercialization of research in the State or facilitates transfer of technology from universities and federal research laboratories;

(ii)

The degree to which the applicant will utilize the award towards commercialization of the research;

(iii)

Whether the applicant’s business in primarily engaged in research and development activities that assist in the prevention of, preparedness for, or response to a public health crisis in the State;

(iv)

The potential economic impact of the applicant’s growth in the State;

(v)

Whether the award has a potential to foster job creation and economic development in the State; and

(vi)

Adherence to the application process.

(c)

Diversity and Inclusion Criteria. TEDCO shall consider whether:

(i)

The award has the potential to result in a positive economic development impact for a region or an area which is economically distressed or a rural area or a rural community; and

(ii)

A founder of the applicant or a member of the applicant’s executive leadership has self-identified as a member of a group that is economically disadvantaged.

(d)

Diligence. TEDCO’s diligence may include:

(i)

Review of applicant’s proposal, budgets, and impact to the State’s ecosystem;

(ii)

Site visits;

(iii)

Validation of claims and assumptions made in the application; and

(iv)

At TEDCO’s sole discretion, an applicant’s presentation and interview.

Scoring. TEDCO shall score each applicant in accordance with a uniform scoring rubric based on the program criteria and diversity and inclusion criteria.

Final Approval. The Chief Executive Officer, in the Chief Executive Officer’s sole discretion, shall base TEDCO’s final decision regarding an award to an eligible applicant on:

(1)

The application;

(2)

The aggregate scores from the evaluation of the program criteria and diversity and inclusion criteria under §C of this regulation;

(3)

The likelihood that an award will foster job creation and economic development in the State; and

(4)

The amount of money available for this program.

Rejected Applicants. If an applicant is rejected for an award, TEDCO shall notify the applicant in writing.

Regulation .05 Award Limitations.Link Copy Citation

Subject to the availability of money in the Fund, TEDCO shall provide an award to selected applicants as follows:

For Phase I SBIR award or STTR award applicants, an award under the Program shall be the lesser of:

(1)

25 percent of the Phase I SBIR award or STTR award; or

(2)

$25,000.

For Phase II SBIR award or STTR award applicants, an award under the Program shall be the lesser of:

(1)

25% of the Phase II SBIR award or STTR award; or

(2)

$75,000.

Regulation .06 Nondiscrimination.Link Copy Citation

An applicant shall comply with all applicable federal, State, and local laws regarding discrimination and equal opportunity in employment.

Regulation .07 Program Administration.Link Copy Citation

Subtitle 05 — Veterans Commission

Chapter 01. Veterans Claims Service

Repealed. See 35.02.01

Subtitle 05 — Veterans Commission

Chapter 02. Interments in State Veterans' Cemeteries

Repealed. See 35.03.01

Subtitle 06 — Office of the Public Defender

Chapter 01. Representation

Regulation .01 Provisions for Representation.Link Copy Citation

The Office of the Public Defender shall provide representation to a person cited for contempt for failure to pay court-ordered support payments under the following circumstances:

(1)

Upon request by the Court or upon application by the person cited;

(2)

If it is determined that the person cited is indigent in accordance with Article 27A, §§2(f) and 7(a), Annotated Code of Maryland, and the person cited has no private counsel who had previously represented him in a divorce or paternity proceedings whose appearance is still pending on the cited person's behalf; and

(3)

That the person cited is actually facing a prison term.

In making the determination to represent a person cited for contempt in non-support proceedings, it shall be encumbent upon the Office of the Public Defender to ascertain, before the hearing, whether the:

(1)

State's Attorney will actually seek incarceration; or

(2)

Department of Social Services, or counsel prosecuting the support case, or both, is seeking incarceration.

Subtitle 06 — Office of the Public Defender

Chapter 02. Panel Attorneys

Regulation .01 Definitions.Link Copy Citation

As used in this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Office” means the Office of the Public Defender, including a district office of the Public Defender.

(2)

“District public defender” means:

(a)

The attorney-at-law appointed by the Public Defender to be in charge of a district comprising one or more political subdivisions conforming to the geographic boundaries of the District Court districts established in Courts and Judicial Proceedings Article, §1-602, Annotated Code of Maryland; or

(b)

A division chief of a Statewide division within the office designated by the Public Defender.

(3)

“Federal fee maximum” has the meaning stated in §B(6) of this regulation.

(4)

“Panel attorney” means any attorney licensed to practice law in Maryland and who qualifies and is eligible for appointment as counsel to an indigent person as defined by Article 27A, Annotated Code of Maryland.

(5)

“Public Defender” means the head of the Office of the Public Defender.

(6)

“Rate at which federal panel attorneys are compensated” means those rates of compensation for panel attorneys assigned to represent indigent federal criminal defendants, promulgated at 18 U.S.C. §3006A (Criminal Justice Act).

Regulation .02 Introduction.Link Copy Citation

The following regulations established for the operation and administration of the Office for the conduct of professional legal services of panel attorneys under the Public Defender Statute (Article 27A, Sec. 6, Annotated Code of Maryland).

Regulation .03 Duty of the Public Defender.Link Copy Citation

Pursuant to Article 27A, §4, Annotated Code of Maryland, the Public Defender is charged with the primary duty to provide legal representation to any indigent eligible for services under the Article, in the following proceedings:

In any criminal or juvenile proceeding constitutionally requiring the presence of counsel before presentment before a commissioner or judge;

Criminal or juvenile proceedings, when the defendant is charged with a serious crime, before the District Court of Maryland, the various circuit courts within the State, and the Court of Special Appeals;

Post conviction proceedings under Criminal Procedure Article, Annotated Code of Maryland, when the defendant has a right to counsel pursuant to Criminal Procedure Article, §7-108;

Any other proceeding when possible incarceration pursuant to a judicial commitment of individuals in institutions of a public or private nature may result;

An eligible party to a Child in Need of Assistance (CINA) proceeding who is entitled to the assistance of counsel as defined in Courts and Judicial Proceedings Article, §3-813, Annotated Code of Maryland.

Regulation .04 Assignment of Panel Attorneys.Link Copy Citation

When the office determines that an applicant for legal services is, in fact, an indigent and qualified for legal services under the Act, the Office may assign the applicant to a panel attorney. The Public Defender may relieve a panel attorney and substitute a new panel attorney. A panel attorney may not circumvent reassignment by entering a notice of appearance as private counsel.

Primary Duty of Panel Attorneys. The primary duty of all panel attorneys appointed by the Office shall be to the individual defendant, with like effect and to the same purpose as though privately engaged by the indigent person and without regard to the use of public funds to provide the service (Article 27A, §6(c)).

Privileged Communication. All communications between the individual defendant and any person in or engaged by the Office shall be fully protected by the attorney-client privilege to the same extent and degree as though counsel had been privately engaged. This does not preclude the use by the Office of material in the defendant's files, otherwise privileged, for the preparation and disclosure of statistical, case study, and other sociological data, provided always that in this use there shall be no disclosure of the identity of particular defendants.

Each district public defender, subject to the authority and supervision of the Public Defender, shall maintain a confidential list of private attorneys who are eligible to provide legal representation under Article 27A, Annotated Code of Maryland. The qualification criteria for the panel attorneys shall be set forth by the Public Defender.

Regulation .05 Final Report.Link Copy Citation

At the conclusion of professional services, a panel attorney shall file a final report on forms furnished by the Office. Final petitions for fees will not be honored unless accompanied by a final report form.

Regulation .06 Fees and Expenses.Link Copy Citation

Hourly Rate. As the annual budget permits, panel attorneys will be compensated at the same hourly rate at which federal panel attorneys are compensated for indigent criminal defense representation, effective July 1, 2007. For cases assigned on or after July 1, 2006 and before July 1, 2007, panel attorneys will be compensated at an hourly rate of $90 per hour. For cases assigned on or after July 1, 2005, and before July 1, 2006, panel attorneys will be compensated at an hourly rate of $75 per hour. For cases assigned on or after January 1, 2005 and before July 1, 2005, panel attorneys will be compensated at an hourly rate of $50 per hour. Services performed, time spent, and compensation requested shall be detailed on petition forms supplied by the Office and certified under oath by the panel attorney.

Maximum Allowable Fees.

(1)

A district public defender or division chief may allow fees in each case up to the maximum established for corresponding federal panel attorney representation effective July 1, 2007. The corresponding federal fee maximum is based on the court in which representation is provided as follows:

(a)

District Court—federal misdemeanor;

(b)

Circuit court—federal felony;

(c)

Juvenile Court—federal felony;

(d)

Court of Special Appeals—federal appeal; and

(e)

Court of Appeals—federal appeal.

(2)

When there is no corresponding federal fee maximum, the maximum allowable fee is based on the court in which representation is provided, effective July 1, 2007, as follows:

(a)

Postconviction and mental health proceedings—$2,500 maximum; and

(b)

All other cases—$1,200 maximum.

(3)

Any increase in the corresponding federal compensation of panel attorneys will be effective for Office panel attorneys on July 1 immediately following the effective date of the federal increase. If there is no corresponding federal fee maximum, the maximum will increase by the same percentage as any increase to the maximum for circuit court cases.

Interim Fee Schedule.

(1)

As the budget permits, for cases assigned on or after July 1, 2006, and before July 1, 2007, a district public defender or division chief may allow panel attorney fees up to the limit of the following maximums based on the court in which representation is provided as follows:

(a)

District Court—$1,500 maximum;

(b)

Circuit court—$5,200 maximum;

(c)

Juvenile Court—$5,200 maximum;

(d)

Postconviction and mental health proceedings—$1,500 maximum;

(e)

Court of Special Appeals—$3,700 maximum;

(f)

Court of Appeals—$3,700 maximum; and

(g)

All other cases—$1,200 maximum.

(2)

As the budget permits, for cases assigned on or after January 1, 2005 and before July 1, 2006, a district public defender or division chief may allow panel attorney fees up to the limit of the following maximums based on the court in which representation is provided as follows:

(a)

District Court—$750 maximum;

(b)

Circuit court—$3,000 maximum;

(c)

Juvenile Court—$3,000 maximum;

(d)

Postconviction and mental health proceedings—$750 maximum;

(e)

Court of Special Appeals—$2,500 maximum;

(f)

Court of Appeals—$2,500 maximum; and

(g)

All other cases—$500 maximum.

Regulation .07 Time for Submitting Petition for Fee.Link Copy Citation

Except for unusual or extenuating circumstances causing a delay in submission, each petition and final report shall be forwarded to the district public defender within 60 days of the final court event for the case. Unwarranted delays may cause the petition to be denied.

Regulation .08 Review of Petition for Fee and Expenses by District Public Defender.Link Copy Citation

All petitions for fees and expenses are subject to review and approval by the district public defender. District public defenders are authorized to allow fees up to the maximum fee schedule and, in addition, may recommend a fee in excess of the maximum to the Public Defender. The Public Defender will approve fees and expenses as the Public Defender deems reasonable and as necessitated by budget limitations.

Regulation .09 Review of Petition for Fee and Expenses by District Advisory Board.Link Copy Citation

Pursuant to Article 27A, §§6(d) and 10(c), Annotated Code of Maryland, any panel attorney seeking compensation for legal fees or expenses disapproved by the Public Defender or in excess of those authorized for payment may seek the review of his or her petition by the district advisory board. When this review is sought, the panel attorney shall notify the district public defender who will schedule a review with the board. The decision of the district advisory board is advisory.

Regulation .10 Accepting Fees from Accused.Link Copy Citation

Pursuant to Article 27A, §6(d), Annotated Code of Maryland, a panel attorney may not accept any fee, gratuity, or other valuable consideration from the accused, his family, or his friends. If such an offer is made, the information should be promptly communicated to the district public defender for appropriate action.

Regulation .11 Redetermination of Indigency.Link Copy Citation

Before the appointment of a panel attorney to represent an accused, a determination of indigency was made by the Office. After appointment, if a panel attorney discovers that an accused has secreted assets or falsified information regarding his true financial status, the panel attorney should promptly advise the district public defender. The district public defender will make further investigation of the financial status of the accused and, thereafter, advise the panel attorney regarding his continued appearance in the case and as to any other appropriate action.

Regulation .12 Funding Availability.Link Copy Citation

Implementation of this chapter is contingent upon availability of funds in accordance with State Finance and Procurement Article, §§7-234 and 7-235, Annotated Code of Maryland.

Subtitle 06 — Office of the Public Defender

Chapter 03. Eligibility for Services

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“District” means an area comprising one or more political subdivisions conforming to the geographic boundaries of the District Court districts established in the Courts and Judicial Proceedings Article, §1-602, Annotated Code of Maryland.

(2)

“District public defender” means the district public defender of each of the various districts described in §B(1), above.

(3)

“Division” means an organization subunit through which the Office of the Public Defender provides specialized defense services, including representation in appellate, post-conviction, involuntary institutionalization, child in need of assistance, termination of parental rights, and capital proceedings.

(4)

“Division chief” means the attorney-at-law appointed by the public defender to be in charge of a division.

(5)

“Expenses”, when used with reference to representation under these regulations, means all costs incident to investigation, other pretrial preparation, trial, and appeal of a person accused of a serious crime.

(6)

“Indigent” means any person taken into custody or charged with a serious crime as defined under the laws of Maryland or the laws and ordinances of any county, municipality, or Baltimore City, who under oath or affirmation subscribes and states in writing that he is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation.

(7)

“Office” means the Office of the Public Defender, including district offices of the Public Defender and branch offices as are deemed necessary.

(8)

“Serious crimes” when used in these regulations applies to serious crimes as defined under the Public Defender Statute, Article 27A, §2(h), Annotated Code of Maryland, as expanded by Argersinger v. Hamlin, 407 U.S. 31 (1972), in which the Court stated that, " . . . absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he is represented by counsel at his trial." (407 U.S. 31 at 35).

Regulation .02 Scope.Link Copy Citation

The following regulations are established for the operation and administration of the office for the determination of eligibility for public defender services under the Public Defender Statute, Criminal Procedure Article, §§16-207 and 16-210, Annotated Code of Maryland, and Office of the Public Defender v. State, 413 Md. 411 (2010).

The regulations also seek to ensure that eligibility is determined in a manner consistent with the obligation of the office to render effective assistance of counsel.

Regulation .03 Incorporation by Reference.Link Copy Citation

In this chapter, the following document is incorporated by reference.

Document Incorporated. Section 673(2) of Omnibus Budget Reconciliation Act (OBRA) of 1981 (Pub. L. 97-35) (42 U.S.C. §9902(2)).

Regulation .04 Duty to Provide Legal Representation.Link Copy Citation

In any criminal or juvenile proceeding constitutionally requiring the presence of counsel before presentment before a commissioner or judge;

Juvenile proceedings or criminal proceedings when the applicant is charged with a serious crime, before the District Court of Maryland, the various circuit courts within the State, and the Court of Special Appeals;

Post-conviction proceedings under Criminal Procedure Article, Annotated Code of Maryland, when the defendant has a right to counsel pursuant to Criminal Procedure Article, §7-108, Annotated Code of Maryland;

Any other proceeding when possible incarceration pursuant to a judicial commitment of individuals in institutions of a public or private nature may result;

An involuntary termination of parental rights proceeding or a hearing under Family Law Article, §5-319, Annotated Code of Maryland, if the party is entitled to public defender representation under Family Law Article, §5-323, Annotated Code of Maryland.

Regulation .05 Determination of Eligibility for Services.Link Copy Citation

Pursuant to Criminal Procedure Article, §§16-207 and 16-210, Annotated Code of Maryland, and Office of the Public Defender v. State, 413 Md. 411 (2010), eligibility for services of the Office of the Public Defender shall be determined on the basis of need of the individual seeking legal representation. Need shall be measured by the financial ability of the applicant to engage and compensate competent private counsel and to provide all other necessary expenses of representation without undue financial hardship. This ability shall be recognized to be a variable depending on:

(1)

The nature, extent, and liquidity of assets;

(2)

The disposable net income of the defendant;

(3)

The nature of the offense;

(4)

The effort and skill required to gather pertinent information;

(5)

The length and complexity of the proceedings; and

(6)

Any other foreseeable expenses.

Persons seeking the services of the Office of the Public Defender shall fully disclose, under oath or affirmation, all financial assets, income, living expenses, and liabilities by completing an Application for Representation form which shall be supplied by the Office at a confidential eligibility interview.

Following such full disclosure by the applicant, the Office shall check financial information so disclosed against information obtained by the Office from the Maryland Department of Labor (MDL), and may follow up with MDL as the Office in its sole discretion may deem appropriate. The information made available by MDL shall be the most reliable means for corroborating financial information supplied by the applicant, and no further corroboration is therefore required. However, in addition, the Office may in its sole discretion, but is not required to, undertake any additional investigation it deems appropriate, in connection with which it may request supporting documentation from an applicant. The applicant’s failure to provide some or all of any such documentation shall not necessitate a finding that the applicant is ineligible.

In conformity with the decision of the Court of Special Appeals in Baldwin v. State, 51 Md. App. 538, 444 A.2d 1058 (1982), the following guidelines presumptively apply in the determination of eligibility:

(1)

Consistently with Baldwin v. State, supra, and Office of the Public Defender v. State, supra, any doubts as to defendant’s indigence shall be resolved by providing assistance of counsel rather than denying it;

(2)

The defendant's financial ability shall be measured in terms of his resources and not in terms of resources of the defendant's family;

(3)

The fact that bond was posted may not be used as grounds to deny appointed counsel;

(4)

Assets seized in raids and held by authorities subject to confiscation may not be deemed available to the defendant for purposes of determining his financial ability;

(5)

The defendant's presumed employability shall form no proper basis for denying appointed counsel.

Pursuant to Criminal Procedure Article, §16-210 et seq., Annotated Code of Maryland, if a determination of eligibility cannot be made before the time when the first services are to be rendered, the Office may undertake representation of an indigent person provisionally. If it should subsequently be determined that the defendant is ineligible, the Office will so inform the defendant, and the defendant shall then be obligated to engage the defendant’s own counsel.

If after appointment to represent the client the attorney discovers that the client has secreted assets or falsified information regarding his true financial status, the attorney should promptly advise the district public defender or division chief. The district public defender or division chief shall make further investigation of the financial status of the client, in connection with which the Office may request that the client provide further documentation. After such investigation, the district public defender or division chief shall advise the attorney regarding continued appearance in the case and as to any other appropriate action.

Income Level.

(1)

For an individual whose assets and net annual income are less than 100 percent of the federal poverty guidelines, eligibility for services of the Office may be determined without an assessment regarding the need of the applicant.

(2)

Assets considered shall include all liquid and nonliquid assets of the applicant, excluding the applicant's principal residence and primary vehicle.

Regulation .06 Reimbursement of Expenses.Link Copy Citation

In the event a determination of eligibility cannot be made before the time when the first services are to be rendered and services are provisionally rendered pursuant to COMAR 14.06.03.05E, and it is subsequently determined that the person is ineligible pursuant to such section, the person shall be obligated to reimburse the Office for the cost of the services rendered to that time.

The attorney shall review with the client any change in the client's circumstances which would affect the client's financial ability to reimburse the State for services rendered by the office before the final disposition of the case. The attorney shall be prepared to present those circumstances for consideration by the judge at sentencing in conjunction with the Court's determination of the ability of the client to make reimbursements for the services rendered by the office in accordance with Article 27A, §7(g) and (h), Annotated Code of Maryland.

Regulation .07 Application for Public Defender Services.Link Copy Citation

An applicant shall submit to a confidential eligibility interview at least 10 working days before any service is required to be rendered.

An applicant applying for services more than 10 working days, but less than 16 working days, before any service is required to be rendered, will be interviewed and have eligibility determined at the time of the interview.

An applicant applying for services more than 16 working days before the service is required to be rendered may:

(1)

Be interviewed at an office other than one where representation would be provided, with the eligibility decision deferred to the district public defender rendering the service; or

(2)

Visit an Office of the Public Defender district providing the service and have eligibility determined at the time of the interview.

Subtitle 07 — Maryland Automobile Insurance Fund

Chapter 01. Board of Trustees

Repealed

Subtitle 07 — Maryland Automobile Insurance Fund

Chapter 02. Binding Rules

Repealed

Subtitle 07 — Maryland Automobile Insurance Fund

Chapter 03. Producer Discipline Hearing Rules

Repealed

Subtitle 07 — Maryland Automobile Insurance Fund

Chapter 04. Uninsured Persons' Claims for Compensation from the Maryland Automobile Insurance Fund

Regulation .01 Authority.Link Copy Citation

This chapter is promulgated by the Executive Director of the Fund pursuant to the authority vested in the Executive Director under Insurance Article, §20-201(d)(3)(iii), Annotated Code of Maryland.

Regulation .02 Purpose.Link Copy Citation

The purpose of these regulations is to let a qualified claimant know how to file a claim in order to receive compensation for bodily injuries or property damages from the Fund if the claimant has been injured by a negligent uninsured owner or operator in an accident on or after July 1, 1987.

To be eligible to claim against the Fund, the claimant may not have been covered on the accident date by any automobile liability insurance, either personally or by an immediate family member, nor will the claimant be eligible if the claimant was an operator or passenger in an insured automobile.

These regulations also set forth how the Fund can proceed in negotiating and paying claims.

Regulation .03 Definitions.Link Copy Citation

As used in these regulations, the following terms have the meanings indicated.

Terms Defined.

(1)

“Accident” means any occurrence arising out of the ownership, maintenance, or use of a motor vehicle in this State which results in damage to any property, or injury or death to any person.

(2)

“Claimant” means any qualified person making claim for damages for personal injury or death, or damage to property in excess of $250, by reason of the negligent conduct of an uninsured owner or operator of a motor vehicle, as these claims are further defined in Insurance Article, §20-601, Annotated Code of Maryland.

(3)

“Disappearing motorist” means an owner or operator of a motor vehicle, who was originally identified but whose whereabouts cannot be ascertained.

(4)

“Executive Director” means the Executive Director of the Maryland Automobile Insurance Fund, as defined by Insurance Article, §20-203, Annotated Code of Maryland.

(5)

“Family member” means any person related by blood, marriage, or adoption.

(6)

“Fund” means the Maryland Automobile Insurance Fund, created by Insurance Article §20-101, et seq., Annotated Code of Maryland, and includes the Uninsured Division, formerly the Unsatisfied Claim and Judgment Fund.

(7)

Motor Vehicle.

(a)

“Motor vehicle” means a vehicle that is operated or designed for operation upon a public road by any power other than animal or muscular power and is required to maintain automobile insurance under Transportation Article, §17-103, Annotated Code of Maryland.

(b)

“Motor vehicle” does not include:

(i)

A moped, as defined in Transportation Article, §11-134.1, Annotated Code of Maryland;

(ii)

A motor scooter, as defined in Transportation Article, §11.134.5, Annotated Code of Maryland; or

(iii)

An electric bicycle, as defined in Transportation Article, §11-117.1, Annotated Code of Maryland.

(8)

“Person” includes natural persons, firms, co-partnerships, associations, corporations, and governmental bodies.

(9)

“Qualified person” has the meaning provided under Insurance Article, §20-601(a), Annotated Code of Maryland.

(10)

“Unidentified motorist” means an owner or operator of a motor vehicle whose identity and whereabouts are not known.

(11)

“Uninsured motorist” means an owner or operator of a motor vehicle whose whereabouts are ascertainable, but who was uninsured at the time of the accident.

(12)

“Uninsured motor vehicle” means a motor vehicle which has:

(a)

No security in force meeting the requirements of Transportation Article, §17-103, Annotated Code of Maryland; or

(b)

A liability insurance policy in force meeting the statutory requirements when a receiver or conservator has been appointed by a court of competent jurisdiction for the insurance company issuing the policy.

(13)

“Uninsured owner or operator” includes a disappearing motorist, an unidentified motorist, and an uninsured motorist, as those terms are defined in these regulations.

Regulation .04 Filing a Notice of Claim.Link Copy Citation

There is no longer a notice of intention to make a claim allowed by law, only the Notice of Claim as provided for in these regulations and in Insurance Article, §20-603(b), Annotated Code of Maryland. A claimant may, however, file an Initial Notice of Claim, on a form prepared by the Fund, while verifying whether the claim is covered under Insurance Article, §20-601, Annotated Code of Maryland. The Fund shall furnish a form on request.

A claimant shall file the Notice of Claim not later than 180 days after the date of the accident. If not, the claimant cannot recover from the Fund, unless the claimant qualifies for one of the exceptions described in Insurance Article, §20-603(a), Annotated Code of Maryland. Before filing the Notice of Claim, the claimant shall have made a significant good faith investigation of the claimant’s eligibility, damages, and the responsibility of the uninsured owner or operator, and the claimant shall supply that information in the Notice of Claim. The claimant shall have made all reasonable efforts to confirm that no automobile insurance exists for the at fault vehicle or any other applicable insurance coverage and shall confirm there is no uninsured motorist coverage as defined in Transportation Article, §17-103(b)(4), or Insurance Article, §19-509 or 19-509.1, Annotated Code of Maryland.

The claimant shall sign and file the Notice of Claim on the form prescribed by the Fund. The claimant’s signature on the form certifies any material misrepresentation made by the claimant constitutes grounds for denying the claim. A notice is not filed unless it is received by the Fund within 180 days.

The Notice of Claim shall contain information and documentation substantiating all the matters described in §§E—M, of this regulation. It shall include all information and documentation as of the date of filing. If the Notice of Claim is not substantially complete the Fund may return it to the claimant.

Claimants shall fulfill all legal requirements to claim against the Fund. Claimants shall show that their injuries or damages were caused by an uninsured motor vehicle or an uninsured owner or operator, and that the claimants are a resident of the State. Documentation which is generally acceptable includes records, affidavits, and certifications from the Motor Vehicle Administration, from insurance companies which provide or have provided coverage for the owner or operator at fault, and from those vehicle owners and operators involved in the accident.

Claimants may not be eligible for Uninsured Division benefits from a policy of automobile liability insurance. Claimants shall show that:

(1)

They own no automobile or other motor vehicle registered in Maryland;

(2)

None of their family members with whom they regularly live own an automobile registered in Maryland;

(3)

A vehicle in which they were an operator or passengers had no available insurance;

(4)

The motor vehicle at fault had no insurance on the date of the accident; and

(5)

All denial or disclaimers are valid under the law.

Documentation which is generally acceptable for the requirements of §F of this regulation includes records, affidavits, and certifications from the Motor Vehicle Administration and insurance companies which may provide or have provided coverage for the claimant or the claimant’s family members, or the uninsured owner or operator involved in the accident. Claimants shall also furnish the complete names, dates of birth, and, if known, social security numbers of all members of their immediate household 16 years old or older.

If a claimant has lost any wages because the claimant has been unable to work because of the injuries sustained in the accident, the claimant's employer shall confirm the claimant's employment and wages, and the claimant shall submit the employer's statement with the Notice of Claim.

If a claimant sustained any personal injury in the accident, the claimant shall submit all bills for medical treatment provided up to the time the claimant files the Notice of Claim. If the claimant has additional medical expenses after filing, the claimant shall notify the Fund of that fact and submit the additional bills as soon as possible.

If a claimant sustained any personal injury in the accident, the claimant shall submit or have the claimant’s doctors send to the Fund reports of all medical treatment, therapy, and consultation which the claimant received from the doctors or others under their supervision for the claimant’s injuries. The report shall include dates and nature of treatment or therapy, and any diagnosis and prognosis of the injuries. At the Fund’s request, the claimant shall provide complete information regarding the claimant’s prior injuries and medical conditions that are relevant to the claimant’s injuries.

If any of the claimant's property is damaged in the accident, the claimant shall identify all the property and, except for motor vehicles, provide the current value, price, date, and location of purchase of the property. Documentation generally accepted includes appraisals, repair estimates for property of more than ordinary value, and cleaning or repair receipts.

When a claimant submits a Notice of Claim, the claimant shall submit any police and other accident reports available. A claimant shall submit to a statement under oath as requested by the Fund regarding eligibility, the accident facts, and injuries.

When a claimant files a Notice of Claim, the claimant shall submit a complete narrative of the accident, including:

(1)

Date;

(2)

Time;

(3)

Location;

(4)

Vehicles;

(5)

Names and addresses of all known drivers, passengers, and witnesses; and

(6)

Circumstances leading up to and involving the accident.

FORM AT END OF CHAPTER

Regulation .05 Settlement of Claims Involving a Disappearing Motorist or Unidentified Motorist.Link Copy Citation

It is the policy of the Fund to settle uninsured persons' claims as promptly as possible once the Notice of Claim is completed and filed with all appropriate documents, and without court involvement whenever possible. However, in some cases a claimant may be required to file suit. The Fund has the right to deny any claim, in whole or in part, in accordance with applicable law.

Whenever a disappearing motorist has injured a claimant or damaged the claimant’s property, the claimant shall show, before any payment can be made, that all reasonable efforts have been made to learn the whereabouts of the owner and operator of the uninsured vehicle, for the purpose of filing a legal action against the owner and operator and obtaining personal service of process on them as required by the Maryland Rules of Procedure, but that they cannot be located.

Whenever an unidentified motorist has injured a claimant or damaged a claimant's property, the claimant shall show, before any payment can be made, that:

(1)

The claimant has made all reasonable efforts to identify the motor vehicle, and its owner and operator, but cannot do so; or

(2)

The motor vehicle was being operated without the owner's consent and that the unauthorized operator cannot be located.

When a claimant and the Fund agree on a settlement for the claim, the claimant shall release the Fund from any further liability and assign to the Fund, on a form prescribed and furnished by the Fund, any cause of action or judgment the claimant may have against any uninsured owner or operator who may be legally responsible for the injuries or damages for which the claimant is seeking compensation.

Settlement may be made by any claim representative in the Uninsured Division of the Fund.

Regulation .06 Settlement of Claims Involving Known Uninsured Motorists.Link Copy Citation

When the Fund has received a Notice of Claim, it shall attempt to contact the uninsured owner or operator, or both, to investigate the liability and damages on the part of the uninsured. It shall also negotiate with claimants to compensate them promptly, fairly, and equitably.

If a claimant does not arrive at an agreed settlement with the Fund, the Fund shall notify the claimant in writing that the claimant’s only remedy will be to file suit against the uninsured owner or operator. The claimant shall show that service has been perfected and a judgment has been obtained against the owner or operator, or both the owner and operator, of the uninsured vehicle. The Fund may not be a party to the suit until the claimant has first obtained a judgment against the uninsured owner or operator or unless the Fund elects to intervene as a party. The Fund may not be obligated to intervene.

The Fund may seek to obtain a consent agreement from the uninsured owner or operator in the form of either a confessed judgment or confessed judgment promissory note before the claimant is paid. If the uninsured does not consent within 60 days, then the Fund may not delay its negotiations with a claimant in further efforts to obtain the uninsured's consent. In any case, the claimant shall sign a proper release and subrogation agreement in favor of the Fund before payment can be made.

If all parties agree to a settlement, the Fund will pay the claimant for the claim when all appropriate documents have been executed. If the Fund believes that obtaining a prompt judgment against the uninsured is necessary in a particular case, then payment may not be made until a final judgment, consent or otherwise, against the uninsured has been entered or assigned in favor of the Fund.

If the uninsured does not settle with the claimant and the Fund, the Fund shall give the uninsured owner or operator notice, by certified mail, return receipt requested, to the uninsured owner or operator’s last known address, as provided for in Insurance Article, §20-605, Annotated Code of Maryland. After 30 days have passed, the Fund may settle with the claimant or require the claimant to proceed to file suit and proceed to trial against the uninsured owner or operator. If the Fund elects to settle, the claimant shall assign his judgment or causes of action against the uninsured to the Fund and agree to cooperate in any suit or trial which the Fund may bring against the uninsured. If a claimant does not cooperate at any time during the suit or trial, the claimant may be compelled to cooperate by court order.

The Fund may assign counsel to represent an uninsured owner or operator. The uninsured owner or operator shall cooperate with the Fund in the defense of the action. If the uninsured does not cooperate, the Fund may apply to the court for an order directing cooperation or may send the uninsured owner or operator notice of the Fund’s and counsel’s withdrawal in the manner provided for in Insurance Article, §20-606, Annotated Code of Maryland, and by rule of court.

The written notice which the Fund shall give of its proposed settlement or payment with the claimant under §E of this regulation shall be as follows:

(1)

Content of Notice. The notice shall:

(a)

Set forth the amount and all other pertinent terms of the proposed settlement or payment, as well as the terms and conditions of any repayment which the Fund shall require of the uninsured owner or operator;

(b)

Advise the uninsured owner or operator of the owner or operator's right to contest the proposed settlement or payment, as to the owner or operator's liability for the accident or the amount of the damages claimed, or both, by informing the Fund in writing of the uninsured's objection within 30 days of the date of mailing appearing on the notice;

(c)

Advise the uninsured owner or operator that judgment for the amount of the settlement may be entered and enforced against him.

(2)

Manner of Giving Notice. If the identity and whereabouts of the uninsured owner or operator are known or if his identity is known but his current whereabouts are unknown, the notice shall be sent by certified mail, return receipt requested, directed to his last known address, or his last address or record on file with the Motor Vehicle Administration of this State or of the state of his residence.

Subtitle 08 — Blind Industries and Services of Maryland

Chapter 01. Licensing for the Sale of Products Made by the Blind

Regulation .01 Intent of Regulations.Link Copy Citation

Pursuant to the intent of the Annotated Code of Maryland, these regulations are to assure that persons, associations, or corporations engaged in the business of selling products made by the blind conduct themselves in the highest ethical fashion and in no way impose a negative influence on the quality of lives lived by blind persons in the State.

These regulations are applicable to all persons, associations, or corporations selling products made by the blind, whether for profit or charitable purposes.

A person, association, or corporation may not include in its sales presentation the information that the products being sold were made by blind persons unless this information is used to demonstrate the quality of the product being sold.

Regulation .02 Application.Link Copy Citation

A person, association, or corporation desiring to sell products made by blind persons shall apply to the Blind Industries and Services of Maryland and use a form provided by the Blind Industries and Services of Maryland, which form, as amended from time to time, is incorporated herein and made a part of these regulations.

A person, association, or corporation may not commence the sale of products made by the blind before being issued a license by Blind Industries and Services of Maryland (“BISM”).

All applicants shall be required to submit at least the following information as part of the application:

(1)

Type of business organization and names and addresses of all persons investing monies and the amount of each investment;

(2)

The names and addresses of all persons who will be entitled to participate in the profits or receive dividends derived from the sale of products made by blind persons, or both, and the percentage each will receive;

(3)

The names and addresses and relationship to any other corporations, associations, or businesses that the applicant may have;

(4)

The location of the business and any leases that have been or will be entered into for this location;

(5)

Information to show compliance with laws governing employer-employee relations, including Equal Employment Opportunity regulations when applicable;

(6)

Information filed with the Maryland Department of Assessments and Taxation and the Internal Revenue Service;

(7)

The names, home addresses, ages, and compensation of all persons engaged in the sale or solicitation of sales of products made by blind persons;

(8)

The form and content of the sales approach to be used, including type of approach (that is, door-to-door, telephone), written sales presentation to be used, areas of the State to be canvassed, types of and dates of canvassing and solicitation, and names, addresses, and ages of persons to be used in particular areas of the State;

(9)

A list of products to be sold, purchase price, sale price, profit margin, and sources of products;

(10)

A projected profit and loss statement of the business and a current balance sheet and profit and loss statement.

A fee of 50 cents shall be charged for each license and each renewal of a license for persons, associations, or corporations residing or having their main office in Maryland. The license and renewal fee shall be $5 for those persons, associations, or corporations not residing or having their main office in Maryland.

Before the filing of this application or the sale of products made by blind persons, or both, applicants are required to read and understand Article 30, §30A, Annotated Code of Maryland, and these regulations.

Each license holder shall notify Blind Industries and Services of Maryland of any change or changes with respect to information furnished in its original application or subsequent renewal applications concerning sales approach, personnel, or areas of operations within 10 days after the change or changes occur.

Regulation .03 Renewal Application.Link Copy Citation

Annually, 30 days before the close of a calendar year subsequent to the original date of issuance of a license to sell products made by the blind, the license holder shall submit a renewal application. Renewal applications shall be obtained by written request to the Blind Industries and Services of Maryland.

Financial Statements. A license holder shall submit with the renewal application an annual financial statement covering its operations for the preceding fiscal year.

Regulation .04 Violations, Rejections, and evocations.Link Copy Citation

Violation of any of the following requirements shall subject an applicant or license holder, as the case may be, to rejection of an application, reprimand, suspension, or revocation of a license:

Incorrect or incomplete information in an original or renewal application;

Failure to inform Blind Industries and Services of Maryland of changes in personnel, sales approach, or area of operations as set forth in Items 6, 7, 17(a), 17(b), and 17(c) of the application;

Any misrepresentation with respect to a product being sold;

Any failure to conform to the provisions of Article 30, §30A, Annotated Code of Maryland, or these regulations.

Regulation .05 Procedure for Investigation of Complaints.Link Copy Citation

Any person who alleges by written complaint a violation of any law regulating the sale of products made by blind persons may initiate an investigation by Blind Industries and Services of Maryland. The complaint shall be accompanied by documents, contracts, or other records relevant to the complaint to the extent that these written materials exist.

Upon receipt of a sworn and written complaint, the Chairman of the Board of Trustees shall cause to be conducted a preliminary investigation of any person alleged to have violated the law, and a notice of preliminary investigation shall be delivered to all persons subject to this investigation. This notice shall contain a brief statement of the complaint and the sections of the law alleged to have been violated.

After the preliminary investigation, the complainant and the person subject to investigation shall receive a written report of the investigation with an opinion as to any probable cause of a violation of the law.

If probable cause of a violation is disclosed by the preliminary investigation, then all persons, including the complainant, shall be required to attend an informal conference in the offices of BISM. All other interested parties to the investigation shall be invited to attend.

The informal conference shall be for the purpose of explaining the law and the rights or duties of the parties with respect thereto with the intention of adjusting the complaint.

If the informal conference fails to adjust the complaint, any party (including the representative of BISM) may request a hearing by sending a written request to the Chairman of the Board of Trustees within 25 days after the informal conference.

The Chairman of the Board of Trustees shall have the discretion to order a hearing upon his own motion at any time within 25 days following the informal conference.

A notice of hearing with a brief statement of the allegations and references to the appropriate sections of the law shall be delivered to all parties involved.

The time and place of the hearing may not be changed unless 7 days prior thereto written notice is delivered to the Chairman of the Board of Trustees with reasonable grounds therefor, and granted by the Chairman.

Regulation .06 Procedure for Hearings on Complaints.Link Copy Citation

The matter shall be heard by a panel of three chosen by the Chairman of the Board of Trustees. One member of the panel shall be the President of BISM and two other members shall be chosen from the Board of Trustees. He shall designate one member as Chairman of the Panel.

The style of the complaint shall be called, and all persons summoned or who intend to give testimony shall be sworn.

The Chairman shall explain briefly the purpose and nature of the hearing.

Introduction of the following exhibits shall be made:

(1)

The written complaint;

(2)

Acknowledgement of the complaint;

(3)

Notice of the complaint and preliminary investigation;

(4)

Report of the preliminary investigation;

(5)

Notice of informal conference;

(6)

Written request for hearing;

(7)

Notices of hearing.

Counsel for any interested party may be heard on any preliminary objections, exceptions, or motions, provided counsel represents a person subject to some penalty under the law.

Introduction for identification only of any contracts, checks, notices, receipts, letters, files, or other documents relevant to the hearing shall be proffered.

Counsel for BISM shall conduct the initial examination of the witness, and any person subject to penalties under the law, or his counsel, shall be permitted to cross examine each witness in turn, after which counsel for BISM may examine the witness on redirect examination.

The rules of evidence of the Administrative Procedure Act, Article 41, §252, Annotated Code of Maryland, shall apply. A copy of this section shall be furnished to the parties at or before the hearing.

Any person subject to penalty under the law may introduce any testimony or other evidence in rebuttal or of any affirmative nature. Any witness so introduced shall be subject to cross examination.

Counsel for BISM or any person subject to penalty under the law may make any statement or argument relevant to the hearing.

If the hearing panel determines that there is probable cause to believe that a violation of Article 30, §30A, has been committed, it shall refer, within 7 days, its findings to the Office of the State's Attorney within the jurisdiction where the violation has occurred.

Regulation .07 Procedure for Hearings on Suspension or Revocation of Licenses.Link Copy Citation

The matter shall be heard by a panel selected as set forth in Regulation .06A.

The title of the case shall be called, and all persons summoned or who intend to give testimony shall be sworn.

The Chairman shall explain briefly the purpose and nature of the hearing, and shall recite the charges brought against the licensee, giving reference to the particular statute and sections thereof.

Counsel for any interested party may be heard for any preliminary objections, exceptions, or motions, provided counsel represents a person whose property rights may be affected by the hearing.

Introduction for identification only of any contracts, checks, notices, receipts, letters, files, or other documents relevant to the charges shall be proffered.

The Counsel for BISM shall conduct the initial examination of the witnesses and then any person subject to penalties under the law or his counsel shall be permitted to cross examine the witnesses, after which, the counsel for BISM may examine the witness on redirect examination.

Any person subject to penalty under the law may introduce any testimony or other evidence in rebuttal or of an affirmative nature. Any witness so introduced shall be subject to cross examination.

Counsel for BISM or any person subject to penalty under the law or through his attorney may make any statement or argument relevant to the hearing.

The rules of evidence of the Administrative Procedure Act, Article 41, §252, Annotated Code of Maryland, shall apply. A copy of the section shall be furnished to the parties at or before the hearing.

The hearing panel shall file in BISM's office its findings which may result in suspension or revocation of the respondent's license or a reprimand to the respondents and a statement of all facts considered by them upon which the findings are based. A copy of the findings shall be given to each party involved.

Regulation .08 Petition for Declaratory Rulings.Link Copy Citation

A licensee of BISM may petition the Chairman of the Board of Trustees for a ruling on the applicability of any regulation or of any statute to this licensee.

The petition shall state the regulation or statute to be considered and a concise statement of the facts.

The petition shall contain all statutes, judicial decisions, or regulations relevant to the issue.

The petitioner may request a hearing to present any argument in support of the issue.

The Chairman of the Board of Trustees, within 30 days from the presentation of the petition or the hearing, shall render a declaratory ruling on the petition.

Any declaratory ruling may be modified or reversed by the adoption of regulations after the ruling as provided in Article 41, §245, Annotated Code of Maryland.

Copies of all declaratory rulings shall be recorded in the office of BISM.

Regulation .09 Advertising.Link Copy Citation

Every advertisement shall state or clearly indicate the identity of the licensee in such a manner as to prevent confusion with the name of any other unrelated licensee.

A licensee may not advertise any statement or claims as to the superiority of any product which is not true.

A licensee may not advertise any warranties on any products which are not given to the customer in writing at the time of purchase.

All advertisements shall be submitted to the Chairman of the Board of Trustees of BISM at least 25 days before release. If the licensee does not receive a notice of disapproval from the Chairman at least 10 days before this advertising is to be released, then the licensee may proceed with this advertising on schedule. Any advertising which has not been disapproved may be repeated without further approval.

Subtitle 09 — Workers' Compensation Commission

Chapter 01. General Administrative

Regulation .01 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Affidavit” means a written statement the contents of which are affirmed under the penalties of perjury to be true.

(2)

“Automatic award” means the order finding the claim compensable when:

(a)

The employer or insurer files no response to an employee’s claim form by the consideration date in accordance with Labor and Employment Article, §9-713, Annotated Code of Maryland;

(b)

The employer or insurer files a response that the claim does not involve lost time; or

(c)

The employer or insurer files a response that the employer or insurer does not contest the claim.

(3)

“Certified mail” means mail deposited with the United States Postal Service, postage prepaid and return receipt requested.

(4)

“Claimant” means a person filing a workers' compensation claim and includes:

(a)

A covered employee;

(b)

A dependent of a deceased covered employee; or

(c)

An individual authorized to act on behalf of a dependent of a deceased covered employee.

(5)

“Commission” means either the Workers' Compensation Commission or its designee.

(6)

“CompHub” means the Commission’s online system designed to facilitate the filing and adjudication of workers’ compensation claims, and to provide other services related to workers’ compensation benefits.

(7)

“Consideration date” means the day by which the employer or its insurer must begin paying temporary total disability benefits, or file with the Commission any issue to contest the claim in accordance with Labor and Employment Article, §9-713, Annotated Code of Maryland.

(8)

“Contact information” means the name of a person submitting a document or of a person on whose behalf a document is being submitted, telephone numbers, personal or business addresses, email addresses, employer identification and address, or similar facts that make it possible for another to contact a person who is named in a document.

(9)

“Disputed workers' compensation claim” means a:

(a)

Newly filed claim from the date it is filed until the employer or insurer commences paying the claim or until the consideration date has expired;

(b)

New claim in which issues have been filed;

(c)

Pending claim in which one or more issues have been filed; or

(d)

Claim that is pending on appeal.

(10)

File.

(a)

“File” means to submit to the Commission a written claim, motion, request, or other document for action by the Commission.

(b)

“File” does not include a submission rejected by the Commission.

(11)

“Final award” means the award of compensation determined by the Commission after exhaustion of all applicable appeals, regardless of whether the award is increased or decreased as a result of any appeal.

(12)

“Formal set-aside allocation” means a document reflecting a comprehensive analysis and projection of future injury-related medical needs and associated costs.

(13)

“Healthcare provider delegate” means administrative or support staff designated by a health care provider to have access to basic claim information for the purpose of obtaining settlement, claim and hearing status information.

(14)

“Individual” means a human being.

(15)

“Insurer” means:

(a)

A stock corporation or mutual association that is authorized under the Insurance Article, Annotated Code of Maryland, to provide workers' compensation insurance in the State;

(b)

The Chesapeake Employers' Insurance Company authorized under Insurance Article, Title 24, Subtitle 3, Annotated Code of Maryland;

(c)

A governmental self-insurance group that meets the requirements of Labor and Employment Article, §9-404, Annotated Code of Maryland;

(d)

A self-insurance group of private employers that meets the requirements of Insurance Article, §§25-301—25-308, Annotated Code of Maryland; or

(e)

An individual employer that self-insures in accordance with Labor and Employment Article, §9-405, Annotated Code of Maryland.

(16)

“Insurer delegate” means administrative or support staff, designated by an insurer, to have access to all claim documents in all claims in which the insurer is a party for the purpose of filing documents and managing claims.

(17)

“Non-compromise case” means a case in which the employer/insurer has not contested liability or in which the Commission has found liability and in which the settlement compensates the claimant for anticipated future medical expenses.

(18)

“Paper” means a document filed with the Commission, whether in physical paper form or electronic form or format.

(19)

“Person” means:

(a)

An individual;

(b)

A general or limited partnership;

(c)

A joint stock company;

(d)

An unincorporated association or society;

(e)

A municipal or other corporation;

(f)

An incorporated association;

(g)

A limited liability partnership;

(h)

A limited liability company;

(i)

The State, its agencies or political subdivisions; or

(j)

A governmental entity.

(20)

“Proxy” means administrative or support staff, designated by an attorney, to have access to all claim documents in all claims in which the attorney has entered the attorney's appearance for the purpose of filing documents and managing claims.

(21)

“Role” means the functionality and type of account for which a user is authorized in CompHub and includes the following and their delegates and proxies:

(a)

Attorney;

(b)

Claimant;

(c)

Employer;

(d)

Insurer;

(e)

Healthcare provider or practitioner; and

(f)

Vocational rehabilitation provider or practitioner.

(22)

“Signature” includes electronic signature pursuant to Commercial Law Article, §21-101(i), Annotated Code of Maryland.

(23)

“State average weekly wage” means the State average weekly wage in effect on the date of the accident or date of disablement.

(24)

“Subpoena” means a written order directed to a person and requiring attendance at a particular time and place to take the action specified.

(25)

“Subscriber” means an authorized user in CompHub having the access applicable to the role for which the user is authorized.

(26)

“Subsequent Injury Fund” or “SIF” means the statutorily created entity, funded by assessments on workers' compensation awards and settlements, that may be a party to a claim and which pays benefits attributable to a compensable injury to previously injured body parts.

(27)

“Undisputed workers' compensation claim” means a claim in which all issues have been:

(a)

Withdrawn;

(b)

Resolved by a decision of the commission that is not appealed; or

(c)

Resolved on appeal.

(28)

“Uninsured Employers' Fund” or “UEF” means the statutorily created entity, funded by assessments on workers' compensation awards and settlements, that may be a party to a claim and which pays workers compensation awards made against an uninsured employer.

Regulation .02 Commission Forms.Link Copy Citation

Use of Commission forms, available on the Commission’s website or through CompHub, is mandatory. Use of Commission forms for any purpose for which they are not intended may result in delay or denial of the relief sought.

Where the Commission has not created a form but has directed that the party or attorney prepare its own petition or motion, the party or attorney shall draft and file the required papers.

Power of Attorney.

(1)

If a party files a form or document under power of attorney, the party shall:

(a)

Use a statutory form power of attorney in accordance with Estates and Trusts Article, §§17-101—17-204, Annotated Code of Maryland; and

(b)

File electronically a copy of the power of attorney with the Commission.

(2)

Only one copy of the power of attorney need be filed with the Commission.

Regulation .03 Service of Papers.Link Copy Citation

Service by Commission.

(1)

The Commission shall serve all notices, orders, and decisions, by:

(a)

Electronic means:

(i)

To each party’s attorney of record who has registered with CompHub and consents; and

(ii)

To each unrepresented party who has registered with CompHub and consents; or

(b)

First-class mail.

(2)

Commission notices, awards, orders, and decisions are sent by electronic means or mailed by first-class mail on the date of issue shown on the notice, award, order, or decision.

Service by Parties.

(1)

Except as otherwise provided in these regulations, a copy of every paper, form, or document filed with the Commission by a party shall be served promptly on all other parties.

(2)

If a party is represented by an attorney, service shall be made upon the attorney unless service on the party is directed by the Commission.

(3)

Service may be made by:

(a)

Handing the papers to the party or attorney;

(b)

Leaving the papers at that person's office with an individual in charge, or, if there is no one in charge, leaving the papers in a conspicuous place in the office, or, if the office is closed or the person has no office, leaving the papers at the person's usual place of residence with an individual of suitable age and discretion residing there;

(c)

Mailing the papers to the address most recently stated in a paper filed by the party or attorney, or if not stated, to the last known address; or

(d)

Electronic means.

(4)

Service by mail is complete upon mailing.

(5)

Service by electronic means is complete upon sending the electronic filing or service, but service is not effective if the person who filed with the Commission or the person who sent by electronic means learns that the paper did not reach the person to be served. This regulation does not make the Commission responsible for notifying a person who filed the paper with CompHub that an attempted transmission by CompHub failed. But a filer who learns that the transmission failed is responsible for making effective service.

(6)

Each paper filed that is required to be served shall be accompanied by a certificate of service, signed by the party or the party's attorney, showing the date and manner of making service on each of the other parties.

Regulation .04 Filing Forms and Documents with the Commission.Link Copy Citation

Forms and documents may be filed with the Commission by one of the following methods:

Electronically through CompHub;

In person at the Commission’s principal office in Baltimore City; or

By mail addressed to the Commission's principal office in Baltimore City.

Regulation .05 Hours of Business.Link Copy Citation

Except for legal holidays, the hours of business of the Commission are Monday through Friday, 8 a.m. to 4:30 p.m.

Regulation .06 Waiver of Strict Compliance.Link Copy Citation

When justice so requires, the Commission may waive strict compliance with these regulations.

Regulation .07 Powers and Duties of Commissioners.Link Copy Citation

A Commissioner shall:

(1)

Conduct a full, fair, and impartial hearing;

(2)

Take action to avoid unnecessary delay in the disposition of the proceedings; and

(3)

Maintain order.

A Commissioner has the power to regulate the course of the hearing and the conduct of the parties and authorized representatives, including but not limited to, the power to:

(1)

Administer oaths and affirmations;

(2)

Issue subpoenas for witnesses and the production of evidence;

(3)

Rule upon offers of proof and receive relevant and material evidence;

(4)

Consider and rule upon motions and requests;

(5)

Examine witnesses and call witnesses as necessary to ensure a full and complete record;

(6)

Limit repetitious testimony and reasonably limit the time for presentations;

(7)

Grant a continuance of a hearing;

(8)

Issue orders as are necessary to secure procedural simplicity and administrative fairness and to eliminate unjustifiable expense and delay;

(9)

Conduct the hearing in a manner suited to ascertain the facts and safeguard the rights of the parties to the hearing; and

(10)

Impose appropriate sanctions for the failure to abide by this chapter or any lawful order of the Commissioner.

Regulation .08 Referral for Fraud.Link Copy Citation

Pursuant to Labor and Employment Article, §9-310.2(a), Annotated Code of Maryland, any party may request that the Commission refer the case to the Insurance Fraud Division of the Maryland Insurance Administration for investigation.

A party requesting a referral to the Insurance Fraud Division shall complete a fraud referral form provided by the Commission.

Regulation .09 CompHub Conditions of Use.Link Copy Citation

A subscriber shall:

(1)

Provide the Commission with current contact information and promptly update this information as it changes; and

(2)

Abide by the terms of the service agreement available on CompHub, applicable to the role for which the user is authorized in CompHub.

Continued use of CompHub constitutes agreement to abide by the terms of the CompHub service agreement.

A subscriber’s CompHub subscription may be suspended or terminated if the subscriber:

(1)

Fails to provide the Commission with current contact information;

(2)

Fails to protect the subscriber’s username and password;

(3)

Uses the system in a manner inconsistent with its stated purpose;

(4)

Permits unauthorized use of the subscriber's account; or

(5)

Violates the terms of the service agreement available on CompHub, applicable to the role for which the user is authorized in CompHub.

Regulation .10 Notices Concerning Claims — Posting by Employer.Link Copy Citation

The employer shall keep conspicuously posted at places of employment controlled or operated by the employer all written notices provided to the employer by the Commission or the employer's insurance carrier (or prepared by the employer, if self-insured) that give instructions or convey information to persons interested in or entitled to benefits under Labor and Employment Article, Title 9, Annotated Code of Maryland.

Subtitle 09 — Workers' Compensation Commission

Chapter 02. Requirements for Filing and Amending Claims

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Apostille” means a certificate issued under the Apostille Convention authenticating the origin of a public document.

(2)

“Apostille Convention” means the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.

(3)

“Authorization for Disclosure of Health Information” means the executed release authorizing the disclosure of protected health information in accordance with Labor and Employment Article, §§9-709, 9-710, and 9-711, Annotated Code of Maryland.

(4)

“Certified copy” means a duplicate of an original document that is certified as a true and accurate copy by the officer having custody of the original.

(5)

“Competent authority” means an authority designated by a Contracting State as competent to issue apostilles.

(6)

“Foreign State” means a foreign sovereign state or country.

(7)

“State of origin” means the country where the document was created or issued.

(8)

“State Party” means a State that has joined the Apostille Convention, for which the Convention is in effect.

Regulation .02 Requirements for Filing and Amending Claims.Link Copy Citation

Claim for Benefits.

(1)

To initiate a claim for benefits, an employee shall file a claim form with the Commission as follows:

(a)

If represented by counsel, counsel shall file the claim on behalf of the employee electronically through CompHub; or

(b)

If unrepresented by counsel, the employee may file the claim:

(i)

Electronically through CompHub; or

(ii)

By paper form.

(2)

The Commission shall reject a claim form that does not contain sufficient information to process the claim, including:

(a)

The employee's name;

(b)

The employee's address;

(c)

The employee's date of birth;

(d)

The date of the accident or occupational disease;

(e)

The member of the body that was injured;

(f)

A description of how the accidental injury or occupational disease occurred; and

(g)

The employee's employer's name and address.

(3)

Parties and attorneys of record shall notify the Commission of any change in their contact information within 30 days of the change. The Commission may rely on the latest information received by it for service of any papers.

(4)

The employee shall sign the claim form certifying that the information submitted on the claim form is accurate.

(5)

When completing the claim form, the claimant shall sign an authorization for disclosure of health information for the release to the claimant's attorney, the claimant's employer, the employer's insurer, the Subsequent Injury Fund, the Uninsured Employers’ Fund, or any agent thereof, the claimant's medical information that is relevant to:

(a)

The member of the body that was injured by an accident or occupational disease, as indicated on the claim form; and

(b)

The description of how the accidental injury or occupational disease occurred, as indicated on the claim form.

(6)

Revocation of Authorization.

(a)

A claimant may revoke an authorization for disclosure of health information in writing.

(b)

The claimant shall serve a copy of the written revocation on all parties in the case.

(7)

The Commission shall reject a claim form that does not contain a signed authorization for disclosure of health information.

(8)

Date of Filing When Filed by Paper Form.

(a)

Except as provided in §A(9) of this regulation, a claim is considered filed on the date that a completed and signed claim form, including the signed authorization for disclosure of health information, is received by the Commission in person or by mail addressed to the Commission’s principal office in Baltimore City.

(b)

For any claim form that has not been rejected as incomplete under §A(2) of this regulation, the Commission’s date of receipt is determined by the date stamp affixed on the claim form.

(9)

Date of Filing When Submitted Electronically.

(a)

For any claim form that has not been rejected under §A(2) of this regulation, the date of receipt is determined by the date stamp affixed on the electronically submitted claim form, provided that the signed claim form, including the signed authorization for disclosure of health information, is verified by the Commission.

(b)

A claim electronically submitted but not verified by the Commission as provided in §A(9)(b) of this regulation is not considered filed.

Social Security Number.

(1)

Voluntary Disclosure of Social Security Number.

(a)

On the claim form, the Commission shall request the Social Security Number of each claimant for workers' compensation benefits.

(b)

The disclosure of the Social Security Number by the claimant on the claim form is voluntary.

(2)

Use of Social Security Number.

(a)

The Commission may use the Social Security Number for the following purposes:

(i)

Verifying wage records of a claimant;

(ii)

Verifying the identity of a claimant;

(iii)

Identifying a claimant who has changed his or her name;

(iv)

Verifying medical records necessary to adjudicate workers' compensation claims;

(v)

The administration and enforcement of Maryland's workers' compensation laws;

(vi)

The collection of any debts owed as a result of the claimant's failure to pay child support under Title 10 of the Family Law Article; and

(vii)

Assisting in the enforcement of child support orders as required by State and federal laws.

(b)

The Commission may not use the social security number for any purpose not authorized under this regulation or by state or federal law.

Amendment of Claim to Add or Remove a Body Part.

(1)

A claimant may amend a claim to add or remove a member of the body by filing with the Commission a claim amendment form.

(2)

A claimant shall serve a copy of a claim amendment form on the parties of record.

(3)

The claimant shall sign the claim amendment form certifying that the information submitted on the claim amendment form is accurate.

(4)

When completing the claim amendment form, the claimant shall sign an authorization for disclosure of health information authorizing the claimant's health care providers to disclose to the claimant's attorney, the claimant's employer, the employer's insurer, the Subsequent Injury Fund, the Uninsured Employers’ Fund, or any agent thereof, the claimant's medical information that is relevant to the member of the body identified by the claim amendment form.

(5)

The Commission shall reject a claim amendment form that does not contain a signed authorization for disclosure of health information.

Regulation .03 Adding or Impleading a Party.Link Copy Citation

A party may amend a claim to add another party by filing a request to implead a party form.

A party may amend a claim to add an employer, a statutory employer, an insurance carrier, the Subsequent Injury Fund or the Uninsured Employers’ Fund.

Impleading the Subsequent Injury Fund.

(1)

A party impleading the Subsequent Injury Fund more than 30 days before a scheduled hearing date shall file a request to implead a party form and shall serve the SIF with a copy of the form.

(2)

A party impleading the SIF within 30 days of a scheduled hearing date shall:

(a)

File a request to implead a party form;

(b)

Serve the SIF with a copy of the form; and

(c)

File with the form a declaration setting forth the moving party's prima facie case for alleging the involvement of the SIF, including, but not limited to, identification of the evidence the party intends to rely on to prove the liability of the SIF.

(3)

Within 10 days of filing the request to implead a party form, and any other required documents, the impleading party shall provide the following to the SIF and all other parties to the claim:

(a)

All prior awards or settlements, identified by claim number if available, to the claimant for permanent disability made or approved by the Commission, or by a comparable Commission of another state, or the District of Columbia;

(b)

All relevant medical evidence relied on to implead the SIF; and

(c)

A certification providing that a copy of the request to implead a party form, along with all required information and documents, have been served on the SIF and all other parties to the claim.

(4)

A party who fails to comply with this regulation or causes unreasonable delay without good cause is subject to an assessment of costs and reasonable attorney fees under Labor and Employment Article, §9-734, Annotated Code of Maryland.

Regulation .04 Death and Funeral Benefits.Link Copy Citation

Election for Counties and Municipal Corporations.

(1)

A county or municipal corporation may elect for the death benefits provisions of Labor and Employment Article, §§9-683.1—9-683.5, Annotated Code of Maryland, to apply to its public safety employees subject to the statutory presumption set forth in Labor and Employment Article, §9-503, Annotated Code of Maryland.

(2)

A county or municipal corporation may make this election by:

(a)

Completing an online form, available at the Commission's website; and

(b)

Attaching a copy of the county or municipal corporation's ordinance or resolution making the election.

(3)

The Commission shall issue a date-stamped notice advising the county or municipal government of its receipt of the election.

(4)

The date stamp of the Commission's notice will be used as the effective date of the election.

(5)

All death benefit claims arising out of a death that occurred after the date of election are subject to the death benefits provisions set forth in Labor and Employment Article, §§9-683.1—9-683.5, Annotated Code of Maryland.

Dependent Claim for Death Benefits.

(1)

To initiate a claim for death benefits, a dependent of the deceased employee or an individual authorized to act on behalf of the dependent claimant shall file a dependent death benefits claim form with the Commission.

(2)

The Commission may reject a claim form that does not contain sufficient information to process the claim including:

(a)

The dependent claimant's name and, if applicable, the authorized individual's name;

(b)

The dependent claimant's address and, if applicable, the authorized individual's address;

(c)

The deceased employee's name;

(d)

The deceased employee's address;

(e)

The deceased employee's date of birth;

(f)

The date of the accident or occupational disease;

(g)

The member of the deceased employee's body that was injured;

(h)

A description of how the accidental injury or occupational disease occurred;

(i)

The deceased employee's date of death; and

(j)

The deceased employee's employer's name and address.

(3)

If the information set forth in §B(2) of this regulation is unavailable or does not exist the claimant shall:

(a)

Enter all zeros (0) in the spaces provided for the information; and

(b)

Attach a signed statement certifying that the information is unavailable or does not exist.

(4)

Signature.

(a)

The dependent claimant or authorized individual shall sign the dependent death benefit claim form.

(b)

An authorized individual shall submit documentation establishing his or her authority to act on behalf of the dependent claimant with the claim form.

(5)

Submission of Supporting Documentation.

(a)

When completing the dependent death benefits claim form, the dependent claimant or authorized individual shall submit:

(i)

An authorization for disclosure of health information signed by the dependent claimant or authorized individual, directing the deceased employee's health care providers to disclose to the dependent claimant's attorney, the deceased employee's attorney, the deceased employee's employer, the employer's insurer, or any agent thereof, the deceased employee's medical records that are relevant to:

The member of the body that was injured by an accident or occupational disease, as indicated on the claim form; and

The description of how the accidental injury or occupational disease occurred, as indicated on the claim form;

(ii)

A certification of funeral expenses, if the dependent claimant is making a claim for funeral benefits, which shall:

Include the name of the deceased employee;

Include an attached itemized statement of the services performed and corresponding costs;

Be signed by the provider of the funeral services or undertaker; and

Be signed by the person authorizing the burial or other services.

(iii)

A certified copy of the certificate of death for the deceased employee;

(iv)

A certified copy of the certificate of marriage for the dependent claimant and deceased employee, if the dependent claimant is the surviving spouse of the employee; and

(v)

A certified copy of the certificate of birth for the dependent claimant, if the dependent claimant is the surviving child of the deceased employee.

(b)

Prior to the scheduled hearing on the death claim, the dependent claimant or authorized individual who filed the claim shall submit:

(i)

Proof of family income at the date of the accidental personal injury or disablement;

(ii)

An affidavit attesting to the authenticity of the documents submitted as proof of family income; and

(iii)

If applicable, copies of any legal documents or orders directing the deceased employee to pay child support or alimony.

(c)

Proof of family income may include:

(i)

Payroll stubs or wage records covering the 14-week period prior to the accidental injury or date of disablement;

(ii)

W-2s;

(iii)

1099 forms or other evidence of earnings from self-employment; and

(iv)

Tax returns.

(d)

If the dependent claimant or authorized individual does not have access to proof of income records for some alleged dependent claimants, the dependent claimant or authorized individual shall submit evidence demonstrating the efforts made to obtain these records, including any Commission subpoenas.

(6)

Revocation of Authorization.

(a)

A dependent claimant or authorized individual may revoke an authorization for disclosure of health information in writing.

(b)

The dependent claimant or authorized individual shall serve a copy of the written revocation on all the parties in the case.

(7)

The Commission shall reject a dependent death benefits claim form that does not contain a signed authorization for disclosure of health information.

(8)

Date of Filing.

(a)

A claim is considered filed on the date that a completed and signed claim form, including the signed authorization for disclosure of health information, is received by the Commission.

(b)

The Commission's date of receipt is determined by the date stamp affixed on the claim form.

(9)

Electronic Submission.

(a)

A dependent death benefits claim that is submitted electronically is not considered filed until the signed claim form, including the signed authorization for disclosure of health information, is received by the Commission.

(b)

The Commission's date of receipt is determined by the date stamp affixed on the claim form.

Claim for Funeral Benefits Only.

(1)

If the deceased employee has no dependents, any person or entity responsible for paying, or who has paid, the deceased employee's funeral expenses may initiate a claim for funeral benefits by filing with the Commission a signed funeral benefits only claim form certifying that the information submitted on the form is accurate.

(2)

The Commission may reject a funeral benefits only claim form that does not contain sufficient information to process the claim including:

(a)

The filing party's name and address;

(b)

The deceased employee's name and address;

(c)

The deceased employee's employer's name and address;

(d)

The date of accident or occupational disease; and

(e)

The deceased employee's date of death.

(3)

When completing the funeral benefits only claim form the filing party shall attach a certification of funeral expenses, which shall:

(a)

Include the name of the deceased employee;

(b)

Include an attached itemized statement of the services performed and corresponding costs;

(c)

Be signed by the provider of the funeral services or undertaker; and

(d)

Be signed by the person authorizing the burial or other services.

Regulation .05 Foreign Documents.Link Copy Citation

When a document or public record required by this chapter was created or issued in a foreign state the Commission may not accept as supporting documentation:

(1)

Photocopies;

(2)

Facsimile copies;

(3)

Notarized copies; or

(4)

Documents with alterations or erasures.

When a document or public record required by this chapter was created or issued in a foreign state and the state of origin is a State Party to the Apostille Convention, the party submitting the document shall:

(1)

Have a competent authority of the State of origin issue an apostille for the original or a certified copy of the document; and

(2)

Attach to the apostilled document, an English translation of the document prepared pursuant to this regulation.

When a document or public record required by this chapter originated in a foreign State and the State of origin is not a State Party to the Apostille Convention, the party submitting the document shall:

(1)

Submit the public document with a written declaration (certificate) authenticating the signature/seal/stamp, signed in the State of origin which, if falsely made, would subject the maker to a criminal penalty under the laws of that foreign State;

(2)

Attach to the document and certificate, a final certification as to the genuineness of the signature and official position of:

(a)

The individual executing the certificate; or

(b)

Any foreign official who certifies the genuineness of signature and official position of the executing individual, or is the last in a chain of certificates that collectively certify the genuineness of signature and official position of the executing individual; and

(3)

Attach to the document and certificate or certificates, an English translation of the document prepared pursuant to this regulation.

A final certificate may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign State who is assigned or accredited to the United States.

English Translation.

(1)

An English translation of any document authenticated by an apostille or by a final certificate shall include:

(a)

The typed or printed name and telephone number of the interpreter or translator; and

(b)

A signed certification by the interpreter or translator that the translation is true, accurate, and complete.

(2)

A party shall have the English translation prepared by:

(a)

An interpreter or translator whose name appears on the State of Maryland Court Interpreter Registry; or

(b)

The embassy of the state from which the document originates.

An attorney who advances the cost of having a foreign document authenticated, translated, or both, is entitled to recover the actual amount expended.

Regulation .06 Claim for Unpaid Compensation of Deceased Claimant.Link Copy Citation

A person seeking unpaid compensation payments as a dependent of a deceased covered employee under Labor and Employment Article, §9-632, 9-640, or 9-646, Annotated Code of Maryland, shall file an issue form in the same claim.

A person seeking these benefits shall produce at the hearing proof of dependency and proof of death which may include a death certificate, marriage certificate, and birth certificate or order of adoption for any surviving children.

Regulation .07 Notice of Claim to Employer and Insurer.Link Copy Citation

After a claim is filed, the Commission shall send a notice of claim to all parties listed on the claim form and identified through the Commission’s database of insurers and employers.

Insurer Identified.

(1)

If an insurer has been identified, the Commission shall send a response to employee’s claim form to the insurer for completion.

(2)

The insurer shall file a completed response to employee’s claim form with the Commission.

No Insurer Identified.

(1)

If no insurer has been identified, the Commission shall send a response to employee’s claim form to the employer.

(2)

The employer shall file a completed response to employee’s claim form with the Commission.

(3)

If an employer is not insured, the Commission shall send a response to notification to employer for insurance information form to the employer and a questionnaire to the claimant.

(4)

The employer shall file the completed form with the Commission and send copies of the completed form to the Uninsured Employers' Fund.

(5)

The claimant shall file the completed questionnaire with the Commission and concurrently send a copy to the Uninsured Employers’ Fund.

(6)

No hearings on issues filed by the claimant shall be scheduled until the claimant has completed and filed the claimant's questionnaire.

If no response to employee’s claim form is filed by the consideration date an automatic award order will be issued finding the claim compensable.

Regulation .08 Electronic Filing by Employer and Insurer.Link Copy Citation

After a claim is filed, an employer and insurer who is represented by counsel shall file any response and any subsequent paper electronically through CompHub.

Subtitle 09 — Workers' Compensation Commission

Chapter 03. Hearing Procedures

Regulation .01 Definitions.Link Copy Citation

In this chapter, the following term has the meaning indicated.

“Person in interest” means:

(1)

An adult on whom a health care provider maintains a medical record;

(2)

A person authorized to consent to health care for an adult pursuant to a grant of authority; and

(3)

A duly appointed personal representative of a deceased person.

Regulation .02 Filing and Withdrawing Issues.Link Copy Citation

At the beginning of the claim, the employer or insurer may raise issues by filing the response to employee’s claim form.

After the claim has commenced, any party may raise an issue by filing an issues form, available on the Commission website.

The following kinds of issues may be raised by filing an issues form:

(1)

Whether the employee sustained an injury causally related to an accident that arose out of and in the course of employment;

(2)

Whether the disability of the employee is causally related to the accidental injury;

(3)

Whether the employee sustained a compensable hernia;

(4)

Whether the employee sustained an occupational disease;

(5)

Average weekly wage;

(6)

Limitations;

(7)

Jurisdiction;

(8)

Statutory employment;

(9)

Medical expenses;

(10)

Vocational rehabilitation issues not requiring the expedited process of COMAR 14.09.07.12;

(11)

Attorneys’ fees/costs;

(12)

Penalties;

(13)

Whether the employee is entitled to temporary partial and temporary total disability benefits;

(14)

The nature and extent of a permanent disability to specified body parts;

(15)

Authorization for medical treatment; and

(16)

Other issues when articulated with specificity.

On the issues form, the party shall state with clarity issues to be determined and shall, if relevant:

(1)

Include the inclusive dates of any temporary total disability;

(2)

For permanent disability, identify each part of the body affected, and any alleged psychiatric disability;

(3)

Specifically plead permanent total disability;

(4)

Include the specific medical treatment sought; and

(5)

For any medical expenses, attach a list identifying each amount owed and to whom the amount is owed.

The party who has raised issues may withdraw those issues by:

(1)

Filing a request for action on filed issues form; or

(2)

Verbally requesting that the issues be withdrawn at the scheduled hearing.

A party that has filed issues and is not ready to proceed at the hearing shall withdraw the issues.

A party that withdraws issues may not refile the same issues for a period of 90 days.

A party may request an exemption from the prohibition against refiling issues within the 90-day period by filing a request for hearing on previously withdrawn issues form. Any supporting documentation shall be attached to the form.

If the Commission grants the request for exemption, the Commission shall:

(1)

Issue a memorandum granting the request; and

(2)

Schedule a hearing on the previously withdrawn issues.

A party who fails to comply with this regulation, or causes unreasonable delay without good cause, may be subject to an assessment of costs and reasonable attorney fees under Labor and Employment Article, §9-734, Annotated Code of Maryland.

Regulation .03 Hearing Notices.Link Copy Citation

The Commission shall schedule a hearing on the issues identified on the issues form, or on the response to employee’s claim form, unless a hearing is already scheduled or set to be scheduled, and shall send written notice to all parties of the scheduled hearing date.

A hearing notice issued by the Commission shall contain:

(1)

The date the notice was issued; and

(2)

The date, time and place of the hearing.

Regulation .04 Interpreters and Other Accommodations.Link Copy Citation

Interpreter and Other Accommodations.

(1)

If a party or witness cannot adequately hear, speak, or understand the spoken or written English language the Commission shall provide an interpreter or other reasonable accommodation service necessary for the party or witness to participate fully in the Commission proceedings.

(2)

If a party, witness or individual having business with the Commission requires another form of accommodation to participate in Commission proceedings, the Commission shall take reasonable steps to provide a reasonable accommodation for the individual.

Request Required.

(1)

Within 10 days of the date the Commission provides notice that issues have been filed, an individual requiring an interpreter or other accommodation shall make a request to the Commission Interpreter Program Office that specifies:

(a)

The identity of the individual requiring the service;

(b)

Date and location of hearing, if known;

(c)

The language or other accommodation service being requested;

(d)

Contact information for the service/accommodation requestor or their representative; and

(e)

Any other information that may assist the Commission in providing the requested interpreter service or accommodation.

(2)

Unless represented by counsel or registered with CompHub, an individual requiring an interpreter or other accommodation shall request an interpreter or other accommodation by:

(a)

Telephoning the Commission Interpreter Program Office telephone line available on the Commission website; or

(b)

Telephoning the Commission's main telephone line through the TTY service through Maryland Relay available on the Commission's website.

(3)

If represented by counsel or registered with CompHub, an individual requiring an interpreter or other accommodation shall request an interpreter or other accommodation by using CompHub.

(4)

Upon receipt of a timely request for services, the Commission Interpreter Program Office shall:

(a)

Schedule an interpreter, or accommodation service; or

(b)

Engage in a dialogue about the requested accommodation.

Except as provided in §D of this regulation, the Commission shall pay the fee for interpreter or other reasonable accommodation service requested pursuant to this regulation.

Notification of Cancellation and Fees. An individual who has scheduled an interpreter or accommodation service under §B(2) of this regulation may cancel the requested service by notifying the Commission Interpreter Program Office, in the manner prescribed by the Commission, that the requested service is no longer required.

An individual may be assessed the service minimum fee if:

(1)

A matter is resolved more than 2 days prior to the hearing; and

(2)

The service is not cancelled.

A party may not provide his or her own interpreter.

Regulation .05 Subpoenas.Link Copy Citation

Use of Subpoenas.

(1)

A subpoena is required to compel the person to whom it is directed to attend, give testimony, and produce designated documents or tangible things at a Commission proceeding or at a deposition held pursuant to Labor and Employment Article, §9-719(b), Annotated Code of Maryland.

(2)

On a request of a party to a claim on which issues are currently pending, the Commission shall issue a subpoena for relevant documentation to be produced at the office of the requesting party and distributed to all parties to the claim in accordance with §G of this regulation.

Procedure for Obtaining Subpoena.

(1)

A CompHub subscriber entitled to the issuance of a subpoena shall obtain a subpoena by using CompHub.

(2)

On the request of an individual who is entitled to the issuance of a subpoena and who is not a CompHub subscriber, the Commission shall provide a blank form of the subpoena which shall be filled in and returned to the Commission clerk to be signed and sealed before service.

(3)

Unless impracticable, subpoenas shall be served at least 10 days before the hearing.

Form of Subpoena.

(1)

Every subpoena shall contain:

(a)

The caption of the claim and claim number;

(b)

The name and address of the person to whom it is directed;

(c)

The name of the person at whose request it is issued;

(d)

The date, time, and place where attendance is required; and

(e)

A description of any documents or tangible things to be produced.

Medical Records and Financial Records.

(1)

Medical Records.

(a)

Every subpoena seeking the production of medical records shall comply with Health General Article, §4-306, Annotated Code of Maryland.

(b)

A party seeking medical records by subpoena shall certify that the party has complied with the notice provisions of Health General Article, §§4-305—4-307, Annotated Code of Maryland.

(2)

Financial Records or Information Derived from Financial Records.

(a)

Every subpoena seeking the production of financial records or information derived from financial records shall comply with Financial Institutions Article, §1-304, Annotated Code of Maryland.

(b)

A party seeking financial records or information derived from financial records by subpoena shall certify that the party has complied with the notice provisions of Financial Institutions Article, §1-304, Annotated Code of Maryland.

(3)

Within 30 days of the date that notice of intent to subpoena medical records was mailed, a person in interest may oppose the disclosure of their medical records by:

(a)

Filing an objection using the appropriate form with the Commission; and

(b)

Serving a copy of the objection to all parties.

(4)

Upon receipt of an objection to subpoena of medical records, the Commission shall schedule a hearing to determine:

(a)

Whether the subpoena should be quashed;

(b)

Whether the subpoena should be limited in scope or otherwise modified; and

(c)

Other appropriate relief.

Service of Subpoenas.

(1)

Subpoenas may be served:

(a)

In addition to any method allowed by law, in accordance with the Maryland Rules; or

(b)

By certified mail to an unrepresented individual.

(2)

The subpoena may not be enforced pursuant to Labor and Employment Article, §9-717, Annotated Code of Maryland, absent proof of service by certified mail or personal delivery.

(3)

Costs of certified mailing or personal delivery of the subpoena are the responsibility of the person requesting the service.

(4)

Proof of service by certified mail or personal delivery is the responsibility of the person requesting the subpoena.

Return of service shall be made as follows:

(1)

When service is by certified mail, by the filing of the original return receipt; or

(2)

When service is by personal delivery, by the filing of an affidavit, signed by the individual who made service, containing:

(a)

The name of the individual served;

(b)

The date on which the individual was served;

(c)

The particular place of service; and

(d)

A statement that the server is 18 years old or older and not a party to the proceeding or related by blood or marriage to a party to the proceeding.

Distribution of Documentation. Except as otherwise provided by law, the requesting party shall serve promptly on all other parties to the claim copies of all documentation produced in response to a subpoena.

Enforcement of Subpoenas.

(1)

If an individual fails to comply with a properly served subpoena, pursuant to Labor and Employment Article, §9-717, Annotated Code of Maryland, the party wishing to enforce the subpoena shall file with the Commission a written request for the enforcement of the subpoena.

(2)

The request shall:

(a)

State, with specificity:

(i)

When and how the subpoena was served; and

(ii)

Why the testimony or documents sought are necessary for the resolution of the issue; and

(b)

Be accompanied by copies of the subpoena and any proof of service, return receipt, or affidavit.

(3)

Upon determining that the subpoena was issued and served in compliance with the law, the Commission may and, on request of a party to the proceeding, shall apply to the appropriate circuit court for an order to show cause why the individual should not be imprisoned for failing to comply with a subpoena.

Sanctions. If the Commission, after an evidentiary hearing, determines that a subpoena was requested in bad faith, the Commission may assess against the requesting party the whole cost of the proceeding, including reasonable attorney’s fees.

Regulation .06 Average Weekly Wage.Link Copy Citation

Preliminary Determination. For the purpose of making an initial award of compensation before a hearing in the matter, the Commission shall determine the claimant's average weekly wage from gross wages, including overtime, reported by the claimant on the employee's claim form.

Filing of Wage Statement. As soon as practicable, the employer/insurer shall file a wage statement containing the following information:

(1)

The average wage earned by the claimant during the 14 weeks before the accident, excluding the time between the end of the last pay period and the date of injury, provided that periods of involuntary layoff or involuntary authorized absences are not included in the 14 weeks;

(2)

Those weeks the claimant actually worked during the 14 weeks before the accident;

(3)

Vacation wages paid; and

(4)

Those items set forth in Labor and Employment Article, §9-602(a)(2), Annotated Code of Maryland.

Determination at First Hearing.

(1)

Calculation of the average weekly wage shall be adjudicated and determined at the first hearing before the Commission.

(2)

All parties shall be prepared to produce evidence from which the Commission can determine an accurate average weekly wage at the first hearing.

(3)

If the Commission determines that an inaccurate average weekly wage resulted in the overpayment or underpayment of benefits, the Commission may order:

(a)

A credit against future permanent disability benefits;

(b)

The payment of additional compensation; or

(c)

Any other relief the Commission determines is appropriate under the circumstances.

Uninsured Employers' Fund. The Uninsured Employers' Fund may contest the average weekly wage determined by the Commission under §A or C of this regulation, along with other issues as authorized by Labor and Employment Article, §9-1002, Annotated Code of Maryland, by filing issues on the form prescribed by the Commission.

Regulation .07 Disclosure of Medical Information.Link Copy Citation

Parties' Continuing Duty to Disclose Medical Information.

(1)

When a claim or an issue is filed with the Commission, each party promptly shall provide to all other parties copies of all relevant medical information in the possession of the party or that is subsequently received by the party, but not previously provided.

(2)

For the purpose of this regulation, medical information in the possession of, or received by, the party's agent or attorney is considered to be in possession of the party.

(3)

The duty to disclose applies to all medical information including reports, evaluations, tests, and bills, and continues during the pendency of the claim.

Duty to Provide Medical Authorization.

(1)

Unless the Commission orders otherwise for good cause shown, a party shall provide to any other party, on written request, a medical authorization or release.

(2)

The parties shall, in good faith, attempt to resolve any issues concerning the scope of the requested medical authorization or release.

(3)

Failure to comply with this regulation may result in sanctions including attorneys’ fees and costs, delay, and the exclusion of any evidence not properly disclosed.

Motion to Compel Medical Authorization.

(1)

Upon the failure of a party to provide an executed medical authorization, the party seeking the medical authorization may file a motion to compel medical authorization form.

(2)

A motion to compel medical authorization form shall:

(a)

Be filed electronically;

(b)

Be served on all parties of record; and

(c)

Contain the claimant's name, date of accident/disablement, the health care provider's name, and the body parts or medical conditions to which the authorization/release applies.

(3)

A party may oppose the motion by filing a response to motion to compel medical authorization form.

(4)

A response to motion to compel medical authorization form shall:

(a)

Be filed within 7 days after receipt of the motion;

(b)

Be filed electronically;

(c)

Be served by hand delivery or facsimile on all parties of record; and

(d)

State with particularity the reasons for failing to provide the requested medical authorization;

(5)

The motion shall be decided on the papers filed.

Regulation .08 Medical Examinations.Link Copy Citation

Medical Examinations Ordered by the Commission.

(1)

The Commission may order that the claimant be examined, at the Commission's expense, by the Commission's medical examiner or by some other physician, psychologist, or psychiatrist selected by the Commission.

(2)

The claimant shall report to the office of the examining physician at the time scheduled by the physician for the examination.

(3)

If the claimant is physically unable to report to the physician's office, the examination may be conducted wherever the claimant is located or is physically able to report.

(4)

When the examining physician's report is filed, the Commission shall serve on all parties:

(a)

A copy of the report; and

(b)

A notice that any written objection to the report shall be filed within 15 days after the date of the notice.

(5)

A written objection may be made by written letter filed with the Commission and shall state clearly the reasons for objecting to the examining physician’s report.

(6)

If no written objection is timely filed, the Commission may consider the report, along with any other admissible evidence presented, in deciding the claim.

(7)

If an objection is timely filed, the Commission shall schedule a hearing on the matter.

Medical Examination Requested by a Party.

(1)

A party may schedule a medical examination of the claimant with a physician, psychologist, or psychiatrist chosen by the party, by providing to the claimant and claimant's counsel reasonable notice of the examination in writing.

(2)

The party scheduling a medical examination of the claimant shall be responsible for all reasonable expenses associated with the examination.

(3)

The parties shall, in good faith, attempt to resolve any differences in scheduling and scope of examination.

(4)

A claimant shall appear for a scheduled medical examination.

(5)

If a claimant fails to appear, refuses to submit, or fails to cooperate with the medical examination, the party requesting the examination may file an Issues form for a hearing to compel a medical examination and for reimbursement of reasonable expenses and costs.

(6)

If a claimant fails to appear at, refuses to submit to, or fails to cooperate with the medical examination, without good cause, the Commission may order the claimant to attend a medical examination and order reimbursement of the reasonable expenses and costs actually incurred because of the missed examination.

Appearance by Examining Physician. A party requesting the appearance of an examining physician, psychologist, or psychiatrist at a hearing shall pay the appearance fee imposed by the provider.

Regulation .09 Hearing Exhibits and Witnesses.Link Copy Citation

Mandatory Exchange of Hearing Exhibits.

(1)

Parties shall file exhibits, prepared in accordance with §D of this regulation, with the Commission through CompHub at least 3 business days prior to each hearing, with the following exceptions:

(a)

Exhibits intended solely for impeachment; and

(b)

Exhibits previously filed with the Commission.

(2)

Parties shall exchange exhibits by electronic means with all other parties at least 3 business days prior to each hearing.

(3)

Failure to comply with this provision may result in sanctions.

Confidential Information.

(1)

If sensitive material must be brought to the attention of a Commissioner for the proper adjudication of a matter in dispute, the party seeking the admission of the sensitive or restricted material may request to brief the Commissioner in-chambers regarding the subject matter only after providing notice to opposing counsel.

(2)

A request to admit sensitive or restricted material shall be granted or denied at the Commissioner's discretion.

General Rules Concerning Hearings.

(1)

On any genuine issue, each party is entitled to call witnesses, offer evidence, and cross-examine any witness who testifies.

(2)

A hearing shall be called to order by the Commissioner. The Commissioner may allow the parties to present preliminary matters.

(3)

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

(4)

A Commissioner may admit evidence that reasonable and prudent individuals commonly accept in the conduct of their affairs, and give probative effect to that evidence.

Hearing Exhibits. Each party shall prepare an exhibit that:

(1)

Includes all documents that have not been filed previously with the Commission that are relevant and necessary to decide the issue or issues to be heard;

(2)

Is paginated; and

(3)

Includes a table of contents that indicates the first page of each document contained in the exhibit, and the name of the health care provider, the date of the report, and date of treatments.

Sequestration of Witnesses.

(1)

Upon request by a party, the Commissioner may exclude witnesses other than parties from the hearing room, except when testifying.

(2)

A party, representative, witness, or spectator may not disclose to a witness excluded under this section the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during that witness's absence.

(3)

A party that is not an individual may designate an employee or officer as its representative to remain in the hearing room, even though the employee or officer 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.

(5)

The Commissioner may exclude the testimony of a witness who receives information in violation of this section, or take other appropriate action.

Stipulations.

(1)

The parties may, in accordance with law, 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 Commissioner may require additional development of stipulated matters.

(4)

The parties filing a stipulation shall attach to the stipulation, or submit to the Commissioner at the hearing, documentation supporting the stipulation.

Expert Testimony.

(1)

If a party wishes to have an expert witness appear and testify, other than a vocational rehabilitation counselor, the party must seek prior approval from the Chairman.

(2)

The party shall submit a letter stating why oral testimony is necessary in lieu of documentary evidence.

(3)

The party producing the expert witness shall be responsible for any fees charged by the expert for appearing and testifying.

Regulation .10 Consequence of Nonappearance by Claimant.Link Copy Citation

When a claimant, without good cause, fails to appear at a hearing on issues contesting the compensability of a claim, the Commission may dismiss the claim.

When a claimant, without good cause, fails to appear at a hearing on issues in a compensable claim, the Commission may proceed ex parte and may decide the issues based on information on file with the Commission, together with any evidence presented at the hearing.

Regulation .11 Request for Emergency Hearing.Link Copy Citation

A party may request an emergency hearing by filing a Request for emergency hearing form.

A party may request an emergency hearing on the following bases:

(1)

Continuing temporary total disability and exigent circumstances causing undue financial hardship;

(2)

Proposed urgent medical treatment; or

(3)

Other truly exigent circumstances causing undue hardship.

A request for an emergency hearing shall be accompanied by supporting medical documentation and other documentation that establishes the nature of the emergency condition or circumstance.

A request for emergency hearing on temporary total disability shall contain a detailed statement showing that any delay will cause the claimant undue financial hardship.

Unless exceptional circumstances are demonstrated, the Commission shall deny a request for continuance made by the party upon whose request the emergency hearing was scheduled.

A request for emergency hearing will be decided based on the papers filed.

Regulation .12 Request for Continuance.Link Copy Citation

Prior to filing a request for continuance of a scheduled hearing, the party seeking the continuance shall contact the other parties to the case and seek their consent.

A party seeking a continuance shall file a request for continuance form setting forth the reasons for the continuance at least 30 days prior to the scheduled hearing.

A request for continuance filed more than 30 days prior to a scheduled hearing, to which the parties have consented, shall routinely be granted.

A request for continuance filed less than 30 days before the hearing may be granted subject to the discretion of the Commissioner.

A request for continuance will be decided based on the papers filed without a hearing.

Regulation .13 Request for Modification.Link Copy Citation

A party seeking modification of a prior finding or order shall file the request for modification form and simultaneously file an issues form identifying the issue to be resolved.

A party seeking modification shall file a request for modification form within 5 years of the later of the date of the accident, the date of disablement, or the date of the last compensation payment.

The request shall state specifically the finding or order that the party wishes modified and the facts and law upon which the party is relying as grounds for the modification.

When a party seeks an increase in a prior award for permanent partial disability, the parties shall comply with Regulation .07 of this chapter and COMAR 14.09.09.

Regulation .14 Request for Rehearing.Link Copy Citation

Within 15 days after the date of decision, a party seeking reconsideration of a decision shall file a request for rehearing form, available on the Commission’s website.

If the request is based on an alleged error of law, the request shall state specifically the error and the applicable case and statutory law.

If the request is based on newly discovered evidence, the request shall describe specifically the newly discovered evidence and the reasons why that evidence was not known and could not have been discovered by due diligence at the time of the prior hearing.

The request shall be accompanied by copies of all documentary evidence upon which the request is based.

An answer to a request for rehearing may be filed with the Commission within 10 days after the request is filed.

The Commission may decide the request with or without a hearing.

Regulation .15 Video Remote Hearings.Link Copy Citation

Except as provided in COMAR 14.09.17, video remote hearings are available at the discretion of the Commission.

Consent Required. A party requesting a video remote hearing shall seek consent of all parties. If there is no consent to a video remote hearing, the request shall be denied.

Request for Video Hearing Form Required. A party wishing to request a video remote hearing shall file a request for video hearing form through CompHub.

Continuances. A party wishing to continue a video remote hearing shall file a continuance of hearing form which shall include a statement that all parties consent to the hearing being reset as a video remote hearing. If there is no consent to the hearing being reset as a video remote hearing, the hearing will be reset in the normal course as in-person.

Required Information. The request for video hearing form shall contain the following information:

(1)

A statement that all parties consent to a video remote hearing;

(2)

The name, email address, and telephone number of each party;

(3)

The name, email address, and telephone number of each witness;

(4)

Whether a language interpreter is required and for which languages; and

(5)

A statement of the reasons for requesting a video remote hearing.

Exhibits. Parties shall file and exchange exhibits at least 3 business days prior to the video remote hearing in the same manner as provided in Regulation .09A of this chapter.

Regulation .16 Hearings En Banc.Link Copy Citation

At the request of a party, or on the Commission’s own initiative, a matter may be set in for hearing en banc before three Commissioners selected by the Chairman.

In any examination or hearing held by the Commission under Labor and Employment Article, §§9-405 and 9-406, Annotated Code of Maryland, the matter shall be set in for hearing en banc before a majority of the Commissioners.

Subtitle 09 — Workers' Compensation Commission

Chapter 04. Legal Representation and Fees

Regulation .01 Legal Representation.Link Copy Citation

Representation.

(1)

A party may be represented before the Commission by:

(a)

An attorney admitted by the Court of Appeals to practice in this State;

(b)

An out-of-State attorney specially admitted by order of the circuit court pursuant to the Business Occupations and Professions Article, §10-215, Annotated Code of Maryland; or

(c)

A party, who is an individual, may appear on the individual's own behalf pursuant to Business Occupations and Professions Article, §10-102, Annotated Code of Maryland.

(2)

All parties, other than an individual electing to represent him or herself, may be represented only by an attorney.

Attorney Registration with Commission.

(1)

An attorney wishing to practice before the Commission shall register for CompHub.

(2)

Following verification and completion of the registration, the Commission shall issue the attorney a multiple digit attorney code.

(3)

Attorneys registered for CompHub shall maintain current contact information with the Commission and shall notify the Commission of any change in their contact information within 30 days of the change.

Entry of Appearance.

(1)

An attorney representing a claimant enters an appearance as attorney of record automatically when the attorney files the claim electronically.

(2)

Except as provided in §C(1) of this regulation, an attorney representing a party in a claim shall complete and file an entry of appearance form with the Commission to establish an attorney of record.

(3)

If an insurer does not yet have an attorney of record, within 10 days of the filing of issues by any party, an insurer shall have an attorney complete and file an entry of appearance form with the Commission to establish an attorney of record.

(4)

After an entry of appearance form has been filed by an attorney on behalf of the insurer, all papers filed on behalf of the insurer shall be filed by the attorney of record until the claim becomes undisputed.

Notices.

(1)

If a party is represented by an attorney, notices to the party may be served on the attorney of record only.

(2)

An employer may designate a person who shall receive a courtesy copy of each notice of employee’s claim filed against the employer.

Termination of Representation.

(1)

By Notice. An attorney may withdraw an appearance by filing a notice of withdrawal if:

(a)

The client has another attorney of record; or

(b)

The claim has been settled and there is no possibility of any future medical benefits.

(2)

By Motion. If an attorney is not permitted to withdraw an appearance by notice under §E(1) of this regulation, the attorney wishing to withdraw an appearance shall file a motion to withdraw. Except if the motion is made in an open hearing with the client present, the motion shall be accompanied by the client's written consent to the withdrawal or the moving attorney's certificate that notice has been mailed to the client at least 5 days prior to the filing of the motion, informing the client of the attorney's intention to move for withdrawal and advising the client to have another attorney enter an appearance or to notify the Commission in writing or through CompHub of the client's intention to proceed in proper person. The Commission may deny the motion if withdrawal of the appearance would cause undue delay, prejudice, or injustice.

(3)

An attorney whose appearance has been entered on behalf of a party to a claim remains the attorney of record for the party to that claim unless the appearance was terminated under §E(1) or (2) of this regulation.

Regulation .02 Attorney's Fee, Medical Evaluation Fee, and Costs — Application or Petition for Approval.Link Copy Citation

Request for Attorney’s Fee Not in Excess of Schedule.

(1)

An attorney seeking approval of an attorney’s fee that does not exceed the maximum amount set forth in Regulation .03 of this chapter, shall request approval of the fee by filing the claimant’s consent to pay fees and costs form.

(2)

A completed claimant’s consent to pay fees and costs form shall:

(a)

Be signed by the claimant;

(b)

Include the amount of any medical evaluation fee requested to be approved;

(c)

Include any amount of costs advanced by claimant's attorney for which the attorney is seeking payment; and

(d)

Include any appeal fee requested under Regulation .03B(8) of this chapter.

(3)

An attorney shall substantiate a request for a medical evaluation fee, costs, or a fee under Regulation .03 of this chapter by:

(a)

Submitting medical bills, receipts, or other evidence of costs;

(b)

Submitting evidence establishing that:

(i)

The prior compensation award was appealed to the circuit court and tried on appeal;

(ii)

The prior compensation award was appealed to an appellate court, briefed and decided on the merits;

(iii)

The prior compensation award was appealed to the circuit court but not resolved by trial;

(iv)

The prior compensation award was appealed to an appellate court but not briefed and decided on the merits; or

(v)

The prior order of the Commission on the issue of compensability of the claim was appealed to the circuit court and the claim was determined to be compensable by the circuit court or jury.

(4)

The claimant's consent to the fee is not binding on the Commission.

(5)

An award by the Commission approving an attorney's fee under this regulation shall be notice to the party responsible for payment to reserve in escrow the amount of fee approved.

(6)

If an appeal is not filed within 30 days, the party responsible for payment shall remit the approved fee to the attorney immediately after the expiration of the 30-day appeal period.

(7)

If an appeal is filed timely, the party responsible for payment shall continue to reserve in escrow the amount of the fee approved by the Commission pending final determination of the appeal.

(8)

If the parties agree that an appeal will not be filed, the fee may be remitted to the attorney before expiration of the 30-day appeal period.

(9)

An attorney seeking approval of an attorney’s fee that does not exceed the maximum amount set forth in Regulation .03 of this chapter shall:

(a)

Accurately calculate the fees sought; and

(b)

Include an itemization of all attorney’s fees previously awarded by reference to the amount and date of the Commission’s orders.

(10)

Failure to comply with this regulation may result in the reduction or denial of the attorney’s fee sought.

Petition for Attorney’s Fee in Excess of Schedule.

(1)

An attorney seeking an attorney's fee exceeding the maximum amount set forth in Regulation .03 of this chapter, shall draft and file with the Commission a written petition.

(2)

The petition shall contain the following:

(a)

A clear and concise description of the legal services rendered to the claimant;

(b)

The amount of attorney's fee requested to be approved;

(c)

A detailed statement of the reasons for a fee in excess of the maximum amount set forth in Regulation .03 of this chapter;

(d)

A detailed statement establishing the exceptional circumstances that warrant an excess fee;

(e)

The claimant's signed acknowledgement of the fact that the attorney is requesting approval of an attorney's fee in excess of the schedule, in the amount specified and for the services described;

(f)

The amount of any medical evaluation fee requested to be approved; and

(g)

A certificate of service indicating that a copy of the petition has been served on the claimant, as well as the other parties to the case.

(3)

A petition for approval of an attorney's fee ordinarily shall be considered by the Commissioner who issued the award of compensation.

Unreasonable Proceeding — Attorney Fee Award.

(1)

Pursuant to Labor and Employment Article, §9-734, Annotated Code of Maryland, the Commission may award a reasonable attorney’s fee in any proceeding as a sanction against the conduct of a party acting without reasonable ground.

(2)

The Commission may make the attorney's fee award on its own initiative or at the request of any party.

(3)

Unless the award of the fee is appealed, the fee allowed under this section is payable immediately.

Regulation .03 Schedule of Attorney's Fees.Link Copy Citation

The Commission shall approve attorney’s fees in accordance with the schedule of fees established by the Commission and set forth in §C of this regulation.

Definitions.

(1)

In this regulation, the following terms have the meanings indicated.

(2)

Terms Defined.

(a)

“Award of compensation” means the amount of indemnity benefits actually paid or payable to the claimant after applying:

(i)

Any credit or offset required by Labor and Employment Article, §9-503(c), 9-609, or 9-610, Annotated Code of Maryland; or

(ii)

Reduction of the percentage of permanent partial disability following a stipulation, appeal, or other modification approved by the Commission.

(b)

(c)

“Formal set-aside allocation” means a document reflecting a comprehensive analysis and projection of future injury-related medical needs and associated costs.

(d)

“State average weekly wage” means the State average weekly wage in effect on the date of the accident or date of disablement.

Schedule of Fees.

(1)

Amounts Excluded from Calculation. In calculating the attorney’s fee, an attorney may not include in the calculation any amounts paid or payable for medical services and prescription drugs, including but not limited to:

(a)

Any monies allocated to future medical expenses through a formal set-aside allocation;

(b)

Any monies apportioned to future medical benefits;

(c)

Any monies already paid or owing for medical services and prescription drugs; or

(d)

Any monies charged or to be charged for the administration of a formal set-aside allocation.

(2)

Fee in Excess of Limits — Exceptional Circumstances. The Commission may approve an attorney’s fee in excess of the limits set forth in this regulation only if exceptional circumstances are shown under Regulation .02B of this chapter.

(3)

Permanent Partial Disability.

(a)

General. Except as otherwise provided in §C(3)(b) of this regulation, in a case in which a final award of compensation is made for permanent partial disability, the Commission may approve an attorney’s fee in a total amount not to exceed 60 times the State average weekly wage and computed as follows:

(i)

Up to 20 percent of the first $50,000 of the total award of compensation;

(ii)

Up to 15 percent of the next $50,000 of the total award of compensation; and

(iii)

Up to 5 percent of the total award of compensation in excess of $100,000.

(b)

Disability Due to Amputation or Loss of Vision — Generally. Except as provided in §C(3)(c) of this regulation, in a case in which the rate of compensation is set for permanent partial disability due to the amputation of an arm, leg, hand, or foot, or total loss of vision in one eye, and the sole issue before the Commission is the nature and extent of disability, the Commission may approve an attorney’s fee in an amount up to 5 percent of the compensation awarded, but not exceeding 7.5 times the State average weekly wage.

(c)

Disability Due to Amputation or Loss of Vision — Worsening. In a case of worsening of a permanent partial disability due to the amputation of an arm, leg, hand, or foot, or total loss of vision in one eye, takes place or is discovered after the rate of compensation is set or compensation is terminated, the Commission may approve an attorney’s fee computed under §C(8) of this regulation on the increased award.

(4)

Permanent Total Disability.

(a)

General. Except as otherwise provided in this regulation, in a case in which an initial determination of permanent disability produces a final award of compensation for permanent total disability, the Commission may approve an attorney’s fee in an amount not exceeding 25 times the State average weekly wage.

(b)

Special Cases. The Commission may approve an attorney’s fee in an amount not exceeding 15 times the State average weekly wage in a case in which compensability is not an issue and an award of compensation is made for permanent total disability established pursuant to either:

(i)

Labor and Employment Article, §9-636(b), Annotated Code of Maryland, for the loss of two or more scheduled members; or

(ii)

The stipulation on the extent of disability.

(5)

Temporary Total and Temporary Partial Disability. The Commission may not approve an attorney’s fee in a case in which final award of compensation is made for temporary total or temporary partial disability or temporary total disability paid while a claimant is receiving vocational rehabilitation services unless the claimant’s right to the compensation is contested, and the issue is resolved by evidentiary hearing or by stipulation. In such a contested case, the fee may be in an amount not exceeding 10 percent of the compensation that has accrued as of the date of the award.

(6)

Dependency Claims.

(a)

In a case involving a claim of dependency where compensability is not contested, but the extent of dependency, partial or total, or the identity of a dependent, or both is contested, the Commission may approve a total attorney’s fee for attorneys representing all dependents:

(i)

In an amount not exceeding 6.25 times the State average weekly wage in a case of partial dependency under Labor and Employment Article, §9-682, Annotated Code of Maryland; or

(ii)

In an amount not exceeding 15 times the State average weekly wage in a case of total dependency under Labor and Employment Article, §9-681 or 9-683.3, Annotated Code of Maryland.

(b)

In a case involving a claim of dependency where neither compensability nor dependency is contested and a record is being made solely to determine to whom payments of compensation shall be made, the Commission may approve an attorney’s fee in an amount not exceeding 2.5 times the State average weekly wage.

(c)

In a case involving a claim of dependency where compensability and dependency are contested, the Commission may approve an attorney’s fee:

(i)

In an amount calculated under §C(3)(a) of this regulation in a case involving a claim of partial dependency under Labor and Employment Article, §9-682 or 9-683.3, Annotated Code of Maryland; or

(ii)

In an amount calculated under §C(4)(a) of this regulation in a case of total dependency under Labor and Employment Article, §9-681, Annotated Code of Maryland.

(7)

Settlement Agreements. In a case in which an agreement of final compromise and settlement is approved, and upon the filing of an application or petition for an attorney’s fee in accordance with Regulation .02 of this chapter, the Commission may approve an attorney’s fee not exceeding 60 times the State average weekly wage and computed in accordance with §B(3)(a) of this regulation.

(8)

Increase in Last Award of Compensation.

(a)

Permanent Partial Disability. If the claimant is entitled to additional compensation as a result of an increase in a permanent partial disability award under §C(3) of this regulation the Commission may approve an additional attorney’s fee in an amount not exceeding the difference between the fee approved for all prior permanent partial disability awards and the fee computed under §C(3) or (4)(a) of this regulation on the increased award.

(b)

Agreement of Final Compromise and Settlement. If the claimant is entitled to additional compensation as a result of an agreement of final compromise and settlement approved under §C(7) of this regulation following a prior award of permanent partial disability, the Commission may approve an additional attorney’s fee in an amount not exceeding the difference between the fee approved for all prior awards and the fee computed under §C(3) or (4) of this regulation on the increased award.

(c)

In a case in which a determination of permanent disability made pursuant to Labor and Employment Article, §9-736(a), Annotated Code of Maryland, produces a final award of compensation for permanent total disability, the Commission may approve an additional attorney’s fee in an amount as follows:

(i)

20 percent of the first 200 weeks of permanent total disability benefits, excluding any cost-of-living increase as provided in Labor and Employment Article, §9-638 or §9-638.1, Annotated Code of Maryland, minus a fee or fees approved for all prior permanent disability awards; and

(ii)

Not exceeding 15 times the State average weekly wage.

(9)

Additional Fees for Appeals of Compensation Awards.

(a)

When a compensation award of the Commission is appealed to a circuit court and the case is tried on appeal, the Commission may approve an additional attorney’s fee in an amount up to 5 percent of the first final indemnity award issued following the circuit court action, but not exceeding 7.5 times the State average weekly wage.

(b)

When a decision of a circuit court on an appeal from a compensation award of the Commission is appealed to a higher appellate court and the appeal is briefed and decided on its merits, the Commission may approve an additional attorney’s fee for each appeal in an amount up to 5 percent of the first final indemnity award issued following the appellate action, but not exceeding 7.5 times the State average weekly wage.

(c)

When an appeal from a compensation award of the Commission to a circuit court is not tried, or an appeal to a higher appellate court is not briefed and decided on its merits, the Commission may approve an additional attorney’s fee in an amount up to 2.5 percent of the first final indemnity award issued following the appellate action or circuit court action, but not exceeding 3.75 times the State average weekly wage.

(d)

When a decision of the Commission on the issue of compensability of a claim is appealed to a circuit court, if the claim is determined on appeal to be compensable, the Commission, upon remand, may approve an additional attorney’s fee in an amount up to 5 percent of the first final indemnity award issued following the remand, but not exceeding 7.5 times the State average weekly wage.

(e)

An attorney may be awarded an appeal fee under only one of paragraphs (a) — (d) of this subsection for a circuit court action or appellate court action.

(f)

Once an appeal fee has been awarded for a circuit court action or appellate action, the Commission may not award an additional appeal fee based on the same circuit court action or appellate action.

Attorney’s Fee Allowed — Exceptional Circumstances.

(1)

In exceptional circumstances as shown under Regulation .02B of this chapter, the Commission may approve an attorney’s fee in a case in which it is determined that the claimant is not entitled to any compensation or benefits. Nothing in this regulation prohibits the Commission from awarding an attorney’s fee under Regulation .02C of this chapter.

(2)

In exceptional circumstances as shown under Regulation .02B of this chapter, the Commission may approve an attorney’s fee in a case involving issues such as medical care and treatment, or vocational rehabilitation, in which the claimant does not receive any monetary award. Nothing in this regulation prohibits the Commission from awarding an attorney’s fee under Regulation .02C of this chapter.

Regulation .04 Attorneys' Fees for Multiple Counsel.Link Copy Citation

An attorney who no longer represents a claimant and wishes to pursue a fee lien shall draft and file a petition for attorneys' fees.

The petition for attorneys' fees shall include:

(1)

A statement of the work performed and the basis of the fee; and

(2)

A certificate of service.

The filing of the petition for attorneys' fee constitutes a fee lien that shall be noted and held until the permanency award or settlement.

Unless the parties have otherwise agreed, upon the issuance of a permanency award or settlement, any attorney's fee awarded shall be held in escrow until the distribution of the fee to be resolved by:

(1)

A hearing; or

(2)

Agreement of the attorneys on the division of the attorney's fee.

Subtitle 09 — Workers' Compensation Commission

Chapter 05. Uninsured Employers' Fund Claims

Regulation .01 Notification and Response of Uninsured Employer and Claimant.Link Copy Citation

If a workers’ compensation claim is received by the Commission and the Commission’s records indicate that the employer is uninsured, the Commission shall notify the employer of the claim by sending the employer:

(1)

A notice of the claim form;

(2)

An uninsured employer's questionnaire; and

(3)

A request for verification of the employer's workers' compensation insurance policy.

The Commission shall send a copy of the notice of the claim form to all parties of record.

Within 21 days of the date the notice of the claim form was sent by the Commission:

(1)

The uninsured employer shall:

(a)

Begin paying temporary total benefits; or

(b)

File a response to employee’s claim form, if the employer contests the claim; and

(2)

File one of the following:

(a)

The signed and completed uninsured employer's questionnaire; or

(b)

The verification of the employer's workers' compensation insurance policy, if applicable.

Within 21 days of the date the Commission sends the notice of the claim form to the parties of record, the claimant shall complete and file the claimant’s questionnaire in accordance with COMAR 14.09.02.

Regulation .02 Review of Claim Contested by Uninsured Employer.Link Copy Citation

The Commission shall set a hearing to review any claim contested by an uninsured employer pursuant to Regulation .01C of this chapter.

Upon completion of the hearing the Commission shall:

(1)

Dismiss the claim; or

(2)

Issue an award requiring that the appropriate compensation be paid by the uninsured employer to the claimant.

Regulation .03 Review of Uncontested Claims.Link Copy Citation

If an uninsured employer does not contest the claim by filing the response to employee’s claim form within 21 days after the Commission served the notice of the claim form to the employer, the Commission may:

Review the claim for legal sufficiency; and

Either:

(1)

Dismiss the claim; or

(2)

Issue an automatic award finding the claim compensable.

Regulation .04 Notification and Payment of the Award.Link Copy Citation

The uninsured employer shall pay an award issued under Regulation .02 or .03 of this chapter within 30 days of the date the Commission serves notice of the award to the parties in accordance with Labor and Employment Article, §9-1002, Annotated Code of Maryland.

Regulation .05 Request for Payment by the Fund.Link Copy Citation

If the uninsured employer fails to pay an award and does not file for review of the award, the claimant may:

(1)

Send a request for payment, and a copy of claimant's questionnaire to the UEF; and

(2)

Contemporaneously file a copy of the request for payment and the claimant's questionnaire with the Commission.

No action will be taken against an employer or the UEF if the request for payment and the claimant's questionnaire are not filed with the Commission.

Regulation .06 Response of UEF and Impleader of Other Employer or Insurer.Link Copy Citation

Within 21 days after the date claimant filed a copy of the request for payment and claimant's questionnaire, the UEF shall respond by:

(1)

Paying the award; or

(2)

Filing issues.

If the UEF raises issues of statutory employment, or the existence of another employer or insurer, the UEF shall implead the employer and the insurer, if known.

Regulation .07 Notification and Response of Impleaded Employer or Insurer.Link Copy Citation

If the UEF impleads an employer or insurer the Commission shall serve the impleaded party a copy of the notice of the claim form.

The impleaded party shall respond within 21 days after the date of the notice referred to in §A of this regulation, by:

(1)

Paying the award; or

(2)

Filing issues.

Regulation .08 Review of Disputed Claim.Link Copy Citation

If the UEF or an impleaded party disputes a claim under Regulation .06 or .07 of this chapter, the Commission shall set a hearing to review the claims of all parties on all issues.

Upon completion of the hearing, the Commission shall:

(1)

Dismiss the claim; or

(2)

Issue an award.

Subtitle 09 — Workers' Compensation Commission

Chapter 06. Payment of Awards and Assessments and Termination of Benefits

Regulation .01 Payment Prior to Filing of Claim.Link Copy Citation

If a covered employee or dependent has not filed a claim with the Commission for the death or disability of the covered employee, an employer or insurer may not pay, in whole or in part, any compensation under Labor and Employment Article, Title 9, Annotated Code of Maryland.

If a covered employee or dependent has not filed a claim with the Commission for the death or disability of the covered employee, an employer or insurer may pay or contest charges for medical and other services under Labor and Employment Article, Title 9, Subtitle 6, Part IX or Part XIII, Annotated Code of Maryland.

An employer or insurer shall pay uncontested medical charges promptly after receipt.

Regulation .02 Claims for Medical Expenses; Notice; Penalty.Link Copy Citation

Notice. Within 5 days after receipt of an order of the Commission on a claim for payment for medical services, the claimant shall serve a copy of the order on the provider of the medical services for which payment was granted or denied.

Penalty for Late Payment for Treatment or Services.

(1)

The Commission may assess against an employer or insurer a fine not to exceed 20 percent of any fee approved but not timely paid pursuant to Labor and Employment Article, §9-664, Annotated Code of Maryland.

(2)

The Commission shall determine the amount of the fine on a case-by-case basis.

Regulation .03 Payment of Assessments.Link Copy Citation

Time for Payment. Assessments payable for the SIF and the UEF shall be paid within 30 days after the date of the award of compensation or approval of a settlement.

Assessments shall be paid in accordance with Labor and Employment Article, §§9-806, 9-1007, and 9-1008, Annotated Code of Maryland, as ordered by the Commission.

Regulation .04 Termination of Temporary Total Disability and Medical Benefits.Link Copy Citation

Termination of Monetary Benefits Requiring Notice.

(1)

Prior to terminating payment of temporary total disability benefits, an insurer shall give written notice to the claimant by:

(a)

Completing the insurer’s termination of temporary total disability benefits form; and

(b)

Sending a copy of the form to the claimant, counsel and to the Commission.

(2)

The insurer’s termination of temporary total disability benefits form may be used to provide notice to the claimant of the termination of disability benefits when:

(a)

The employee is working for another employer other than the employer where the accident or occupational disease occurred;

(b)

No medical evidence supports continued payment;

(c)

The employee failed to appear for a medical evaluation requested by the employer/insurer;

(d)

A physician other than the employee's chosen treating physician has determined that the employee has reached maximum medical improvement; or

(e)

Otherwise supported by law.

Termination of Monetary Benefits — No Notice Required. An insurer may terminate payment of temporary total disability benefits without providing written notice, pursuant to Labor & Employment Article, §9-733(a), Annotated Code of Maryland, if:

(1)

The employee has returned to his or her current employment;

(2)

A treating physician chosen by the employee has advised that the employee has reached maximum medical improvement; or

(3)

The termination is made after the termination date contained in an order of the Commission.

Termination of Medical Benefits.

(1)

Prior to terminating the payment of medical benefits, an insurer shall give written notice to the claimant and the claimant's treating physician or health care provider of the date that benefits will be terminated.

(2)

Written notice of the date that medical benefits will be terminated shall include a statement that the claimant has the right to request a hearing before the Commission on the issue of termination.

(3)

A copy of the termination notice provided to the claimant shall be filed with the Commission.

Subtitle 09 — Workers' Compensation Commission

Chapter 07. Vocational Rehabilitation

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Advisory Committee” means the Advisory Committee on the Registration of Rehabilitation Practitioners.

(2)

“Case management functions” means the coordination and utilization of vocational rehabilitation services, either in person or telephonically, with respect to a specific injured worker, including the supervision of these duties performed by others.

(3)

“Commission” means the Maryland Workers' Compensation Commission.

(4)

“Director” means the Director of Rehabilitation of the Maryland Workers' Compensation Commission.

(5)

“DORS” means Maryland State Department of Education Division of Rehabilitation Services.

(6)

“Enrolled vocational rehabilitation organization” means an organization or company that:

(a)

Employs, or has working on its behalf, at least one registered vocational rehabilitation practitioner; and

(b)

Has enrolled with the Commission.

(7)

“Functional Capacity Evaluation (FCE)” means the systematic process of assessing an individual's physical capacities and functional abilities and matching human performance levels to the demands of a specific job or work activity or occupation.

(8)

“Job placement” means services provided to support the disabled covered employee's search for work including, but not limited to, identifying job leads, arranging interviews, teaching techniques for effective job searches, resume writing, interviewing and job application completion,

(9)

“Nurse case manager” means a nurse who is certified by the State Board of Nursing to provide case management services, including but not limited to interviewing the worker for the purpose of implementing and coordinating services with health care providers and with the worker and the worker's family.

(10)

“Office” means the Office of Vocational Rehabilitation of the Maryland Workers' Compensation Commission.

(11)

Provider.

(a)

“Provider” means the enrolled vocational rehabilitation organization that provides vocational rehabilitation services to a claimant through a registered vocational rehabilitation practitioner.

(b)

“Provider” includes the Maryland State Department of Education Division of Rehabilitation Services (“DORS”).

(12)

“Rehabilitation counselor” means a qualified individual who is engaged in activities leading to vocational assessment or job placement, or both, of an injured worker.

(13)

“Rehabilitation practitioner” means an individual who provides vocational rehabilitation services including:

(a)

A nurse certified by the State Board of Nursing as a nurse case manager;

(b)

A rehabilitation counselor; and

(c)

A vocational evaluator.

(14)

“Retraining plan” means a plan for providing the disabled covered employee with educational and vocational training and may include on-the job training.

(15)

“Self-employment plan” means a business plan for self-employment that identifies the skills, experience and expertise necessary to manage the business, and may include a complete business description, an organization plan, owner/operator qualifications, a marketing plan supported by factual information concerning the demand for products or services, income projections, a sound start-up financial plan, financial resources needed to start the business, and a contingency plan in the event the self-employment plan targets are not met.

(16)

“Suitable gainful employment” has the meaning stated in Labor and Employment Article, §9-670(c), Annotated Code of Maryland.

(17)

“Vocational assessment” has the meaning stated in Labor and Employment Article, §9-670(d), Annotated Code of Maryland.

(18)

“Vocational evaluator” means a qualified individual who utilizes a comprehensive process that systematically uses the simulated or actual work environment as the basis for vocational assessment and exploration.

(19)

“Vocational rehabilitation services” has the meaning stated in Labor and Employment Article, §9-670(e), Annotated Code of Maryland.

(20)

“Vocational testing” means standardized interest, aptitude, achievement, and other specific skills tests used to identify areas of interest and aptitudes for various types of work, and compatibilities with different work environments. The types of test may include but are not limited to the Wide Range Achievement Test (WRAT), the General Aptitude Test Battery (GATB), Strong Interest Inventory, the Myers-Briggs Type Indicator, and the Test of Nonverbal Intelligence.

Regulation .02 Application Procedures for Registration.Link Copy Citation

To apply for registration with the Commission, an applicant shall submit to the Commission:

(1)

An application on the form prescribed by the Commission completed in accordance with the directions provided;

(2)

Two letters attesting to the applicant's moral character;

(3)

Appropriate documentation that the applicant satisfies the education and experience requirements of Labor and Employment Article, §9-6A-09, Annotated Code of Maryland; and

(4)

Payment in the amount of the application fee established by the Commission.

Automatic Registration.

(1)

Nurse Case Managers. A nurse case manager certified by the State Board of Nursing is automatically registered with the Commission upon:

(a)

Completion of the Commission application form; and

(b)

Payment of the fee established by the Commission.

(2)

Other Health Practitioners. Any health care provider who is licensed or certified by the applicable State licensing board or commission and who provides vocational rehabilitation services is automatically registered with the Commission upon:

(a)

Completion of the Commission application form; and

(b)

Payment of the fee established by the Commission.

(3)

If another State licensing board or commission's certification is valid for a period of time less than a provider's registration under Regulation .02 of this chapter, the provider shall submit a copy of the provider's certificate or renewal to the Director within 30 days after receiving the certificate or renewal.

(4)

A health care provider who is licensed or certified by an applicable State licensing board or commission and is automatically registered with the Commission under this regulation shall maintain their license or certificate in good standing in order to maintain automatic registration as a practitioner with the Commission. If the practitioner’s license or certificate expires or otherwise ceases to remain in good standing, the practitioner shall immediately notify the Director.

Waiver of Registration.

(1)

The Commission shall keep a list of providers who are not required to be registered with the Commission in accordance with §A or B of this regulation.

(2)

A provider who is not required to be registered with the Commission shall file a request for waiver on a form prescribed by the Commission every 2 years.

Review of Application.

(1)

The Commission shall review applications for registration and requests for waivers.

(2)

The Commission may refer an application to the Advisory Committee for review, evaluation, and recommendations.

(3)

If an application has been referred to the Advisory Committee for review, the Commission shall place the application under advisement until the Advisory Committee makes its recommendation regarding the applicant.

(4)

After the Advisory Committee makes its recommendations, the Commission shall consider the application and recommendations at its regularly scheduled monthly meeting. The Commission need not accept the Advisory Committee's recommendations.

(5)

If the application is approved, the Commission shall promptly register the applicant as a provider of vocational rehabilitation services.

Term and Renewal of Registration.

(1)

A registration is valid for 3 years from the date of issuance.

(2)

Notice of renewal and a renewal application shall be:

(a)

Sent to each registered provider before the registration's expiration date; and

(b)

Returned to the Director by the deadline for renewal.

(3)

Requirements for Renewal of Registration.

(a)

Continuing Education Requirements — Renewal of Registration. Except for a practitioner automatically registered under §B of this regulation, a practitioner shall meet the following continuing education requirements for registration renewal:

(i)

A minimum of 12 hours of continuing education credits in workers’ compensation related programs within the 3-year period preceding the application for renewal; and

(ii)

At least six of the credits specified in §E(3)(a)(i) of this regulation shall be in training or information classes given or approved by the Commission.

(b)

Along with the renewal application, a provider shall submit appropriate documentation that the provider has satisfied the continuing education requirements specified in §E(3)(a) of this regulation.

(c)

If a provider has not completed at least 12 hours of continuing education credits within the 3-year period preceding an application for renewal, the Commission has the sole discretion to determine the sufficiency of efforts by the provider in deciding whether to renew the provider's registration.

Regulation .03 Hearings on Denial of Application or Request for Waiver.Link Copy Citation

Denial of Application.

(1)

If the Commission denies an application or request for waiver, the Commission shall issue an order advising the applicant of the Commission's action.

(2)

The applicant may request a hearing by submitting the prescribed Commission form to the Director within 30 days after the date of the order.

Hearings and Final Orders.

(1)

If a hearing is requested, the Commission shall conduct a hearing which is presided over by a panel of three Commissioners.

(2)

After a hearing, the Commission shall promptly issue a final order which shall be decided by at least two of the three Commissioners.

(3)

If an applicant fails to request a hearing within the time prescribed by §A(2) of this regulation, the Commission shall issue a final order denying the application.

The applicant may appeal a final decision of the Commission in accordance with Labor and Employment Article, §9-737, Annotated Code of Maryland.

Regulation .04 General Rules for Vocational Rehabilitation Service Practitioners.Link Copy Citation

A practitioner shall consider the best interests of a disabled covered employee in providing vocational rehabilitation services. Unrepresented disabled covered employees shall be treated in the same manner as represented disabled covered employees.

A practitioner may not misrepresent the practitioner's duties or responsibilities or the workers' compensation process to disabled covered employees.

The vocational rehabilitation practitioner shall exercise independent and professional judgment when performing an assessment or developing a vocational rehabilitation plan.

At the initial comprehensive assessment, a practitioner shall advise the disabled covered employee that:

(1)

The practitioner's fees are paid by the employer/insurer; and

(2)

The practitioner is an independent professional and shall render an opinion based solely on the facts and evidence in the case.

Subject to any applicable privilege, a practitioner shall notify all parties of any contact with or about the disabled covered employee, whether that contact was in person, in writing, or made electronically.

Unless the disabled covered employee consents in writing, a practitioner may not be present during a medical examination.

With the written consent of the disabled covered employee, a practitioner may seek a healthcare provider's opinion following examination.

A practitioner shall comply with:

(1)

The Commissioner's orders and procedures; and

(2)

Standards of practice adopted by the practitioner's State licensing board or commission, if applicable.

Penalties. Violation of this regulation may result in the Commission:

(1)

Suspending or revoking the practitioner's registration;

(2)

Placing the practitioner on probation; or

(3)

Reprimanding the practitioner.

Regulation .05 Standards of Practice for Rehabilitation Counselors and Vocational Evaluators.Link Copy Citation

Scope. This regulation applies only to rehabilitation counselors and vocational evaluators.

Standards.

(1)

Rehabilitation counselors and vocational evaluators shall use their professional skills to promote a disabled covered employee's active participation in plan development and the rehabilitation process within the disabled covered employee's physical and mental abilities.

(2)

Rehabilitation counselors and vocational evaluators shall function within the limits of their defined roles, training, and professional competencies.

(3)

Rehabilitation counselors and vocational evaluators may not engage in any activity which may compromise the health, safety, or welfare of the disabled covered employee, and shall avoid continuing a consulting or counseling relationship if it is reasonably expected that the relationship can be of no benefit to the client.

(4)

Rehabilitation counselors and vocational evaluators shall demonstrate honesty and objectivity in:

(a)

The administration, scoring, interpretation, and utilization of assessment instruments;

(b)

The writing of reports; and

(c)

Charges for professional services.

(5)

Rehabilitation counselors and vocational evaluators may not engage in harassment or discrimination of disabled covered employees on the basis of age, race, creed, national origin, gender, disability, or religious affiliation.

(6)

Rehabilitation counselors and vocational evaluators may not engage in any act or omission of a dishonest, deceitful, or fraudulent nature in the conduct of their professional activities.

(7)

Rehabilitation counselors and vocational evaluators may not allow the pursuit of financial gain or other personal benefit to interfere with the exercise of sound professional judgment and skills.

(8)

Rehabilitation counselors and vocational evaluators may not disparage the competency or ethics of other professionals or agencies in discussions with their clients.

(9)

Rehabilitation counselors and vocational evaluators shall perform appropriate and objective vocational evaluations and vocational assessments promptly.

(10)

Rehabilitation counselors and vocational evaluators shall work cooperatively in a multidisciplinary effort to provide services leading to suitable gainful employment for an injured worker.

Penalties. Violation of one or more of the standards in §B of this regulation may result in the Commission:

(1)

Suspending or revoking the practitioner's registration;

(2)

Placing the practitioner on probation; or

(3)

Reprimanding the practitioner.

Regulation .06 Complaints Against Practitioners.Link Copy Citation

Complaints.

(1)

A complaint concerning a practitioner shall be:

(a)

In writing;

(b)

On the form prescribed by the Commission; and

(c)

Signed under oath by the complainant.

(2)

The complaint as filed shall be confidential, unless introduced into evidence at a hearing before the Commission.

(3)

All correspondence related to a complaint shall be:

(a)

Addressed to the Director of Rehabilitation, Workers' Compensation Commission, 10 E. Baltimore Street, Baltimore, MD 21202; and

(b)

Marked CONFIDENTIAL.

Preliminary Procedures.

(1)

If the Director determines that the complaint may be meritorious, the Director shall:

(a)

Promptly notify the practitioner in writing that a complaint has been filed against the practitioner; and

(b)

Send the practitioner a copy of the complaint by registered mail.

(2)

Within 21 days after receipt of the complaint, the practitioner may:

(a)

Respond in writing to the complaint; and

(b)

Submit to the Director any additional information that may be relevant to the Director's investigation.

(3)

The Director shall ascertain whether the complaint is within the jurisdiction of the Commission or any other health licensing boards or commissions. If the complaint is within the jurisdiction of another licensing board or commission, the Director shall promptly send a copy of the complaint to the appropriate licensing board or commission.

(4)

If the Director determines that there is insufficient information to make a fair determination of the conduct alleged in the complaint, the Director may request additional information from the complainant or others.

(5)

If the Director requests additional information from the practitioner, the practitioner shall respond within the time specified by the Director. Failure to respond or to participate in the Director's investigation may result in a finding against the practitioner and a reprimand or suspension or revocation of the practitioner's registration.

Referral to Commission.

(1)

If the Director determines that there is reasonable cause to believe that the practitioner has violated one or more of the Commission's regulations or standards of practice, the Director shall refer the complaint to the Commission for a decision. The Director shall promptly inform the practitioner by registered mail that the complaint has been referred to the Commission.

(2)

The practitioner shall respond in writing within 21 days after receipt of notice of the referral. The response shall indicate whether the practitioner:

(a)

Intends to defend against the allegations of the complaint; and

(b)

Requests a hearing.

(3)

If the practitioner does not request a hearing within the time limit specified in §C(2) of this regulation, the Commission may rule on the complaint with or without a hearing. Top of Form

Regulation .07 Procedures for Hearings on Complaints.Link Copy Citation

Notice of Hearing. The Commission shall send written notice of a hearing 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.

Conduct of Hearing.

(1)

A hearing on a complaint against a practitioner shall be held before a panel of three Commissioners.

(2)

Order of Procedure. The case on behalf of the Commission shall be presented first. The respondent shall then present the respondent's case. After that, rebuttal is permitted.

(3)

All parties appearing at hearings have the right to appear in proper person, or by or with counsel.

(4)

If a practitioner who has requested a hearing and been served with notice fails to appear for the hearing, the Commission may:

(a)

Proceed with the hearing; and

(b)

On the evidence presented, make its decision.

Records and Transcripts.

(1)

The Commission shall prepare an official record which includes all:

(a)

Pleadings;

(b)

Testimony;

(c)

Exhibits; and

(d)

Other memoranda or material filed in the proceeding.

(2)

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

Decision and Order.

(1)

After the hearing, the Commission shall promptly issue an order which shall be decided by two out of the three Commissioners.

(2)

A copy of the Commission's decision and order shall be served on:

(a)

Each party; or

(b)

The party's attorney of record.

Rehearing.

(1)

A party aggrieved by the Commission's decision may move for a rehearing within 10 days after service of the decision and order.

(2)

Unless otherwise ordered, a rehearing or a request for rehearing does not stay the enforcement of the Commission’s order, or excuse the persons affected by it for failure to comply with its terms.

(3)

The Commission may decide the request with or without a hearing.

Appeals. Either the practitioner or the Director may appeal the final decision of the Commission as provided by Labor and Employment Article, §9-737, Annotated Code of Maryland.

Regulation .08 Application Procedures for Enrollment of Providers.Link Copy Citation

To enroll with the Commission, the provider shall submit:

(1)

An application on the form prescribed by the Commission completed in accordance with the directions provided; and

(2)

A complete listing of all registered practitioners employed by the provider.

Upon approval of the application, the Commission shall promptly enroll the provider as an enrolled provider of vocational rehabilitation services.

Term, Conditions and Renewal of Enrollment.

(1)

Enrollment is valid for 2 years from the date of issuance.

(2)

The Commission shall provide each enrolled provider with a notice of renewal and a renewal application 30 days prior to the expiration date of the current enrollment.

(3)

The enrolled provider shall return the application for renewal to the Rehabilitation Office by the specified deadline for renewal.

(4)

The enrolled provider shall update the list of registered practitioners employed by the provider semi-annually.

(5)

Unless a provider has enrolled with the Commission, a provider may not be eligible for referral under Regulation .09F of this chapter.

Regulation .09 Selection of Practitioner.Link Copy Citation

A rehabilitation practitioner shall register with the Commission in accordance with Regulation .02 of this chapter.

To be eligible for referral under §F of this regulation, a provider shall enroll with the Commission in accordance with Regulation .08 of this chapter.

The Commission website shall provide information regarding enrolled providers including the name, address, website address, and telephone number of the provider.

A disabled covered employee may obtain vocational rehabilitation services only in accordance with this regulation.

Referral by Agreement or Order.

(1)

The parties shall attempt to reach agreement on:

(a)

Whether vocational rehabilitation services are appropriate in the case; and

(b)

The registered practitioner to provide the vocational rehabilitation services.

(2)

If the parties reach agreement on both the propriety of the services and the practitioner, the parties shall complete the prescribed Commission form indicating their agreement and identifying the selected practitioner.

(3)

The parties shall file the form with the Commission and send a copy of the form to the selected practitioner.

(4)

Unless the practitioner has received a copy of form selecting the practitioner as the individual to provide services, the practitioner may not:

(a)

Contact the disabled covered employee directly or through an agent; or

(b)

Initiate vocational rehabilitation services.

(5)

If the parties are unable to agree that vocational rehabilitation services are appropriate, the dispute shall be resolved in accordance with Regulation .12 of this chapter.

(6)

If the Commission determines that vocational rehabilitation services are appropriate, the parties shall attempt to reach agreement on the identity of the registered practitioner to provide the vocational rehabilitation services in accordance with this section.

Referral Without Agreement.

(1)

If the parties agree that vocational rehabilitation services are appropriate, or the Commission has determined that services are appropriate, but the parties cannot agree on a practitioner, each party has 5 business days from the date the parties were unable to reach agreement to:

(a)

Notify the Commission of the dispute; and

(b)

Identify three registered practitioners and the enrolled provider for whom the practitioner works, if applicable, for consideration.

(2)

Notice of the dispute and identification of the three preferred practitioners and corresponding providers shall be made electronically on a form prescribed by the Commission.

(3)

Within 5 days of filing the notice of dispute and identification of three preferred practitioners and corresponding providers, each party shall strike two of the practitioners/providers from the opposing party's list and submit those strikes, by close of business, to the opposing party and to the Director by hand-delivery or facsimile.

(4)

The Commission shall select one of the two remaining preferred practitioners and corresponding providers and inform the parties of this selection. All parties are bound by this selection.

(5)

If a party fails to submit three registered practitioners and corresponding providers or to submit two strikes, the Commission shall select a practitioner/provider from the opposing party's list.

Regulation .10 Assessment and Reporting.Link Copy Citation

Comprehensive Vocational Assessment.

(1)

As soon as practicable, a practitioner shall meet with the disabled covered employee and conduct a comprehensive vocational assessment in compliance with Labor and Employment Article, §9-670(d), Annotated Code of Maryland.

(2)

A nurse case manager providing telephonic medical case management may conduct an initial assessment by telephone.

(3)

A comprehensive vocational assessment may include evaluation of the disabled covered employee's:

(a)

Age;

(b)

Education, including information about education level, courses or transcripts, licenses, and certifications or registrations obtained by the disabled covered employee in the past;

(c)

Complete work history, addressing any gaps in employment;

(d)

Transferable skills and experience, whether obtained from prior employment, prior courses and training, prior vocational rehabilitation services or plans, or non-work related activities such as hobbies and/or volunteer experience;

(e)

Current physical and mental conditions caused by the injury or occupational disease, and the effect of those conditions on the disabled covered employee's ability to work;

(f)

Pre-existing physical and mental conditions and the effect of those conditions on the disabled covered employee's ability to work;

(g)

Post-injury physical and mental conditions and the effect of those nonrelated conditions on the disabled covered employee's ability to work;

(h)

Wage and employment at the time of injury;

(i)

Barriers to employment, including whether the barriers can be removed and what is needed to address the barriers;

(j)

Current financial status; and

(k)

Family supports/psychosocial aspects.

Reports.

(1)

A practitioner shall:

(a)

Prepare a written report within 30 days of the comprehensive vocational assessment;

(b)

Prepare periodic progress reports every 30 days showing the activity and type of vocational rehabilitation services provided; and

(c)

Submit copies of all reports to the Commission, the employer/insurer, and the disabled covered employee's attorney.

(2)

A practitioner shall include the following information in a comprehensive assessment report:

(a)

If the practitioner is unable to obtain the information set forth in §A(3) of this regulation, documentation of the practitioner's efforts to secure that information;

(b)

A determination of whether the disabled covered employee is able to work and if so, in what capacity, including whether the disabled covered employee can return to work in any capacity with the former employer and whether the disabled covered employee can return to work in a new job based on transferrable skills;

(c)

Recommendations for additional testing including, but not limited to, a Functional Capacity Evaluation, psychiatric evaluation, and vocational testing;

(d)

If no additional testing is recommended, identification of the order of vocational services to be provided; and

(e)

A job analysis, approved by the healthcare provider, for the job or jobs for which the disabled covered employee is able to work if applicable.

(3)

A practitioner shall prepare periodic progress reports that contain the following information:

(a)

A review of the disabled covered employee's compliance with the vocational rehabilitation plan, including any issues involving attendance, grades, and progression;

(b)

A list of the dates the vocational rehabilitation counselor contacted the disabled covered employee and any training site, if applicable;

(c)

A description of the work-related skills the disabled covered employee has acquired and a comparison with the vocational rehabilitation plan;

(d)

A summary of all actions taken in the past 30 days, including progress on previously recommended actions;

(e)

Identification of any barriers preventing completion of the plan and actions taken by the practitioner to address those barriers; and

(f)

A statement of whether the disabled covered employee is progressing as expected and will complete the plan by the target end date.

(4)

The parties shall provide the Rehabilitation Office with such medical information as the Rehabilitation Office may direct.

Regulation .11 Vocational Rehabilitation Services and Plans.Link Copy Citation

Hierarchy of Vocational Rehabilitation Services.

(1)

In determining the appropriate vocational rehabilitation services reasonably necessary to return a disabled covered employee to suitable gainful employment, a practitioner shall consider each of the factors specified in Labor and Employment Article, §9-673(b), Annotated Code of Maryland.

(2)

A practitioner shall document that each factor has been considered either in the vocational rehabilitation plan or in the initial assessment report.

(3)

In providing vocational rehabilitation services, a practitioner shall attempt to return a disabled covered employee to suitable gainful employment in accordance with the following order of preference:

(a)

Returning the disabled covered employee to the same job with the same employer;

(b)

Modifying the same job with the same employer;

(c)

Finding a new job with the same employer;

(d)

Finding a job with a new employer;

(e)

On the job training;

(f)

Formally retraining the disabled covered employee for a period of time designed to lead to suitable gainful employment; and

(g)

Self-employment.

Vocational Rehabilitation Plan—Components.

(1)

Vocational rehabilitation plans shall follow the hierarchy of services set forth in §A of this regulation.

(2)

If a disabled covered employee is unable to return to suitable gainful employment without the provision of vocational rehabilitation services, a practitioner shall prepare a proposed vocational rehabilitation plan.

(3)

A practitioner shall prepare a proposed rehabilitation plan on the vocational rehabilitation plan form prescribed by the Commission and shall complete the form in accordance with the instructions provided.

(4)

A practitioner shall document in the proposed rehabilitation plan that each level of the hierarchy of services set forth in §A of this regulation has been considered during plan development.

(5)

If the vocational rehabilitation plan includes a job placement plan, the practitioner shall include the following items in the vocational rehabilitation plan:

(a)

The specific vocational goals;

(b)

The specific types of services to be provided;

(c)

Any viable job leads;

(d)

A specific timeline including starting and completion dates; and

(e)

Any estimated costs necessary to meet the specific vocational goals.

(6)

Retraining Plan.

(a)

If the vocational rehabilitation plan includes a formal retraining plan, the practitioner shall include the following items in the vocational rehabilitation plan:

(i)

The specific vocational retraining goal;

(ii)

The estimated costs necessary to meet the specific goal;

(iii)

Information about any formal course of study in the retraining plan including the name of the school, titles of classes, course length in weeks, attendance including beginning and ending dates, an itemized cost of tuition, books, and other necessary school charges; and

(iv)

Any other required costs.

(b)

The practitioner shall attach to the retraining plan the following items:

(i)

A copy of the course syllabus;

(ii)

The physical requirements of the work for which the retraining will prepare the disabled covered employee;

(iii)

Medical documentation demonstrating that the proposed training and field of work are within the disabled covered employee's physical restrictions;

(iv)

Reports of all vocational testing and evaluations; and

(v)

A recent labor market survey of the field for which the training is proposed.

(c)

In the proposed retraining plan, the practitioner shall explain why retraining is recommended, including a discussion of the other options considered and the likelihood that the proposed retraining plan will result in the employee's return to suitable gainful employment.

Vocational Rehabilitation Plan—Approval.

(1)

The practitioner shall send copies of the proposed vocational rehabilitation plan to all parties.

(2)

Within 15 days after receipt of a proposed rehabilitation plan, a party may sign the plan or submit the reason for disagreement, in writing, to all parties.

(3)

Lack of response from a party is interpreted to mean that the party consents to the plan.

(4)

If the parties agree to the proposed vocational rehabilitation plan, the parties shall submit the plan to the Commission for approval.

(5)

The Commission may accept or reject the proposed plan, in whole or in part, and shall pass an order to that effect.

(6)

The parties shall attempt to resolve any disagreement concerning the recommendations contained in the proposed vocational rehabilitation plan.

(7)

If the parties are unable to reach agreement concerning the recommendations, the dispute shall be resolved in accordance with Regulation .12 of this chapter.

(8)

If a hearing is necessary to resolve the dispute, the practitioner shall appear at the hearing to present the practitioner's recommendations.

(9)

Expiration of Vocational Rehabilitation Plan.

(a)

Fifteen (15) days prior to the expiration date of the Vocational Rehabilitation Plan, the practitioner shall contact all parties and make recommendations to:

(i)

Discontinue services;

(ii)

Extend services; or

(iii)

Develop a new plan in accordance with §A of this regulation.

(b)

If the parties are unable to reach agreement concerning the practitioner's recommendations, the dispute shall be resolved in accordance with Regulation .12 of this chapter.

Regulation .12 Disputes, Noncompliance and Termination.Link Copy Citation

Disputes.

(1)

If a dispute or issue arises regarding vocational rehabilitation services, the parties shall file electronically a vocational rehabilitation dispute form, as prescribed by the Commission.

(2)

Upon receipt of the vocational rehabilitation dispute form, the Duty Commissioner shall contact the parties by telephone.

(3)

If the Duty Commissioner is unable to resolve the dispute, a hearing will be scheduled within 5 business days.

(4)

The Commission may award reasonable attorney fees in disputes arising out of vocational rehabilitation issues when deemed necessary given the particular facts of a claim.

Noncompliance with Vocational Rehabilitation Plan. If a disabled covered employee is not meeting the employee's responsibilities or is not cooperating with vocational rehabilitation services, a practitioner shall:

(1)

Document the factual basis for that determination and the practitioner's efforts to promote the disabled covered employee's participation; and

(2)

Promptly notify all parties in writing.

Termination of Vocational Rehabilitation Services.

(1)

Whenever a practitioner closes a case, the practitioner shall document the reasons for terminating vocational rehabilitation services.

(2)

Upon termination of vocational rehabilitation services or case closure, a practitioner shall notify all parties within 5 working days of the:

(a)

Reason for the termination or closure; and

(b)

Current employment status of the disabled covered employee.

(3)

A practitioner shall send a closure report to the Commission within 10 business days after notice of termination on the form prescribed by the Commission.

Subtitle 09 — Workers' Compensation Commission

Chapter 08. Guide of Medical and Surgical Fees

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Ambulatory surgical center (ASC)” means any center, service, office facility, or other entity that:

(a)

Operates primarily for the purpose of providing surgical services to patients requiring a period of postoperative observation but not requiring overnight hospitalization; and

(b)

Seeks reimbursement from payors as an ambulatory surgery center.

(2)

“Authorized provider” means:

(a)

A licensed physician's assistant (P.A.), providing services on or after March 24, 2008;

(b)

A licensed acupuncturist;

(c)

A medical doctor (M.D.);

(d)

A doctor of osteopathy (D.O.);

(e)

A doctor of chiropractic (D.C.), for services provided within the scope of Health Occupations Article, Title 3, Annotated Code of Maryland;

(f)

Podiatrist (D.P.M.);

(g)

An optometrist (O.D.);

(h)

A certified registered nurse anesthetist (C.R.N.A.);

(i)

An occupational therapist (O.T.);

(j)

A pharmacist (R. Ph.);

(k)

A licensed physical therapist (P.T.);

(l)

A psychologist (Ph.D.);

(m)

A licensed clinical social worker (L.C.S.W.);

(n)

A licensed audiologist;

(o)

A licensed speech-language pathologist;

(p)

A dentist (D.D.S./D.M.D.); and

(q)

Any other health care provider as defined under Health-General Article, §4-301(h)(1)(i), Annotated Code of Maryland.

(3)

“Base Unit/Basic Value” means the value assigned by CMS to each anesthesia procedure code based on the difficulty of the anesthesia service and is used to determine a portion of the reimbursement amount of the anesthesia procedure.

(4)

“CMS” means the Centers for Medicare and Medicaid Services, the federal agency that administers the nation's Medicare program and partners with the states to administer the Medicaid program.

(5)

“CMS-1500” means the standard claim form, maintained by the National Uniform Claim Committee (NUCC), used by a non-institutional provider or supplier to bill Medicare carriers, Medicare administrative contractors, and Medicaid State agencies.

(6)

“CPT” means the Physician's Current Procedural Terminology, copyrighted and maintained by the American Medical Association.

(7)

“CPT code” means the five digit numerical code obtained from the CPT in effect when a medical service or treatment is provided.

(8)

“CPT modifier” means the numerical code used to indicate that a service or procedure was altered in some way from the stated CPT description.

(9)

“Geographic Price Cost Index (GPCI)” means the resource cost difference of providing a service, by geographic region, reflected in the relative work (work), practice expense (PE), and malpractice costs (MP) of the service.

(10)

“Healthcare Common Procedure Coding System (HCPCS)” means one of two coding systems used by CMS: level I, consisting of CPT codes, and level II, used primarily to identify products, supplies, and services not included in the CPT codes, such as ambulance services and durable medical equipment, prosthetics, orthotics, and supplies.

(11)

“Maryland specific conversion factor (MSCF)” means a fixed dollar amount used as a multiplier in calculating the MRA for medical services and treatment, orthopedic and neurological surgical procedures, and anesthesiology services.

(12)

“Maximum reimbursement allowable (MRA)” means the amount payable to an authorized provider, unless subject to a private agreement to the contrary, calculated pursuant to this chapter for the provision of medical services and treatment rendered to an individual whose injury or disease falls within the scope of Labor and Employment Article, Title 9, Annotated Code of Maryland.

(13)

“Medicare economic index (MEI)” means a measure of the inflation faced by physicians with respect to their practice costs and wage levels as calculated by CMS.

(14)

“Medicare Physician Fee Schedule” means the Medicare database, based on the RBRVS, from which the Medicare reimbursement rate is obtained.

(15)

“Medicare reimbursement rate (MRR)” means the rate at which Medicare reimburses a services provider based on certain inputs including the CPT/HCPCS code, jurisdiction, year, any applicable CPT modifiers, any federal budget neutrality adjuster, and any Medicare conversion factor.

(16)

“Resource based relative value scale (RBRVS)” means the system by which medical providers are reimbursed based on the resource costs needed to provide a given service. Under the RBRVS, CMS assigns each medical procedure a relative value quantifying the relative work (work), practice expense (PE), and malpractice costs (MP) for each service.

(17)

“RBRVS relative value unit (RVU)” means the uniform value assigned by CMS to each medical procedure and service identified by CPT/HCPCS code quantifying the work (work), practice expense (PE), and malpractice costs (MP) for each service.

(18)

“Time Unit” means a measure of each 15-minute interval, or fraction thereof, during which anesthesiology services are performed.

Regulation .02 Incorporation by Reference.Link Copy Citation

The “Official Maryland Workers’ Compensation Medical Fee Guide” (1995) is incorporated by reference.

Health Services Cost Review Commission. In accordance with Health-General Article, §19-211, Annotated Code of Maryland, in the case of a discrepancy between a rate for a hospital service set by the Health Services Cost Review Commission and that set by the Workers’ Compensation Commission, the rate set by the Health Services Cost Review Commission shall prevail.

Regulation .03 Calculation of the Maximum Reimbursement Allowable.Link Copy Citation

For medical services and treatment provided before August 31, 2001, the MRA shall be the fees set forth in the Official Maryland Workers' Compensation Medical Fee Guide (1995). For anesthesiology services, the MRA is calculated by adding the Time Units and Base Units/Basic Value and multiplying that sum by a conversion factor: MRA = (Time Units + Base Units) × Conversion Factor.

For medical services and treatment provided between August 31, 2001, and August 31, 2004, the MRA shall be calculated by increasing the fees set forth in the Official Maryland Workers' Compensation Medical Fee Guide (1995) by 4 percent.

For medical services and treatment provided between September 1, 2004, and January 31, 2006, the MRA shall be calculated by multiplying the MRR by a percentage multiplier as follows:

(1)

The MRR is obtained from the Medicare Physician Fee Schedule by utilizing 2004 for the year, Maryland for the state, Baltimore and Surrounding Counties for the locality, the applicable CPT code and any CPT modifier;

(2)

The MRA is calculated by multiplying the MRR by 109 percent; and

(3)

For anesthesiology services, the MRA is calculated by adding the Time Units and Base Units/Basic Value, multiplying that sum by the CMS 2004 conversion factor multiplied by 109 percent: MRA = (Time Units + Base Units) × CMS 2004 Conversion Factor × 109 percent.

For medical services and treatment provided between February 1, 2006, and March 24, 2008, the MRA shall be calculated by multiplying the MRR by a percentage multiplier as follows:

(1)

(2)

The MRA is calculated by multiplying the MRR by the specified percentage multiplier:

(a)

For anesthesiology services, the MRA is calculated by adding the Time Units and Base Units/Basic Value, multiplying that sum by the CMS 2004 conversion factor multiplied by 109 percent;

(b)

For orthopedic and neurological surgical procedures, excluding minor procedures, the MRA is calculated by multiplying the MRR by 144 percent; and

(c)

Except as otherwise provided, the MRA for all other medical services and treatment is calculated by multiplying the MRR by 109 percent.

After March 24, 2008.

(1)

For medical services and treatment provided after March 24, 2008, the Commission shall utilize the current calendar year CMS Resource Based Relative Value Scale (RBRVS), exclusive of any Federal Budget Neutrality Adjustment Factor or CMS conversion factor, as the basis for calculating the MRA.

(2)

The non-facility MRA shall be calculated by multiplying each RBRVS relative value unit (RVU) by each corresponding GPCI, adding those sums, and then multiplying that total by the Maryland specific conversion factor (MSCF) as follows: Non-facility MRA = ((Work RVU × Work GPCI) + (Transitioned Non-Facility PE RVU × PE GPCI) + (MP RVU × MP GPCI)) × MSCF.

(3)

The facility MRA shall be calculated by multiplying each RBRVS RVU by each corresponding GPCI, adding those sums, and then multiplying that total by the MSCF as follows: Facility MRA = ((Work RVU × Work GPCI) + (Transitioned Facility PE RVU × PE GPCI) + (MP RVU × MP GPCI)) × MSCF.

(4)

For anesthesiology services, the MRA shall be calculated by adding the Time Units and Base Units and multiplying that sum by the MSCF: MRA = (Time Units + Base Units) × MSCF.

(5)

In calculating the MRA, the following MSCFs apply:

(a)

For anesthesiology services, the MSCF is $19.39;

(b)

For orthopedic and neurological surgical procedures, MSCF is $53.77; and

(c)

For all other medical services and treatment, except as otherwise provided, the MSCF is $40.70.

Ambulatory Surgical Centers.

(1)

For medical services and treatment provided at an ASC between September 1, 2004, and January 31, 2006, the MRA is calculated by multiplying the CMS 2004 ASC group payment rate by 109 percent.

(2)

For medical services and treatment provided at an ASC between February 1, 2006, and March 24, 2008, the MRA is calculated by multiplying the 2004 CMS ASC group payment rate by 125 percent.

(3)

For medical services and treatment provided at an ASC on, or after, March 24, 2008, the MRA is calculated by multiplying the current calendar year ASC MRR by 125 percent.

MSCF Annual Adjustment.

(1)

Beginning January 1, 2009, an adjustment shall be made to the prior year's MSCFs and percentage multiplier (for ASCs).

(2)

The MSCFs for the following year shall be calculated by multiplying the MSCFs in effect on November 1 of the current year by the percentage change in the first quarter MEI of the current year, as published on November 1 of the current year, and adding that amount to the current year's MSCFs.

(3)

The percentage multiplier for the following year shall be calculated by multiplying the percentage multiplier in effect on November 1 of the current year by the percentage change in the first quarter MEI of the current year, as published on November 1 of the current year, and adding that amount to the current year's percentage multiplier.

(4)

The resulting figures shall be utilized as the new MSCF and percentage multiplier for the following year for the purpose of calculating the MRA under §§E and F of this regulation.

(5)

The Commission shall post the new MSCFs and percentage multiplier on its website by December 1.

(6)

The resulting new MSCFs and percentage multiplier shall be effective January 1 of the following year.

(7)

The Commission shall review the annual adjustment process every 5 years to assure that reimbursement rates are neither inadequate nor excessive.

Regulation .04 MRA or Fee Not Established.Link Copy Citation

The Commission has not established a medical fee schedule for dental services, durable medical equipment, and pharmaceuticals.

For products and services for which the Commission has not established an MRA or medical fee schedule, including dental services, durable medical equipment, and pharmaceuticals, the insurance carrier shall assign a relative value to the product or service.

An insurance carrier may base the assigned value on nationally recognized and published relative value studies, or on the values assigned for services involving similar work and resources.

Upon application of either party, the amount of reimbursement is subject to review by the Commission under the procedures set forth in Regulation .06 of this chapter.

Reimbursement.

(1)

Except as provided in §E(2) of this regulation, reimbursement shall be the lesser of:

(a)

The MRA amount as established by this regulation; or

(b)

The authorized provider's usual and customary charge.

(2)

If, in the opinion of a health care provider it is medically necessary to exceed the MRA, the authorized provider shall submit substantiating documentation to the payor with the Form CMS-1500.

For relevant CPT/HCPCS level I codes that are not valued by CMS, the Commission shall post MRAs for those codes on its website.

Regulation .05 Guidelines for Using Values and Codes.Link Copy Citation

The Maryland Workers' Compensation Act, implementing regulations, policies, and guidelines shall take precedence over any conflicting provision adopted or utilized by CMS in administering the CMS program.

For coding, billing, reporting, and reimbursement of medical treatment and services, authorized providers shall apply the CPT/HCPCS code and CPT modifier in effect on the date the treatment or service was provided.

The Commission shall post instructions for obtaining RVU and GPCI values on its website.

RVU and GPCI values shall be obtained utilizing the current year, the locality code for Baltimore and Surrounding Counties (0090101), the applicable CPT/HCPCS code and any CPT modifier.

The Commission shall post a link to the Medicare Physician Fee Schedule on its website.

The Commission shall post a link to the ASC payment rate instructions on its website.

Notwithstanding CMS payment policies, chiropractors may be reimbursed for services provided within the scope of their practice act.

For procedures performed or services rendered after September 1, 2004, a multiple procedure discount is not permitted for physical medicine and rehabilitation services (CPT codes 97010—97799).

After September 1, 2004, only one code per session will be reimbursed for CPT codes 97012—97039.

Regulation .06 Reimbursement Procedures.Link Copy Citation

To obtain reimbursement under this chapter, an authorized provider shall:

(1)

Complete Form CMS-1500 in accordance with the written instructions posted on the Commission's website; and

(2)

Within the time provided in §H of this regulation, submit to the employer or insurer the completed Form CMS-1500, which shall include:

(a)

An itemized list of each service;

(b)

The diagnosis relative to each service;

(c)

The medical records related to the service being billed;

(d)

The appropriate CPT/HCPCS code with CPT modifiers, if any, for each service;

(e)

The date of each service;

(f)

The specific fee charged for each service;

(g)

The tax ID number of the provider;

(h)

The professional license number of the provider; and

(i)

The National Provider Identifier (NPI) of the provider.

Modifiers.

(1)

Modifying circumstances may be identified by use of the relevant CPT modifier in effect when the medical service or treatment was provided.

(2)

The identification of modifying circumstances does not imply or guarantee that a provider will receive reimbursement as billed.

Time for Reimbursement. Reimbursement by the employer or insurer shall be made within 45 days of the date on which the Form CMS-1500 was received by the employer or insurer, unless the claim for treatment or services is denied in full or in part under §G of this regulation.

Untimely Reimbursement. If an employer or insurer does not pay the fee calculated under this chapter or file a notice of denial of reimbursement, within 45 days of receipt of the CMS-1500, the Commission may assess a fine against the employer or its insurer, and award interest to the provider in accordance with Labor and Employment Article, §§9-663 and 9-664, Annotated Code of Maryland, and COMAR 14.09.06.02.

Denial of Reimbursement.

(1)

If an employer or insurer denies, in full or in part, a claim for treatment or services, the employer or insurer shall:

(a)

Notify the provider of the reasons for the denial in writing; and

(b)

Mail the notice of denial of reimbursement to the provider within 45 days of the date on which Form CMS-1500 was received.

(2)

An employer or insurer who fails to file a notice of denial of reimbursement within 45 days of receipt of the CMS-1500 waives the right to deny reimbursement, and is subject to the provisions of Labor and Employment Article, §§9-663 and 9-664, Annotated Code of Maryland, and COMAR 14.09.06.02

Objection to Denial of Reimbursement.

(1)

A provider may contest a partial or total denial of reimbursement, by submitting to the Commission the following items:

(a)

A “Claim for Medical Services” on a form provided by the Commission;

(b)

The Form CMS-1500 that relates to the unpaid claims; and

(c)

All correspondence relating to the unpaid claim.

(2)

The Commission shall review the items submitted, without hearing, and issue its decision in an Order Nisi.

Hearing on Objection to Commission's Order Nisi.

(1)

The provider, employer, or insurer may contest the Commission's Order Nisi by filing with the Commission a controversion of medical claim, on a form provided by the Commission, within 30 days of the date of the Order Nisi.

(2)

The Commission shall schedule a hearing on the matter and render a decision.

Time for Submitting Form CMS-1500.

(1)

A provider who provides medical service or treatment to a covered employee and seeks reimbursement under this chapter for providing medical service or treatment shall submit to the employer or the employer’s insurer a bill in the form of a completed Form CMS-1500 within 12 months from the later of the date:

(a)

Medical service or treatment was provided to a covered employee;

(b)

The claim for compensation was accepted by the employer or the employer’s insurer; or

(c)

The claim for compensation was determined by the Commission to be compensable.

(2)

The employer or the employer’s insurer may not be required to pay a bill submitted after the time period required under §H(1) of this regulation unless:

(a)

The provider files an application for payment with the Commission within 3 years from the later of the date:

(i)

Medical service or treatment was provided to the covered employee;

(ii)

The claim for compensation was accepted by the employer or the employer’s insurer; or

(iii)

The claim for compensation was determined by the Commission to be compensable; and

(b)

The Commission excuses the untimely submission for good cause.

Regulation .07 Medical Records.Link Copy Citation

Medical records are the basis for determining whether a particular treatment or service is medically necessary and, therefore, reimbursable.

Each health care provider is responsible for creating and maintaining legible medical records documenting the employee's course of treatment.

Employee medical records shall include the:

(1)

History of the patient;

(2)

Results of a physical examination performed in conformity with the standard of practice of similar health care providers, with similar training, in the same or similar communities;

(3)

Progress, clinical, or office notes that reflect:

(a)

Subjective patient complaints;

(b)

Objective findings of the provider;

(c)

Assessment of the presenting problem;

(d)

Any plan or plans of care or recommendations for treatment; and

(e)

Updated assessments of patient's medical status and response to therapy;

(4)

Copies of lab, x-ray, or other diagnostic tests, if any, that reflect the current progress of the patient and response to therapy; and

(5)

Hospital inpatient and outpatient records, if any, including:

(a)

Operation reports;

(b)

Test results;

(c)

Consultation reports;

(d)

Discharge summaries; and

(e)

Other dictated reports.

Writing, Maintaining, and Submitting Medical Records.

(1)

Employee medical records shall be submitted to the employer or insurer, or, upon request, to the Commission.

(2)

The cost of maintaining medical records is included in the treatment and service fees established by the Official Maryland Workers' Compensation Medical Fee Guide (1995) and this chapter. A provider may not submit a separate fee for writing or maintaining medical records.

(3)

Additional Medical Report Fees.

(a)

Upon the request of any party or the Commission, a provider shall promptly write and submit the requested additional medical reports.

(b)

When additional medical reports are requested by the Commission, a provider may not charge a fee for writing or preparing the additional medical reports.

(c)

When additional medical reports are requested by any party, the provider may seek reimbursement under Regulation .06 of this chapter.

(4)

Copies of Medical Records and Additional Medical Reports.

(a)

Requests for Copies of Medical Records.

(i)

A party requesting medical records shall ensure that the request is reasonable and specific.

(ii)

Health care providers shall respond promptly to requests for medical records and additional medical reports.

(iii)

Health care providers may request clarification regarding which medical records and medical reports are the subject of the request.

(iv)

Copies of medical records that were not specifically requested by the payor, are not subject to reimbursement under this chapter.

(b)

Fees for Copying.

(i)

When requested by the injured employee, injured employee's attorney, the employer, or insurer, copies of medical records and additional medical reports will be reimbursed pursuant to Health-General Article, §4-304(c), Annotated Code of Maryland, and other applicable law.

(ii)

Medical record requests by the Commission will be furnished by the provider without charge.

Regulation .08 Deposition Witness Fee.Link Copy Citation

After March 24, 2008, the Commission no longer regulates the reimbursement of deposition fees through a medical fee schedule.

For witness depositions for which a bill has been submitted by the authorized provider before March 24, 2008, the authorized provider shall be allowed a witness fee if the provider submits a bill for the fee using the CPT code for the service.

Reimbursement for a deposition is limited to the amount published in the “Official Maryland Workers' Compensation Medical Fee Guide (1995)” for the appropriate CPT code.

Subtitle 09 — Workers' Compensation Commission

Chapter 09. Guide for Evaluation of Permanent Disability

Regulation .01 Incorporation by Reference.Link Copy Citation

Guides to the Evaluation of Permanent Impairment (American Medical Association, Fourth Edition, 1993) is incorporated by reference.

Regulation .02 Filing Issues.Link Copy Citation

A claimant alleging permanent disability shall file with the Commission an issues form that:

(1)

Explicitly claims permanent partial or permanent total disability;

(2)

Identifies the body parts at issue; and

(3)

Identifies any alleged psychiatric disability.

Prior to filing an issues form raising permanent disability, the party filing the issue shall have obtained a written evaluation of permanent impairment prepared by a physician, psychologist, or psychiatrist in accordance with Regulation .03 of this chapter.

Regulation .03 Evaluation of Permanent Impairment.Link Copy Citation

Written Evaluation Required. As evidence of permanent impairment, a party shall submit:

(1)

A written evaluation of permanent impairment prepared by a physician; or

(2)

In claims where the issue concerns psychiatric impairment, a written evaluation of permanent psychiatric impairment prepared by a licensed psychologist or psychiatrist.

When preparing an evaluation of permanent impairment, a physician, psychologist or psychiatrist shall:

(1)

Generally conform the evaluation with the format set forth in §2.2 (“Reports”) of the American Medical Association's “Guides to the Evaluation of Permanent Impairment”;

(2)

Use the numerical ratings for the impairment set forth in the American Medical Association's “Guides to the Evaluation of Permanent Impairment”, provided that a physician, psychologist or psychiatrist is not required to use the inclinometer evaluation technique specified in §3.3, but instead may use the goniometer technique specified in the “Addendum to Chapter 3”;

(3)

Include the items listed under the heading “Comparison of the results of analysis with the impairment criteria . . .” in §2.2 (“Reports”) of the American Medical Association's “Guides to the Evaluation of Permanent Impairment”; and

(4)

Include information on the items required by Labor and Employment Article, §9-721, Annotated Code of Maryland:

(a)

Loss of function, endurance, and range of motion; and

(b)

Pain, weakness, and atrophy.

Numerical Ratings.

(1)

A physician, psychologist or psychiatrist preparing an evaluation of permanent impairment may include numerical ratings not set forth in the American Medical Association's “Guides to the Evaluation of Permanent Impairment” for the items listed in §B(4) of this regulation.

(2)

If the physician, psychologist or psychiatrist uses other numerical ratings the physician shall include in the evaluation the detailed findings that support those numerical ratings.

When reviewing an evaluation for permanent impairment, the Commission shall consider all the items listed in §B of this regulation.

The Commission may not approve payment of a physician's, psychologist's or psychiatrist's fee for an evaluation that does not comply with this regulation.

This regulation shall apply to all evaluations prepared on or after July 1, 1990.

Regulation .04 Stipulation for Permanent Disability.Link Copy Citation

A written stipulation to an award for permanent disability shall be filed using the stipulation of parties and award of compensation form and contain the following information:

(1)

The claimant's average weekly wage;

(2)

The inclusive dates of any temporary total disability;

(3)

The inclusive dates and rate of any temporary partial disability;

(4)

A copy of any medical evaluation relied upon;

(5)

The percentage of claimant's loss of use or industrial loss of use and the benefits weeks payable;

(6)

Any medical expenses claimed;

(7)

Any attorney's fees sought by claimant's attorney; and

(8)

The signatures of all parties if a written stipulation is submitted.

If the claimant is not represented by an attorney, the stipulation shall be accompanied by the following:

(1)

All medical information in the possession of other parties; and

(2)

A statement signed by the claimant acknowledging that the claimant understands that the stipulation does not foreclose the claimant's future right to benefits under the Workers' Compensation Law, including the right to reopen and the right to continuing medical treatment.

The stipulation is not binding on the Commission unless approved by the Commission.

Subtitle 09 — Workers' Compensation Commission

Chapter 10. Settlements and Lump Sum Payments

Regulation .01 Lump Sum Payment.Link Copy Citation

A claimant seeking a lump sum payment shall file an application with the Commission that:

(1)

States specifically the facts and circumstances that the claimant contends justify the lump sum payment; and

(2)

Is accompanied by any documents upon which the claimant relies in support of the application.

The party who may be required to make the lump sum payment shall file with the Commission a statement showing the outstanding balance of payments due the claimant and indicating whether that party objects to the granting of the application.

A hearing on the application shall be scheduled if:

(1)

The employer, insurer or other payor does not consent to the lump sum, or

(2)

The Commission, upon review of the application, determines a hearing is warranted.

Regulation .02 Agreements for Final Compromise and Settlement.Link Copy Citation

General Requirements. An agreement for final compromise and settlement of a claim that is submitted to the Commission for approval as required by Labor and Employment Article, §9-722, Annotated Code of Maryland, shall be submitted electronically and contain the following:

(1)

The total amount of settlement proposed;

(2)

An application or petition for approval of attorney’s fees, medical evaluation fees, and costs as provided in COMAR 14.09.04.02;

(3)

The inclusive dates of any temporary total disability;

(4)

The date on which the payments under the agreement are to begin;

(5)

If any compensation was previously awarded or paid, a statement indicating whether the settlement includes, is in addition to, or is in place of all or part of that compensation;

(6)

A statement indicating the rate of payment and whether all or part of the settlement is to be paid in a lump sum;

(7)

The claimant's average weekly wage;

(8)

The claimant's date of birth and age in years and months;

(9)

The total amount of all indemnity benefits paid to claimant;

(10)

The gross total of all future payments to be paid pursuant to an annuity (not present value);

(11)

If the insurer makes an assignment of any of its obligations to a third party, the settlement agreement shall contain affirmative language confirming that the employer/insurer shall resume its obligation for all remaining payments in the event of default by the third party;

(12)

The date of disablement by accidental injury or occupational disease; and

(13)

A completed copy of the settlement worksheet form, available on the Commission website, attached to the settlement.

Future Medical Expenses.

(1)

A settlement involving future medical expenses, including future pharmaceutical expenses, may be approved by the Commission provided that the settlement agreement:

(a)

Contains a detailed statement explaining how the interests of Medicare have been considered in reaching the settlement; and

(b)

Identifies the amount of the proposed settlement:

(i)

Apportioned to future medical expenses; or

(ii)

Set aside for future medical expenses through a formal set-aside allocation.

(2)

The apportionment of the amount of the settlement associated with future medical expenses shall be supported by medical evidence such as a medical opinion or evaluation.

(3)

A formal set-aside allocation shall comply with the guidelines established by Medicare for set-aside allocations.

(4)

In determining whether a set-aside allocation and settlement may be reviewed and approved by the Centers for Medicare and Medicaid Services (CMS), the Commission shall apply the most current Medicare review thresholds set forth in the memoranda or regulations available on the CMS website.

(5)

A settlement within the Medicare review thresholds may be approved by the Commission provided that, in addition to the requirements set forth in §B(1) of this regulation, the settlement agreement contains a statement acknowledging:

(a)

That the settlement is within the CMS review thresholds;

(b)

That the parties voluntarily have elected not to submit the settlement and formal set-aside allocation to CMS for review and approval; and

(c)

That the parties are aware that CMS may refuse to pay for services related to the injury and may assert a recovery claim against any entity, including a claimant, provider, supplier, physician, attorney, or private insurer.

(6)

A settlement involving future medical expenses may not be approved if the proposed settlement contains contingency provisions from which the Commission cannot determine the amount of medical expenses, if any, subject to assessment under Labor and Employment Article, §§9-806(a)(2) and 9-1007(a)(2), Annotated Code of Maryland.

Special Requirements.

(1)

Resolution of Third-Party Liability Claims. When a third-party liability claim has been resolved by settlement or judgment, the agreement settling the workers' compensation claim shall be submitted to the Commission for approval, comply with §§A and B of this regulation, and contain or be accompanied by the following:

(a)

A statement of the full amount of compensation paid or to be paid by the employer and insurer;

(b)

A statement of the total amount of compensation paid or payable, the amount the employer or insurer is waiving reimbursement from the third-party settlement, the amount of the third-party settlement, the amount of attorney's fee charged in the third-party case; and

(c)

A copy of the executed release or judgment.

(2)

Dependency Claims.

(a)

When the settlement arises in connection with a claim involving a surviving dependent, the agreement submitted to the Commission for approval, in addition to complying with §§A and B, shall contain:

(i)

A statement setting forth in factual detail the position of the parties on each issue involved in the claim; and

(ii)

The name and address, if known, of any dependent for whom a claim has not been filed or a statement that no other dependents are known to the parties.

(b)

The parties shall file with the agreement, if not previously filed in the case, certified copies of the following:

(i)

The certificate of death of the deceased employee;

(ii)

The autopsy report for the deceased employee, if applicable;

(iii)

The certificate of marriage for the dependent and deceased employee, if the dependent is the surviving spouse of the employee; and

(iv)

The birth certificate of the dependent, if the dependent is the surviving child of the employee.

(c)

When a document or public record required by this chapter was created or issued in a foreign State, the party submitting the document shall comply with the authentication requirements for foreign documents set forth in COMAR 14.09.02.05.

Structured Settlements. Agreements for the structured settlement of a claim shall be determined on a case-by-case basis.

Medical Report.

(1)

An agreement for final compromise and settlement shall be accompanied by all medical reports evaluating the nature and extent of the claimant's disability.

(2)

On written request of the parties, the Commission may waive the requirement under §E(1) of this regulation if:

(a)

The claim being settled is contested on an issue that denies the claimant's right to any benefits under Labor and Employment Article, Title 9;

(b)

The claim has been disallowed by the Commission and is pending on appeal; or

(c)

Good cause, that does not involve solely the question of the nature and extent of the claimant's disability, is shown for not requiring a medical report.

Hearing.

(1)

The Commission may not approve an agreement for final compromise and settlement without a hearing unless the agreement is accompanied by the affidavit of the claimant, on the form prescribed by the Commission, waiving the hearing.

(2)

The Commission may, at its discretion, require a hearing even when the affidavit is filed.

Regulation .03 Assessments on Third Party and Structured Settlements.Link Copy Citation

Third-Party Settlements. In a final compromise and settlement involving third-party liability under Labor and Employment Article, Title 9, Subtitle 9, Annotated Code of Maryland, the assessments for SIF and UEF shall be computed on the amount of compensation paid or to be paid by the employer or insurer for which the employer or insurer may not be reimbursed from the third-party settlement.

Structured Settlements.

(1)

In case of a structured settlement of a claim, the assessments for SIF and UEF shall be computed on the premium payable by the employer or insurer for any annuity policy purchased on behalf of the employee.

(2)

If the parties fail to disclose to the Commission the amount of premium payable by the employer or insurer, then the assessments shall be computed on the total amount of money guaranteed to be paid under the settlement agreement.

Subtitle 09 — Workers' Compensation Commission

Chapter 11. Judicial Review Procedures

Regulation .01 Petition for Judicial Review.Link Copy Citation

A party seeking judicial review of a decision of the Commission shall file a petition for judicial review in the circuit court within 30 days after the date the Commission’s order was mailed in accordance with Labor and Employment Article, §9-737, Annotated Code of Maryland, and the Maryland Rules, 7-201, et seq.

A party filing a petition for judicial review shall serve a copy of the petition on the Commission in accordance with Labor and Employment Article, §9-737, Annotated Code of Maryland, and Maryland Rule 7-202(d).

A party seeking judicial review of a decision granting or denying attorney’s fees shall serve a copy of the petition for judicial review on the Assistant Attorney General assigned to represent the Commission at the Commission’s principal office in Baltimore City. The judicial review shall be on the record of the Commission in accordance with Maryland Rule 7-206.1(b).

Regulation .02 Transcript of Proceedings.Link Copy Citation

Unless the parties agree that a transcript is not necessary for review, or the court so orders, the first petitioner shall request and pay for a copy of the transcript of the proceedings before the Commission in accordance with Maryland Rule 7-206.

The first petitioner shall file a written request that the transcript be prepared containing:

(1)

The Commission case number;

(2)

The date and place of the Commission hearing;

(3)

The circuit court case number if known;

(4)

The name of the first petitioner; and

(5)

An acknowledgement that the first petitioner shall pay the cost of transcription.

Upon receipt of the request, the court reporter who recorded the hearing shall advise the first petitioner in writing of the estimated cost of the transcript.

The first petitioner shall pay the cost of the transcription.

Regulation .03 Circuit Court Proceedings.Link Copy Citation

Following the disposition of a petition for judicial review by trial or motion, the prevailing party shall notify the Commission of the circuit court disposition within 30 days after disposition.

A Cover Sheet for Action on Claims on Appeal shall be used to notify the Commission of the circuit court disposition and shall be accompanied by a copy of the verdict or signed order and memorandum, if any.

If a hearing is required, the prevailing party shall file an issues form with the cover sheet.

If a party appeals the circuit court disposition, the party shall notify the Commission using a Cover Sheet for Action on Claims on Appeal accompanied by a copy of the notice of appeal.

Regulation .04 Appellate Proceedings.Link Copy Citation

Following the disposition of a case on appeal to the appellate courts, the prevailing party shall notify the Commission of the appellate court disposition.

A Cover Sheet for Action on Claims on Appeal shall be used to notify the Commission of the appellate court disposition and shall be accompanied by:

(1)

The appellate court opinion and order; and

(2)

The appellate court mandate.

If a hearing is required, the prevailing party shall file an issues form with the cover sheet.

If a party appeals the appellate court disposition, the party shall notify the Commission using a Cover Sheet for Action on Claims on Appeal accompanied by a copy of the notice of appeal or petition for writ of certiorari.

Regulation .05 Supplemental Order Subject to Review on the Pending Appeal.Link Copy Citation

If the Commission exercises its continuing jurisdiction under Labor and Employment Article, §9-742, Annotated Code of Maryland, to pass a supplemental order deciding an issue, the first petitioner/appellant shall file within 5 days of entry of the supplemental order:

(1)

A copy of the supplemental order with the circuit or appellate court in which judicial review/appeal is pending; and

(2)

A written certification with the Commission that the first petitioner/appellant has filed the copy of the supplemental order with the circuit or appellate court.

The written certification shall contain:

(1)

The workers' compensation claim number;

(2)

The claimant’s name;

(3)

The caption of the case on appeal including the parties, the name of the court, and case number;

(4)

A description of the supplemental order filed; and

(5)

The date and manner of the filing.

Any transcript of the proceeding that is required for inclusion in the record shall be requested by and paid for by the first petitioner or appellant.

The petitioner/appellant shall file the written request for any transcript required for inclusion in the record when the written certification is filed with the Commission.

Subtitle 09 — Workers' Compensation Commission

Chapter 12. Responsibilities of Insurers

Regulation .01 Definitions.Link Copy Citation

In this chapter, the following term has the meaning indicated.

Terms Defined.

(1)

“Competent Individual” means an individual who has sufficient skill, knowledge, and experience to handle and adjust disputed claims and who has authority to resolve claims without having to routinely contact an out-of-State representative of the insurer.

(2)

“Commission designee” means the National Council on Compensation Insurance or any other entity that the Commission, from time to time, may designate as its representative to receive notices required by this regulation.

(3)

“Insurance policy” means a policy or binder for workers' compensation insurance under Labor and Employment Article, Title 9, Annotated Code of Maryland.

Regulation .02 Notices of Insurance, Cancellation, Reinstatement, and Election of Coverage.Link Copy Citation

Notice of Insurance. When an insurance policy is issued or renewed, the insurer issuing or renewing it shall file a notice of insurance with the Commission designee within 45 days after the effective date of the policy.

Notice of Cancellation.

(1)

Required Filing. When an insurance policy is cancelled by the insurer or by the insured, the insurer shall file a notice of cancellation with the Commission designee.

(2)

Time for Filing.

(a)

Cancellation by Insurer.

(i)

If the insurer cancels the insurance policy for nonpayment of premium, the notice of cancellation shall be filed at least 10 days before the effective date of the cancellation, in compliance with Insurance Article, §19-406(f), Annotated Code of Maryland.

(ii)

If the insurer cancels the insurance policy for any other reason, the notice of cancellation shall be filed at least 45 days before the effective date of the cancellation, in compliance with Insurance Article, §19-406(a), Annotated Code of Maryland.

(b)

Cancellation by Insured. When the cancellation is initiated by the insured, the notice of cancellation shall be filed by the insurer within 15 days after the effective date of the cancellation.

Notice of Reinstatement — Time of Filing. When an insurance policy is reinstated, the insurer shall file a notice of reinstatement with the Commission designee within 15 days after the effective date of the reinstatement.

Notice of Insurance, Cancellation, and Reinstatement — Form and Content. A notice of insurance, cancellation, or reinstatement shall contain all the following information:

(1)

The employer's name;

(2)

All names under which the employer trades;

(3)

All nontemporary business addresses of the employer in Maryland;

(4)

The employer’s federal identification number or, if the employer is not required to have a federal identification number, the last four digits of the employer’s social security number;

(5)

The insurance policy number; and

(6)

The policy period.

Notice of Election of Inclusion or Exemption of Coverage.

(1)

A person may elect to be a covered employee by filing a notice of election with the Commission and with the insurer.

(2)

The following types of persons may elect to be covered employees:

(a)

Pursuant to Labor and Employment Article, §9-227(b), Annotated Code of Maryland, sole proprietors; and

(b)

Pursuant to Labor and Employment Article, §9-219(b), Annotated Code of Maryland, partners.

(3)

A person may elect to be exempt from coverage as an employee by filing a notice of election with the Commission and the insurer.

(4)

The following types of persons may elect to be exempted from coverage:

(a)

Pursuant to Labor and Employment Article §9-206(b)(1), officers of a closed corporation;

(b)

Pursuant to Labor and Employment Article §9-206(b)(2) and (c), officers of a corporation, other than closed corporation;

(c)

Pursuant to Labor and Employment Article §9-206(b)(3) and (4), officers of a farm corporation or professional services corporation; and

(d)

Pursuant to Labor and Employment Article §9-206(b)(5), members of a limited liability company.

(5)

If an employer changes insurers, a person shall file a new notice of election with the Commission and with the new insurer.

Regulation .03 Handling and Adjusting Disputed Claims.Link Copy Citation

An insurer that provides workers' compensation insurance in Maryland shall have in the State competent individuals who:

(1)

Handle and adjust each disputed workers' compensation claim for the insurer;

(2)

Have authority to resolve claims without having to routinely contact an out-of-State representative of the insurer; and

(3)

Possess the knowledge and experience to handle and adjust each disputed claim.

If an insurer files issues to dispute a claim, the filing shall be done in the State by competent individuals who:

(1)

Handle and adjust each disputed workers' compensation claim for the insurer;

(2)

Have authority to resolve claims without having to routinely contact an out-of-State representative of the insurer; and

(3)

Possess the knowledge and experience to handle and adjust each disputed claim.

Within 10 days of an insurer filing issues to dispute a claim, the insurer shall have an attorney complete and file an entry of appearance form in accordance with COMAR 14.09.04.01C(2).

Each insurer shall register with the Commission the contact information for a designated representative who can identify the competent individual handling and adjusting each disputed claim.

Upon inquiry, the designated individual shall provide the name, address, telephone number, and email address of the competent individual handling and adjusting a claim within 2 business days.

If any of the information in §D of this regulation changes, the insurer shall notify the Commission immediately.

An insurer that provides workers' compensation insurance in Maryland shall establish a toll-free telephone number through which an insured or claimant, or a representative of an insured or claimant, may make direct telephone inquiries during regular business hours.

An insurer that provides workers’ compensation insurance in Maryland shall register with CompHub to file and receive papers with the Commission.

Regulation .04 Failure to Comply.Link Copy Citation

Fine.

(1)

An insurer found in violation of Regulation .03 of this chapter may be fined up to $1,000 per offense.

(2)

Each day a violation is continued after the first fine is a separate offense.

Revocation of Self-Insurance Approval. A violation of Regulation .03 of this chapter that jeopardizes prompt and fair compensation of a Maryland workers' compensation claim may be grounds for the revocation of an employer's self-insurance approval under Labor and Employment Article, §9-403(e)(1), Annotated Code of Maryland.

Regulation .05 Hearing Procedure.Link Copy Citation

Notice of Agency Action.

(1)

If the Commission has reasonable cause to believe that an insurer has violated Regulation .03 of this chapter, the Commission shall give reasonable notice of the alleged violation and the action the Commission proposes to take.

(2)

The notice shall state:

(a)

The facts that are asserted;

(b)

If the facts cannot be stated in detail when the notice is given, the issues that are involved;

(c)

The potential penalty that could be imposed;

(d)

That the recipient has a right to request a hearing;

(e)

That any request for a hearing shall be in writing and received by the Commission within 20 days of the date of the notice; and

(f)

That if a hearing is not requested within the time allowed, the Commission shall render its decision on the basis of its own investigation.

Notice of Hearing.

(1)

If a hearing is requested, the Commission shall mail a notice of the hearing 20 days before the date set for the hearing.

(2)

The notice shall state:

(a)

The date, time, place, and nature of the hearing;

(b)

That the insurer may submit a written statement 5 days before the hearing;

(c)

That the insurer may present oral argument at the hearing;

(d)

That the insurer may call witnesses and submit documents or other evidence relative to the issues contained in the notice; and

(e)

That the insurer may agree to the evidence and waive its right to appear at the hearing.

Postponement.

(1)

An insurer may request a postponement in writing 5 days before the hearing.

(2)

If an insurer fails to appear at a hearing, and has not requested a postponement, the Commission may either:

(a)

Proceed with the hearing; or

(b)

Make its decision on the record before it.

Disposition. A hearing may not be adjourned or continued except upon order of the Commission.

Regulation .06 Penalty for Failure to Submit Required Case Payment Report.Link Copy Citation

The Commission may assess against an insurer a fine not to exceed $1,000 for any unexcused failure to file a case payment report as required under Labor and Employment Article, §9-313(b), Annotated Code of Maryland.

Schedule of Assessments. The schedule of assessments established by the Commission is as follows:

In calculating the imposition of an assessment on an insurer, each failure to submit a required report or the submission of an inaccurate or incomplete report is considered a separate violation subject to assessment.

Regulation .07 Appeal.Link Copy Citation

An appeal from a decision made under this chapter shall be made on the record in accordance with Maryland Rule 7-206.1(b).

Regulation .08 Report of Payroll.Link Copy Citation

In accordance with Labor and Employment Article, §9-316(g), Annotated Code of Maryland, each insurer shall file an annual report of insured payroll to the Commission electronically and as directed by the Commission.

Any unexcused failure to file an accurate annual report of insured payroll to the Commission as required under Labor and Employment Article, §9-316(g), Annotated Code of Maryland, may result in an inaccurate assessment, delays in any refund due as a result of inaccurate reporting, or both.

Subtitle 09 — Workers' Compensation Commission

Chapter 13. Individual Employer Self-Insurer

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Acceptable financial indicators” means indicators consistent with comparable industry financial health and performance criteria as reported in rating services such as RMA Annual Financial Statement Studies or equivalent recognized indices.

(2)

“Act” means the Maryland Workers' Compensation Act, Labor and Employment Article, Title 9, Annotated Code of Maryland.

(3)

“Actuarial report” means a report written by an actuary who is a member of the Casualty Actuarial Society or the American Academy of Actuaries.

(4)

“Affiliate” means a member of a group of companies with common ownership but not the company having a direct ownership interest.

(5)

“Commission” means the Maryland State Workers' Compensation Commission.

(6)

“Investment grade securities” means federal or state bonds accepted by the circuit courts for investment of trust money.

(7)

“Irrevocable trust, custodian, safekeeping, or book entry account” means a depository account of monies and investment grade securities held by a Federal Deposit Insurance Corporation bank that agrees to hold amounts ordered by the Commission for a self-insurer that can only be withdrawn by the Commission, or if a trust exists pursuant to the terms of the trust document.

(8)

Self-Insurer.

(a)

“Self-insurer” means an employer which has been granted the privilege to self-insure its liability and to maintain direct responsibility for the payment of this liability under the Act including any approved subsidiary of the self-insurer.

(b)

“Self-insurer” does not include a parent company or affiliate that has guaranteed the payment of the self-insurer's liability.

(9)

“State” means the State of Maryland.

(10)

“Third-party administrator” means a company that handles and adjusts workers’ compensation claims under contract to a self-insurer.

Regulation .02 Application.Link Copy Citation

Requirements.

(1)

An initial application for individual self-insurance shall be submitted to the Commission on forms prescribed by the Commission and shall include all required information and documentation required by the Commission. A corporation shall submit a resolution of its board of directors authorizing and directing the corporation to apply to become self-insured.

(2)

A nonrefundable fee in the amount established by the Commission shall accompany the application.

(3)

The required information on the application shall be fully completed and particularly set forth under oath by the employer or an individual acting on the employer's behalf. The affidavit shall be made upon personal knowledge of the matters set forth in the application. The Commission may require the applicant to supplement or explain any of the matters set forth or to provide additional information that the Commission considers necessary.

(4)

If a third-party administrator is used or intended to be used, the applicant shall provide a copy of the contract between the parties demonstrating that the third-party administrator agrees to do the following:

(a)

Have in the State competent individuals who possess the knowledge and experience to handle and adjust each disputed claim in an efficient manner; and

(b)

Handle and adjust each disputed workers’ compensation claim on behalf of the self-insurer in accordance with Maryland law.

(5)

Upon receipt of a complete application and all required information and documentation, the Commission shall act upon the application for self-insurance within 60 days.

Parental Guarantees and Subsidiaries.

(1)

When an employer applying to self-insure is a subsidiary company, the parent company shall provide, on forms prescribed by the Commission, a written agreement adopted by its board of directors which states that the parent company guarantees the payment of all claims incurred by the self-insurer and its affiliates and subsidiaries that are approved under the self-insurance program. The parent company shall further assume liability for the payment of an affiliate's or subsidiary's claims incurred during its period of self-insurance upon termination of the affiliate or parent-subsidiary relationship until formally released by the Commission.

(2)

When a subsidiary company applies to self-insure under a parent company's existing self-insurance program, the subsidiary company shall file an application on forms prescribed by the Commission.

Approval.

(1)

In determining whether an applicant is eligible for self-insurance and in establishing the amount of surety required, the Commission shall consider all relevant factors including the following:

(a)

Established record of financial stability and solvency, including:

(i)

Net worth or unrestricted net assets of not less than $10,000,000 and at least 20 times average annual incurred claims net of reimbursements for the past 3 years;

(ii)

Profitable and positive cash flow from operations 3 out of the last 5 years;

(iii)

Acceptable debt-equity ratio;

(iv)

Acceptable current and quick ratio;

(v)

Acceptable interest coverage ratio; and

(vi)

Acceptable financial stability of surety, excess carrier, or letter of credit issuer;

(b)

The proposed excess insurance policy limits and retention level;

(c)

The experience of the organizational unit or service company processing and handling claims in the State;

(d)

Workers' compensation loss history of the applicant;

(e)

The number of years in business, with a minimum of 3 consecutive years before application; and

(f)

Number of employees.

(2)

Not-for-profit organizations need not be profitable if all other provisions are satisfied and there are significant investments or endowments and other resources to assure payment of workers' compensation claims.

Regulation .03 Revocation of Self-Insured Status.Link Copy Citation

Approval for self-insurance privileges shall be continuous unless and until revoked or withdrawn.

Deterioration in the financial strength of the self-insurer, which may affect the ability of the self-insurer to pay current and future claims when due, may result in modification or revocation of self-insurance privileges.

Failure of a self-insurer to satisfy the Commission of its financial ability to secure compensation to pay current and future claims includes the following conditions:

(1)

3 straight years of losses or negative cash flow from operations;

(2)

Negative tangible net worth;

(3)

8 straight quarters of losses;

(4)

Noncompliance with lender covenants;

(5)

Financial instability of surety, excess carrier, or letter of credit issuer;

(6)

Public disclosure of accounting irregularities;

(7)

Potential insolvency or bankruptcy; or

(8)

Any other issue that shows financial instability.

An employer whose self-insurance privileges have been revoked shall continue to provide competent administration of disputed claims. If it is determined by the Commission that the claims are not being competently administered or reported, the Commission shall notify the employer. If the problem is not resolved to the satisfaction of the Commission within a reasonable period of time, the Commission may require the designation of a new claims administrator and the costs shall be borne by the employer.

Whenever an employer voluntarily withdraws or is terminated or revoked from the self-insurance program, the Commission shall require the employer to provide all available information regarding case reserves and incurred but not reported estimates of remaining liability while self-insured.

Regulation .04 Voluntary Withdrawal from the Self-Insurance Program.Link Copy Citation

A self-insurer who voluntarily withdraws its privileges or the privileges of a self-insured subsidiary shall:

(1)

Provide written notice to the Commission by personal delivery or by certified mail, return receipt requested, including a:

(a)

Recent actuarial report;

(b)

Claims payment history for up to 5 years; and

(c)

Current loss run; and

(2)

Provide the date and time of the intended withdrawal and the carrier name, policy number, and effective date of coverage of the insurer assuming the risk.

All former self-insurers and their guarantors shall remain responsible for any and all workers' compensation liabilities incurred during the self-insurance period. The incurred liabilities of a subsidiary or division are not subject to transfer to another entity through a sale unless the liabilities are to be fully covered under a workers' compensation insurance policy or a qualified self-insurance program.

Regulation .05 Revoked and Terminated Self-Insurers.Link Copy Citation

Effective on the date of self-insurance revocation or termination, a revoked or terminated self-insurer shall provide the Commission with written evidence of workers' compensation insurance from an approved commercial carrier or the Maryland Injured Workers Insurance Fund, effective on the date of self-insurance termination.

A terminated or revoked self-insurer shall maintain the security, excess policy, and parental guarantee which were in effect for the period while self-insured until released by the Commission.

Each year, a terminated or revoked self-insurer shall provide to the Commission, an audited financial statement prepared by an independent certified public accountant. A self-insurer shall provide a separate report on a form prescribed by the Commission on the balance remaining in reserves, including incurred but not reported costs, for the period while self-insured. Any payments made during the year as well as the amount of adjustment made to the reserves from the prior year shall also be included in the prescribed report. The Commission may waive these requirements after 3 years from the date of termination.

When the security has been exhausted, the surety or administrator shall make a final accounting to the Commission. The Commission shall direct the transfer of the workers' compensation records associated with the period of self-insurance.

Regulation .06 Security.Link Copy Citation

Each self-insurer shall, as a condition for the approval and continuation of its self-insurance privilege, provide a qualifying security deposit to secure the payment of compensation. The security is not subject to assignment, execution, attachment, or any legal process whatsoever, except as necessary to guarantee compensation under this chapter. The Commission may waive security requirements for individually self-insured governmental entities.

Types of Qualifying Security.

(1)

Surety Bond.

(a)

A surety bond shall be on a form prescribed by the Commission and issued by a company authorized to transact surety business in this State by the Maryland Insurance Administration.

(b)

The surety company shall possess a current A. M. Best Rating of A- or better or a comparable rating by another insurance company rating service acceptable to the Commission.

(2)

Letter of Credit.

(a)

Requirements.

(i)

A letter of credit shall be issued by a Federal Deposit Insurance Corporation member bank on a form prescribed by the Commission and in accordance with the Act.

(ii)

A letter of credit shall possess a current financial standing according to Weiss Ratings, Inc. or equivalent rating service of B- or better.

(iii)

If the Commission executes a draw down against a letter of credit, the funds shall be wired to a Federal Deposit Insurance Corporation member bank account within the State.

(b)

When a self-insurer, active or revoked, provides adequate security after the Commission drawing on the letter of credit, the funds shall be released back to the letter of credit issuer.

(3)

Irrevocable Trust, Custodian, Safekeeping Agreement, or Book Entry Account.

(a)

The Commission in its discretion may accept an irrevocable trust, custodian, safekeeping agreement, or book entry account for placement of securities issued by the federal government or by any state government in the United States, which is AA rated or better.

(b)

Investment grade securities deposited in an irrevocable trust, custodian, safekeeping agreement, or book entry account shall be held for the benefit of the Commission and shall have a fair market value and be redeemable at or above the required security amount at all times.

(c)

An irrevocable trust, custodian, safekeeping agreement, or book entry account that contains adequate securities as defined in §B(3)(a) and (b) of this regulation for the benefit of injured employees of the self-insurer may not be used for any other purpose or voided by order of owners, directors, or creditors of the self-insurer, or by order of any court, without specific written authorization of the Commission.

(d)

When a self-insurer is revoked or withdraws from the self-insurance program, the securities remain pledged to the Commission to guarantee payment of any claim occurring during the self-insured period.

(e)

At any time that the redeemable value falls below the security required, the self-insurer shall provide the additional security within 60 days of notification of deficit by the banking depository or the Commission. Any securities subject to rollover shall be replaced concurrently with the maturity and receipt of proceeds from the rollover.

(f)

Any earnings received on these securities shall be returned to the self-insurer.

(g)

A request for release of securities, or any part of the securities, shall be in writing to the Commission.

Security Deposit Determinations.

(1)

Before approval of self-insurance status and periodically after that, the Commission, in establishing and adjusting security deposit amounts, shall consider, among other conditions or facts relevant to security and prompt payment of compensation, the following:

(a)

Claims experience and reserves;

(b)

Financial condition and performance;

(c)

Safety record and program;

(d)

Potential for catastrophic event;

(e)

Compliance with law and regulations; and

(f)

Reliability of audited financial statements, and reports of payroll, accident, claims, and reserve data.

(2)

A self-insurer shall, after the third full year of an approved plan, or earlier if required by the Commission, and tri-annually after that, or at a time frequency determined by the Commission, provide an independent actuarial study prepared in accordance with actuarial standards of practice as a basis for security deposit determination. The Commission may use reported reserve amounts in addition to a factor for related administrative costs and the potential modifiers in this subsection to establish the security amount.

(3)

The Commission may waive this requirement for security for individually self-insured governmental entities.

Regulation .07 Excess Insurance.Link Copy Citation

The applicant for self-insurance shall purchase excess insurance in an amount determined by the Commission.

Specific retention amounts as defined in the excess policy shall be no higher than 5 percent of net worth or unrestricted net assets. The specific excess limit shall be not less than 20 times the specific retention amount or as otherwise ordered by the Commission.

The applicant for self-insurance may request the intended specific retention amount and specific excess limit. The Commission shall order the approved amounts.

The applicant for self-insurance shall provide proof of excess insurance by filing a copy of the excess certificate and a copy of the excess insurance policy with any endorsements with the Commission within 30 days of its issuance or renewal, or when requested by the Commission.

Whenever the Commission makes a security deposit determination under Regulation .06 of this chapter, it also shall consider the terms and conditions of any excess insurance, including specific retention amount and specific excess limit.

The Commission may waive this requirement for excess insurance for individually self-insured governmental entities.

Regulation .08 Reporting Requirements.Link Copy Citation

Financial Reports.

(1)

A self-insurer shall file an annual certified, audited financial report and 10K reports, if applicable, with the Commission within 120 days of the end of the reporting period. An extension may be granted upon written request of the Commission.

(2)

The self-insurer shall submit interim reports as requested by the Commission.

(3)

Financial reports shall be filed with the Commission electronically and as directed by the Commission.

Claims Reports.

(1)

A self-insurer shall maintain true and accurate records of workers' compensation paid and incurred costs and case reserves on each claim in indemnity, medical, and allocated costs paid and reserves for each claim. This information shall be provided annually to the Commission or more frequently if requested by the Commission.

(2)

Reports submitted by a service company or third-party administrator on behalf of the self-insurer shall be treated as if they were submitted by the self-insurer directly.

(3)

Claims reports shall be filed with the Commission electronically and as directed by the Commission.

Penalty.

(1)

After notice and opportunity for a hearing, the Commission may assess an individual employer self-insurer that the commission finds to be in violation of this regulation a fine not exceeding $1,000 for each violation.

(2)

Failure to pay a fine assessed under this section may result in revocation of self-insurance status.

Reserves. A self-insurer shall evaluate and maintain adequate records of the past, present, and future liability of all claims incurred under its self-insurance program, including their closed and current claims in addition to reserves for future anticipated costs. Future anticipated costs shall represent the expected total cost of compensation over the life of each claim, based on all available information at the valuation date. Annually required reserves reports shall also include estimates of incurred but not reported costs applicable to both open claims, closed claims and claims which have occurred, but have not yet been reported.

Change In Ownership Or Financial Condition.

(1)

A self-insurer shall notify the Commission within 30 days of a change in majority ownership. Existing parental guarantees may not be released until an acceptable replacement guarantee is received by the acquiring parent company.

(2)

A self-insurer or parent guarantor that amends its organizational documents to change its identity, status, or business structure, including merger, acquisition, and disposition, shall promptly notify the Commission in writing. All legal agreements and instruments that obligate the self-insurer, guarantors, excess carrier, or security provider shall be updated by the provider within 30 days. The Commission may request copies of documents or information considered necessary to determine whether an action has affected the ability of the employer to self-insure.

Bankruptcy and Closure. A current or former self-insurer shall notify the Commission within 10 days by certified mail, return receipt requested, of a petition for bankruptcy or closure filing and shall provide an updated claims report as defined in §B of this regulation.

Regulation .09 Proceedings.Link Copy Citation

An order of denial of an application for self-insurance or a change in terms or conditions of the self-insurance program shall be served upon the designated representative or representatives of the self-insurer by personal delivery or by certified mail, return receipt requested. The order shall include the reason or reasons for denial.

Upon receipt of the order of denial of an application for self-insurance or a change in terms or conditions of the self-insurance program, a party may request a hearing before the Commission within 15 days. A hearing shall be set as soon as practicable but no sooner than 20 days.

A show cause order for termination or revocation of the self-insurance program shall be served upon the designated representative or representatives of the self-insurer by personal delivery or by certified mail, return receipt requested. The order shall contain the reason or reasons for the termination or revocation and date, time, and place of the hearing.

A self-insurer who has been provided an order of denial or a show cause order may, at its option, submit a written statement before the date set for the hearing and, at the hearing, may appear and present oral argument or other evidence on the issues contained in the hearing notice. When a written statement is presented, 15 copies shall be served on the Commission at least 5 days before the date set for the hearing.

Under exigent circumstances, the Commission may set a hearing in a time period less than prescribed in §D of this regulation.

Regulation .10 Examinations.Link Copy Citation

The costs of examinations pursuant to Labor and Employment Article, §9-405(e), Annotated Code of Maryland, shall be paid by the Commission. If the self-insurer is in default, the expense of the examination shall be paid by the self-insurer.

Regulation .11 Access To Workers' Compensation Records of Self-Insurer.Link Copy Citation

A self-insurer or its designee shall immediately upon notification by the Commission, or upon discontinuance of workers' compensation payments for the period while self-insured, release all relevant records to the Commission or the agent for the surety responsible for the continuation of workers' compensation payments.

Regulation .12 Confidentiality of Information.Link Copy Citation

The Commission may not release to the public any information concerning a self-insurer or third-party administrator other than confirmation that an employer is individually self-insured, its address, the effective date of the insurance program, and the name of the claims or third-party administrator, unless by order of a court, or as required by State or federal law.

Subtitle 09 — Workers' Compensation Commission

Chapter 14. Governmental Group Self-Insurance

Regulation .01 Definitions.Link Copy Citation

For the purposes of this chapter, the following terms have the meanings indicated.

Terms Defined.

(1)

“Actuarially calculated ultimate loss liability” means the sum of open claim reserves plus an estimate of incurred but not reported losses on open and closed claims through the cutoff date for the estimate in accordance with generally accepted actuarial principles.

(2)

“Adequate consideration” has the meaning set forth in the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1108(17)(B).

(3)

“Administrator” means a person or entity designated by the Board of Trustees for a purpose authorized by this regulation.

(4)

“Board of Trustees” means the elected governing body of a governmental group self-insurance fund.

(5)

“Elect” means either:

(a)

Direct election by the members of the governmental group fund;

(b)

Appointment by the Board of Directors of a governmental entity member organization; or

(c)

Appointment by the Board of Directors of the governmental group or sponsoring organization.

(6)

“Exchange traded fund” or “ETF” means an equity fund or bond fund designed to replicate the performance of a major broad market United States, international, or global index and publicly traded on an American Stock Exchange.

(7)

“Fiduciary” means:

(a)

An individual or group of individuals as defined in the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1102(21)(A);

(b)

A member of the Board of Trustees;

(c)

A member of an investment committee of the Board of Trustees; and

(d)

An administrator.

(8)

“Fiscal agent” means the entity employed by the Board of Trustees to hold the monies of the Fund.

(9)

“Fund” means the governmental self-insurance group fund established pursuant to Labor and Employment Article, §9-404, Annotated Code of Maryland, and this chapter.

(10)

“Party in interest” means:

(a)

An administrator;

(b)

A fiduciary;

(c)

A member of the Fund, any of whose employees are covered by the Fund;

(d)

A service company;

(e)

A trustee;

(f)

A fiscal agent;

(g)

A spouse, ancestor, lineal descendent, or spouse of a lineal descendent of a person set forth in §B(10)(a) — (f) of this regulation;

(h)

A corporation, partnership, trust or estate of which 50 percent is owned directly or indirectly by a person set forth in §B(9)(a) — (f) of this regulation;

(i)

An employee, officer, director or 10 percent or more shareholder of an entity or person set forth in §B(10)(a) — (f) of this regulation; and

(j)

A 10 percent or more partner or joint venturer of an entity or person set forth in §B(10)(a) — (f) of this regulation.

(11)

“SEC” means the United States Securities and Exchange Commission.

(12)

“Service company” means an organization, company, or person hired to perform a function of the Fund's day-to-day operations including, but not limited to:

(a)

Adjusting claims;

(b)

Performing safety engineering;

(c)

Compiling statistics and preparing premium, loss, and tax reports;

(d)

Preparing other required fund reports;

(e)

Developing members' premiums and fees;

(f)

Managing the investment of all or part of the Fund's assets; and

(g)

Providing advisory services, including advice on investment objectives, asset allocation, manager search, and performance monitoring.

(13)

“Sponsoring organization” means the governmental group that has been approved for joint self-insurance coverage under Labor and Employment Article, §9-404, Annotated Code of Maryland.

(14)

“Surplus monies not needed to meet current obligations (surplus monies)” means monies not needed to pay current Fund:

(a)

Expenses;

(b)

Obligations;

(c)

Open claim reserves; and

(d)

Incurred, but not reported, claim reserves.

Regulation .01-1 Application.Link Copy Citation

Application for governmental group coverage for the express purpose of establishing a group self-insurers' fund, to be administered under the direction of an elected board of trustees, and to provide workers' compensation coverage for a group of public employers of the same type of unit, shall be made to the Workers' Compensation Commission.

The application shall be made on a prescribed form and shall contain answers to all questions and shall be accompanied by the application fee in the amount as may be approved by the Commission from time to time.

Additional Requirements. The application, as submitted by the initial board of trustees of self-insurers’ fund, shall be accompanied by all of the following:

(1)

A copy of the bylaws of the proposed group self-insurers' fund.

(2)

An individual application of each member of the group applying for coverage in the fund.

(3)

A current financial statement and a budget report that shows planned expenditures are funded.

(4)

Evidence of the financial ability of the group to meet its obligations under the Workers' Compensation Law.

(5)

A composite listing of the estimated standard premium to be developed by each member of the group individually and in total as a group.

(6)

Proof of payment by each member of not less than 25 percent of the estimated annual standard premium into a designated depository. For governmental entities, a letter of intent signed by the responsible financial officer pledging payment within 10 days of the approval of the fund by the Commission may constitute proof of payment.

(7)

A confirmation of excess insurance by an authorized carrier in an acceptable amount and which complies with the requirements in Regulation .07 of this chapter.

(8)

Designation of a qualified employee or administrator of the association or group, or a qualified service company with a copy of the signed service agreement.

(9)

Designation of the initial board of trustees.

(10)

Proof of a fidelity bond and errors and omissions policy in a form and amount acceptable to the Commission.

(11)

If required, a surety bond written by an authorized carrier in an amount acceptable or other acceptable security.

(12)

A copy of a trust and indemnity agreement which shall be subject to approval by the Commission. The agreement shall contain a provision jointly and severally binding the group and each member of it to comply with the provision of the Workers' Compensation Law.

(13)

A breakdown of all projected administrative expenses for the fund year in an amount and as a percentage of the annual standard premium collected.

(14)

Proof, satisfactory to the Commission, that the annual gross premiums of the fund will not be less than $500,000. The premium collected from each member shall be computed by applying the appropriate manual rates per payroll code classification and multiplying the manual rate by an experience modification factor, if the modification factor is applicable.

(15)

Proof that the fund has within its own organization ample facilities and competent personnel to service its own program with respect to underwriting matters and industrial safety engineering or shall contract with a qualified service company or employer adjusters to provide these services. A qualified service company shall be used to handle claims adjusting and reporting of loss data.

Regulation .02 Approval and Review.Link Copy Citation

After considering the application and all supportive data, the Commission shall either grant approval or advise the trustees of the governmental self-insurers' group of the requirements to be met before approval is granted. The group shall be given 30 days from the receipt of the notice in which to comply with the requirements. The self-insured authority may not become effective until there is proof that all requirements for self-insured approval have been met.

The group may, at the discretion of the Commission, be granted additional time to meet the requirements for the self-insured program. A request for an extension of time shall be made in writing by the group within the 30-day compliance period. If the Commission does not receive proof that all requirements for the self-insured program have been met within the time prescribed, the application shall be considered withdrawn.

Upon meeting the requirements, the group shall receive a formal certificate approving its status as a self-insurer. The privilege shall be extended until denied.

Regulation .03 Members Admission and Termination.Link Copy Citation

After the inception date of the fund, prospective new members of the fund shall submit an application for membership to the board of trustees, or its administrator. The trustees or administrator may approve the application for membership pursuant to the bylaws of the governmental group self-insurers' fund. The application for membership shall then be filed with the Commission, and membership shall take effect on the date approval is granted by the Commission.

Individual members may elect to terminate their participation in a governmental group self-insurers’ program or be subject to cancellation by the governmental group fund pursuant to the bylaws of the fund. However, termination or cancellation may not take place for at least 30 days after notice to the Commission of the termination or cancellation from the governmental group fund.

Regulation .04 Reports to the Commission.Link Copy Citation

Reports as to financial standing, payroll records, insurance coverage, accident experience, compensation payments, and such other reports as are required to be filed shall be made at the following times and in the following manner:

(1)

Each fund shall file a statement of financial condition annually prepared by a certified public accounting firm. The financial statement shall show evidence that the fund has surplus sufficient to pay 1 year of estimated claim payments.

(2)

Summary loss data shall be filed on each fund member within 60 days after the annual evaluation date of the losses being reported, in a manner as prescribed. Full actuarial reports and loss runs shall be provided annually. The Commission may request these reports more frequently.

(3)

Classified, audited, and properly limited payrolls on each fund member shall be submitted on an annual basis or upon special request on forms prescribed.

(4)

A certified copy of the minutes of all trustee meetings shall be submitted by the fund administrator within 30 days of approval but not less than 45 days after the meeting date.

(5)

Members of a governmental self-insurers' group shall be subject to an experience rating plan for the purpose of determining the modified insurance rate to develop compensation premiums. The experience rating formula promulgated by the National Council on Compensation Insurance or other formula approved by the group and the Commission shall be used in determining the modified premium. Annually, or as otherwise prescribed, the modified premium for each member shall be approved by the trustees.

(6)

The trustees of any governmental group fund may apply a penalty rate in excess of the normal premium to any risk with an unfavorable loss experience, provided the members and the Commission are notified in writing before the effective date of the change in rates.

Any fund which fails or refuses to file the above reports within the time limits prescribed in these regulations or whose filed reports indicate the fund is not operating in accordance with these regulations shall be notified that its authority to be self-insured shall be terminated and the grounds for the termination. The fund may request a hearing in accordance with the regulation.

Regulation .05 Trustee Responsibilities.Link Copy Citation

Trustee Election.

(1)

Trustees shall be elected or appointed for a stated term of office.

(2)

A trustee may not be an owner, officer, or employee of a service company with which the Board of Trustees contracts for a purpose authorized by this chapter, except that a Trustee may be an employee of the governmental group or sponsoring organization.

Delegation of Authority to Administrator.

(1)

Subject to final approval by the Commission, the Board of Trustees may delegate authority to perform specific functions to an Administrator including, but not limited to, the authority to:

(a)

Contract with a service company and other providers;

(b)

Determine the premium charged to and refunds payable to members subject to the restrictions of the Commission;

(c)

Invest surplus monies subject to the restrictions set forth in this regulation; and

(d)

Approve applications for membership.

(2)

The Board of Trustees shall include in the written minutes of trustee meetings the specific authority delegated to an administrator pursuant to this section.

(3)

The Board of Trustees shall submit a copy of the minutes under §B(2) of this regulation to the Commission for approval.

(4)

An Administrator designated by the Board of Trustees:

(a)

May not be an owner, officer, or employee of a service company with which the Board of Trustees has contracted for a purpose authorized by this chapter, except that the Administrator may be an employee of the governmental group or sponsoring organization; and

(b)

Shall furnish a fidelity bond, with the Fund as obligee, in an amount, as determined by the Commission, sufficient to protect the Fund against misappropriation or misuse of any monies or securities.

Authority of Board of Trustees.

(1)

The Board of Trustees may not:

(a)

Extend credit to individual members for payment of premiums other than normal premium payment plans;

(b)

Utilize any of the monies collected as premiums for any purpose unrelated to the Fund's workers' compensation program; or

(c)

Borrow any monies from the Fund or in the name of the Fund:

(i)

Without obtaining the prior approval of the Commission; or

(ii)

For the purpose of engaging in an investment activity pursuant to this chapter.

(2)

The Board of Trustees may:

(a)

Direct the administration of the Fund;

(b)

Approve applications for membership in the Fund;

(c)

Invest surplus monies subject to the restrictions set forth in Labor and Employment Article, §9-404(a), Annotated Code of Maryland, and this chapter; and

(d)

Contract with a service company or other provider for a purpose authorized by this chapter.

(3)

The Board of Trustees shall:

(a)

Retain control of monies collected or disbursed from the Fund;

(b)

Establish a claims fund sufficient to cover payment of the entire aggregate loss fund as defined in any aggregate excess policy required by the Commission;

(c)

Establish a trustee fund sufficient to pay the administrative costs of the Fund and from which all administrative costs and other disbursements shall be made;

(d)

Establish a revolving fund, to be replenished from time to time from the claims fund, for use by the Fund's staff or an authorized service company;

(e)

Arrange for the annual audit of the accounts and records of the Fund by an independent certified public accountant, copies of which shall be filed with the Commission no later than 5 months after the close of the Fund fiscal year; and

(f)

Determine the premiums charged to and refunds payable to members.

Use of Service Company.

(1)

The Board of Trustees may contract with a service company to perform any function not specifically reserved to the Board of Trustees.

(2)

Prior to entering into a contract with a service company or other provider for a purpose authorized by this chapter, the Board of Trustees or Administrator shall provide to the Commission satisfactory proof that the service company or provider:

(a)

Is covered by a fidelity bond, with the Fund as obligee, in an amount sufficient to protect monies over which the service company or provider exercises control;

(b)

Maintains fiduciary liability insurance, and if not, how the Fund's interests are protected;

(c)

Possesses experience and expertise relevant to the activity that the service company or provider has been contracted to provide;

(d)

Holds the qualifications required by the state or federal agency responsible for regulating the activity that the service company or provider has been contracted to provide; and

(e)

Is licensed, registered, or exempt from licensing or registration, with the state or federal agency responsible for regulating the activity that the service company or provider has been contracted to provide.

Prohibited Transactions.

(1)

Except as provided in §E(3), a fiduciary with respect to the Fund may not cause the Fund to engage in a transaction, if the fiduciary knows or should know that such transaction constitutes direct or indirect:

(a)

Sale, exchange, or leasing of property between the Fund and a party in interest;

(b)

Lending of money or other extension of credit between the Fund and a party in interest;

(c)

Furnishing of goods, services, or facilities between the Fund and a party in interest;

(d)

Transfer to, or use by or for the benefit of, a party in interest, of an asset of the Fund; or

(e)

Engaging in investment, or other activity not provided for in the approved annual investment plan, this chapter, or Labor and Employment Article, §9-404(a), Annotated Code of Maryland.

(2)

Except as provided in §E(3) of this regulation, a fiduciary may not:

(a)

Deal with Fund assets in the fiduciary's own interest or for the fiduciary's own account;

(b)

Act in a transaction involving the Fund on behalf of a party whose interests are adverse to the interest of the Fund or its members; or

(c)

Receive any consideration for the fiduciary's own personal account from a person dealing with the Fund in connection with a transaction involving the assets of the Fund.

(3)

The prohibitions in §E(1) and (2) of this regulation do not apply to the following transactions:

(a)

Contracting or making reasonable arrangements with a party in interest for office space, or legal, accounting, or other services necessary for the establishment or operation of the Fund and its workers' compensation insurance program, if not more than reasonable compensation is paid for those services; or

(b)

Transactions described in §E(1) and (2) of this regulation between the Fund and a person that is a party in interest, other than a fiduciary, who has or exercises any discretionary authority or control with respect to the investment of the Fund assets involved in the transaction, or who renders investment advice, within the meaning of Regulation .01B(7)(a) of this chapter, with respect to those assets, solely by reason of providing services to the plan or solely by reason of a relationship to such a service provider, but only if in connection with such transaction the Fund receives no less, or pays no more, than adequate consideration as defined in Regulation .01A(2) of this chapter.

(4)

Upon application, the Commission may authorize other exemptions for fiduciaries or transactions.

Regulation .06 Funds, Advance Premium Discounts, Surplus Distribution, Deficits.Link Copy Citation

The trustees of any group self-insurers' fund may not allow advance premium discounts to any member in excess of that allowed by the excess insurance underwriter, subject, however, to a maximum of 15 percent of their standard premium.

Any surplus monies for a fund year in excess of the amount necessary to fulfill all obligations under the Workers' Compensation Law for that fund year, including a provision for claims incurred but not reported, may be declared to be refundable by the trustees at any time, and the amount of the declaration shall be a fixed liability of the fund at the time of the declaration.

The date of payment shall be as agreed by the trustees except that surplus monies not needed to satisfy the loss fund requirements, that is, trustees' funds, may be refunded immediately after the end of the fund year with the approval of the Commission. The intent of this section is to ensure that sufficient monies are retained to assure that total assets are greater than total liabilities for each fund year.

In the event of a deficit in any fund year, the deficit shall be made up immediately from any of the following:

(1)

Unencumbered surplus from a fund year other than the current fund year;

(2)

Trustees' funds;

(3)

By assessment of the membership of the deficit fund year if ordered; or

(4)

By such alternative method as the Commission may approve.

The Commission shall be notified before any transfer of unencumbered surplus funds.

Regulation .07 Excess Insurance.Link Copy Citation

A contract or policy of aggregate or specific excess insurance may not be recognized in considering the ability of an applicant to fulfill its financial obligations under the Workers' Compensation Law, unless the contract or policy complies with all of the following:

Is issued by a casualty insurance company authorized to transact this business in this State and is rated A- or above by AM Best or equivalent.

Is not cancelable or nonrenewable unless written notice by registered or certified mail is given to the other party to the policy and to the Commission not less than 30 days before termination by the party desiring to cancel or not renew the policy.

Any contract or policy containing any type of commutation clause shall provide that any commutation effected thereunder does not relieve the underwriter of further liability in respect to claims and expenses unknown at the time of the commutation or in regard to any claim apparently closed at the time of initial commutation which is subsequently reopened by or through a competent authority. If the underwriter proposes to settle their liability for future payments payable as compensation for accidents occurring during the term of the policy by the payment of a lump sum to the employer, to be fixed as provided in the commutation clause of the policy, then not less than 30 days prior notice of the commutation shall be given by the underwriters or their agent by registered or certified mail. If any commutation is effected, then the Commission shall have the right to direct that the sum be placed in trust for the benefit of the injured employee entitled to the future payments of compensation.

If a governmental group self-insured employer becomes insolvent or is unable to make compensation payments, the excess carrier shall make, directly to claimants or their authorized representatives, such payments as would have been made by the excess carrier to the employer after it has been determined that the retention level has been reached on the excess contract.

All of the following shall be applied toward the reaching of the retention level in the aggregate excess contract:

(1)

Payments made by the employer;

(2)

Payments due and owing to claimants of the employer;

(3)

Payments made on behalf of the employer by any surety bond under a bond required by the Commission.

Copies of the complete policies of excess insurance shall be filed with the Commission, together with a certification that these policies fully comply with the regulations of the Workers' Compensation Law.

Regulation .08 Investments Authorized.Link Copy Citation

Conditions to Investing.

(1)

Prior to engaging in an investment activity under this chapter, the Board of Trustees shall:

(a)

Fully fund the actuarially calculated ultimate loss liability of the Fund; and

(b)

Submit to the Commission for approval an Annual Investment Plan that satisfies the requirements of this regulation.

(2)

The Annual Investment Plan submitted to the Commission shall include:

(a)

A statement of investment policy and current year objectives;

(b)

A complete asset allocation study;

(c)

Projected investment activity for the coming year by asset allocation group; and

(d)

A signed acknowledgement from any fiduciary acknowledging his or her fiduciary responsibilities and the prohibited transactions set forth in Regulation .06E of this chapter.

Investing of Surplus Monies in Insured and Government Obligations.

(1)

The Board of Trustees may invest all surplus monies not needed to meet current obligations in:

(a)

Investments authorized by State Finance and Procurement Article, §6-222, Annotated Code of Maryland;

(b)

United States Government Bonds or Treasury Notes;

(c)

Investment shares accounts in any savings and loan association whose deposits are insured by a federal agency; and

(d)

Certificates of deposit issued by a duly chartered commercial bank.

(2)

Except as provided in §B(3) of this regulation, the Board of Trustees:

(a)

Shall limit deposits in savings and loan associations and commercial banks to institutions in this State; and

(b)

May not deposit more than the federally insured amount in any one account.

(3)

Notwithstanding §B(2) of this regulation, the Board of Trustees may deposit more than the federally insured amount in any one account if the amount does not exceed:

(a)

5 percent of the combination of surplus and undivided profits and reserves as currently reported for each bank in this State in the banking division annual report of the Financial Institution Bureau of the Department of Commerce (banking control); or

(b)

$500,000 per institution.

Investing of Surplus Monies in Equities.

(1)

The Board of Trustees may, subject to the requirements of this chapter, invest a maximum of 30 percent of surplus monies not needed to meet current obligations in equities.

(2)

Of the monies that may be invested in equities pursuant to §C(1) of this regulation, the Board of Trustees may not invest more than:

(a)

33-1/3 percent, at cost, or 50 percent at market value, in any single equity fund, bond fund, or ETF, including any single country, commodity, or sector fund; and

(b)

5 percent, at cost, or 8 percent at market value, in any single listed equity, right, depositary receipt, or convertible security.

(3)

Notwithstanding the investment allocation restrictions in §C(2) of this regulation, in the case of an equity investment whose weighting is greater than 5 percent of the applicable benchmark index, the Board of Trustees may be permitted to equal-weight the equity investment at cost and hold a market value weighting not to exceed 1-1/2 times the equity investment's index weighting.

(4)

The Board of Trustees may invest in only the following equities:

(a)

Preferred stock of a solvent institution that is:

(i)

Not in default of dividend, principal, or interest payments on any preferred stock or debt instrument; and

(ii)

Created or existing under the laws of the United States, Canada, a state, or a province of Canada;

(b)

Common stock of a solvent corporation created or existing under the laws of the United States, Canada, a state, or a province of Canada that is:

(i)

Not in default of dividend, principal, or interest payments on any preferred stock or debt instrument;

(ii)

Publicly traded on an American stock exchange; and

(iii)

Subject to the rules and regulation of the SEC;

(c)

Common Stock Mutual Funds and Bond Mutual Funds created by investment managers that are formed and operated under the laws of the United States, Canada, a state, or a province of Canada that are:

(i)

Publicly traded and readily marketable;

(ii)

Offered for purchase and redemption to the public; and

(iii)

Are subject to the rules and regulation of the SEC and the existing laws and regulations of a State, province, or nation in which they reside; and

(d)

An ETF that is formed and operated under the laws of the United States, Canada, a state, or a province of Canada and that is:

(i)

Readily marketable;

(ii)

Offered for purchase and redemption to the public; and

(iii)

Subject to the rules and regulation of the SEC and the existing laws and regulations of the state, province, or nation in which it resides.

Regulation .09 Reporting Requirements and Corrective Action Plans.Link Copy Citation

The Board of Trustees shall:

(1)

Submit quarterly reports regarding the status or condition of investments made pursuant to this chapter, including quarterly investment statements; and

(2)

Submit any additional information requested by the Commission under §B of this regulation.

The Commission may direct the Board of Trustees to submit to the Commission:

(1)

A written explanation of its investment strategy and performance;

(2)

A written proposed corrective action plan; and

(3)

Any additional information concerning these investments that the Commission deems relevant.

The Commission may order the Board of Trustees to implement a corrective action plan, to convert its investments to the investments authorized in Regulation .07B of this chapter, and to take any other action the Commission deems necessary.

The Commission shall serve an order issued under §C of this regulation on the Board of Trustees by certified and regular mail.

If aggrieved by a decision of the Commission under this regulation, the Board of Trustees may request a hearing before the Commission in accordance with Regulation .10 of this chapter.

The Commission may terminate a fund from participation in the governmental group self-insurance program for failing to comply with an order of the Commission under this chapter.

Regulation .10 Request for Hearing Before the Commission.Link Copy Citation

A Board of Trustees aggrieved by a decision of the Commission under this chapter may request a hearing before the Commission within 15 days of the date the decision is mailed.

A hearing shall be set as soon as practicable but no sooner than 20 days after the request is received by the Commission.

The Board of Trustees may:

(1)

Submit a written statement, 15 copies of which shall be served on the Commission at least 5 days before the hearing; and

(2)

Appear and present oral argument and evidence on the issues contained in the hearing notice.

The Board of Trustees bears the burden of persuasion in a hearing held under §A(1) of this regulation.

The Commission shall issue a decision, which shall be served on the Board of Trustees by certified mail, return receipt requested.

Regulation .11 Appeals to Circuit Court.Link Copy Citation

The Board of Trustees may appeal an adverse decision pursuant to Labor and Employment Article, §9-409, Annotated Code of Maryland.

Subtitle 09 — Workers' Compensation Commission

Chapter 15. Open Meetings

Regulation .01 Scope.Link Copy Citation

This chapter applies to open meetings of the Workers’ Compensation Commission at which a quorum of a majority of Commissioners is present. This chapter does not apply to proceedings of the Commission conducted in accordance with Labor and Employment Article, §§9-307 and 9-308, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Commission” means the Workers' Compensation Commission.

(2)

“Open Meeting” means any meeting of the Commission required to be open to the public by the Open Meetings Act, General Provisions Article, §§3-101—3-501, Annotated Code of Maryland.

(3)

“Public body” has the meaning stated in General Provisions Article, §3-101(h), Annotated Code of Maryland.

Regulation .03 Public Attendance.Link Copy Citation

At any open meeting of the Commission, the public is invited to listen and observe.

Unless the Commission expressly invites public testimony, questions, comments, or other forms of public participation, or public participation is authorized by law, a member of the public attending an open meeting may not actively participate in the meeting.

Regulation .04 Prohibited Conduct or Activity.Link Copy Citation

An individual attending an open meeting of the Commission may not engage in conduct, including visual demonstrations such as the waving of placards, signs, or banners, that disrupts the session or interferes with the opportunity of members of the public to attend and observe.

The presiding officer may:

(1)

Order an individual who persists in conduct prohibited in §A of this regulation, or who violates another regulation concerning conduct of the open meeting, to be removed from the meeting;

(2)

Request police or other assistance to restore order; and

(3)

Recess the meeting while order is restored.

Regulation .05 Recording, Photographing, and Broadcasting of Open Meetings.Link Copy Citation

A member of the public, including a representative of the news media, may record discussions of the Commission at an open meeting by means of tape recorder or another recording device, if the device:

(1)

Does not create excessive noise that disturbs a member of the Commission or any individual attending the meeting;

(2)

Does not otherwise interfere with an individual's observation or participation in the meeting; and

(3)

Is operated openly so that it is obvious to those in attendance that the meeting is being recorded.

A member of the public, including a representative of the news media, may photograph or videotape the proceedings of the Commission at an open meeting with any type of camera, if the camera:

(1)

Is operated without excessively bright artificial light that disturbs members of the Commission or other individuals attending the open meeting;

(2)

Does not create excessive noise that disturbs members of the Commission or any individual attending the meeting;

(3)

Does not otherwise interfere with an individual's observation or participation in the meeting; and

(4)

Is operated openly so that it is obvious to those in attendance that the meeting is being photographed or videotaped.

A representative of the news media may broadcast or televise the proceedings of the Commission at an open meeting if the equipment used:

(1)

Is operated without excessively bright artificial light that disturbs members of the Commission or other individuals attending the open meeting;

(2)

Does not create excessive noise that disturbs members of the Commission or any individual attending the meeting;

(3)

Does not otherwise interfere with an individual's observation of or participation in the meeting; and

(4)

Is operated openly so that it is obvious to those in attendance that the meeting is being broadcast or televised.

The presiding officer may restrict movement of a person who is using a recording device, camera, or broadcasting or television equipment if the restriction is necessary to maintain the orderly conduct of the open meeting.

A public body of the Commission may require that an individual who intends to record, photograph, videotape, broadcast, or televise an open meeting register before the beginning of the meeting.

Regulation .06 Recordings, Photographs, Videotapes — Not Part of Record.Link Copy Citation

A recording, photograph, or videotape of an open session made by a member of the public, or any transcript or copy derived from a recording, photograph, or videotape is not part of the record of any proceeding of the Commission.

Subtitle 09 — Workers' Compensation Commission

Chapter 16. Public Information Act Requests

Regulation .01 Scope.Link Copy Citation

This chapter sets out procedures under the Public Information Act for filing and processing requests to the Workers' Compensation Commission for the inspection and copying of public records of the Commission.

Regulation .02 Policy.Link Copy Citation

It is the policy of the Commission to facilitate access to the public records of the Commission, if access is allowed by law, by minimizing costs and time delays to applicants.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means the Public Information Act, General Provisions Article, §§4-101—4-601, Annotated Code of Maryland.

(2)

“Applicant” has the meaning stated in General Provisions Article, §4-101(b), Annotated Code of Maryland.

(3)

“Chairman” has the meaning stated in Labor and Employment Article, §9-303, Annotated Code of Maryland.

(4)

“Commission” means the Workers’ Compensation Commission and has the meaning stated in Labor and Employment Article, §9-301, Annotated Code of Maryland.

(5)

“Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

(6)

“Indigent” has the meaning stated in General Provisions Article, §4-206(a)(2), Annotated Code of Maryland.

(7)

“Metadata” has the meaning stated in General Provisions Article, §4-205(a), Annotated Code of Maryland.

(8)

“Official custodian” has the meaning stated in General Provisions Article, §4-101(f), Annotated Code of Maryland.

(9)

“Public Access Ombudsman” means the official appointed under General Provisions Article, Title 4, Subtitle 1B, Annotated Code of Maryland, to resolve disputes under the Act.

(10)

“Public record” has the meaning stated in General Provisions Article, §4-101(j), Annotated Code of Maryland.

(11)

“Reasonable Fee” has the meaning stated in General Provisions Article, §4-206(a)(3), Annotated Code of Maryland.

(12)

“Secretary” has the meaning stated in Labor and Employment Article, §9-305(b), Annotated Code of Maryland.

(13)

“Working day” has the meaning stated in Labor and Employment Article, §9-307, Annotated Code of Maryland.

Regulation .04 Chairman as Official Custodian.Link Copy Citation

Unless otherwise provided by law, the Chairman is the official custodian of the public records of the Commission.

Regulation .05 Request for Public Records.Link Copy Citation

Any person may request to inspect or copy public records of the Commission.

Regulation .06 Necessity for Written Request.Link Copy Citation

Inspection.

(1)

Except as otherwise provided in this chapter, the custodian shall make public records of the Commission available for inspection by an applicant without demanding a written request.

(2)

The custodian shall require a written request if the custodian reasonably believes that:

(a)

The Act or any other law may prevent the disclosure of the public record to the applicant; or

(b)

A written request will materially assist the Commission in responding.

Copies. If the applicant requests one or more copies of any public record of the Commission, the custodian may require a written request.

Regulation .07 Contents of Written Request.Link Copy Citation

A written request shall:

Contain the applicant’s contact information; and

Reasonably identify, by brief description, the public record sought.

Regulation .08 Addressee.Link Copy Citation

A request to inspect or copy a public record of the Commission shall be addressed to the custodian of the record or to the Secretary, the Commission’s representative for public records requests as designated under General Provisions Article, §4-503, Annotated Code of Maryland. If the custodian is unknown, the request may be addressed to the Chairman.

Regulation .09 Response to Request.Link Copy Citation

Grant of Request.

(1)

If the custodian decides to grant a request for inspection, the custodian shall produce the public record for inspection:

(a)

Immediately; or

(b)

Within a reasonable time period, not to exceed 30 days after the date of the request, if that period is needed to retrieve the public record and conduct any necessary review.

(2)

(a)

The amount of time that the custodian anticipates it will take to produce the public record;

(b)

An estimate of the range of fees that may be charged to comply with the request for public records; and

(c)

The reason why it will take more than 10 working days to produce the records.

Denial of Request. If the custodian decides to deny a request for inspection, the custodian shall:

(1)

Deny the request within 30 days after the request; and

(2)

Immediately notify the applicant of the denial.

If a request is denied, the custodian shall provide the applicant, at the time of the denial or within 10 working days, a written statement that gives:

(1)

The reasons for the denial, including, for records denied under General Provisions Article, §4-343, Annotated Code of Maryland, a brief explanation of:

(a)

Why the denial is necessary, i.e., why disclosure of the public record would be contrary to the public interest; and

(b)

An explanation of why redacting information would not address the reasons for the denial;

(2)

The legal authority for the denial;

(3)

Without disclosing the protected information, a brief description of the undisclosed record(s) that will enable the applicant to assess the applicability of the legal authority for the denial; and

(4)

Notice of the remedies available for review of the denial.

If a requested public record is not in the custody or control of the person to whom application is made, that person shall, within 10 working days after receipt of the request, notify the applicant:

(1)

That the person does not have custody or control of the requested public record; and

(2)

If the person knows:

(a)

The name of the custodian of the public record; and

(b)

The location or possible location of the public record.

Any time limit imposed by §§A—C of this regulation may be extended:

(1)

With the consent of the applicant, for an additional period of up to 30 days; and

(2)

For the period of time during which a dispute initiated by the applicant is pending before the Public Access Ombudsman.

Regulation .10 Notice to Person Potentially Affected by Disclosure.Link Copy Citation

Unless prohibited by law, the custodian may provide notice of a request for inspection or copying of any public record of the Commission to any person who, in the judgment of the custodian, could be adversely affected by disclosure of that public record.

The custodian may consider the views of the potentially affected person before deciding whether to disclose the public record to an applicant.

Regulation .11 Electronic Records.Link Copy Citation

Except as provided in §§C and D of this regulation, the custodian shall provide an applicant with a copy of the public record in a searchable and analyzable electronic format if:

(1)

The public record is in a searchable and analyzable electronic format;

(2)

The applicant requests a copy of the public record in a searchable and analyzable electronic format; and

(3)

The custodian is able to provide a copy of the public record, in whole or in part, in a searchable and analyzable electronic format that does not disclose information that is exempt from disclosure under the Act.

The custodian shall provide a portion of the public record in a searchable and analyzable electronic format if:

(1)

Requested by the applicant; and

(2)

The custodian is able to do so by using the existing functions of the database or software program that contains the searchable and analyzable data.

The custodian is not required to:

(1)

Create or reconstruct a public record in an electronic format if the public record is not available in an electronic format;

(2)

Release an electronic record in a format that would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which the record is maintained; or

(3)

Create, compile, or program a new public record.

The custodian may remove metadata from an electronic document before providing the electronic record to an applicant by:

(1)

Using a software program or function; or

(2)

Converting the electronic record into a different searchable and analyzable format.

Regulation .12 Public Record Destroyed or Lost.Link Copy Citation

If the person to whom application is made knows that a requested public record of the Commission has been destroyed or lost, that person shall promptly:

Notify the applicant that the public record is not available; and

Explain the reasons why the public record cannot be produced.

Regulation .13 Availability of Judicial and Administrative Review.Link Copy Citation

If the custodian denies a request to inspect or copy a public record of the Commission, the applicant may file an action for judicial enforcement under General Provisions Article, §4-362, Annotated Code of Maryland, without pursuing the remedies set forth in General Provisions Article, Subtitles 1A and 1B, Annotated Code of Maryland.

Regulation .14 Disclosure Against Public Interest.Link Copy Citation

Denial Pending Court Order.

(1)

If, in the opinion of the Chairman, disclosure of a public record of the Commission otherwise subject to disclosure under the Act would do substantial injury to the public interest, the Chairman may temporarily deny the request to obtain a court order allowing nondisclosure.

(2)

The temporary denial shall be in writing.

Circuit Court Review.

(1)

Within 10 working days after the denial, the Chairman shall apply to the appropriate circuit court for an order permitting continued denial or restriction of access.

(2)

Notice of the Chairman's complaint shall be served on the applicant in the manner provided for service of process by the Maryland Rules of Procedure.

Regulation .15 Fees.Link Copy Citation

Except as provided in §§B and C of this regulation, the fee schedule for copying and certifying copies of public records of the Commission is as follows:

(1)

The fee for each copy made by a standard printer or a photocopying machine within the Commission is 25 cents per page;

(2)

The fee for each copy made otherwise than by a standard printer or a photocopying machine shall be based on the actual cost of reproduction; and

(3)

For a public record certified as a true copy, an additional fee of $1 per page (or if appropriate, per item) shall be charged.

Minimum Fee. A charge may not be made if the total fee is $1 or less.

If the fee for copies or certified copies of any public record of the Commission is specifically set by a law other than the Act or this regulation, the custodian shall charge the prescribed fee.

If the custodian cannot copy a public 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:

(1)

Collect from the applicant a fee to cover the actual cost of reproduction; or

(2)

Direct the applicant to pay the cost of reproduction directly to the facility making the copy.

Before copying a public record of the Commission, the custodian shall estimate both the cost of reproduction and the search and preparation fee under §F of this regulation and either:

(1)

Obtain the agreement of the applicant to pay the cost; or

(2)

Demand prepayment of all or a portion of the cost.

Search and Preparation Fee.

(1)

Except as provided in §G of this regulation, the custodian may charge a reasonable fee for time that an official or employee of the Commission spends to:

(a)

Search for requested public records;

(b)

Review requested public records for potential disclosure; and

(c)

Prepare public records for inspection and copying.

(2)

The custodian shall determine the fee under §F(1) of this regulation by multiplying actual time attributable to the search for, review of, and preparation of public records for inspection and/or copying by $100 per hour for clerical staff time and $200 per hour for information technology staff time.

The custodian may not charge a search or preparation fee under §F of this regulation for the first 2 hours needed to search for and prepare a public record for inspection.

Waiver or Reduction of Fee.

(1)

The official custodian may waive or reduce any fee set under this regulation if:

(a)

The applicant requests a waiver; and

(b)

Either:

(i)

The custodian determines that the waiver or reduction is in the public interest; or

(ii)

The applicant is indigent and files an affidavit verifying the facts that support a claim of indigency.

(2)

In determining whether a fee waiver is in the public interest, the custodian shall consider, among other relevant factors, the ability of the applicant to pay the fee.

If the applicant requests that copies of a public record be mailed or delivered to the applicant or to a third party, the custodian may charge the applicant for the cost of postage or delivery.

Regulation .16 Time and Place of Inspection.Link Copy Citation

An applicant may inspect any public record of the Commission that the applicant is entitled to inspect during the normal working hours of the Commission.

The inspection shall occur where the public record is located, unless the custodian, after taking into account the applicant's expressed wish, determines that another place is more suitable and convenient.

Regulation .17 Sociological Information.Link Copy Citation

For purposes of this regulation, “sociological information” means:

(1)

Social Security number;

(2)

Personal phone number;

(3)

Personal email address; and

(4)

Date of birth.

Except for use in carrying out the custodian’s governmental functions or except as further provided in §C of this regulation, a custodian may not disclose under the Act, and shall deny a request for inspection or copying of, any part of a public record that contains sociological information relating to an individual.

A custodian may disclose sociological information:

(1)

To other public employees in the performance of their public duties;

(2)

To parties to a claim filed with the Commission;

(3)

To the person in interest or the agent or representative of the person in interest;

(4)

With the consent of the person in interest;

(5)

Pursuant to a duly issued subpoena;

(6)

Pursuant to a court order;

(7)

If disclosure is otherwise required by law; or

(8)

If the Chairman or the Commission determines the disclosure to be in the public interest.

Subtitle 09 — Workers' Compensation Commission

Chapter 17. Emergency Powers of Chairman of the Commission

Regulation .01 Scope.Link Copy Citation

Generally. This chapter applies to situations in which the Governor has declared an emergency pursuant to Public Safety Article, Title 14, Annotated Code of Maryland, and the emergency or directives issued by the Governor pursuant to the emergency significantly affect access to or the operations of one or more Commission hearing locations or other Commission facilities or the ability of the Commission to operate effectively.

Other Events Affecting the Commission. The authority granted specifically by this chapter generally also may be exercised, to the extent necessary, by the Chairman of the Commission in the event of a natural or other event that significantly disrupts access to or the operations of one or more Commission hearing locations or other Commission facilities or the ability of the Commission to operate effectively, but for which the Governor has not declared an emergency pursuant to Public Safety Article, Title 14, Annotated Code of Maryland.

Supplemental; Conflict. The provisions of this chapter are in addition to and supplemental to the authority of the Commission granted elsewhere in this subtitle, but, to the extent of any conflict with other provisions of this subtitle, any authority provided in this chapter shall prevail.

Regulation .02 Coordination with Governor and Chief Judge of the Court of Appeals.Link Copy Citation

Upon the declaration of any emergency by the Governor pursuant to Public Safety Article, Title 14, Annotated Code of Maryland, the Chairman of the Commission, directly or through designees, shall, to the extent practicable, consult with the Governor, the Governor’s designees, the Maryland Emergency Management Agency, other Executive Branch officials, and, as appropriate, the Chief Judge of the Court of Appeals, in order to coordinate Executive and Judicial Branch responses to the emergency as they relate to operations of the Commission.

Regulation .03 Authority of Chairman.Link Copy Citation

Generally. Upon a determination by the Chairman of the Commission that an emergency or other event within the scope of Regulation .01 of this chapter significantly affects access to or the operations of one or more Commission hearing locations or other Commission facilities or the ability of the Commission to operate effectively, the Chairman, by Administrative Order, may, to the extent necessary:

(1)

Suspend the operation of rules or regulations that cannot be implemented as intended because of the emergency;

(2)

Direct that hearings or meetings be conducted remotely by electronic means, video or telephone, if existing facilities become inaccessible or unusable;

(3)

Identify and direct the use of alternative locations to conduct Commission business if existing facilities become inaccessible or unusable;

(4)

Transfer cases pending in one hearing location that becomes inaccessible or unusable to any other hearing location;

(5)

Permit claims or documents to be filed in alternate locations or by alternative means if the normal location, that is, Baltimore City, is not reasonably accessible or usable;

(6)

Suspend, toll, or grant relief from time deadlines or filing requirements that otherwise would expire when there is no practical ability of a party to comply with the deadline or seek other relief;

(7)

Triage claims or issues and categories of claims or issues with respect to expedited treatment;

(8)

Suspend any Commission business not deemed essential;

(9)

Designate other Commissioners or recall Commissioners or Commission officials to implement directives entered by the Chairman or the Governor; and

(10)

Take any other appropriate action necessary to assure that essential Commission business is effectively handled by the Commission.

Duration; Compatibility with Governor’s Directives. The authority granted in §A of this regulation may be implemented only as necessary during the emergency or its immediate aftermath and, if exercised following an emergency declared by the Governor, shall be compatible with directives and orders issued by the Governor. Promptly upon termination of the emergency, the Chairman shall review all directives issued pursuant to §A of this regulation and determine a reasonable schedule for the rescission of those directives.

Chairman Unavailable. During any period in which the Chairman is unavailable to exercise the authority granted in §A of this regulation, that authority may be exercised by the Commissioner on the Commission most senior in length of service on the Commission, unless the Chairman has designated another Commissioner on the Commission to exercise that authority or the Governor has designated another Commissioner on the Commission to serve as Acting Chairman during that period.

Notice and Posting of Directives. To the extent practicable, a copy of all directives and orders issued under §A of this regulation following a declaration of emergency by the Governor shall be sent to the Governor and shall be posted on the Commission website. Notices may be sent electronically and may be posted through Commission social media accounts as appropriate.

Subtitle 10 — Property Tax Assessment Appeal Boards

Chapter 01. General Regulations

Regulation .01 Definitions.Link Copy Citation

“Administrator” means the Administrator of the property tax assessment appeal boards.

“Appraisal” means a formal, narrative, written appraisal report submitted as evidence to a property tax assessment appeal board as documentation of a value estimate.

“Board” means a property tax assessment appeal board for a county.

“County” includes Baltimore City.

“Department” means the Department of Assessments and Taxation.

“Supervisor” means the supervisor of assessments for a county.

Regulation .02 Authority of Administrator.Link Copy Citation

The Administrator is responsible for the adoption of uniform regulations governing the conduct of the boards and of forms necessary for the boards to carry out their responsibilities.

The Administrator is responsible for the budgets of the boards and shall supply to the boards the clerical and other necessary personnel. With respect to personnel, the Administrator has the authority to employ, discipline, and, if necessary, to discharge employees of the boards, according to law.

As necessary, the Administrator shall publish notice of board meetings in the Maryland Register or in other media.

Regulation .03 Filing of Appeals.Link Copy Citation

A person aggrieved by the decision of the supervisor may file with the board an appeal within 30 days after the date of the final notice from the supervisor.

The appeal shall be filed by written notice.

The board may waive the 30-day time requirement on a showing of good cause by reason of the physical inability of the petitioner to meet the requirement.

Regulation .04 Docket of Appeals.Link Copy Citation

The clerk of the board shall keep a docket of all appeals, and, on the initial filing of an appeal, shall assign a docket number to the appeal. The docket is a public record, open during business hours for inspection.

Each paper that relates to the appeal and that is filed with the board shall contain the docket number, assigned by the clerk of the board.

When the clerk dockets an appeal, the clerk shall send to the petitioner an acknowledgement of the notice of appeal, instructions concerning the payment of taxes while the appeal is pending, information concerning hearing conduct, and the docket number.

The clerk shall forward to the Supervisor a notice of the appeal and the docket number.

Regulation .05 Hearings.Link Copy Citation

Time and Place.

(1)

The board shall set the time and place of the hearing. The hearing shall be held at a place in the county where the board is located that is convenient and accessible to the public.

(2)

A request for a postponement may be made by the petitioner or the Supervisor. However, the board may not grant more than two postponements to a petitioner or to the Supervisor.

(3)

The board may continue or adjourn the hearing from time to time.

Notice.

(1)

The board shall give to the petitioner and to the Supervisor at least 14 days notice of the time and place of hearing. However, this section does not apply to a resumption of a hearing that has been continued according to §A(3), above, if reasonable notice of the resumption has been given. Appearance at the hearing waives notice.

(2)

The board also shall give public notice of the hearing schedule by posting, at least 5 working days before the date set for hearings, the schedule of hearings at a convenient public location at or near the place of hearing.

Evidence.

(1)

The board is not bound by the technical rules of evidence.

(2)

Exhibits such as maps, plats, photographs, and comparable sales are permitted.

(3)

The petitioner has the burden of proof in demonstrating that the decision of the Supervisor was wrong.

(4)

For any appeal in which the value of property is at issue, at least 10 days before a hearing on the appeal, the Department and the taxpayer shall exchange any written appraisals to be used for the purpose of placing a value on the property.

Rights of Parties.

(1)

The petitioner has the right to appear in person or to be represented by any other individual. Instead of appearance in person or through a representative, the petitioner may submit to the board a written presentation. However, the board shall dismiss an appeal if the petitioner fails to appear or to submit a presentation.

(2)

At the hearing, each party has the right to be heard, to present evidence material to the controversy, and to cross-examine witnesses.

(3)

The Supervisor, or his designee, is required to attend the hearing.

(4)

A petition of appeal may be withdrawn at any time before the presentation of testimony at the hearing. Thereafter, no request for withdrawal may be granted.

Authority of Board—Conduct.

(1)

The board shall conduct the hearing in an informal manner.

(2)

The chairman of the board is responsible for the conduct of the hearing and shall decide any questions relating to the conduct.

(3)

At least two members of the board, including any alternate member assigned to hear appeals, are required to be present when the board is conducting hearings.

Authority of Board—Witnesses.

(1)

The chairman may administer to each witness the following oath or affirmation:

(2)

Any member of the board may question a witness.

“I do hereby solemnly declare and affirm that the testimony I shall give be the truth, the whole truth, and nothing but the truth.”

Authority of Board—Close of Hearing.

(1)

The board may allow the submission of additional information after the presentation of all other evidence if the additional information is submitted to the board and the opposing party, in writing.

(2)

The hearing shall close after presentation of all evidence or, if the board authorizes additional information, on the final date set for submission of the additional information.

Contact with Board Members and Parties.

(1)

Except as provided in §H(2), below, a party or his representative may not communicate directly with a member of the board concerning the appeal.

(2)

A party or his representative shall communicate with a member of the board only by either of the following means:

(a)

Written communication submitted to the chairman of the board and served on the other parties or their representatives;

(b)

Oral communication with the board member in the presence of the other parties or their representatives.

(3)

Any person aware of any communication with a board member in violation of §H(1), above, immediately shall notify the Administrator. If, after investigation, the Administrator determines that the communication has prejudiced the hearing, he shall require the selection of a new board panel to hear the appeal.

Conflict of Interest. A board member, who has any connection with or interest in any property which is the subject of a hearing before the board or whose family has any connection with or interest in any property which is the subject of a hearing, shall disqualify himself and shall immediately notify the Administrator of this conflict of interest.

Acceptance of Gifts. A board member may not accept a present, gift, gratuity, or consideration of any kind from a person or entity connected with a hearing before the board.

Regulation .06 Board Decision.Link Copy Citation

Within 30 days after the close of the hearing, the board shall send to the petitioner and to the Supervisor a written decision that concisely states its findings and the bases for the findings on the appeal.

The decision shall include a statement that advises the petitioner of the right to appeal within 30 days to the Maryland Tax Court.

The decision shall be made by affirmative vote of at least two members of the board, including any alternate member, who were present at the hearing.

If the board dismisses any appeal according to Regulation .05D(1), above, the board shall send to the petitioner a notice of the dismissal.

Regulation .07 Rehearings.Link Copy Citation

The board may not rehear any appeal.

Regulation .08 Computation of Time.Link Copy Citation

The computation of time shall be in accordance with the Maryland Rules.

Subtitle 11 — Program Services

Chapter 01. Attendant Care Program

Regulation .01 Purpose.Link Copy Citation

The Attendant Care Program provides financial reimbursement to assist individuals with severe chronic or permanent physical disabilities who require attendant care services or ongoing additional supports to direct their own care and select their own service providers. Reimbursement may be available for attendant care services or ongoing additional supports that are provided in the home, school, workplace, or other community locations.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Annual adjusted gross income” means the total taxable and nontaxable annual income, less 100 percent of total unreimbursed medical expenses as defined by COMAR 07.03.17.33, of:

(a)

The eligible applicant; and

(b)

The applicant's spouse.

(2)

“Applicant” means an individual who has submitted an application to participate in the Program in order to receive reimbursement of the cost of attendant care services or ongoing additional supports.

(3)

“Attendant” means an individual or provider agency who provides attendant care services to a participant.

(4)

“Attendant care agreement” means a written agreement developed by the Department that:

(a)

Provides:

(i)

The effective date for reimbursable services; and

(ii)

The terms for reimbursement under the Program; and

(b)

Is signed by the participant and the Program Director at the time of initial enrollment and at the request of the Program Director if any circumstances change for the individual or the program.

(5)

“Attendant care services” means any of the following services for an individual, which are deemed necessary by an attending physician or by a registered nurse or certified nurse practitioner serving the individual including:

(a)

Activities of daily living such as:

(i)

Dressing;

(ii)

Preparing food and assisting with eating;

(iii)

Bathing and personal hygiene;

(iv)

Assisting with routine bodily functions, including bowel and urinary care; and

(v)

Moving into, out of, or turning in bed; or

(b)

Instrumental activities of daily living such as:

(i)

Laundering and other clothing care;

(ii)

Cleaning house; and

(iii)

Performing other services of daily care, including shopping and transportation.

(6)

“Attending physician” means an individual who is authorized to practice medicine in this State and who has provided medical treatment to an applicant.

(7)

“Certification of service form” means a document designated by the Department that verifies the participant's receipt of attendant care services for billing purposes.

(8)

“Department” means the Department of Disabilities.

(9)

“Duplicative services” means comparable care services or ongoing additional supports provided through any other federal or State assistance programs, such as but not limited to the programs described in COMAR 07.06.12, 10.09.04, or 10.09.20.

(10)

“Episodic” means when an impairment or medical condition varies in frequency, intensity and duration and renders the person unable to engage in major life activities when onset.

(11)

“Financial assistance” means reimbursement by the Department of the eligible percentage of the cost paid by a participant for attendant care services or ongoing additional supports.

(12)

“Fiscal payment schedule” means the list of 12 1-month periods, established annually by the Program Director, in which Attendant Care Program benefits are provided, and participants are required to submit certification of service forms and receipts for reimbursement processing.

(13)

“Home visit” means a visit by the Program Director or designee to the home of the Program participant.

(14)

“Ongoing additional supports” means a continual support that increases an eligible individual’s independent performance of an essential activity of daily living, self-care, or mobility, and is requested by a Participant and approved by the Department.

(15)

“Participant” means an eligible and enrolled individual in the Program.

(16)

“Permanent physical disability” means a medical condition that substantially affects an individual's ability to perform physical activities such as walking, standing, transferring, seeing, or hearing.

(17)

“Program” means the Attendant Care Program.

(18)

“Program Director” means the individual designated by the Secretary to oversee the day-to-day operations of the Program.

(19)

“Review of financial or programmatic eligibility” means initiating verification that the participant remains eligible within 1 calendar year since the completion of the most recent review or more frequently if requested by the Department or the individual.

(20)

“Severe chronic disability” means a recurring medical condition that substantially limits an individual's mobility or ability to perform activities of daily living, instrumental activities of daily living, or self-care:

(a)

Permanently; or

(b)

On an ongoing basis or episodically, as defined by Regulation .02B(10) of this chapter.

(21)

“Sliding reimbursement scale” means the percentage breakdown of maximum financial assistance afforded to a Program participant based upon adjusted gross income and household size.

(22)

“Standard assessment of functional capability” means the document designated by the Department to evaluate an applicant's:

(a)

Ability to perform essential activities of daily living and self-care;

(b)

Mobility;

(c)

Need for assistance with instrumental activities of daily living; and

(d)

Need for attendant care services or ongoing additional supports.

(23)

“Receipts” means proof of payment made for an approved service designated by the Department.

Regulation .03 Eligibility.Link Copy Citation

To be eligible for the Program, an applicant:

(1)

Shall be a resident of Maryland;

(2)

Shall be at least 18 years old and younger than 65 years old at the time of initial enrollment in the Program;

(3)

Shall be determined by the applicant's attending physician, registered nurse, or certified nurse practitioner to have a severe chronic or permanent physical disability that:

(a)

Precludes or impairs the independent performance of essential activities of daily living, instrumental activities of daily living, self-care, or mobility as determined by the standard assessment of functional capability form; and

(b)

Is subject to eligibility review at a frequency determined by the Department;

(4)

May not have an annual adjusted gross income greater than $119,999.00;

(5)

May not be receiving duplicative services as defined in Regulation .02B of this chapter;

(6)

Shall meet the requirements of Regulation .04B(1) or (2) of this chapter; and

(7)

Shall agree to abide by the Program requirements by signing an attendant care agreement form at the time of initial enrollment and at the request of the Program Director if any circumstances change for the individual or the Program.

The Program Director, or designee, shall initiate an annual review of financial or programmatic eligibility for each participant at least once every 12 months from completion of the last review, or more frequently if needed.

Participation in the Program may be denied to eligible applicants in accordance with Regulation .04 of this chapter.

Regulation .04 Limitations on Service and Participation in the Program.Link Copy Citation

The Program Director shall limit Program participation to the number of participants whom the Program's budget can serve. If sufficient funds are not available, the Department may limit the rate of payment under the sliding reimbursement scale.

The Program Director shall limit Program participation to achieve the following demographic:

(1)

At least 50 percent of the participants shall be:

(a)

Self-employed or competitively employed with compensation;

(b)

Actively seeking employment and reasonably be expected to become employed within 6 months of the date of application approval, which the Program Director may extend once for an additional 6 months; or

(c)

Attending an institution of postsecondary, higher education, or apprenticeship training program; and

(2)

Not more than 50 percent of the participants shall be:

(a)

At risk of placement in a nursing home, as certified by the attending physician, if attendant care services are not received in the community; or

(b)

Residents of a nursing facility or similar institution who are seeking to transition into the community and will be capable of living in the community if attendant care services are received.

The Program Director shall seek to achieve the demographic in §B absent a limited or situational waiver from the Secretary.

Notwithstanding the above, an applicant found ineligible or properly disenrolled from the Program shall be required to observe a waiting period prior to reapplication of not less than:

(1)

1 year for reason of disability or financial eligibility; or

(2)

3 years upon a finding of fraud or misuse of program funds.

Applicants to the Program shall be encouraged to complete an application for medical assistance and utilize personal care services under the following programs, if applicable:

(1)

Examples of such services or programs include:

(a)

Community Personal Assistance Services;

(b)

Community First Choice Program; or

(c)

A Home and Community-Based Waiver.

(2)

The Program is entitled to evaluate whether such services are duplicative.

Regulation .05 Application Process.Link Copy Citation

An applicant shall apply for financial assistance by submitting a completed and signed Program application, to include the standard assessment of functional capability, to the Department.

The Program Director or designee shall determine an applicant's eligibility in accordance with Regulation .03 of this chapter and the regulations governing this Program as a whole.

Regulation .06 Priority for Approval of Applications.Link Copy Citation

The Program Director shall approve applications and enroll eligible applicants for financial assistance based upon the availability of Program funds.

Waiting List.

(1)

The Program Director shall establish a waiting list of eligible applicants if:

(a)

Program funds are not available; or

(b)

The demographics of the Program do not meet the requirements under Regulation .04B of this chapter.

(2)

As funds allow, the Program shall enroll applicants on the waiting list generally in the following order:

(a)

Individuals meeting the criteria under Regulation .04B(1) of this chapter in order of the earlier application approval date; and

(b)

Individuals meeting the criteria under Regulation .04B(2) of this chapter in order of the earlier application approval date.

(3)

With the explicit written consent of the Secretary, and after obtaining a waiver of the proportionality requirement set forth in Regulation .04B(1) of this chapter as necessary, in limited emergency circumstances, the Program Director may prioritize certain individuals meeting the criteria under Regulation .04B(2)(a) of this chapter before other individuals meeting the criteria under .04B(2)(a) of this chapter.

Regulation .07 Payment.Link Copy Citation

A participant shall submit a signed certification of service form and receipts for attendant care services or ongoing additional supports in accordance with the Program's fiscal payment schedule.

Reimbursement shall be made in compliance with the attendant care agreement and Regulation .04A of this chapter.

The Department may return improperly completed forms to the participant without making payment.

The Department may return the certification of service form to the participant without making payment if more than 2 months have passed since the date of service.

The Department reserves the right to deny reimbursement of expenses that it determines are not representative of ongoing additional supports or attendant care services.

Regulation .08 Participant's Responsibilities.Link Copy Citation

A participant shall:

(1)

Select, hire, train, supervise, terminate, and pay the attendant, including payment of applicable federal and State employment taxes;

(2)

Maintain accurate records of hours and days that attendant care services are provided;

(3)

Prepare and submit all billing forms in accordance with the Fiscal Payment Schedule;

(4)

Reimburse the Department for any overpayment;

(5)

Reimburse the Department for any outstanding advanced payment;

(6)

Submit all required documentation to determine continued eligibility for participation in the Program at least once every 12 months, or more often as requested by the Program Director; and

(7)

Comply with the attendant care agreement requirements, and provide a signed copy to the Department at the initial eligibility determination and at the request of the Department at any time thereafter.

A participant shall employ an attendant who is 18 years old or older, and who is not a spouse or the representative payee of the participant.

A participant shall notify the Program Director within 14 days of any changes in circumstances that affect eligibility for the Program for financial assistance

Regulation .09 Participant's Rights.Link Copy Citation

Pursuant to Human Services Article, §1-201, Annotated Code of Maryland, the Program may not release information about a participant or an applicant.

Regulation .10 Quality Assurance Plan.Link Copy Citation

The Department shall establish a quality assurance plan to review Program administration and ensure compliance with this chapter.

Home visits may be conducted as a part of the quality assurance plan.

Regulation .11 Termination.Link Copy Citation

The Secretary of the Department or a designee of the Secretary may terminate enrollment if:

A participant no longer meets the eligibility requirements;

A participant refuses to comply with the requirements of this chapter; or

Sufficient Program funds are not available.

Regulation .12 Financial Assistance.Link Copy Citation

The Program Director shall establish a sliding reimbursement scale to determine a participant's reimbursement rate.

The participant's reimbursement rate shall be based on:

(1)

The participant's adjusted annual gross income;

(2)

The number of persons dependent on household income including the participant's spouse, and minors younger than 18 years old; and

(3)

The participant's cost of attendant care services.

A participant eligible in the category set forth in Regulation .04B(1) of this chapter shall pay a minimum of 2 percent of the cost of attendant care services, unless the Program Director determines that the minimum copayment causes the participant financial hardship and issues a written waiver of the copayment.

A participant eligible in the category set forth in Regulation .04B(2) of this chapter shall pay a minimum of 5 percent of the cost of attendant care services, unless the Program Director determines that the minimum copayment causes the participant financial hardship and issues a written waiver of the copayment.

Regulation .13 Appeals.Link Copy Citation

An applicant or participant may appeal eligibility and termination determinations by requesting an appeal hearing which shall be held in accordance with COMAR 28.02.01.

If the Program notifies an applicant or participant of an action to deny, delay, suspend, reduce, or terminate assistance, the Program Director or designee shall give written notification of the right to appeal and the procedures for requesting an appeal hearing to the applicant or participant.

Subtitle 12 — Tax Court

Chapter 01. Rules of Procedure

Regulation .01 Petition of Appeal—Form and Content*.Link Copy Citation

FOOTNOTE — *Forms of Petitions will be supplied by the Clerk's office on request.

All proceedings shall be initiated by filing with the Court a Petition of Appeal. In an appeal by a taxpayer, the Supervisor of Assessments, the State Department of Assessments and Taxation, or other initial assessing or taxing authority, as the case may be, shall be designated as Respondent. In an appeal by an assessing or taxing authority or representative thereof, the taxpayer shall be designated as Respondent.

There shall be no fee for filing a Petition in the Court.

Each paragraph of the Petition shall be separately numbered. It shall set forth succinctly the nature of the case, the facts involved, and the question or questions to be reviewed by the Court, as provided by Tax General Article, §13-516(a), Annotated Code of Maryland. Where applicable, the Petition shall also set forth that the assessment or classification appealed from is illegal, specifying the ground or alleged illegality, or that it is erroneous by reason of overvaluation or undervaluation, or that the assessment is unequal in that it has been made at a higher proportion of value than other property of the same class or the Petition may assign any other errors which exist in the particular case for which an appeal is allowed, and on account of which the Petitioner claims to be injured, as provided by Tax Property Article, §14-512, Annotated Code of Maryland.

One complete, accurately conformed copy of each Petition of Appeal shall be filed with the signed original.

A letter or other written communication from the party wishing to appeal or his representative, although not conforming to the provisions of §C, may be considered an informal Petition if it is filed within the statutory time for filing an appeal. In such event the Court by order shall require that a formal Amended Petition of Appeal be filed which complies with the provisions of this Rule, or may require such explanations, amendments and/or additions as may be necessary or desirable, so that the case may be properly tried and determined. If such order is not complied with within the time fixed by the Court in said order, the proceedings may be dismissed on the Court's own motion or on motion of the opposing party.

Regulation .02 Responsive Pleading—Form and Content—30 Days.Link Copy Citation

Respondent shall, within thirty (30) days after being served by mail or otherwise with a copy of a formal Petition of Appeal by the Clerk, file with the Court an Answer, Motion to Dismiss, Notice of Intention to Defend, or other pleading. In the event that the Respondent's first pleading is other than an Answer, or Notice of Intention to defend, the Court shall, in its order ruling on such other pleading, specify the time within which an Answer shall be filed.

An Answer shall be divided into paragraphs which shall be separately numbered, and insofar as possible, each paragraph shall contain a separate and distinct averment or denial. An Answer shall specifically admit, deny or explain the facts alleged by the Petitioner, unless the Respondent is without knowledge thereof, in which event it shall be so stated; and such statement shall operate as a denial. All the material allegations in the Petition of Appeal shall be answered. The proceeding shall be deemed at issue when an Answer has been filed.

A Notice of Intention to Defend shall notify the Court of the Respondent's intention to defend this assessment appealed. This pleading may only be filed in response to a Petition of Appeal which concerns the assessment of real property. The proceeding shall be deemed at issue when such Notice has been filed.

Prior to filing, or concurrently therewith, a copy of the Answer or other pleading shall be served by mail or otherwise on the opposing side and the Answer or other pleading shall contain a statement that the copy of said Answer or other pleading has been mailed to or otherwise served on the opposing side.

One complete, accurately conformed copy of each pleading shall be filed with the signed original.

All Motions filed with the Clerk in any proceeding, shall be considered by the Court Ex Parte unless a hearing is requested in the Motion, or in an Answer thereto. The Court may in its discretion, require a hearing on any Motion.

Should a hearing on a Motion be requested by a party or required by the Court, each side shall be limited to fifteen (15) minutes of argument unless the Court is notified in writing ten (10) days prior to the scheduled hearing that additional time is necessary.

Regulation .03 Signatures, Captions, etc.Link Copy Citation

Petitions of Appeal, Answers and other pleadings filed with the Court shall be signed by the Petitioner or Respondent, as the case may be, or by an attorney admitted to practice before the Court of Appeals of Maryland representing such Petitioner or Respondent. A pleading by an individual taxpayer shall be signed by the taxpayer himself or by his attorney. A pleading by a partnership shall be signed by the attorney representing the same, or by a member of the partnership. A pleading by a corporation shall be signed by the attorney representing the same or by an officer of the corporation. The person signing a pleading shall type or print his name, capacity, mailing address and telephone number beneath his signature. The Court shall be notified in writing of any change in address.

All papers filed with the Court must be in clear and legible form. Printed forms for Petitions furnished by the Clerk may be used, but are not compulsory.

All papers shall be bound together at the side only, and shall have no backs or covers. The left-hand margin shall be at least one and one-half inches wide.

All papers shall have a caption and a signature.

Regulation .04 Where and When to File Papers.Link Copy Citation

Papers in connection with any appeal to this Court shall be mailed or otherwise delivered to the Clerk. *

-----------FOOTNOTE----------- *The Clerk's Office on the fifteenth (15th) floor at 301 West Preston Street, Suite 1513, Baltimore, Maryland 21201 is open daily from 8:30 A.M. to 4:30 P.M., Mondays through Fridays, except for legal holidays. The Clerk's phone number is 410-767-4830. ---------

Regulation .05 Joinder of Appeals as to Real Property.Link Copy Citation

Where two or more real properties are in the same ownership, and within the same taxing jurisdiction, they may be included in a single Petition of Appeal whenever there exists any substantial question of law or fact common to all the properties. The Court, however, may order separate Petitions filed if in the Court's opinion the issues involved may not conveniently be disposed of in the same proceeding. Where properties are not in the same ownership, they must be made the subject of separate Petitions of appeal, even though common questions of law or fact may be involved.

Regulation .06 Docketing—Summons—Copies.Link Copy Citation

Upon receipt of a Petition by the Clerk, the proceeding will be entered upon the docket and will be assigned a number and the parties will be notified thereof. The docket number shall be placed by the parties on all papers thereafter filed in the proceeding and referred to in all correspondence with the Court. Pursuant to Tax General Article, §13-520(a), Annotated Code of Maryland, upon receipt of a Petition, the Clerk shall forthwith issue a summons and subpoena duces tecum to the assessing or taxing authority or other agency appealed from, requiring it to produce at the hearing the record of the proceedings, as well as all maps, plats, documents and other papers connected with the record, or a properly certified copy thereof.

The Clerk shall send a copy of the Petition to the Respondent as designated in Regulation .01A, and to the Attorney General in the event of an appeal by the taxpayer, and shall upon request, supply a copy of the Petition to the assessing or taxing authority or other agency appealed from.

Regulation .07 Notice of Reliance on Other Properties—Service of List—Ten Days.Link Copy Citation

In every case where for the purpose of showing equality or inequality of assessment or for any other relevant purpose, either party proposes to offer evidence concerning any properties (including any properties to be referred to, used or relied upon by an expert witness as a basis for his opinion), other than the property which is the subject of the appeal, as to:

(1)

Sales thereof; and/or

(2)

Assessment thereon; and/or

(3)

Construction costs thereof; and/or

(4)

Income therefrom said party shall at least ten (10) days before the date set for hearing, serve by mail or otherwise on the opposing side an itemized list of such other properties, clearly identifying them by their street addresses, if any, or by other means, and giving the name of the owner or reputed owner.

If the purpose is to show a sale of any such property, the date of sale and sale price shall be stated.

If the purpose is to show the assessment on any such property the amount of the assessment and the year or years in which said assessment was applicable shall be given.

If the purpose is to show construction costs, the amount of said costs shall be given and also the year or years in which construction was begun and completed.

If the purpose is to show income derived, a detailed statement of the income and expenses shall be given for the year or years in which the said income was received.

The notice required by this Rule must be given, even though the same properties were referred to at the hearing before the assessing authority from which the appeal is taken to the Maryland Tax Court.

Regulation .08 Continuances.Link Copy Citation

Once a case has been set down for a hearing, a request for a continuance shall be granted only upon written request and order of Court, except that the Court may, for good cause shown, waive the requirement of a written request and order. The written request shall set forth in detail the reasons for said request, and the Court shall have the right to require such documentary proof of said reasons as it may deem proper. Prior to filing, or concurrently therewith, a copy of said request shall be served by mail or otherwise on the opposing side and the request shall contain a statement that a copy of said request has been mailed to or otherwise served on the opposing side.

Regulation .09 Summonses and Subpoenas.Link Copy Citation

An original and two signed copies of requests for summonses and/or subpoenas duces tecum shall be delivered to the Clerk at least five (5) working days before the date the case is scheduled for trial. The signature of such request shall be taken as a guarantee of any Sheriff's cost for making service of the summons or subpoena.

Failure to obey a summons or subpoena of this Court, lawfully issued and served, may subject the person guilty of such failure to contempt proceedings pursuant to Tax General Article, §13-522, Annotated Code of Maryland.

Regulation .10 Consolidation.Link Copy Citation

When Petitions involving a common question of law or fact are pending, the Court, on its own motion, or upon application of any party for good cause shown, may order a joint hearing or trial of any or all of the matters in issue; order any or all of the cases consolidated for trial; and make such orders governing the proceedings as may tend to avoid unnecessary costs or delay.

When subsequent petitions involve the same issues as a petition previously filed, the Court may order said subsequent petitions withheld from the hearing docket to abide the ultimate result of the hearing of the prior petition, or any appeals therefrom.

Regulation .11 Conduct of Hearings, Briefs, and Memoranda of Grounds for Decision.Link Copy Citation

As provided by Tax General Article, §13-523, Annotated Code of Maryland, proceedings before the Court shall be de novo, and shall be conducted in a manner similar to the proceedings in the Courts of Equity in this State. Opening statements and closing arguments shall be permitted each party, the Court reserving the right to determine the time limit thereof. Each party shall have the right to introduce testimony, offer exhibits and cross-examine adverse or hostile witnesses. The Court shall not be bound by the technical rules of evidence, but the testimony of witnesses must be responsive to questions asked and must be relevant to the issues of the case. Each party may submit a brief or written memorandum within such time after the hearing as may be determined by the Court. An original of any brief or memorandum, together with a copy for each judge who participated in the hearing, shall be filed with the Clerk, and a copy shall be served by mail or otherwise on the opposing side.

The Court shall upon motion of any party, made at any time prior to the expiration of the time for appeal, dictate to the court stenographer or reporter, or prepare and file with the clerk a brief statement of the grounds for its decision.

Regulation .12 Computing Time.Link Copy Citation

In computing any period of time prescribed or allowed by these Rules the day of the act or event after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless:(1) it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday or a holiday; (2) the act to be done is the filing of some paper in this Court, and the office of the Clerk of this Court on said last day of the period is not open, or is closed for a part of a day, in which event, the period runs until the end of the next day which is neither a Saturday, Sunday, a legal holiday, or a day on which the said office is not open the entire day during ordinary business hours. When the period of time allowed is more than seven (7) days, intermediate Saturdays, Sundays and holidays shall be considered as other days; but if the period of time is seven (7) days or less, intermediate Saturdays, Sundays, and holidays shall not be counted in computing the period of time.

Regulation .13 Pretrial Conference.Link Copy Citation

In any proceeding, the Court may in its discretion direct the parties or their attorneys to appear before it, for a pretrial conference to consider such matters as may aid in the disposition of the case.

Regulation .14 Further Appeals.Link Copy Citation

If any party to a proceeding shall appeal from a final order of this Court to the Circuit Court of any county or to the Baltimore City Court of Baltimore City, such party shall be required to order and furnish the Maryland Tax Court with a transcript of the testimony and shall be charged with the expense of such transcription, unless the parties shall agree upon a statement in lieu of record as provided by Rule 7-206 of the Maryland Rules of Procedure.

In all cases of appeal from the Court's final order, the Court shall file and include in the record of the case its findings of fact and conclusions of law on which it based its decision and order.

Regulation .15 Hearing Examiners.Link Copy Citation

The Court may assign all cases involving the assessment of Real Property to a Hearing Examiner.

The Hearing Examiners shall hear the evidence presented and promptly thereafter provide the Clerk with a written recommendation.

Copies of the recommendation shall be sent by mail to all parties of record, before submission to the Court. Within 15 days of the date of mailing, a party may file Exceptions with the Clerk, with a copy to be served by mail or otherwise on the opposing side, or sides, concurrently. Within that period or within 15 days after service (date of mailing plus 3 days) of the first Exceptions, whichever is later, any other party may file an Exception or Response. An Exception or Response is to be in writing and is to set forth the asserted error with particularity. Any matter not specifically set forth in the Exceptions is waived unless the Court finds that justice requires otherwise. The Court may not consider the Exceptions filed by any party who fails to comply with any of the above procedures.

The recommendation will be submitted to the Court after the time period allowed for the filing of Exceptions in §C of this regulation. The Court, in its discretion, may require a hearing.

The Court shall either adopt, modify or reject the recommendation.

Subtitle 13 — Northeast Maryland Waste Disposal Authority

Chapter 01. Procurement Procedures

Regulation .01 Purpose.Link Copy Citation

The procedures established in this chapter are applicable to the procurement of supplies, services, and construction including leasing personal property as a lessee. The Authority is not subject to the State Finance and Procurement Article, Annotated Code of Maryland.

Regulation .02 Conflict of Interest.Link Copy Citation

The members of the Authority, its Executive Director, and staff members are required to comply with the conflict of interest provisions found in the General Provisions Article, Title 5, Subtitle 5, Annotated Code of Maryland.

Regulation .03 Scope.Link Copy Citation

This chapter does not apply to the following:

(1)

Contracts with or procurement from:

(a)

A State agency or unit,

(b)

A political subdivision of the State,

(c)

An agency of a political subdivision of the State,

(d)

A government, including the government of another state or the United States,

(e)

An agency or political subdivision of the State, or

(f)

A bistate, multistate, bicounty, or multicounty governmental agency;

(2)

Acquisition of real property or a permanent or temporary interest in real estate;

(3)

Disposal of real or personal property; or

(4)

Contracts or purchases that were originally procured by a federal, state or local government agency or entity, pursuant to the procurement laws and regulations of the procuring entity.

Regulation .04 Definitions.Link Copy Citation

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

Terms Defined.

(1)

"Authority" means the Northeast Maryland Waste Disposal Authority.

(2)

“Board” means the Board of Directors of the Authority.

(3)

“Executive Director” means the Executive Director of the Northeast Maryland Waste Disposal Authority.

(4)

“Person” has the meaning stated in Natural Resources Article, §3-101(j), Annotated Code of Maryland.

(5)

Proposal.

(a)

“Proposal” means the response by an offeror to a request for proposals to obtain supplies, services, or construction.

(b)

“Proposal” may include, without limitation, an offeror's price, description of technical expertise, work experience, and other information requested in the solicitation.

(6)

“Responsible” means a person who has the capability in all respects to dutifully perform fully the contract requirements, and the integrity and reliability that ensures good faith performance.

(7)

“Responsive” means a bid or offer submitted in response to a solicitation that conforms in all material respects to the requirements contained in the solicitation.

(8)

“Services” means the rendering of time, effort, or work, rather than the furnishing of a specific physical product other than reports incidental to the required performance.

(9)

“Supplies” means all tangible personal property, including equipment, leases of equipment, and insurance, including any incidental services.

Regulation .05 Procurement Authority.Link Copy Citation

The power to contract on behalf of the Authority for the procurement of materials, supplies, or services and construction shall be vested in the Executive Director. The Executive Director may, with the approval of the Authority, delegate this power to other staff members. The Executive Director may exercise any responsibility of the Authority set forth in these regulations. However, contracts and orders involving the expenditure of more than $10,000 shall be awarded only by resolution of the Authority upon recommendation of the Executive Director.

Regulation .06 Advertising.Link Copy Citation

Advertising, when used, shall be placed in one or more newspapers of general circulation serving the area where the procurement is required, or e-Maryland Marketplace. Wider range advertising, including advertising in professional and trade publications, may be employed at the discretion of the Executive Director. The advertisement shall describe the materials, supplies, equipment, or services required, pertinent information as to submission of bids, proposals or qualification statements, and shall identify a staff member of the Authority who can respond to inquiries concerning the procurement.

Regulation .07 Methods of Procurement.Link Copy Citation

All purchases shall be awarded by one of the following methods:

(1)

Competitive sealed bidding;

(2)

Competitive negotiation;

(3)

Small procurement procedures, when permitted by Regulation .14 of this chapter;

(4)

Revised bids after competitive sealed bidding where all bids are rejected;

(5)

Sole source procurement, when permitted by Regulation .11 of this chapter;

(6)

Emergency procurement, when permitted by Regulation .12 of this chapter; or

(7)

Intergovernmental cooperative purchasing as that term is defined in State Finance and Procurement Article, §13-110, Annotated Code of Maryland, and COMAR 21.05.09.

The Authority shall select the method of procurement which in its discretion best meets the needs of the Authority.

Regulation .08 Prequalification.Link Copy Citation

The Authority may require prequalification of bidders regardless of the method of procurement selected.

Method of Prequalification.

(1)

The Authority shall issue a request for qualifications.

(2)

The Authority may invite some or all persons and entities seeking to become qualified to participate in oral interviews. The interviews will become part of the responses to a request for qualifications.

(3)

The Authority may require some or all persons and entities seeking to become qualified to submit additional data and information, which will become part of the responses.

(4)

The Authority shall evaluate the responses and shall rank each response in accordance with evaluation criteria.

(5)

By applying the evaluation criteria, the Authority shall establish a short-list composed of a minimum of two and, in general, a maximum of five persons or entities.

(6)

The Authority shall notify those who qualified for the short-list that they have qualified and that they can anticipate a request for proposals, an invitation to bid, or, depending on the method of procurement selected by the Authority, an invitation to participate in negotiations.

(7)

The Authority shall notify those who did not qualify.

The requirement for competition may be satisfied by the prequalification process.

Regulation .09 Guidelines for Competitive Sealed Bidding.Link Copy Citation

Bids shall be submitted in a sealed envelope marked with the bidder's name. All bids will be publicly opened at the time and place stated in the request.

Award shall be made with reasonable promptness after the date of bid opening to that person or entity with the lowest bid which is both responsible and responsive.

All bids may be rejected if the Authority determines that it is in the public interest to do so.

Regulation .10 Guidelines for Competitive Negotiation.Link Copy Citation

A special form or procedure is not prescribed for procurement by competitive negotiation. The request shall be in writing and shall describe the procurement in sufficient detail to provide an understanding of what is required, but should not be unnecessarily restrictive so as to preclude or limit competition. The request shall state applicable dates for the submission of proposals, and any other information which may be necessary and useful, including evaluation criteria.

Precautions shall be taken to avoid prejudice in the selection of a source of supply, and to assure that a fair and reasonable price is obtained. This section does not preclude the Authority from making an award when only one proposal is received by the Authority after advertising.

The Authority may conduct oral negotiations before or after the receipt of proposals. The purpose of the negotiation is to promote understanding of the Authority's requirements and the offerors' proposals and to facilitate arrival at a contract that is most advantageous to the Authority. The Authority may require offerors to submit best and final offers after negotiations.

The Authority shall make an award to the offeror whose proposal or, if applicable, best and final offer, after giving effect to the understanding gained during negotiations, is determined to be most advantageous to the Authority.

The Authority may abandon a procurement by competitive negotiation if it is determined to be in the public interest to do so.

Regulation .11 Sole Source Procurement.Link Copy Citation

Condition for Use. Sole source procurement is not permissible unless a requirement is available from only a single vendor.

The determination as to whether a procurement shall be made as a sole source shall be made by the Executive Director, and approved by the Board. The determination and the basis for it shall be in writing. The Authority may not award a contract to a sole source before the Board's approval, except as allowed in Regulation .14 of this chapter.

Regulation .12 Emergency Procurement.Link Copy Citation

Application. The Authority may award an emergency contract by means other than competitive sealed bidding or competitive negotiation under Regulation .09 or .10 of this chapter.

Scope. “Emergency” means a sudden and unexpected occurrence or condition which the Authority could not reasonably foresee and which requires an action to avoid or to mitigate damage to the environment or to health, safety, or welfare. An emergency procurement is limited to the procurement of only those items necessary to avoid or to mitigate the damage to the environment or to health, safety, or welfare.

Competition. The Authority shall reasonably attempt to obtain such competition as is consistent with meeting the time requirements of the emergency.

Regulation .13 Supplemental Work.Link Copy Citation

The Authority need not follow the procurement process as set forth in these regulations when the procurement is for supplemental work, substantially related to work previously awarded by the Authority by competitive sealed bidding or competitive negotiation, and where further competitive procurement would not enhance the public interest.

Regulation .14 Small Procurement Procedures.Link Copy Citation

Materials, supplies, equipment, and services may be procured by open market purchase or sole source award when the amount involved is anticipated to be less than $2,500 in the aggregate on an annual basis for a particular procurement. Procurement by open market purchase or sole source award in amounts over $2,500, but less than $10,000, is permitted when the materials, supplies, equipment, and services are of a unique and special nature, or when public exigency will not permit the delay incident to competition. In this event, a memorandum justifying the action and signed by the Executive Director shall be filed with the official records of the Authority.

Regulation .15 Contracts Voidable for Noncompliance.Link Copy Citation

If the Board determines that a procurement violates this chapter, the Board may determine that the procurement contract is voidable rather than void if the Board finds that:

(1)

All parties have acted in good faith;

(2)

Ratification of the procurement contract would not undermine the purposes of this chapter; and

(3)

The violation, or series of violations, was insignificant or otherwise did not prevent substantial compliance with this chapter.

If the Board determines that a procurement contract is voidable under §A of this regulation and that the contractor has not acted in violation of this chapter, the Board may:

(1)

Ratify the contract if it determines that ratification is in the best interest of the Authority; or

(2)

Void the contract.

If the Board determines that a procurement contract is voidable under §A of this regulation and that the contractor has acted in violation of this chapter, the Authority:

(1)

May void the contract; or

(2)

Without the prejudice to the Authority's right to appropriate damages, may ratify the contract if the Board determines that ratification is in the best interests of the Authority.

Regulation .16 Bid Protests.Link Copy Citation

Time Restrictions.

(1)

A protest based upon alleged improprieties in a solicitation that are apparent before bid opening or the closing date for receipt of initial proposals shall be submitted to the Director of Finance and Administration before bid opening or the closing date for receipt of initial proposals.

(2)

For procurement by competitive sealed proposals, alleged improprieties that did not exist in the initial solicitation but which are subsequently incorporated in the solicitation shall be submitted to the Director of Finance and Administration not later than the next closing date for receipt of proposals following the incorporation.

(3)

In all other cases, protests shall be submitted to the Director of Finance and Administration not later than 7 days after the basis for protest is known, or should have been known, whichever is earlier.

(4)

A protest received by the Director of Finance and Administration after the time limits of §A(1)—(3) of this regulation may not be considered and shall be denied as untimely.

Form and Content of Bid Proposals.

(1)

To expedite the handling of protests, the envelope should be labeled “Protest”.

(2)

The written proposal shall include as a minimum the following content:

(a)

The name and address of the protestor;

(b)

Appropriate identification of the procurement and, if a contract has been awarded, its number if known;

(c)

A statement of the reasons for the protest;

(d)

Supporting exhibits, evidence, or documents to substantiate the reasons for the protest; and

(e)

If not available within the time restrictions:

(i)

A description of the nature and extent of the evidence and documents; and

(ii)

The expected availability date of the evidence and documents.

(3)

Any additional information or substantiation requested by the Director of Finance and Administration shall be submitted within 5 days after receipt of request, or other time as the Director of Finance and Administration may specify in order to expedite consideration of the protest. Failure of the protestant to comply with a request for information or substantiation by the Director of Finance and Administration may result in a resolution of the protest without consideration of any response to the request that is not timely filed.

Authority Determination and Finding.

(1)

After a protest is filed, the Director of Finance and Administration shall consider the protest, all supporting documentation, and any submissions from other bidders or offerors. This consideration is not a contested hearing, subject to State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. After consideration, the Director of Finance and Administration shall make a determination and finding regarding the protest.

(2)

For contracts valued at less than $10,000, the Director of Finance and Administration may make the determination and finding without consultation with the Executive Director.

(3)

For contracts valued at $10,000 or more, the Director of Finance and Administration shall provide a proposed determination and finding to the Executive Director. The Executive Director shall consider the protest and shall issue the determination and finding.

(4)

The determination and finding shall be forwarded by certified mail to the protestor.

Appeal.

(1)

The protestor may appeal the determination and finding to the Board of Directors within 10 days after receipt. The appeal shall be in writing, and include a copy of the protest and the determination and finding. In addition, the appeal shall contain all grounds for disagreement with the determination and finding. Appeals not received within 10 days after receipt by the protestor shall be dismissed as untimely.

(2)

If the protestor desires a hearing on its protest, a request for a hearing shall be made, in writing, at the time of the appeal. If a timely request for a hearing is received, the Board of Directors shall conduct a hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. In accordance with State Government Article, §10-205, Annotated Code of Maryland, the Board of Directors may delegate its authority to conduct this hearing to the Office of Administrative Hearings.

(3)

The Board of Directors shall issue a final decision on the protest, which is the final Authority decision. This final decision of the Authority is subject to judicial review in accordance with the rules established by State Government Article, §10-222, Annotated Code of Maryland.

Contract Awards.

(1)

Generally, if a protest has been filed, the Authority may not award the contract until there is a final Authority decision on the protest.

(2)

The Authority may award a contract before there is a final Authority decision after making a determination and finding which considers:

(a)

The merits of the protestor's complaint;

(b)

The need of the Authority for the procurement, which is the subject of the protest;

(c)

The fluctuations in the market, which may impact costs;

(d)

The unwillingness of the proposed awardee to extend its offer; or

(e)

Other factors which impact on the public interest.

Subtitle 13 — Northeast Maryland Waste Disposal Authority

Chapter 02. Designation of the Boundary of the Northeast Maryland Waste Disposal Region

Regulation .01 Purpose and Scope.Link Copy Citation

The boundary established in these regulations shall be the basis of the Maryland Environmental Service's designation of the Northeast Maryland Waste Disposal Region as a solid waste disposal service region as provided in Natural Resources Article, §3-106, Annotated Code of Maryland, the basis of the Northeast Maryland Waste Disposal Authority's 5-year planning process, and the basis of the establishment of service districts within the Northeast Maryland Waste Disposal Region pursuant to any duly adopted 5-year plan.

Regulation .02 Boundary.Link Copy Citation

The boundary of the Northeast Maryland Waste Disposal Region shall be: To the North, the boundary between the State of Maryland and the Commonwealth of Pennsylvania; to the East, to the extent of county jurisdiction, the Susquehanna River, and the Chesapeake Bay; to the South, a line described by U.S. Routes 50 and 301, from the Preston Lane Jr. Memorial Bridge to a point generally west of the City of Annapolis where this highway intersects with Maryland Route 450 (Defense Highway) and from there following Maryland Route 450 to the intersection of this highway with the boundary between Anne Arundel and Prince George's Counties; and to the West, a line proceeding in a northerly direction along the boundary of Anne Arundel with Prince George's and Howard Counties to its juncture with the boundary of Baltimore County and then northwesterly along the boundary of Baltimore County with Howard and Carroll Counties.

Regulation .03 Boundary Revisions.Link Copy Citation

The boundary defined in Regulation .02 shall be revised only by regulation.

Subtitle 13 — Northeast Maryland Waste Disposal Authority

Chapter 03. Public Information Requests

Regulation .01 General.Link Copy Citation

These regulations set out procedures for filing requests with the Northeast Maryland Waste Disposal Authority for the inspection and copying of records under the Public Information Act, State Government Article, §§10-611—10-628, Annotated Code of Maryland. It is the policy of the Authority to facilitate public access to the records of the Authority, when that access is allowed by law, by minimizing costs and time delays to persons requesting information.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means the Public Information Act, State Government Article, §§10-611—10-628, Annotated Code of Maryland.

(2)

“Applicant” means a person requesting disclosure of public records.

(3)

"Authority" means the Northeast Maryland Waste Disposal Authority.

(4)

“Custodian” means and includes the official custodian or any authorized person employed by the Authority having personal custody and control of public records of the Authority.

(5)

“Official custodian” means the person who is responsible for the maintenance, care, and keeping of the public records of the Authority. Unless otherwise provided by law, the Executive Director of the Authority is the official custodian of the Authority's records.

(6)

“Public record” has the meaning stated in State Government Article, §10-611(g), Annotated Code of Maryland.

(7)

“Working day” means a day other than Saturday, Sunday, or State holiday or national holiday.

Regulation .03 Who May Request.Link Copy Citation

Any person may request to inspect or copy public records of the Authority.

Regulation .04 Necessity for Written Request.Link Copy Citation

Inspections.

(1)

Except as otherwise provided in this regulation, the custodian shall generally make public records available for inspection by an applicant without demanding a written request.

(2)

The custodian shall require a written request if the custodian reasonably believes that the Act or any other law may prevent the disclosure of the public record to the applicant or that a written request will materially assist the Authority in responding to the request.

Copies. If the applicant is requesting a copy of any public record, the custodian may require a written request by the applicant.

Regulation .05 Contents of Written Request.Link Copy Citation

A written request shall contain the applicant's name and address, shall be signed by the applicant, and shall reasonably identify by brief description the public record sought.

Regulation .06 Filing Written Request.Link Copy Citation

A written request shall be addressed to the custodian of the record. If the custodian is unknown to the applicant, the request may be addressed to the Executive Director of the Authority.

Regulation .07 Response to Written Request.Link Copy Citation

If the custodian decides to grant a written request for inspection, the custodian shall produce the record for inspection immediately or within a reasonable period, not to exceed 30 days from the date of the request when that period of time is needed to retrieve the information.

If the custodian decides to deny the written request, the custodian shall do so within 30 days of the written request and immediately upon deciding to deny the request, notify the applicant of the denial.

If a requested public record is not in the custody or control of the person to whom written application is made, that person shall, within 10 working days of the receipt of the request, so notify the applicant. If that person knows the name of the custodian of the record or the location or possible location of the record, this information shall also be given to the applicant.

With the consent of the applicant, any time limit imposed by §§A—C may be extended for an additional period not to exceed 30 days.

Regulation .08 Notification of Persons Who May Be Affected by Disclosure.Link Copy Citation

Unless prohibited by law, the custodian may notify any person who could be adversely affected by disclosure of a public record to the applicant that a request for inspection or copying of the record has been made. The custodian may solicit and consider the viewpoint of that person before deciding whether to disclose the record to the applicant.

Regulation .09 Records Temporarily Unavailable.Link Copy Citation

If a requested public record is in the custody and control of the person to whom written application is made but is not immediately available for inspection or copying, the custodian shall promptly notify the applicant that the public record is not immediately available, and schedule a date and hour within a reasonable time for inspection or copying.

Regulation .10 Records Destroyed or Lost.Link Copy Citation

If a requested record has been destroyed or lost, the custodian to whom the application is made shall promptly notify the applicant of this fact and explain in the response the reasons why the record cannot be produced.

Regulation .11 Review of a Denial.Link Copy Citation

If a written request is denied by the custodian for a reason other than that the record is temporarily unavailable, the applicant may, within 30 days after receipt of the notice of the denial, request an administrative hearing.

If the applicant requests a hearing, the hearing shall be conducted by a hearing officer designated by the Executive Director of the Authority and the hearing shall be governed by State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. After the hearing, the hearing officer shall prepare a recommended decision for the Executive Director. The Executive Director shall issue the final decision of the Authority unless the Executive Director delegates the final decision authority.

If the hearing results in a total or partial denial of the written request, the applicant may file an appropriate action in the circuit court under State Government Article, §10-623, Annotated Code of Maryland:

If the applicant chooses not to request a hearing under §A, above, the applicant may file an action for judicial enforcement under State Government Article, §10-623, Annotated Code of Maryland.

Regulation .12 Disclosure Against Public Interest.Link Copy Citation

If, in the opinion of the official custodian, disclosure of any public record that is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the official custodian may temporarily deny the request in writing and apply within 10 working days of the denial to the appropriate circuit court for an order permitting continued denial or restriction of access. Notice of the application filed with the circuit court shall be served on the applicant in the same manner that is provided for service of process by the Maryland Rules of Procedure.

The official custodian may solicit and consider the advice and counsel of a person or persons specializing in the fields of law, engineering, or finance in order to form an opinion as to whether the application should be denied.

Regulation .13 Fees.Link Copy Citation

The fee schedule for copying and certifying copies of records is as follows:

(1)

Copies. The fee for each copy is $.25 per page if reproduction is made by a photocopying machine within the Authority. If records are not susceptible to photocopying (for example, punch cards, magnetic tapes, blueprints, and microfilm), the fee for copies is based on the actual cost of reproduction.

(2)

Certification of Copies. If an applicant requests that a copy of a record be certified as a true copy, an additional fee of $1 per page or, if appropriate, per item shall be charged.

(3)

Minimum Fee Charged. A charge may not be made if the total amount of the fee would be $1 or less.

Notwithstanding §A, above, if the fees for copies, printouts, photographs, or certified copies of any record are specifically prescribed by a law other than the Act or this regulation, the prescribed fee shall be charged.

If the custodian is unable to copy a record within the Authority, the custodian shall make arrangements for the prompt reproduction of the record at public or private facilities outside the Authority. The official custodian shall either collect from the applicant a fee to cover the actual cost of reproduction or direct the applicant to pay the cost of reproduction directly to the facility making the copy.

Before copying a record, the official custodian shall estimate the cost of reproduction and either obtain the agreement of the applicant to pay the cost or demand prepayment of any estimated fee before reproducing the record.

Except as provided in §F of this regulation, the official custodian may charge reasonable fees for official or employee time expended searching for requested records or for any time expended preparing records for inspection and copying.

The official custodian may not charge any search or preparation fee for the first 2 hours of official or employee time that is needed to respond to a request for inspection or copying.

Upon request, the official custodian may waive or reduce any fee charged pursuant to these regulations 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 applicant to pay the cost or fee.

If the applicant requests that copies be mailed or delivered to the applicant, the official custodian may charge the applicant for the cost of postage or delivery to the applicant.

Regulation .14 Time of Inspection.Link Copy Citation

An applicant may inspect any public record permitted under the Act and these regulations during the normal working hours of the Authority.

Regulation .15 Place of Inspection.Link Copy Citation

The place of inspection shall be the place where the public record is located unless the custodian, after taking into account the applicant's expressed wish, determines that another place of inspection is more suitable and convenient.

Subtitle 13 — Northeast Maryland Waste Disposal Authority

Chapter 04. Correction or Amendment of Personal Records

Regulation .01 General.Link Copy Citation

These regulations set out procedures within the Northeast Maryland Waste Disposal Authority for persons in interest to request the correction or amendment of personal records under State Government Article, § 10-625, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

"Authority" means the Northeast Maryland Waste Disposal Authority.

“Custodian” means and includes the official custodian or any authorized person employed by the Authority having personal custody and control of public records of the Authority.

“Person in interest” means and includes the person who is the subject of a record or any representative designated by that person, except that if the subject of the record is under legal disability, the term “person in interest” shall mean and include the parent or duly appointed legal representative.

“Personal records” means and includes any public record that contains information pertaining to a natural person whose identity can be ascertained from the public record with reasonable certainty either by name, address, number, description, finger or voice print, picture, or any other identifying factor or factors.

“Third party” means any natural person, corporation, partnership, firm, association or governmental agency who is not a “person in interest.”

Regulation .03 Who May Request.Link Copy Citation

A person in interest who has the right to inspect records pursuant to State Government Article, §§10-614—10-619, Annotated Code of Maryland, may request the Authority to correct or amend any personal records pursuant to State Government Article, §10-625, Annotated Code of Maryland.

Regulation .04 Contents of Request.Link Copy Citation

The person in interest shall request the correction or amendment in writing. Each request shall:

Identify the personal records the person is seeking to correct or amend;

State the precise correction or amendment requested;

State the reason the correction or amendment is sought; and

Include the statement that the personal records are to the person's belief currently inaccurate or incomplete.

Regulation .05 Filing the Request.Link Copy Citation

A request for correction or amendment of the records shall be filed with the Authority by addressing it to the custodian of the record. If the custodian is unknown to the person in interest, the request may be addressed to the Executive Director, Northeast Maryland Waste Disposal Authority, 131 East Redwood Street, Suite 503, Baltimore, Maryland 21202-1275.

Regulation .06 Return of Request.Link Copy Citation

A request for correction or amendment will be considered filed with the Authority when received only to the extent that it reasonably complies with Regulation . 04. If a request does not reasonably comply with Regulation .04, it shall be returned to the person with an explanation of the reason for the return and a statement that, upon proper completion, it may be refiled with the Authority.

Regulation .07 Response to Request.Link Copy Citation

Within 30 days after the completed request for correction or amendment that complies with Regulations . 04 and .05 is received, the custodian of the record shall:

Make the requested correction or amendment and inform the person in writing of the action;

Inform the person in writing of the:

(1)

Authority's refusal to make the requested correction or amendment,

(2)

Reason for the refusal; or

Inform the person in writing that the request will not be acted on because:

(1)

The person is not a person in interest,

(2)

The records sought to be corrected or amended are not personal records,

(3)

The person requesting the correction or amendment is not entitled to inspect the records under State Government Article, §§10-614—10-619, Annotated Code of Maryland, or

(4)

Of any other reason that is authorized by law.

Regulation .08 Refusal of Request.Link Copy Citation

If the Authority's final determination under Regulation . 07 is to refuse the requested correction and amendment, as authorized by Regulation .07B, the person in interest may file with the Authority a concise statement, not to exceed five 8 x 11 inch pages, of the reasons for:

The requested correction or amendment; and

Disagreement with the Authority's refusal to make the correction or amendment.

Regulation .09 Information Provided to Third Parties.Link Copy Citation

When the Authority discloses to a third party information from personal records about which a statement in compliance with Regulation . 08 has been filed, the Authority shall furnish a copy of the statement to the third party.

Regulation .10 Administrative Review.Link Copy Citation

A person in interest may request an administrative review within the Authority by filing a request for review with the Executive Director if the person in interest has been denied:

(1)

An amendment or correction of a record;

(2)

The right to file a statement; or

(3)

The right to have a statement forwarded to a third party pursuant to Regulation .09.

A request for review shall be filed within 30 days of the date the person in interest is advised of the Authority's action.

The review proceedings shall be conducted in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

This remedy of administrative review need not be exhausted before filing suit in a circuit court pursuant to State Government Article, §10-623, Annotated Code of Maryland.

Subtitle 13 — Northeast Maryland Waste Disposal Authority

Chapter 05. Open Meetings

Regulation .01 General.Link Copy Citation

This chapter contains procedures regarding the conduct of persons attending open meetings, and the recording and broadcasting of open meetings.

Regulation .02 Definitions.Link Copy Citation

In this chapter, the following terms have the meaning indicated.

Terms Defined.

(1)

"Authority" means the Northeast Maryland Waste Disposal Authority.

(2)

“Open session” means a meeting of the Authority 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 .03 Public Attendance.Link Copy Citation

The general public is invited to attend and observe an open session of the Authority.

Except in instances when the Authority expressly invites public testimony, questions, comments, or other forms of public participation, or when public participation is otherwise authorized by law, a member of the public attending an open session may not participate in the session.

Regulation .04 Disruptive Conduct.Link Copy Citation

An individual attending an open session of the Authority 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 a member of the public to attend and observe the session.

The presiding officer may:

(1)

Order a person who engages in conduct prohibited by §A of this regulation or who violates any other regulation concerning the conduct of the open session to be removed from the session;

(2)

Request police or other assistance to restore order; and

(3)

Recess the open session while order is restored.

Regulation .05 Recording, Photocopying, and Broadcasting of Open Sessions.Link Copy Citation

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

(1)

Record discussions of the Authority at an open session by means of a tape recorder or other recording device if the device does not create noise that disturbs members of the Authority or others attending the open session; and

(2)

Photograph or videotape the proceedings of the Authority at an open session if the camera is operated without excessively bright artificial light or noise that disturbs members of the Authority or others attending the open session.

A representative of the news media may broadcast or televise the proceedings of the Authority at an open session if the equipment used:

(1)

Is operated without excessively bright artificial light that disturbs members of the Authority or others attending the open session; and

(2)

Does not create noise that disturbs members of the Authority or others attending the open session.

The presiding officer may restrict the movement of a person 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 .06 Recordings Not Part of Record.Link Copy Citation

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 any proceeding of the open session.

Subtitle 14 — Hazardous Waste Facilities Siting Board

Chapter 01. General Administrative Procedures

Regulation .01 Definitions.Link Copy Citation

The following terms have the meanings indicated.

Terms Defined.

(1)

“Act” means the Hazardous Waste Facilities Siting Program Act, Title 3, Subtitle 7 of the Natural Resources Article, Annotated Code of Maryland (Laws of 1980, Ch. 528).

(2)

“Applicant” means a person, partnership, corporation, association, governmental body, or other entity that submits an application.

(3)

“Application” means a written request for a certificate of public necessity from the Board submitted in accordance with these regulations.

(4)

“Board” means the Hazardous Waste Facilities Siting Board.

(5)

“Certificate” means a certificate of public necessity issued by the Board.

(6)

“Department” means, unless otherwise indicated, the Maryland Department of Health, or any other successor State agency with primary regulatory responsibility over hazardous waste.

(7)

“Facility” means any structure, equipment, machinery, bins, tanks, pipes, pumps, conveyors, wells, trenches, pits, or cells used for treatment, processing, reconditioning, exchange, incidental storage in connection with the preceding activities, long-term storage, or ultimate disposal of hazardous waste.

(8)

“Hazardous waste” means any waste substance or material designated as a hazardous substance pursuant to Natural Resources Article, §8-1413.2, Annotated Code of Maryland, and COMAR Title 10, Subtitle 51, as amended.

(9)

“Permit” means any regulatory permit that may be required of the applicant by any State or federal regulatory agency. This includes a facility permit required by the Department, any permit for emissions of air, water, noise, or other pollutants required by the Department or the United States Environmental Protection Agency, or a floodplain or stream diversion permit required by the Department of Natural Resources, as the case may be.

(10)

“Secretary” means Secretary to the Board.

(11)

“Service” means the Maryland Environmental Service.

(12)

“Site” means the geographic area to be occupied by a facility, including buffer or security areas and areas used for any appurtenant functions.

(13)

“Subdivision” means the 23 counties or Baltimore City and other incorporated municipalities.

Regulation .02 Statutory References.Link Copy Citation

“Administrative Procedure Act” means Article 41, §§244—256, Annotated Code of Maryland, as amended.

“Public Information Act” means Article 76A, Annotated Code of Maryland, as amended.

Regulation .03 General Procedures.Link Copy Citation

The Board may adopt standing rules governing details of the conduct of business by the Board. Standing rules may be suspended for the duration of a meeting by majority vote of those present. Proceedings shall be governed by Roberts Rules of Order, Revised, except as otherwise provided by these regulations, by law, or by standing rules of the Board.

Absence of Chairman.

(1)

The Chairman may appoint a member of the Board to preside in his or her absence.

(2)

When the Chairman has not appointed a presiding officer to serve in his or her absence, the Board will elect a Chairman pro tem to serve until the Chairman returns.

(3)

In case of extended absence of the Chairman, that fact will be brought to the Governor's attention.

Attendance.

(1)

Regular attendance at meetings is required of all members.

(2)

Members are expected to notify the Chairman or Secretary when they are unable to attend.

(3)

When excessive or recurrent absence of one or more members impedes the effectiveness of the Board, it shall discuss the matter of absence in closed session. The Board may recommend to the Governor the relief of a member for excessive or recurrent absence and the appointment of a successor.

Regular Meetings.

(1)

Regular meetings of the Board shall take place at a regular time and place determined by the Board.

(2)

A schedule of the regular meetings shall be maintained by the Secretary and published in the Maryland Register at least 15 calendar days in advance.

(3)

Notice of meetings and an agenda shall be mailed in advance of the meeting to any person who so requests the Secretary in writing.

(4)

The business of a regular meeting shall be published in the agenda insofar as practicable. Business not included in the published agenda may be added when allowed by law. The agenda shall be prepared by the Secretary and approved by the Chairman.

Special Meetings.

(1)

A special meeting is one convened at a time different from any regular meeting to consider item or items of business as specified in the notice. Business shall be limited to that specified in the notice.

(2)

A special meeting may be convened at the call of the Chairman or at the request of three members.

(3)

Notice and an agenda of special meetings will be mailed as far in advance of the meeting as practicable to any person who so requests of the Secretary in writing.

Minutes.

(1)

The Secretary shall keep written minutes of all meetings. The minutes shall record the nature of each item of business, action taken, and any recorded vote.

(2)

Unless a stenographic record is made and transcribed, minutes need not record discussion.

(3)

Motions and resolutions shall be submitted in writing to the Secretary or shall be recorded in writing by the Secretary before the question is stated by the Chairman.

Meetings Generally Open to the Public.

(1)

It shall be the policy of the Board that meetings be conducted in an open and public manner.

(2)

The Board may meet in closed session as authorized by law. The reason for the closed session shall be stated in the minutes.

Regulation .04 Public Hearings Held Other than to Consider Applicants.Link Copy Citation

All public hearings, other than those held to consider applications, will be held at a location or locations directed by the Board.

Notice will be published in the Maryland Register at least 15 calendar days in advance.

Notice by ordinary mailing will be given to any person who has requested to receive notice of Board meetings.

The Chairman may preside over the hearing or may designate another Board member or other person as hearing officer.

The Board may establish procedural rules governing the conduct of hearings, consolidation of hearings, ceding of time, time limits, and other such matters as the Board finds appropriate.

Regulation .05 Public Records.Link Copy Citation

General. All records of the Board are subject to inspection and copying as provided in the Public Information Act, Article 76A,§1-5A, Annotated Code of Maryland. It is the policy of the Board to facilitate public access to the records of the Board, when access is allowed by law, by minimizing costs and time delays to persons requesting information.

Definitions.

(1)

“Custodian” means an authorized person employed by the Board having personal custody and control of public records of the Board.

(2)

“Information requester” means a person requesting disclosure of public records.

(3)

“Official custodian” means the person who is responsible for the maintenance, care, and keeping of the public records of the Board. Unless otherwise provided by law, the Secretary is the official custodian of the Board's records.

(4)

“Public records” means all paper, correspondence, forms, books, photographs, photostats, films, microfilms, sound recordings, maps, drawings, or other written documents, regardless of physical form or characteristics. “Public records” includes all copies made or received by the Board in connection with the transaction of public business and includes the salaries of all employees of the Board.

(5)

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

(6)

“Written documents” means all books, papers, maps, photographs, cards, tapes, recordings, computerized records, and other documentary materials, regardless of physical form or characteristics.

Who May Request. Any person may request to inspect or copy public records of the Board.

Necessity for Written Request.

(1)

Inspections.

(a)

Except as otherwise provided in this regulation, the custodian shall generally make public records available for inspection by an information requester without demanding a written request.

(b)

The custodian shall require a written request if the custodian reasonably believes that the Public Information Act or any other law may prevent the disclosure of the record to the information requester or that a written request will materially assist the Board in responding to the request.

(2)

Copies. If the information requester is requesting a copy of any public record, the custodian may require a written request by the information requester.

Contents of Written Request. A written request shall:

(1)

Contain the information requester's name and address;

(2)

Be signed by the information requester; and

(3)

Reasonably identify by brief description the record sought.

Filing Written Request. A written request shall be addressed to the custodian of the record. If the custodian is unknown to the information requester, the request may be addressed to the Secretary.

Response to Written Request.

(1)

If the custodian decides to grant a written request for inspection, he shall produce the record for inspection immediately or within a reasonable period, not to exceed 30 days from the date of the request where the period of time is needed to retrieve the information.

(2)

If the custodian decides to deny the written request, he shall do so within 30 days of the written request and, immediately upon deciding to deny the request, notify the information requester of the denial.

(3)

If a requested public record is not in the custody or control of the person to whom written request is made, that person shall, within 10 working days of the receipt of the request, notify the information requester. If that person knows the name of the custodian of the record or the location or possible location of the record, this information shall also be given to the information requester.

(4)

With the consent of the information requester, any time limit imposed by §G(1)—(3) above, may be extended for an additional period not to exceed 30 days.

Notification of Persons Who May be Affected by Disclosure. Unless prohibited by law, the custodian may notify any person who could be adversely affected by disclosure of a record to the information requester that a request for inspection or copying of the record has been made. The custodian may consider the views of that person before deciding whether to disclose the record to the information requester.

Records Temporarily Unavailable. If a requested public record is in the custody and control of the person to whom written request is made but is not immediately available for inspection or copying, the custodian shall, within 10 working days of the receipt of the request, notify the information requester and set a date and hour within a reasonable time for inspection or copying.

Records Destroyed or Lost. If a requested record has been destroyed or lost, the custodian to whom the request is made shall, within 10 working days of the request, notify the information requester of this fact and explain in the response the reasons why the record cannot be produced.

Review of the Denial.

(1)

If a written request is denied by the custodian for a reason other than that the record is temporarily unavailable, the information requester may, within 30 days after receipt of the notice of the denial, request an administrative hearing.

(2)

If the information requester requests a hearing, the hearing shall be conducted by a hearing officer designated by the Chairman and the hearing shall be governed by the Administrative Procedure Act,§251—254, Annotated Code of Maryland. After the hearing, the hearing officer shall prepare a recommended decision for the Board. The Chairman shall issue the final decision of the Board.

(3)

If the hearing results in a total or partial denial of the written request, the information requester may file an appropriate action in the circuit court under§5 of the Public Information Act.

(4)

If the information requester chooses not to request a hearing under§K(1), above, the information requester may file an action for judicial enforcement under§5 of the Public Information Act without exhausting that administrative remedy.

Disclosure Against Public Interest. If, in the opinion of the Board disclosure of any public record that is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the Chairman may temporarily deny the request in writing and apply within 10 working days of the denial to the appropriate circuit court for an order permitting continued denial or restriction of access. Notice of the application filed with the circuit court shall be served on the information requester in the same manner that is provided for service of process by the Maryland Rules of Procedure.

Fees.

(1)

The fee schedule for copying and certifying copies of records is as follows:

(a)

Copies. The fee for each copy is 15 cents per page if reproduction is made by a photocopying machine within the Board's offices. If records are not susceptible to photocopying (for example, punch cards, magnetic tapes, blueprints, and microfilm), the fee for copies will be based on the actual cost of reproduction.

(b)

Certification of Copies. If a person requests that a copy of a record be certified as a true copy, an additional fee of $1 per page shall be charged.

(c)

Minimum Fee Charged. A charge will not be made if the total amount of the fee is $1 or less.

(2)

Notwithstanding §M(1), above, if the fees for copies, printouts, photographs, or certified copies of any record are specifically prescribed by a law other than the Public Information Act or this regulation, the prescribed fee shall be charged.

(3)

If the custodian is unable to copy a record within the Board's offices, the custodian shall make arrangements for the prompt reproduction of the record at public or private facilities outside the Board's offices. The custodian shall either collect from the information requester a fee to cover the actual cost of reproduction or direct the information requester to pay the cost of reproduction directly to the facility making the copy.

(4)

Before copying a record, the custodian shall estimate the cost of reproduction and either obtain the agreement of the information requester to pay the cost or demand prepayment of any estimated fee before reproducing the record.

(5)

Except as provided in §M(6), below, the Secretary may charge reasonable fees for official or employee time expended searching for requested records or for any time expended preparing records for inspection and copying.

(6)

The Secretary may not charge any search or preparation fee for the first 2 hours of official or employee time that is needed to respond to a request for information.

(7)

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

(8)

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

Time of Inspection. An information requester may inspect any public record that he is entitled to inspect during the normal working hours of the Board.

Place of Inspection. The place of inspection shall be the place where the document is located unless the custodian, after taking into account the information requester's expressed wish, determines that another place of inspection is more suitable and convenient.

Regulation .06 Petitions for Adoption, Amendment, or Repeal of Regulations.Link Copy Citation

General. These regulations set out procedures for interested persons to petition the Board for the promulgation, amendment, or repeal of regulations over which the Board has authority.

Definitions.

(1)

“Petition” means a petition to promulgate, amend, or repeal a regulation.

(2)

“Regulation” means rule as defined in the Administrative Procedure Act, Article 41,§244(b), Annotated Code of Maryland.

Who May File. Any person may file a petition requesting the promulgation, amendment, or repeal of any regulation over which the Board has rule-making authority.

Form. The petition may be in the form of a letter or any other written form desired by the petitioner. It shall include a detailed description of the new, amended, or existing regulation which the petitioner seeks to have the Board promulgate, amend, or repeal and a statement of reasons and other information in support of the petition. It shall also include the name, address, and telephone number of the petitioner.

The petition should be addressed to the Secretary, Hazardous Waste Facilities Siting Board, 60 West Street, Annapolis, Maryland 21401. Petitions will be considered submitted upon receipt in the office of the Secretary.

Disposition. Within 60 days after receipt of the petition, the Board will either deny the petition, stating the reasons for denial, or initiate rulemaking proceedings.

Reasons for Denial of a Petition. The Board may deny a petition to promulgate, amend, or repeal a regulation, for any reason permitted by law, including, but not limited to:

(1)

That the Board does not have the authority to grant the petition;

(2)

That the Board does not have adequate information or resources to evaluate the petition;

(3)

That the Board does not have adequate resources to implement the requested regulation if it is adopted;

(4)

That the Board previously adopted a regulation dealing with the same subject matter as that of the petition and rejected the position taken by the petitioner at that time, or the petitioner unreasonably failed to make his position known at that time; or

(5)

That, in the legal discretion of the Board, the requested regulation change is contrary to or inconsistent with Board policy.

Rulemaking Proceedings.

(1)

Rulemaking proceedings may include any type of action which the Board is authorized or required by law to take when promulgating, amending, or repealing regulations, including:

(a)

Conducting studies (either before or after proposal of the regulation in the Maryland Register) to gather information in support of the regulation;

(b)

Advance notice of proposed rulemaking if the Board determines that additional information or public comment is necessary or desirable before a proposed regulation can be formulated;

(c)

Referral (either before or after proposal of the regulation in the Maryland Register) to advisory councils or other official or quasi-official agencies or groups responsible for reviewing the regulation;

(d)

Proposal of the regulation in the Maryland Register;

(e)

Reproposal of the regulation proposed in the Maryland Register if the Board determines that, before final adoption, the proposed regulation must be altered so that it is substantially different from its original text;

(f)

Modification of the regulation change requested by the petitioner, either in form or substance, and either before or after proposal in the Maryland Register, to better reflect the Board's responsibilities, than reflected by the petitioner's request.

(2)

Despite the initiation of rulemaking proceedings, the Board may decide not to finally promulgate, amend, or repeal the requested regulation.

Notice to the Petitioner and Other Persons. The Board shall send written notices to the petitioner and any other person requesting notification in accordance with this section, as follows:

(1)

If the petition is denied, notice of the denial (including the reasons for the denial) shall be sent within 60 days of receipt of the petition.

(2)

When the requested (or modified) regulation appears in the Maryland Register, notice of this event will be sent at the time of the appearance in the Maryland Register.

(3)

When the Board finally disposes of the requested regulation (final promulgation, amendment, repeal, or a decision to discontinue the rulemaking), notice will be sent at this time. If the final disposition is a decision to discontinue the rulemaking, the notice will include a statement of the reasons for the discontinuance.

Subtitle 14 — Hazardous Waste Facilities Siting Board

Chapter 02. Determination of Need for a Facility and Suitability of a Site

Regulation .01 Determination of Need.Link Copy Citation

The Board shall periodically make a determination of the Statewide or regional need for a certain type of facility. The types and quantities, both current and projected, of hazardous waste generated in the State shall be estimated and the means available for their safe treatment, storage, and disposal determined. The Board may also determine the desirability of public or private ownership for a particular type of facility.

Following this determination of need, the Board may adopt a policy concerning the need for a certain type of facility. This adopted policy shall constitute a conclusive determination and is not subject to adjudication in other administrative proceedings of the Board.

In its sole discretion, the Board may decide to consider applications only for facilities which are consistent with its adopted policy or policies. Upon determination that there exists a need for a particular type of facility, the Board shall publish this need to the public in the Maryland Register and solicit applications for this facility.

Before adoption of a need policy, the Board shall hold a public hearing or hearings conducted in accordance with COMAR 14.14.01.04. In advance of the hearing or hearings, the Board may make available for inspection or copying, any plans, surveys, reports, or studies made at the Board's direction which are relevant to the proceeding.

The Department shall be consulted in preparation of plans and surveys for determination of need. Plans and surveys so prepared shall be provided to the Department for inclusion in the Statewide solid waste management plan required by the Resource Conservation and Recovery Act of 1976.

Regulation .02 Determination of Suitability.Link Copy Citation

The Board may consolidate consideration of applications which are in competition for the same sites or which are intended to fulfill the same need identified by Board policy. The applications may be evaluated comparatively to determine the most suitable site or sites and facility or facilities.

The Board shall consider, as required by law, environmental, social, technical, and economic factors as they apply to a particular site. The Board will deny certification if any of these factors would create an unacceptable impact on public health, safety, or the quality of the environment.

Issuance of a certificate does not convey authorization to build or operate a facility. The design, construction, and operation of a facility and the associated transportation of hazardous waste to and from the facility remain subject to all environmental, health, and safety restrictions that may be imposed by State or federal regulatory agencies under applicable law and regulation. The Board will coordinate its activities with those agencies having authority over hazardous waste. Requirements for the submission of information, technical determinations, or any other appropriate matter will be coordinated so as to avoid duplication and the possibility of inconsistent regulatory decisions. As set forth in these regulations, this may include deferring consideration of certain disputed issues of fact involving technical matters to those regulatory agencies with a particular expertise in them (with the consent of the agency). If the Board relies on or requires certain premises or conditions before it will issue a certificate, and these premises or conditions change as a result of the imposition of permit conditions by other regulatory agencies, the Board may, in its sole discretion, revoke or amend the certificate as appropriate.

Subtitle 14 — Hazardous Waste Facilities Siting Board

Chapter 03. Procedure for Application, Evaluation, and Issuance of Certificates

Regulation .01 Application Procedure.Link Copy Citation

Before submission of an application, a potential applicant may be requested to:

(1)

Attend a preliminary conference with the Secretary to obtain information concerning the Board's procedures, guidelines, policies, and scheduling regarding submission of applications; and

(2)

Have first applied for any regulatory permits required and to have progressed at least through evaluation of preliminary design concepts in pursuit of these permits.

Dates When Applications Are to Be Accepted.

(1)

The Board shall specify dates when applications will be accepted.

(2)

The Board may declare closed periods in which applications may not be accepted when:

(a)

Studies are underway which have been directed by the Board, or which are being conducted by another source and which promise to materially improve the Board's capability to conduct an adequate review;

(b)

The Board has directed the Service to submit an application;

(c)

The Board is in the process of obtaining the resources necessary to conduct an adequate review.

(3)

All dates governing submission of applications will be established by action of the Board in open session and published in the Maryland Register.

Schedule of Fees.

(1)

The fee for processing an application for a certificate of public necessity shall consist of two parts, an initial application fee and a processing fee.

(2)

The initial application fee for all applications shall be $10,000, to be paid by certified check. This fee shall cover the cost of initial review of an application. The initial application fee is not refundable.

(3)

As part of the determination of completeness of an application, the Board will determine, in its sole discretion, the costs of evaluation and processing of the application. The estimated cost shall include the cost of additional staff, if any, consultants, hearing officer, reporter and transcripts, transportation, witnesses called by the Board, meeting places and associated expenses, and other costs which are attributable directly to the evaluation and processing of the application. The sum of these estimated costs shall constitute the processing fee to be paid by the applicant.

(4)

Once determined and paid by the applicant, the processing fee is not subject to increase or decrease, except that if processing of an application is terminated before the start of any services which formed part of the fee calculation, that portion of the fee shall be refunded to the applicant. For any processing partially or fully undertaken, there shall be no refund of the fee.

Submission and Evaluation of Application.

(1)

The applicant shall submit 50 copies of the application to the Secretary.

(2)

The initial application fee shall accompany the application. An initial application will not be reviewed until the full initial fee has been received.

(3)

The Secretary will promptly acknowledge, by certified mail, the receipt of any application. Notice of receipt, however, does not signify any decision regarding the completeness of the application.

(4)

The Secretary shall transmit five copies of the application to the Department as an application for a facility permit. Transmittal by the Board does not signify completeness of the application or relieve the applicant of any additional or subsequent requirements by the Department or any other regulatory agency.

(5)

The Board may conduct working sessions with an applicant, in either open or closed session (depending on whether confidential information will be discussed, or otherwise as law permits) to further its review of the completeness of the application.

(6)

The Board shall determine in its sole discretion the completeness of any application.

(7)

The Board, upon a determination of completeness, shall:

(a)

Advise the applicant of the amount of the processing fee. The determination of completeness will not be submitted for publication in the Maryland Register in accordance with§D(7)(b) until the Board has received from the applicant the full processing fee.

(b)

Announce the determination by publication in the Maryland Register. The date of publication commences the 6-month processing time for consideration of applications required by the Act.

(c)

The Secretary shall mail copies of the application to recipients designated by law and as directed by the Board.

The Board may discontinue consideration of a completed application at any time if it determines that:

(1)

The application contains materially false information;

(2)

A State or federal regulatory agency has denied a required permit or the Board has reason to believe that a required permit cannot be obtained;

(3)

The Board amends its adopted policy as to the need for any type of facility; or

(4)

There exists any changed circumstance regarding representations made in the application concerning ownership of the facility, financial responsibility, site design, or any other material fact.

Applications for changes in certified sites and facilities shall be processed by the Board under the same requirements, procedures, and restrictions as for an initial application.

Regulation .02 Content of Application.Link Copy Citation

Applicant's Burden of Production. An applicant shall have the burden of setting forth in the application the information described in this regulation and all other factual, technical, or expert information which the applicant wishes the Board to consider in acting on the application. In addition, an applicant shall have the burden of setting forth in the application each inference or conclusion which the applicant is asking the Board to make in determining to issue a certificate of public necessity in accordance with the Natural Resources Article, §§3-702 and 3-705, Annotated Code of Maryland, and shall have the burden of relating in the application the informational basis for each inference or conclusion. The Board will not determine an application to be complete unless and until the applicant has met these burdens.

Format.

(1)

Each application shall contain a letter of intent signed by a person with the authority to obligate the firm or other entity submitting the application. The letter shall state the purpose of the application and shall reference supporting information. The applicant shall submit the application to the Board in care of the Secretary.

(2)

The letter of intent shall be supported and accompanied by any forms required by the Board and supplemental reports or other materials which shall contain information of the type, quality, and detail that will permit adequate consideration of the application by the Board. The supporting reports and any supplemental information submitted shall be considered an integral part of the application.

(3)

Each application shall contain a summary of the proposed site and facility. The summary shall include a factual description of the site, the facility and the treatment, disposal, or recovery process proposed and shall highlight any major risks to the environment and public health or safety associated with the proposal and describe the methods proposed to eliminate or reduce those risks. The applicant shall highlight in the summary the conclusions and inferences the applicant is asking the Board to make in accordance with §A.

Supporting Reports and Other Information.

(1)

Each application shall include an ownership report which contains the following information:

(a)

Legal description of applicant, including identification of all principal participants, such as major shareholders, corporate officers, affiliated firms;

(b)

A current audited financial statement or statements of the applicant based upon an audit or audits by a certified public accountant including the accountant's opinions;

(c)

A description of all liability insurance or other type of liability coverage the applicant has or plans to obtain for the proposed site and facility and a description of the financial and managerial arrangements for closure and post-closure care of the facility and site;

(d)

A description of any other hazardous waste facilities operated or owned currently or in the past by the applicant with details of their compliance record.

(2)

Each application shall include a site-assessment report which contains a 7-1/2 minute series United States Geological Survey topographic map of the site vicinity and detailed information about the existing environmental, health, and community conditions surrounding the proposed site and facility. It shall describe any possible environmental, health, or community impacts which the proposed site and facility may cause, including descriptions of:

(a)

The geology and hydrology surrounding the site;

(b)

The surface and groundwater resources surrounding the site and facility and any positive or negative impacts the site and facility may have on these resources along with a list of all local, State, or federal water or soil permits or approvals the facility will be required to have and the applicant's plans for compliance;

(c)

The ambient air quality surrounding the facility and site vicinity and any positive or negative impacts the site and facility may have on the surrounding air quality along with a list of any local, State, or federal air or noise permits or approvals the facility will be required to have and the applicant's plans for compliance;

(d)

Any other existing environmental features of the site vicinity and any impacts which the site or facility may have on those features and any other State, local, or federal health or environmental permits or approvals the facility will be required to have before construction or operation and the applicant's plans for compliance;

(e)

The surrounding land uses and affected communities and the existing local planning and zoning provisions;

(f)

The transportation routes and methods the customers of the facility will generally use and the existing and proposed State, local, and federal plans for repair, maintenance, and control of those routes and methods;

(g)

The volume of traffic the facility will generate and the traffic volume and accident records for the routes the customers will use;

(h)

Any community or environmental mitigation or compensation plans the applicant has;

(i)

Any known objections or endorsements by State and local governments and citizens in the site vicinity of the proposed facility.

(3)

The application shall include a facility and operation report which contains a detailed description and discussion of the mechanical, operational, and financial aspects of the facility and treatment, disposal, or recovery process including a discussion of:

(a)

The designed capability and capacity of the facility;

(b)

The types and amounts of wastes which will be accepted and their geographic origin;

(c)

The relationship of the applicant to the customers including a sample customer contract form;

(d)

The process or processes to be employed including its basic characteristics and principal limitations;

(e)

Any emission controls, liquid or gaseous discharges, and solid residues the facility will emit or discharge which were not discussed in the site-assessment report;

(f)

Normal operating procedures including waste acceptance requirements, compliance with the manifest system and other pertinent hazardous substances transportation laws and regulations, employee training, testing procedures and any company regulatory compliance monitoring;

(g)

The emergency prevention and control plans including a description of on-site equipment and trained personnel and existing or proposed nearby state or local equipment or personnel such as fire equipment or rescue squads;

(h)

Planned operational safeguards and monitoring of the facility following cessation of operation;

(i)

Cost effectiveness of the process.

Form of the Application.

(1)

The application should be contained in one or more three-ring loose leaf binders on preferably 8-1/2 x 11 inch paper.

(2)

All maps required by this regulation shall be detachable, but may be fold-outs.

(3)

The summary shall be capable of separate reproduction and distribution.

Regulation .03 Procedure for Issuing Certificate.Link Copy Citation

The notice required by Regulation .01D(7) announcing that a completed application has been received shall contain a brief description of the applicant, site, and facility. It shall also indicate the date, time, and place of the information meeting between the applicant and interested members of the general public. It shall also indicate the possibility of a pre-hearing conference or further procedures as outlined in Regulation .04, below, if an adjudicatory hearing is to be convened. The notice shall advise that the completed application (including the applicant's summary) is available for inspection and copying at the office of the Secretary.

This notice shall appear in the Maryland Register and in one or more newspapers of general circulation in the affected county or counties. The cost of all legal notices shall be paid for by the applicant.

Any person (other than the applicant or person requesting an adjudicatory hearing pursuant to Regulation .04 below) desiring to make known to the Board other relevant facts concerning an application shall do so within 50 days of the public notice of the completed application. Failure to provide the Board with this information within the 50 day period will preclude its consideration by the Board, unless the Board determines that the information could not have been submitted during the 50-day period. The applicant shall have the opportunity to contest any such information.

Information Meeting with Applicant.

(1)

A meeting with interested members of the public shall be held in the county in which the proposed site is located at which the applicant will present and discuss its application. The information meeting is the first phase of the public participation process.

(2)

If the proposed site is located in two or more counties, the meeting will be held at a location reasonably convenient and accessible to citizens in all these counties.

(3)

Notice of the meeting shall be published in the Maryland Register and in one or more newspapers of general circulation in the affected county or counties and sent by ordinary mail to any person who has requested to receive notice of Board meetings. The costs of this notice shall be borne by the applicant.

(4)

The meeting will be conducted by the Secretary. The applicant will present its proposal and entertain questions.

An adjudicatory hearing may be held after the informational meeting, at times and dates specified by the Board. An adjudicatory hearing is to resolve disputed issues of adjudicative fact raised by the application in accordance with Regulation .04 below, and the Administrative Procedure Act.

Upon completion of the factual record on an application, including completion of any adjudicatory hearing, the Board shall schedule a public hearing for the purpose of receiving advice and comment on the application. The hearing shall be conducted in accordance with the procedures set out in Regulation .05 below.

Regulation .04 Procedure for Adjudicatory Hearing on an Application.Link Copy Citation

Definitions.

(1)

“Adjudicative fact” means facts which involve a particular party or facility and have no general applicability--for example, the types and quantities of pollutant emissions which one facility will have.

(2)

“Adjudicatory hearing” means a contested case hearing conducted pursuant to the relevant provisions of the Act and the Administrative Procedure Act.

(3)

“Requester” means the person requesting an adjudicatory hearing who seeks to or has become a party to the proceedings, and whose legal rights, duties, statutory entitlements, or privileges are adversely affected by the decision of the Board on an application.

Requests for Adjudicatory Hearings.

(1)

Within 50 calendar days from the date of publication in the Maryland Register of the notice of the completed application, persons requesting an adjudicatory hearing shall submit to the Secretary, in writing, specific grounds for their grievances.

(2)

Requesters for adjudicatory hearings shall do all of the following:

(a)

State the name, address, and telephone number of the person making the request;

(b)

Identify the specific rights, duties, statutory entitlements, or privileges of the requester which are adversely affected by the application for which the adjudicatory hearing is requested, and upon which the requester asserts his or her grievance;

(c)

Identify any other person whom the requester represents;

(d)

State separately and specifically the issues of adjudicative fact proposed to be considered at the hearing; and

(e)

Describe the data and information which, if established through relevant and competent evidence at the hearing, would be adequate to justify resolution of the factual issue(s) in the way sought by the person.

Board's Consideration of Requests.

(1)

The Board shall consider any requests for an adjudicatory hearing promptly and give notice of its decision to requesters by certified mail. Before an adjudicatory hearing is granted, the Board may request briefs from all requesters on the issue of standing or other threshold issues. The Board or its hearing officer will determine which parties will have standing as to each issue. Any requester may be admitted as a party for limited purposes.

(2)

Requests for an adjudicatory hearing will be granted if the requester has shown all of the following:

(a)

There is a genuine issue of material adjudicative fact for resolution at a hearing. An adjudicatory hearing will not be granted on issues of policy or law or on issues of fact which are of no consequence to the determination of whether or not a certificate should issue.

(b)

The factual issue is capable of being resolved by available and specifically identified evidence. A hearing will not be granted on the basis of mere allegations or denial or general descriptions of positions and contentions.

(c)

The data and information identified in the request for hearing, if established through relevant and competent evidence at a hearing, would be adequate to justify resolution of the factual issue in the way sought by the person. A hearing will be denied if the Board concludes that, even assuming the truth and accuracy of all of the data and information submitted in support of the objection and request for hearings, they are insufficient to justify the factual determination urged.

Pre-hearing Conference.

(1)

The hearing officer may hold a pre-hearing conference to determine standing or any other preliminary matters.

(2)

At the discretion of the hearing officer, persons other than parties may attend pre-hearing conferences.

(3)

At a pre-hearing conference or within some reasonable time set by the hearing officer, each party shall make available to the other parties the names of experts and other witnesses the party expects to call, together with a brief written summary of their anticipated testimony.

(4)

At a pre-hearing conference, or within some reasonable time set by the hearing officer, the following matters shall be considered:

(a)

The documents within the Board's file shall be identified.

(b)

Stipulations and admissions of facts and the genuineness of documents and other matters upon which there is agreement shall be identified.

(c)

Matters of which official notice may be taken shall be identified.

(d)

Disputed issues of a purely legal nature shall be identified and submitted by the hearing officer to the Attorney General.

(e)

Disputed issues of policy shall be identified and deferred for consideration until the public hearing held on the application.

(f)

Disputed issues of fact which concern technical matters (plans, specifications, construction drawings, process controls, operation procedures, etc.) subject to determination by the Department in connection with issuance of a facility or discharge permit may be deferred, at the hearing officer's sole discretion, to the Department with the Department's concurrence. Until the resolution of the disputed factual issue by the Department or issuance of necessary permits, the Board shall presume resolution of the disputed fact in a manner consistent with issuance of the certificate. Post-permit review by the Board shall be as set forth in Regulation .07E.

(g)

When possible, consideration shall be given to and decisions made upon objections to the introduction into evidence at the hearing of any written documents, papers, exhibits, testimony, or materials proposed to be introduced at the hearing by a party. The hearing officer may determine to receive evidence on an issue by issue basis. To the extent possible, parties of like interest in the application shall consolidate the presentation of their cases.

(h)

A schedule of presentation order for the following shall be established:

(i)

Submissions of written statements;

(ii)

Presentation of oral and written statements;

(iii)

Presentation of oral, direct, and cross-examinations;

(iv)

Presentation of oral arguments.

(5)

The hearing officer shall prepare a written pre-hearing order reciting the actions taken at the pre-hearing conference.

General Procedure for Hearing. Adjudicatory hearings shall be conducted generally in the following order, unless modified by the hearing officer during the pre-hearing conference:

(1)

Call of the case by the hearing officer;

(2)

Opening statements by the parties;

(3)

Presentation of the case by the applicant and intervenors in favor of the application:

(a)

Direct evidence,

(b)

Cross-examination in an order to be determined by the hearing officer;

(4)

Presentation of the case by opponent or opponents in an order to be determined by hearing officer:

(a)

Direct evidence by the opposition,

(b)

Cross-examination by the applicant or intervenors in favor of the application, or both;

(5)

Written rebuttals to be filed within 3 days of the close of oral testimony:

(a)

Concluding arguments by the applicant and other proponents,

(b)

Concluding arguments by the opponents;

(6)

Concluding arguments shall be heard by a majority of the Board. The Board may also examine witnesses.

The party who raises material issues of fact has the burden to present an affirmative case upon the issues. The burden of production on any specific issue may vary between the parties at the discretion of the hearing officer. The hearing officer may issue a summary dismissal of any issue of fact after presentation of a party's case when, even assuming the truth and accuracy of all evidence submitted by that party, it is insufficient to justify the factual determination urged. The applicant has the ultimate burden of persuasion on all factual issues adjudicated.

Authority and Duty of Hearing Officer.

(1)

The hearing officer shall have the authority and duty to conduct a fair and impartial hearing, to take action to avoid unnecessary delay in the disposition of the proceedings, and to maintain order.

(2)

The hearing officer shall have all powers necessary to these ends, including the following:

(a)

To administer oaths and affirmations;

(b)

To issue summonses for witnesses and subpoenas requiring the production of documents;

(c)

To rule upon offers of proof and receive relevant and material evidence;

(d)

To consider and rule upon all procedural motions and other motions appropriate to the proceedings;

(e)

To examine witnesses;

(f)

To maintain order, limit unduly repetitious testimony, and limit the time for presentations;

(g)

To identify and submit issues of law to the Attorney General;

(h)

To identify and determine appropriate issues of fact to be deferred to the Department;

(i)

To grant a continuance for good cause shown;

(j)

To require parties to submit proposed findings of fact.

Parties may cross-examine a witness who appears at an adjudicatory hearing to the extent that cross-examination is necessary for full and true disclosure of the facts. The provisions of the Administrative Procedure Act shall apply to the adjudicatory hearing.

In multi-party proceedings, the hearing officer may limit cross-examination to one party on each side if he or she is satisfied that the cross-examination by that party will adequately protect the other parties. Other parties may engage in cross-examination relevant to matters not adequately covered by previous cross-examination.

Rulings of the hearing officer on the admissibility of evidence, the propriety of cross-examination, and other procedural matters shall be final and shall appear in the record. Parties shall be presumed to have taken exception to an adverse ruling.

Record of Adjudicatory Hearing.

(1)

All orders issued by the hearing officer, stenographic notes or tapes, or transcripts of oral hearings or arguments, written statements of position, written direct and rebuttal testimony, and any other data, studies, reports, documentation, information, and other written matter submitted in the adjudicatory hearing, shall be available to the public in the office of the Secretary upon compilation.

(2)

Adjudicatory hearings shall be either stenographically reported verbatim or tape recorded, and then may be transcribed. Stenographic notes or tapes, or originals of the transcript, shall be filed with the record along with all exhibits.

(3)

The hearing officer shall certify that the stenographic notes or tapes, or transcripts and exhibits are received, and each of the parties shall be so notified by certified mail. Any party who desires a copy of a transcript of the hearing may request a copy from the hearing office and pay the costs. If the transcript is prepared by a private stenographer, the hearing officer may direct interested persons to make arrangements for copies by dealing directly with the reporter.

Within 10 calendar days after mailing to the parties notice of certification of the stenographic notes, tapes, or transcript, any party may file with the hearing officer proposed findings of fact and conclusions and a brief in support thereof, each containing appropriate references to the record. A copy of the findings, conclusions, and brief shall be mailed to every other party at the same time. The time for filing may be shortened or extended by the hearing officer only for good cause shown.

Regulation .05 Procedure for Public Hearing on an Application.Link Copy Citation

After completion of the factual record for each application being considered, the Board shall schedule a public hearing. The hearing shall be held in the county in which the proposed site is located. If the proposed site is located in two or more counties, the hearing will be held at a location reasonably convenient and accessible to the citizens of all these counties.

Notice.

(1)

Notice will be given by:

(a)

Publication at least 15 calendar days in advance in the Maryland Register and one or more newspapers of general circulation in the county or counties in which the proposed site is located;

(b)

Ordinary mail to the governing body of any county in which the proposed site is located and the governing body of every adjoining county and every incorporated municipality within 10 miles of the site; and

(c)

Ordinary mail to any person who has requested to receive notice of Board meetings.

(2)

Arrangements for all legal notices shall be made by the Board at the expense of the applicant.

At least a majority of the members of the Board shall be present at the public hearing.

The Chairman may be the hearing officer or the chairman may designate another Board member or person as hearing officer.

At the public hearing the Board shall:

(1)

Announce any findings of facts which may have been determined in any adjudicatory hearing or by the Department or otherwise in respect to a particular application.

(2)

Receive advice and comments from interested persons as to the suitability of the site in question.

(3)

Receive advice and comment from interested persons on any issues of policy identified by the Board as being presented by the application. Any issues so identified by the Board shall be stated in the public notice announcing the public hearing.

The Board may permit the parties to any adjudicatory hearing to present their final arguments at the public hearing or may schedule the arguments at another meeting before the public hearing as time and circumstances permit.

The record shall remain open for written public advice and comment for a period to be specified by the Board, but not less than 15 days.

The Board may establish procedural rules governing the conduct of hearings, consolidation of hearings, ceding of time, time limits, and other such matters as the Board deems appropriate.

Regulation .06 Decision to Issue or Deny a Certificate.Link Copy Citation

After consideration of information submitted as part of the application, findings of fact determined at any adjudicatory hearing or otherwise, the advice and comments of interested persons, and other relevant information, the Board shall announce its decision to grant or deny a certificate. The Board shall promptly notify by certified mail, the applicant, other parties to any adjudicatory hearings, and the chief executive officer of any municipality within 10 miles of the proposed site and of any affected county of its decision. The Board shall include in the notice its reasons for granting or denying a certificate and shall state the terms and conditions of the certificate.

Regulation .07 Form, Terms, and Conditions of Certificate.Link Copy Citation

The certificate shall state the following:

(1)

A statement in large print that it is a Certificate of Public Necessity;

(2)

A citation to the statutory authority for issuance;

(3)

The signatures of the Chairman and the Secretary;

(4)

The effective date and, when appropriate, a renewal date;

(5)

The purpose for which the certificate is issued;

(6)

A description of the site and proposed facility;

(7)

All terms and conditions;

(8)

Any referenced exhibits to be attached or incorporated by reference into the certificate.

A complete copy of the certificate including all conditions, shall be prominently displayed by the applicant at the facility, or, before construction, at a location reasonably accessible for inspection.

A certificate may be assigned or transferred only with the prior permission of the Board. The Board may require additional information and appearance before the Board.

The Board shall impose terms and conditions necessary to assure that a facility and site are consistent with the purpose of the certificate and with the purposes of the Act. These terms and conditions may include but are not limited to:

(1)

The specific geographic area for which the certificate applies;

(2)

A general description of the facility including:

(a)

Facility type,

(b)

Technology to be applied in treating, storing, recycling, or disposing of hazardous waste at the facility,

(c)

Required buffer areas or buffer mechanisms,

(d)

Description of types and quantities of wastes, and

(e)

Transportation routes.

During the process of obtaining any other necessary permits, the design and operation of the site or facility may be altered in such a way that it results in significantly different impacts on the site or surrounding community than were considered by the Board in its decision to issue a certificate. If this occurs, the Board shall review the changes and consider their effects. The Board may decide to revoke the certificate or change or impose new terms and conditions on the certificate as specified in§D after such hearings as may be required by law. The decision shall be within the sole discretion of the Board and shall be final. The certificate holder shall be notified as to the effectiveness of the certificate within 3 weeks after the issuance of these permits.

Subtitle 14 — Hazardous Waste Facilities Siting Board

Chapter 04. Enforcement of Certification

Regulation .01 Monitoring and Enforcement of Terms and Conditions.Link Copy Citation

The Board shall enter into agreements with the Department or other appropriate governmental agencies for the monitoring of compliance with the terms and conditions of any certificate. Evidence of violations received by the Board shall be referred to the appropriate enforcement agency.

In the certificate, the Board shall, to the extent feasible, identify the agency or agencies responsible for monitoring and enforcement activities.

Regulation .02 Revocation of Certificate.Link Copy Citation

It shall be the policy of the Board that reasonable efforts shall be made to resolve complaints or violations in a manner which encourages voluntary compliance and full cooperation with all parties. However, if the frequency, pattern, or type of complaint or violation is of serious concern to the Board, or upon the request of any appropriate federal, State, or local government or agency, the Board may revoke a certificate.

The revocation process shall include the following procedural elements:

(1)

The Board shall notify the certificate holder of its concern by certified mail. The notice shall state that the Board is considering possible revocation proceedings and shall direct that the certificate holder show cause why these proceedings should not be initiated. The certificate holder shall have 15 calendar days from receipt of the letter to respond.

(2)

Upon receipt of the response from the certificate holder or if no response is given, the Board may decide to:

(a)

Take no further action;

(b)

Hold an adjudicatory hearing pursuant to the requirements of the Administrative Procedure Act to consider revocation of the certificate or imposition of additional terms or conditions on the certificate holder.

Regulation .03 Renewal of Certificate.Link Copy Citation

A certificate which contains a time limit on the life of the certificate shall be renewed by the Board for an appropriate term after the following:

(1)

A public hearing is conducted at which the applicant and public may present evidence and testimony concerning the renewal.

(2)

A review is conducted by the Board which includes consideration of the:

(a)

Continued need for the facility;

(b)

Quality of operation of the facility; and

(c)

Compliance with the conditions of the certificate.

The Board may renew the certificate without change or may amend the certificate as appropriate.

The Board may not revoke or refuse to renew the certificate unless the procedure for revocation in Regulation .02 is followed.

Subtitle 14 — Hazardous Waste Facilities Siting Board

Chapter 05. Treatment and Disposal Needs for the State

Regulation .01 Findings.Link Copy Citation

Hazardous Waste Generation and Disposition in 1981-1982.

Hazardous Waste Management Alternatives.

(1)

Reduction, Recovery, and Reuse. The Board finds that the reduction of hazardous waste generated and the recovery, re-use, or exchange of hazardous waste are generally preferable to either the treatment or burial of hazardous wastes. The Board recognizes, however, that the waste generator, not the Board, is the key party in implementing reduction, recovery, or re-use. The Board can therefore only endorse and support reduction, recovery, and re-use practices and the implementation of policies or incentives that make them more likely to be employed. The Board notes that reduction, recovery, and re-use are likely to broaden in capability and improve in efficiency under encouraging regulatory and economic conditions, and that in the future less waste would then require treatment, or burial or other long-term storage.

(2)

Treatment. The Board finds that total dependence on treatment, including aqueous treatment, incineration, or other techniques that reduce the hazard or volume of a waste, is not feasible at this time. The Board notes that some existing techniques are being improved and new techniques are being developed, and that in the future more wastes will be capable of being treated. The Board finds that treatment facilities to reduce the hazard or volume of residue or waste that would otherwise be buried are desirable additions to the options available in Maryland.

(3)

Disposal. The Board finds that ultimate or indefinite disposal by burial or long-term storage of certain hazardous wastes, including residues from treatment processes, are the only feasible alternatives for many Maryland wastes even though burial is the means of disposition generally least preferred by the Board.

Hazardous Waste Treatment and Disposal Needs Projections.

(1)

The Board finds that hazardous waste treatment and disposal needs depend upon the types and quantities generated as influenced by economic conditions, prices and availability of disposition services, and policies of state and federal governments.

(2)

The Board notes the following facts concerning specific types and quantities:

(a)

Overall changes in actual generation of hazardous waste since 1980 have been small since previous findings based on calendar year 1980. Significant increases in hazardous waste generation are unlikely. The quantity of hazardous waste generated per year is likely to decrease with time.

(b)

On-site disposition is likely to continue in its present pattern. Waste now being treated or disposed of on-site is not likely to become a significant off-site demand. The large reduction in on-site disposition between calendar year 1980 and the August 1981 to July 1982 period was due largely to regulatory decisions that certain wastes were not hazardous. Shifts from on-site to off-site demand appears to be less than 10 percent of the total off-site demand.

(c)

Most of the 41,000 tons of hazardous waste exported in 1981-1982 is likely to remain in the State if treatment or disposal facilities are available.

(d)

Oils and solvents are sufficiently valuable that with few exceptions industry will return them to useful purposes. The recovery or use of oil and solvents as fuel may become subject to increased regulation in the future and more oils and solvents may require capacity in treatment facilities.

(e)

The Board notes that the Maryland Environmental Service's Hawkins Point Hazardous Waste Landfill, assuming issuance of a new facility permit, is estimated to provide burial capacity for The Allied Corporation's hazardous waste for approximately 8 years. The Hawkins Point Landfill, assuming issuance of a new-facility permit and favorable circumstances, could provide burial capacity for the general industrial community's hazardous waste for approximately 10 years. Under unfavorable circumstances the capacity available to the general industrial community could be significantly less than 5 years.

(f)

The Board finds that manifests recorded 79,000 tons imported in 1981-1982, and that this demand could continue or increase in the future.

(3)

The Board finds that the following quantities and types of waste make up a reasonable estimate of the Maryland annual disposal demand. This estimate includes primary industrial generation, residues from waste treatment, shifts from on-site to off-site disposition, changes in disposition methods as a result of anticipated policy changes, and waste exported in 1981-1982 that was assumed to remain in the State in the future. The estimate does not include imported waste. The quantities and types of waste are:

(a)

Wastes in which water is a major component, and which may be neutralized, detoxified, or otherwise treated: 87,000 tons;

(b)

Wastes of primarily organic make-up which could be managed in a variety of ways, one of which may be incineration; 13,000 tons;

(c)

Wastes which will not burn and are not otherwise amenable to treatment to eliminate their hazardous nature, for which secure land burial is the appropriate means of disposal: 169,000 tons.

Hazardous Waste Landfill Need.

(1)

Total Landfill Capacity.

(a)

Noting that some out-of-State hazardous waste and some non-hazardous waste may be received at a landfill, that the data base itself has inherent uncertainties, and that some flexibility is required, the Board hereby finds that the State's annual hazardous waste landfill disposal capacity need is 200,000 tons per year.

(b)

The Board notes that landfill capacity is needed as the disposal method for those wastes of unreactive or undecomposable character for which alternative technology has not been developed or for which a treatment facility has not been built.

(c)

It should also be noted that most waste treatment methods produce a waste which must be landfilled.

(2)

Number of Landfills. The Board finds that a single landfill offers economy of scale but that multiple facilities offer price competition and an increased overall system reliability, which would permit the closing of one landfill without destroying the ability to dispose of waste safely. Multiple landfills will also reduce the impact on a single area. The Board, therefore, finds a need for a total of either two or three secure landfills in the State.

(3)

Capacity of Individual Landfills. The Board finds that any general purpose hazardous waste landfill should have a total capacity of at least 5 years of the total Maryland hazardous waste generation designated for landfill, and should be designed for a yearly burial of at least 50 percent of Maryland hazardous waste generation suitable for landfill.

(4)

Landfill to Meet Special Needs. The Board also recognizes that there may be a need for a smaller hazardous waste landfill in an area which is convenient to a single hazardous waste generator or group of hazardous waste generators and which meets their special disposal needs.

Incineration Need.

(1)

The Board finds that incineration of certain, primarily organic, materials is an alternative to landfill disposal. The Board finds that incinerator capacity in Maryland is presently insufficient to treat the estimated 13,000 tons per year in the incinerable category generated in Maryland but that unused capacity is available a short distance away, in New Jersey and at other locations in the United States. The Board believes that incineration may offer net benefits in spite of the fact that only a small fraction of the waste is incinerable and that the cost of incineration is very high. The Board also finds that incineration is not entirely without risk. For treatment of some types of waste, incineration involves fewer short-term risks than alternative treatment methods, while burial involves irrevocable use of land and long-term risks. The Board notes that “incinerable” means that the substance can be decomposed by fire, not necessarily that the substance will support combustion.

(2)

The Board finds that due to the high cost of incineration, alternative management techniques (reduction, re-use, exchange, innovative treatment) are likely to reduce the quantity of waste in the incinerable category. The Board also notes that without a categorical prohibition against disposing of incinerable wastes in landfills, a generator is free to choose between two very differently priced alternatives.

(3)

The Board therefore finds, in view of the quantities and circumstances involved, that large-scale incinerator capacity is not crucial to the State's management needs in the immediate future. It appears unlikely that the market will attract the investment necessary to build a major incinerator as described in Regulation .02E.

Aqueous Treatment Facilities Need. The Board notes the existence of two facilities in Maryland capable of treating hazardous wastes of which water is a major component. The Board recognizes, however, that competition will provide economic benefits to hazardous waste generators, and that existing facilities may not provide all the services needed by Maryland generators. The Board finds that additional treatment capacity and capability is desirable.

Facility Location. The Board finds that most of the hazardous waste generated in Maryland originates in the Baltimore area, although nearly all areas of the State contribute some hazardous waste. The Board wishes to minimize, consistent with other considerations, the expense and risk to the general public of long distance transport of hazardous materials. Therefore the Board finds that the disposal needs will best be met through facilities whose location takes into account these concerns.

Special Needs. The Board finds that a role may exist for special purpose facilities capable of, for instance, consolidating small lots of solvent for recovery or small lots of waste for treatment, or for satisfying landfill needs as outlying locations and/or of magnitudes different from those determined above. Other treatment facilities (such as evaporation or stabilization) designed to reduce the hazard or volume of the waste to be landfilled represent a desirable addition to the available treatment/disposal options.

Regulation .02 Implementation.Link Copy Citation

Waste Reduction and Recovery. The Board encourages applicants to propose measures in their applications which can be reasonably expected to reduce or eliminate waste quantities or to recover wastes.

Conditions. The Board may impose conditions on any certificate of public necessity which expedite, enhance, or enforce the more preferable alternatives and minimize reliance on the less preferable alternatives. These conditions shall be imposed in cooperation with the Maryland Department of Health whenever possible.

Landfill.

(1)

The Board will consider applications for secure hazardous waste landfills designed to have a total capacity of at least 5 years of Maryland's annual landfill need (200,000 tons) determined to exist by Regulation .01D, and an annual burial capacity of at least 50 percent of the annual landfill need.

(2)

At the present time, the Board will approve not more than two applications for landfills for general commercial use.

Exchange, Recovery, and Transfer Facilities. The Board will consider applications for facilities that will promote waste recovery and the more efficient use of other recovery or treatment facilities.

Specialty Units. The Board will consider applications for aqueous treatment or incineration units intended to meet particular needs or to serve specific groups of Maryland generators identified in the application.

Aqueous Treatment Facility. The Board will consider an application for one broad-capability aqueous treatment facility.

Incinerator Facility. The Board will consider an application for one major incinerator facility.

Captive Facilities. The need and priority of a “captive” (generator-owned) facility, either on-site or off-site, will be judged according to its importance to the generator and the extent to which the facility affects or serves the overall needs of the State.

Subtitle 15 — College Savings Plans of Maryland

Chapter 01. Master Agreement for Contract Holders

Repealed

Subtitle 15 — College Savings Plans of Maryland

Chapter 02. Maryland College Investment Plan

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Board” means the Maryland Higher Education Investment Board.

(2)

“Contributor” means the person who establishes an investment account on behalf of a qualified designated beneficiary.

(3)

“Investment account” means an account established by a contributor under this subtitle on behalf of a qualified designated beneficiary for the purpose of applying distributions toward qualified higher education expenses at eligible educational institutions. An investment account may include more than one investment option.

(4)

“Investment option” means the investment portfolios available to contributors in the plan.

(5)

“Master account statement” means the statement of the beginning balance, contributions, withdrawals, and the ending value of each investment option selected by a contributor for a particular qualified designated beneficiary.

(6)

“Plan” means the Maryland College Investment Plan.

(7)

“Qualified designated beneficiary” has the meaning stated in §529(e) of the Internal Revenue Code.

Regulation .02 Duties, Responsibilities, and Authority over the Plan.Link Copy Citation

To carry out Education Article, Title 18, Subtitle 19A, Annotated Code of Maryland, the Board has been vested with the authority to adopt regulations which are consistent with those provisions and to establish the form of the Plan, including determinations as to the establishment of a trust and the offering of multiple investment options.

Regulation .03 Form of Plan.Link Copy Citation

The Plan shall be established in the form of a trust titled the Maryland College Investment Plan Trust. The Plan shall offer not less than three and not more than 20 investment options.

Regulation .04 Statements.Link Copy Citation

At least annually, each contributor shall receive a master account statement that provides separate accounting for each investment option selected by the contributor for a particular qualified designated beneficiary and itemized contributions and withdrawals for each investment option during the period covered by the master account statement. The master account statement shall identify each investment option selected by the contributor for the qualified designated beneficiary. The master account statement may identify each investment option by a separate identifying number. A contributor shall receive a separate master account statement for each qualified designated beneficiary for whom the contributor establishes an investment account.

Subtitle 16 — Veterans' Home Commission

Chapter 01. Admission to Charlotte Hall Veterans' Home

Repealed. See 35.04.01

Subtitle 17 — Maryland Cannabis Administration

Chapter 01. Definitions

Regulation .01 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined

(1)

“Administration” means the Maryland Cannabis Administration established under Alcoholic Beverages and Cannabis Article, §36-201, Annotated Code of Maryland.

(2)

“Advisory Council” means the Cannabis Public Health Advisory Council established under Health-General Article, §13–4502, Annotated Code of Maryland.

(3)

Agent.

(a)

“Agent” means an employee, a volunteer, or any other authorized person who acts for or at the direction of a cannabis licensee or cannabis registrant.

(b)

“Agent” includes:

(i)

Cannabis licensee agent;

(ii)

Cannabis registrant agent;

(iii)

Owners; and

(iv)

Management companies or individuals who are employees, volunteers, or otherwise authorized by a management company.

(4)

Cannabis.

(a)

“Cannabis” means the plant cannabis sativa l. and any part of the plant, including all non-synthetically derived, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta–9–tetrahydrocannabinol concentration greater than 0.3 percent on a dry weight basis.

(b)

“Cannabis” includes cannabis products, seeds, seedlings, immature plants, and clones.

(c)

“Cannabis” does not include hemp or hemp products, as defined in Agriculture Article, §14–101, Annotated Code of Maryland.

(5)

Cannabis Product.

(a)

“Cannabis product” means a product that is composed of cannabis, cannabis concentrate, cannabis extract, or any other ingredient and is intended for use or consumption.

(b)

“Cannabis product” includes any product produced and regulated under this subtitle, including:

(i)

Cannabis vaporizing devices;

(ii)

Concentrated cannabis products;

(iii)

Edible cannabis products; and

(iv)

Usable cannabis products.

(6)

Cannabis Vaporizing Device.

(a)

“Cannabis vaporizing device” means a device that can be used to deliver aerosolized or vaporized cannabis or cannabis products to an individual inhaling from the device.

(b)

“Cannabis vaporizing device” includes:

(i)

A vape pen;

(ii)

Vaping liquid; and

(iii)

Any component, part, or accessory of such a device regardless of whether it is sold separately, including a concentrated or infused cannabis liquid, for the purposes of heating and producing a vapor.

(7)

Canopy.

(a)

“Canopy” means the total square footage of space used by a licensee to produce flowering cannabis plants.

(b)

“Canopy” includes each layer of flowering cannabis plants grown on any rack or shelving.

(c)

“Canopy” does not include square footage used for:

(i)

Mother stock;

(ii)

Propagation;

(iii)

Immature or nonflowering plants;

(iv)

Processing;

(v)

Drying;

(vi)

Curing;

(vii)

Trimming;

(viii)

Storage;

(ix)

Offices;

(x)

Hallways;

(xi)

Pathways;

(xii)

Work areas; or

(xiii)

Other administrative and nonproduction uses.

(8)

“Capsules” means a solid preparation containing a single serving of tetrahydrocannabinol or other cannabinoid that:

(a)

Is intended to be swallowed whole;

(b)

Not formulated to be chewable, dispersible, effervescent, orally disintegrating, used as a suspension, or consumed in a manner other than swallowed whole; and

(c)

Does not contain any added natural or artificial flavor or sweetener.

(9)

Caregiver.

(a)

“Caregiver” means an individual who has agreed to assist with a qualifying patient’s medical use of cannabis.

(b)

“Caregiver” means, for a qualifying patient younger than 18 years old:

(i)

A parent or legal guardian; and

(ii)

Not more than two additional adults designated by the parent or legal guardian.

(c)

“Caregiver” does not include any designated school personnel authorized to administer medical cannabis to a student in accordance with the guidelines established under Education Article, §7-446, Annotated Code of Maryland.

(10)

“Certifying provider” has the meaning stated in Alcoholic Beverages and Cannabis Article, §36-101, Annotated Code of Maryland.

(11)

“Clinical director” means an individual who:

(a)

Is appointed by a licensed dispensary to provide information on medical cannabis to qualifying patients, registered caregivers, and dispensary agents;

(b)

Meets the requirements of COMAR 14.17.04.08; and

(c)

Is registered with the Administration.

(12)

Concentrated Cannabis Product.

(a)

“Concentrated cannabis product” means a product derived from cannabis that has undergone a process to concentrate one or more active cannabinoids.

(b)

“Concentrated cannabis product” includes:

(i)

Kief;

(ii)

Hashish;

(iii)

Bubble hash;

(iv)

Oil;

(v)

Wax;

(vi)

Shatter;

(vii)

Resin; or

(viii)

Any other product produced by extracting cannabinoids from the plant using solvents, carbon dioxide, heat, screens, presses or steam distillation.

(c)

“Concentrated cannabis product” does not include any cannabis vaporizing device as defined in this regulation.

(13)

“Conditional license” means a temporary preapproval for a cannabis license issued pending satisfactory completion of the requirements for licensing under COMAR 14.17.05.

(14)

“Consumer” means an individual 21 years old or older who purchases cannabis or a cannabis product from a licensed dispensary or on-site consumption establishment.

(15)

Control.

(a)

“Control” means:

(i)

The decision–making authority over the management, operations, or policies that either guide a business or guide authority over the operation of the technical aspects of a business; or

(ii)

Authority over the operation of the technical aspects of the business.

(b)

“Control” includes:

(i)

Holding a right to veto significant events;

(ii)

The right or authority to make or veto decisions regarding operations and strategic planning, capital allocations, acquisitions, and divestments;

(iii)

The right or authority to appoint or remove directors, corporate-level officers, or their equivalent;

(iv)

The right or authority to make major marketing, production, and financial decisions; and

(v)

The right or authority to execute exclusive contracts or significant contracts in the aggregate of $10,000 or greater on behalf of the licensee.

(16)

“Criminal history record check” means a State and national criminal history records check in accordance with Alcoholic Beverages and Cannabis Article, §36-505, Annotated Code of Maryland.

(17)

“Data network” means the interface with the seed-to-sale tracking system that enables licensees to identify qualifying patients and registered caregivers and monitor patient allotments.

(18)

“Delivery service” means a licensee authorized to deliver cannabis in accordance with a micro license to operate a dispensary.

(19)

Dispensary.

(a)

“Dispensary” means an entity licensed under Alcoholic Beverages and Cannabis Article, §36-401, Annotated Code of Maryland, that acquires, possesses, repackages, transports, sells, distributes, or dispenses cannabis or cannabis products, including tinctures, aerosols, oils, and ointments, related supplies, and educational materials for use by qualifying patients, caregivers, or consumers through a storefront or through a delivery service, based on license type.

(b)

“Dispensary” includes standard and micro license types.

(20)

“Disproportionately impacted area” means a geographic area identified by the Office of Social Equity that has had above 150 percent of the State’s 10-year average for cannabis possession charges.

(21)

Edible Cannabis Product.

(a)

“Edible cannabis product” means a cannabis product intended for human consumption by oral ingestion, in whole or in part.

(b)

“Edible cannabis product” includes a cannabis product that dissolves or disintegrates in the mouth.

(c)

“Edible cannabis product” does not include any concentrated cannabis products, infused non-edible cannabis products, or capsules or tinctures that do not contain any food or food ingredients.

(22)

“Electronic manifest” means the comprehensive report created by a licensee within the Administration’s designated seed-to-sale tracking system to record the chain of custody of a cannabis transfer or delivery.

(23)

“Green waste” means unauthorized, misbranded, contaminated, unused, surplus, returned, or out-of-date cannabis or product containing cannabis.

(24)

Grower.

(a)

“Grower” means an entity licensed under Alcoholic Beverages and Cannabis Article, §36-401, Annotated Code of Maryland, that cultivates or packages cannabis and is authorized by the Administration to provide cannabis to other licensees and registered independent testing laboratories.

(b)

“Grower” includes standard and micro license types.

(25)

High Potency Product.

(a)

“High potency product” means a product that exceeds the maximum potency for consumers, as established by the Administration, and may only be sold or distributed to a qualifying patient or registered caregiver.

(b)

“High potency product” includes:

(i)

A concentrated cannabis product that exceeds 1 gram in total weight; and

(ii)

An edible cannabis product, capsule, or tincture that exceeds 10 milligrams THC per serving and 100 milligrams THC per package.

(26)

Home Cultivation Product.

(a)

“Home cultivation product” means the clones, seeds, seedlings, stalks, roots, and stems of the cannabis plant for home cultivation.

(b)

“Home cultivation product” does not include any plant that is:

(i)

Wider than 8 inches;

(ii)

Taller than 8 inches; or

(iii)

Otherwise in a vegetative or flowering state.

(27)

“Incubator space” means a facility where a micro licensee may operate in accordance with Alcoholic Beverages and Cannabis Article, §36-406, Annotated Code of Maryland.

(28)

“Independent testing laboratory” means a facility, entity, or site that is:

(a)

Registered with the Administration to perform tests on cannabis or cannabis products;

(b)

Independent of any entity licensed under Alcoholic Beverages and Cannabis Article, §36-401, Annotated Code of Maryland, to grow, process or dispense cannabis; and

(c)

Accredited as operating to International Organization for Standardization (ISO) standard 17025 by an accreditation body:

(i)

Operating in accordance with ISO standard ISO/IEC 17011; and

(ii)

That is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement (MRA).

(29)

“Infused non-edible cannabis product” means ointment, salve, suppository, dermal patch, cartridge, or any other product containing cannabis that has been processed so that the dried leaves and flowers are integrated into other material that is not intended for human consumption by inhalation or oral ingestion.

(30)

“Law enforcement agency” means a governmental police force, sheriff’s office, security force, or law enforcement organization of the State, a county, or a municipal corporation that by statute, ordinance, or common law is authorized to enforce the general criminal laws of the State.

(31)

Licensee.

(a)

“Licensee” means a business licensed by the Administration in accordance with Alcoholic Beverages and Cannabis Article, §36-401, Annotated Code of Maryland.

(b)

“Licensee” includes any:

(i)

Micro grower;

(ii)

Micro processor;

(iii)

Micro dispensary;

(iv)

Standard grower;

(v)

Standard processor;

(vi)

Standard dispensary;

(vii)

Incubator space; and

(viii)

On-site consumption establishment.

(32)

Liquid Edible Product.

(a)

“Liquid edible product” means an edible cannabis product that is a liquid beverage or liquid food-based product for which the intended use is oral consumption.

(b)

“Liquid edible product” excludes a tincture as defined in this section.

(33)

“Micro license” means a license to operate a cannabis business that does not exceed the limits established in Alcoholic Beverages and Cannabis Article, §36-401(c)(2), Annotated Code of Maryland.

(34)

“Neutral age screen” means a mechanism to verify a user's age by requiring them to enter their date of birth to gain access to areas of a website that are not designed for children.

(35)

“On-site consumption establishment” means an entity licensed by the Administration to distribute cannabis or cannabis products for on-site consumption other than by smoking indoors.

(35-1)

“Operational” means physically and actively engaged in the cultivation, processing, or dispensing of cannabis.

(36)

“Owner” means a person with an ownership interest in a cannabis license.

(37)

“Ownership interest” means a direct or indirect equity interest in a cannabis license, including in its shares or stock.

(38)

“Passive investor” means an individual or an entity that:

(a)

Holds an aggregate ownership interest of less than 5 percent in a cannabis licensee; and

(b)

Does not have control of the cannabis licensee.

(39)

“Personal use amount” means an amount of:

(a)

Cannabis that does not exceed 1.5 ounces;

(b)

Concentrated cannabis that does not exceed 12 grams; or

(c)

Cannabis products containing no more than 750 milligrams of delta-9-tetrahydrocannabinol.

(40)

“Principal officer” means a board member, a president, a vice president, a secretary, a treasurer, a partner, an officer, a managing member, or any other individual with a profit sharing, financial interest, or revenue sharing arrangement, including an individual with the authority to control a cannabis license.

(41)

“Processing” means the manufacture of usable cannabis into a cannabis concentrate or manufacture of a cannabis-infused product.

(42)

Processor.

(a)

“Processor” means an entity licensed by the Administration in accordance with Alcoholic Beverages and Cannabis Article, §36-401, Annotated Code of Maryland, that:

(i)

Transforms cannabis into another product, or an extract, and packages and labels the cannabis product; and

(ii)

Is authorized by the Administration to provide cannabis to cannabis licensees and registered independent testing laboratories.

(b)

“Processor” includes standard and micro license types.

(43)

“Qualifying patient” means an individual who:

(a)

Has been provided with a valid written certification by an Administration-registered certifying provider in accordance with a bona fide provider–patient relationship; and

(b)

If younger than 18 years old, has a caregiver.

(44)

Registrant.

(a)

“Registrant” means a business registered by the Administration to operate in the cannabis industry.

(b)

“Registrant” includes:

(i)

Independent testing laboratory;

(ii)

Transporter business;

(iii)

Security guard company; and

(iv)

Waste disposal company.

(45)

Residence.

(a)

“Residence” means a house, condominium, apartment, or any other dwelling unit under legal possession of an individual.

(b)

“Residence” does not mean a dormitory or other on-campus college or university housing.

(46)

“Seed-to-sale tracking system” means a software system procured by the Administration that tracks cannabis from either the seed or immature plant stage, until the cannabis is sold to a patient, caregiver, or consumer.

(47)

“Serious adverse event” means an undesirable experience associated with the use of cannabis where the outcome was death, life-threatening, hospitalization, disability or permanent damage, congenital anomaly or birth defect or any other important medical event.

(48)

“Social equity applicant” means an applicant for a cannabis license or cannabis registration that:

(a)

Has at least 65 percent ownership and control held by one or more individuals who:

(i)

Have lived in a disproportionately impacted area for at least 5 of the 10 years immediately preceding the submission of the application;

(ii)

Attended a public school in a disproportionately impacted area for at least 5 years; or

(iii)

For at least 2 years, attended a 4-year institution of higher education in the State where at least 40 percent of the individuals who attend the institution of higher education are eligible for a Pell Grant; or

(b)

Meets any other criteria established by the Administration.

(49)

Social Equity Licensee.

(a)

“Social equity licensee” means a social equity applicant who has been awarded a cannabis license.

(b)

“Social equity licensee” includes a grower, processor, or dispensary that:

(i)

Held a Stage One Preapproval for a license before October 1, 2022; and

(ii)

Was not operational before October 1, 2022.

(50)

“Social Equity Partnership Grant” means a program within the Office of Social Equity that awards grants to promote qualifying partnerships between operational licensees and social equity licensees.

(51)

“Standard license” means a license to operate a cannabis business that complies with the limits established in Alcoholic Beverages and Cannabis Article, §36-401(c)(1), Annotated Code of Maryland.

(52)

“State Cannabis Testing Laboratory” means the laboratory operated by the Administration in accordance with Alcoholic Beverages and Cannabis Article, §36-204, Annotated Code of Maryland.

(53)

“Tetrahydrocannabinol” or “THC”, unless otherwise specified, means any:

(a)

Tetrahydrocannabinol, including delta-8-tetrahydrocannabinol, delta-9-tetrahydrocannabinol, and delta-10-tetrahydrocannabinol, regardless of how derived;

(b)

Other cannabinoid, other than cannabidiol that the Administration determines to cause intoxication; and

(c)

Other chemically similar compound, substance, derivative, or isomer of tetrahydrocannabinol, as identified by the Administration.

(54)

“Tincture” means a solution that is:

(a)

Dissolved in alcohol, glycerin, or vegetable oil; and

(b)

Distributed in a dropper bottle of 4 ounces or less.

(55)

Usable Cannabis.

(a)

“Usable cannabis” means the dried leaves and flowers of the cannabis plant.

(b)

“Usable cannabis” does not include seedlings, seeds, stems, stalks, or roots of the plant or the weight of any noncannabis ingredients combined with cannabis, such as ingredients added to prepare a topical administration.

(56)

Usable Cannabis Product.

(a)

“Usable cannabis product” means a prepackaged product containing usable cannabis.

(b)

“Usable cannabis product” includes:

(i)

A pre-rolled amount of usable cannabis;

(ii)

Securely stored, sealed, and labeled amount of usable cannabis; and

(iii)

Any other type or amount of usable cannabis that has been wrapped, rolled, or otherwise encased for the purposes of smoking.

(57)

Visitor.

(a)

“Visitor” means a guest at a licensed or registered premises who is not a registered agent employed by the licensee or registrant.

(b)

“Visitor” does not include:

(i)

A qualifying patient, registered caregiver, adult-use consumer, or any children who accompany a qualifying patient or registered caregiver for the sole purpose of purchasing cannabis or cannabis products; or

(ii)

An Administration investigator.

(58)

“Written certification” means a certification that:

(a)

Is issued by a certifying provider to a qualifying patient with whom the provider has a bona fide provider–patient relationship;

(b)

Includes a written statement certifying that, in the certifying provider’s professional opinion, after having completed an assessment of the patient’s medical history and current medical condition, the patient has a condition:

(i)

That meets the inclusion criteria and does not meet the exclusion criteria of the certifying provider’s application; and

(ii)

For which the potential benefits of the medical use of cannabis would likely outweigh the health risks for the patient; and

(c)

May include a written statement certifying that, in the certifying provider’s professional opinion, a 30–day supply of medical cannabis would be inadequate to meet the medical needs of the qualifying patient.

Subtitle 17 — Maryland Cannabis Administration

Chapter 02. General Regulations

Regulation .01 Succession of the Maryland Medical Cannabis Commission.Link Copy Citation

The Maryland Cannabis Administration is the successor entity to the Natalie M. LaPrade Medical Cannabis Commission.

Any bulletin, final order, notice of violation, or formal changes issued by the Natalie M. LaPrade Medical Cannabis Commission remains valid and stands as authorized by the Maryland Cannabis Administration.

Except as otherwise provided in this subtitle or Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland, a registration issued by the Natalie M. LaPrade Medical Cannabis Commission shall be valid until the stated expiration date for each:

(1)

Patient or caregiver;

(2)

Certifying provider;

(3)

Clinical director;

(4)

Agent;

(5)

Independent testing laboratory; and

(6)

Other business registrants.

The Maryland Cannabis Administration may rescind, revoke, correct, or reissue any bulletin, final order, notice of violation, or formal changes issued by the Natalie M. LaPrade Medical Cannabis Commission.

Regulation .02 Single Supply Chain for Cannabis Products.Link Copy Citation

Except as otherwise provided in this subtitle, all cannabis grown, harvested, processed, transported, delivered, produced, manufactured, or sold in Maryland shall follow the regulations in this subtitle.

A licensee shall accurately track, tag, or otherwise record inventory in the seed-to-sale tracking system designated by the Administration as specified:

(1)

Throughout this subtitle; and

(2)

In guidance issued by the Administration or its vendor.

Regulation .03 Conversion of Medical Cannabis License.Link Copy Citation

This regulation applies to each licensee required to pay a conversion fee under Alcoholic Beverages and Cannabis Article, §36-403, Annotated Code of Maryland.

The conversion fee shall be based on the gross revenue of a licensee and calculated by the Administration using the State’s seed-to-sale tracking system for calendar year 2022.

Licensees choosing to convert their license shall, on or before July 1, 2023:

(1)

Pay the conversion fee as calculated by the Administration in full; or

(2)

Enter into a payment plan with the Administration.

The payment plan under §C(2) of this regulation shall establish:

(1)

The conversion fee as calculated by Administration;

(2)

The exact payment amount required under each payment installment; and

(3)

Payment due dates as directed by the Administration for four equal payment installments over an 18-month period.

On or before January 1, 2025, a licensee shall pay the installment payment in full in accordance with §D of this regulation.

A licensee that does not meet a payment deadline is subject to:

(1)

An administrative hold on their ability to transfer cannabis or cannabis products to another licensee or distribute or dispense cannabis or cannabis products to a qualifying patient, registered caregiver, or consumer until payment is remitted to the Administration;

(2)

A fine of up to $5,000 for each day past the deadline that the payment is not received; and

(3)

After a period of 30 days, license suspension or revocation.

A converted license shall be valid for a period of 5 years, beginning on July 1, 2023.

A converted license is not transferrable prior to July 1, 2028, except as provided under Alcoholic Beverages and Cannabis Article, §36-503, Annotated Code of Maryland.

Regulation .04 Technical Authority.Link Copy Citation

The Maryland Cannabis Administration’s Technical Authority for Cannabis Testing (Effective February 2025), or Technical Authority, is incorporated by reference.

Regulation .05 Sociological Information.Link Copy Citation

For purposes of this regulation and as provided for under General Provisions Article, §4-330, Annotated Code of Maryland, “sociological information” means any of the following information requested from the Administration:

(1)

Academic or personal records provided to verify social equity status;

(2)

Records about an individual’s personal history, age, family, race, national origin, creed, color, sex, pregnancy, sexual orientation, ethnic background, ancestry, physiology, religion, academic achievement, employment, gender identity or expression, genetic information, veteran status, or physical or mental ability;

(3)

Family history, identity of relatives, emergency contacts, or representatives;

(4)

Medical or psychiatric history;

(5)

Social security number;

(6)

Date of birth;

(7)

Credit card or other banking information;

(8)

Personal addresses, personal phone numbers, personal electronic mail address, or personal social media account information;

(9)

Information regarding marital status, domestic partnership, dependents, or relatives, including related employment benefits elections;

(10)

Information regarding employment status, including disciplinary records and records related to an application for employment;

(11)

Applicant information of those not selected for licensure;

(12)

Military service;

(13)

Driver’s license number;

(14)

Immigration status, passport, or visa numbers;

(15)

Any information obtained through employment coaching or surveys;

(16)

Financial information, including income other than State salary, assets, and liabilities; and

(17)

Records not related to the transaction of State business.

Except for use in carrying out the Administration’s governmental functions or except as further provided in §C of this regulation, the Administration may not disclose under the Public Information Act, General Provisions Article, §§4-101—4-601, Annotated Code of Maryland, and shall deny a request for inspection or copying of, any part of a public record that contains sociological information relating to an individual.

The Administration may disclose sociological information:

(1)

To the person in interest or the agent or representative of the person in interest;

(2)

With the consent of the person in interest;

(3)

Pursuant to a duly issued subpoena;

(4)

Pursuant to a court order;

(5)

If disclosure is otherwise required by law, including if required to be disclosed under General Provisions Article, §4-333, Annotated Code of Maryland, as part of a licensing record; or

(6)

If disclosure is otherwise permitted by law and the Administration determines that disclosure would be in the public’s best interests.

Regulation .06 Pilot Authority.Link Copy Citation

The Administration may require licensees to participate in pilot programs to test efficacy of proposed initiatives to improve regulation of cannabis, provided the following criteria are met.

Pilot participants shall be selected according to objective criteria as determined by the Administration.

No documents produced by a licensee as part of the pilot program may be used to gather a compliance case against a licensee.

The Administration shall provide a minimum of 60 days’ notice to any licensee selected to participate prior to the start date of pilot participation.

The Administration shall maintain strict confidentiality and data protection standards for all data collected, created, or maintained under any pilot program. Such standards shall include:

(1)

Restricting data collection and use to the explicit, legitimate purposes of the pilot program; and

(2)

Using appropriate encryption, access controls, and other measures to prevent unauthorized disclosure or misuse.

The Administration may consider a licensee's written request to opt out of a pilot program based on:

(1)

Anticipated hardship by the proposed pilot program; or

(2)

Participation in an Administration pilot program in the prior 6 months.

Subtitle 17 — Maryland Cannabis Administration

Chapter 03. Social Equity Partnership Grant Program

Regulation .01 Scope.Link Copy Citation

This chapter applies to the Office of Social Equity, an independent office that functions within the Maryland Cannabis Administration, whose mission is to promote and encourage participation in the regulated cannabis industry by people from communities that have previously been disproportionately impacted by cannabis prohibition and enforcement.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Agreement” means a selected application for the Social Equity Partnership Grant Program.

(2)

“Applicant” means a social equity licensee and an operational cannabis licensee who apply together for a social equity partnership grant.

(3)

“Application” means a Social Equity Partnership Grant Program application.

(4)

“Mediation” has the meaning stated in Courts and Judicial Proceedings Article, §3-1801, Annotated Code of Maryland.

(5)

“Operational cannabis licensee” means a licensee that was operational prior to October 1, 2022.

(6)

“Qualifying partnership” means a meaningful partnership between a social equity licensee and an operational cannabis licensee that supports or advises the social equity licensee.

Regulation .03 Social Equity Partnership Grant Program.Link Copy Citation

The Social Equity Partnership Grant Program shall promote qualifying partnerships between operational cannabis licensees and social equity licensees.

The Office of Social Equity shall implement and administer the grant program, including approving qualifying partnerships.

The Office of Social Equity may approve a qualifying partnership where a cost or other fee is imposed by an operational cannabis licensee, if it determines the cost or other fee is substantially reduced from the market value.

The Office of Social Equity shall determine the grant amounts based on:

(1)

The number of partnership applications;

(2)

Programmatic needs;

(3)

Availability of funds; and

(4)

Equitable distribution of qualifying partnerships across license types.

If an operational cannabis licensee has a license that was converted under Alcoholic Beverages and Cannabis Article, §36-401(b)(1)(ii), Annotated Code of Maryland, the total amount of grants issued to the licensee may not exceed the lesser of:

(1)

The cost of the conversion fee that was paid by the licensee to date; or

(2)

$250,000 per year per qualifying partnership.

Qualifying partnerships under this regulation may not:

(1)

Explicitly or implicitly transfer, including through convertible debt, any ownership or control from the social equity licensee to the operational cannabis licensee;

(2)

Require the social equity licensee to conform with any branding, messaging, standard operating procedures, or other infringement on the social equity licensees’ operations;

(3)

Otherwise restrict, hinder, exploit, or unfairly treat the social equity licensee to benefit the operational cannabis licensee; or

(4)

Exist between entities that have common ownership or control.

The Office of Social Equity may deny an application or terminate any qualifying partnership agreement that includes false or misleading information.

In addition to any other applicable penalties established in this subtitle, including suspending, fining, restricting, or revoking a license, an operational cannabis licensee found in violation of §F of this regulation may be subject to any of the following sanctions:

(1)

Restriction, revocation, or invalidation of any qualifying partnership approved by the Office of Social Equity;

(2)

Rescission or invalidation of any attempted transfer of ownership or control; or

(3)

Repayment of any grant funding received by the operational cannabis licensee.

The Office of Social Equity shall evaluate grant applications on a pass or fail basis according to the following criteria:

(1)

Demonstration that the operational cannabis licensee has capacity to support a social equity licensee;

(2)

A comprehensive estimation of the value of services provided that assigns a value to each element of services provided;

(3)

Demonstration that the operational cannabis licensee has been compliant with the Maryland Cannabis Administration regulation related to:

(a)

Health and safety;

(b)

Diversion and theft; and

(c)

Any area material to the proposed partnership;

(4)

Attestation that both the operational cannabis licensee and social equity licensee will have an equal role in addressing any changes required in the partnership; and

(5)

Any additional criteria the Office of Social Equity may include to assist with the review of each application, including but not limited to a party’s prior conduct within the Social Equity Partnership Grant Program.

Requests for Information.

(1)

The Office of Social Equity may request an applicant submit supporting documentation related to the applicant’s efforts to establish any of the application criteria outlined in §I of this regulation.

(2)

Any information requested by the Office of Social Equity is due within 10 business days of the date of the request, unless otherwise noted.

(3)

The Office of Social Equity may deny an application if its request for information is not fulfilled within 10 days.

To select passing applications, the Office of Social Equity shall conduct a lottery that is impartial, random, and in a format selected by the Office of Social Equity.

Application and Award Limits.

(1)

An operational cannabis licensee without common ownership or control of another operational cannabis licensee submitting an application:

(a)

May submit only one application per award period; and

(b)

May be awarded up to one qualifying partnership per award period.

(2)

Operational cannabis licensees who share common ownership or control submitting applications:

(a)

May collectively submit up to two applications per award period; and

(b)

May collectively be awarded up to two qualifying partnerships per award period.

(3)

A social equity licensee may submit one application per award period.

Partnership Disputes.

(1)

If a cannabis licensee engaged in a qualifying partnership claims a breach in their qualifying partnership has occurred, the licensee shall submit a written complaint in the manner specified by the Office of Social Equity.

(2)

The Office of Social Equity may request additional information necessary to investigate the complaint.

(3)

After reviewing the complaint and any additional information, the Office of Social Equity may:

(a)

Make a determination about whether a breach of a partnership agreement has occurred; or

(b)

Refer the complaint to the Office of Administrative Hearings for mandatory mediation.

(4)

Mediation procedures shall be in accordance with COMAR 28.02.01.18.

(5)

The Office of Social Equity may establish written standards of conduct with which the parties shall comply during the mediation process.

(6)

The Office of Social Equity shall disclose all written standards of conduct to the parties at the time the matter is referred to the Office of Administrative Hearings for mediation.

(7)

A party’s failure to abide by a written standard of conduct may result in termination of the mediation process.

(8)

If an agreement is reached by the parties as a result of mediation, the parties shall provide a written statement outlining the agreement terms to the Office of Social Equity.

(9)

If the parties fail to reach an agreement, the mediator shall give written notice to the Office of Social Equity that an agreement was not reached at mediation.

(10)

If the Office of Social Equity determines that a licensee has breached its agreement, it may:

(a)

Restrict, revoke, or invalidate a partnership agreement;

(b)

Require repayment of any grant funding received by the operational cannabis licensee; or

(c)

Require amendments to the partnership agreement as determined by the terms of any mediation agreement reached by the parties as a result of mediation before the Office of Administrative Hearings.

(11)

The Office of Social Equity will monitor compliance of the parties with the terms of any mediation agreement and will then make a determination about the partnership dispute and shall notify both licensees of its determination.

An aggrieved party shall exhaust all administrative remedies provided in this subtitle before seeking review in any other forum.

The Office of Social Equity may refer any suspected violation of this subtitle or Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland to the Maryland Cannabis Administration for further investigation.

Regulation .04 Reporting Requirements.Link Copy Citation

Within 30 days of a written request, a cannabis licensee shall provide any data and information required by the Office of Social Equity to:

Complete statutorily mandated reports;

Evaluate the diversity and equity of ownership, management, employment, and contracted goods and services in the legal cannabis economy in Maryland; and

Operate and evaluate the Social Equity Partnership Grant Program.

Subtitle 17 — Maryland Cannabis Administration

Chapter 04. Medical Cannabis Program

Regulation .01 Certifying Providers.Link Copy Citation

Provider Registration.

(1)

A provider seeking registration as a certifying provider shall submit an application in the manner specified by the Administration.

(2)

The Administration may approve certifying provider applications to treat:

(a)

A chronic or debilitating disease or medical condition that results in a patient being admitted into hospice or receiving palliative care; or

(b)

A chronic or debilitating disease or medical condition or the treatment of a chronic or debilitating disease or medical condition that produces:

(i)

Cachexia, anorexia, or wasting syndrome;

(ii)

Severe or chronic pain;

(iii)

Severe nausea;

(iv)

Seizures;

(v)

Severe or persistent muscle spasms;

(vi)

Glaucoma;

(vii)

Post-traumatic stress disorder; or

(viii)

Any other condition that is severe and for which other medical treatments have been ineffective if the symptoms reasonably can be expected to be relieved by the medical use of cannabis.

(3)

A certifying provider may apply to amend the approval at any time.

(4)

The application shall be deemed approved unless the Administration notifies the applicant that the application has been denied.

A certifying provider may discuss the use of medical cannabis with a patient, including but not limited to:

(1)

Contraindications;

(2)

Dosage;

(3)

Problem use; and

(4)

Harm reduction and safety precautions.

Certifying Provider Registration Renewal.

(1)

An approval is valid for 2 years.

(2)

A certifying provider shall apply to renew a registration to certify at the time of renewal of the provider’s license.

(3)

The Administration shall provide a certifying provider with notice of renewal 90 business days before expiration of the registration.

(4)

The Administration shall grant the application for renewal of registration if:

(a)

The certifying provider attests that:

(i)

The certifying provider’s license to practice in Maryland is active, unrestricted, and in good standing; and

(ii)

The certifying provider’s registration by the State to prescribe controlled dangerous substances is valid; and

(b)

The certifying provider has otherwise complied with this chapter.

(5)

If a certifying provider fails to obtain a renewal of a registration to issue written certifications, the certifying provider may not issue written certifications.

A certifying provider may not receive compensation, including promotion, recommendation, advertising, subsidized rent, or anything of value, from a licensee.

Action Against a Provider.

(1)

After a written notice and a hearing in accordance with COMAR 14.17.22 if such hearing is properly requested, the Administration may deny a certifying provider’s application for registration, or revoke registration to certify if the provider:

(a)

Fraudulently applies for approval;

(b)

Fraudulently issues a written certification; or

(c)

Fails to comply with this chapter.

(2)

The Administration shall report any finding to the provider’s State licensing board and may refer any allegation of fraud or conduct that threatens public health by a certifying provider.

Regulation .02 Patient and Caregiver Registry.Link Copy Citation

The Administration shall maintain a registry of qualifying patients and caregivers.

Patient Registration.

(1)

An individual seeking to become a qualifying patient shall complete the online registration process established by the Administration.

(2)

The Administration shall issue a unique patient identifier to each person who registers as a qualifying patient.

Caregiver Registration.

(1)

A qualifying patient, or a parent or legal guardian of a qualifying patient younger than 18 years old, may designate:

(a)

For a qualifying patient 18 years old or older, up to two caregivers; and

(b)

For a qualifying patient younger than 18 years old, up to four caregivers, including the patient’s parent or legal guardian.

(2)

An individual seeking to become a caregiver shall complete the online registration process established by the Administration.

(3)

The Administration shall issue a unique caregiver identifier to each person who registers with the Administration.

To designate the relationship between a qualifying patient and a registered caregiver, a qualifying patient or a parent or legal guardian of a qualifying patient younger than 18 years old shall designate the caregiver using the caregiver’s unique identifier through the Administration’s website.

A qualifying patient, or a parent or guardian of a qualifying patient younger than 18 years old, may terminate a caregiver by completing the online process established by the Administration.

The Administration shall provide access to the Administration’s registry to a Maryland law enforcement agency on a real-time basis only for just cause to verify that a patient or caregiver is registered with the Administration.

Patient or Caregiver Identification Cards.

(1)

A qualifying patient or registered caregiver may purchase an identification card by paying the fee in COMAR 14.17.21.

(2)

The identification card fee is waived for a qualifying patient enrolled in the:

(a)

Maryland Medical Assistance Program; or

(b)

Veterans Administration Maryland Health Care System.

(3)

If an identification card is lost, destroyed, or stolen, the cardholder shall, within 72 hours of becoming aware of the loss, destruction, or theft, report the loss, destruction, or theft to the Administration.

(4)

Misuse of Identification Card.

(a)

If an individual other than the qualifying patient or caregiver to whom an identification card has been issued attempts to use an identification card, a registered dispensary agent to whom it is offered shall confiscate it and initiate the return of the card to the Administration within 5 business days.

(b)

The Administration may notify the certifying provider and revoke the identification card of a qualifying patient or caregiver who allows another person to use an identification card which has been issued to the qualifying patient or caregiver.

If there is any change in the qualifying patient or the caregiver name or address, the qualifying patient or caregiver shall:

(1)

Notify the Administration within 30 days; and

(2)

If seeking a replacement identification card, pay the identification card replacement fee to obtain a new identification card.

Regulation .03 Written Certification.Link Copy Citation

Issuing a Written Certification.

(1)

A certifying provider may determine that a patient qualifies for a written certification only if the:

(a)

Qualifying patient:

(i)

Has registered with the Administration;

(ii)

Meets the certifying provider’s inclusion criteria; and

(iii)

Does not meet the certifying provider's exclusion criteria; and

(b)

Certifying provider:

(i)

Has a bona fide provider-patient relationship with the qualifying patient; and

(ii)

Has determined that the potential benefits of the medical use of cannabis likely outweigh the health risks for the patient.

(2)

If a certifying provider determines that a patient qualifies for a written certification, the certifying provider shall:

(a)

Issue a written certification in the form required by the Administration;

(b)

Transmit the written certification to the Administration using the designated online process; and

(c)

If requested, provide a copy of the written certification to the qualifying patient.

(3)

A written certification shall include the:

(a)

Provider’s name, Maryland Board of Physicians, Board of Dental Examiners, Board of Podiatric Medical Examiners, or Board of Nursing license number, and office telephone number;

(b)

Qualifying patient’s name, date of birth, address, and county of residence;

(c)

Medical condition requiring medical cannabis; and

(d)

The date of qualification as a qualifying patient.

(4)

A written certification may contain, if applicable, a written statement certifying that, in the provider’s professional opinion, a 30-day supply of medical cannabis would be inadequate to meet the medical needs of the qualifying patient.

(5)

A certifying provider shall terminate a written certification if:

(a)

The qualifying patient meets the provider’s exclusion criteria;

(b)

Treatment with medical cannabis is no longer necessary for the qualifying patient;

(c)

Adverse effects of medical cannabis outweigh the benefits to the qualifying patient’s health; or

(d)

There is evidence that the qualifying patient engaged in diversion of medical cannabis.

(6)

A certifying provider may terminate a written certification if the qualifying patient demonstrates misuse of any substance.

(7)

A certifying provider shall notify the Administration within 1 business day of the termination of a written certification.

(8)

A qualifying patient shall have only one certifying provider at any time.

Written Certification Renewal.

(1)

A qualifying patient may seek renewal of a written certification not less than 30 calendar days after it was issued by notifying the patient’s certifying provider.

(2)

A certifying provider may renew the written certification for a qualifying patient if the certifying provider determines the patient still meets the criteria set forth in §A(1) of this regulation.

(3)

Upon renewing a written certification for a qualifying patient, a certifying provider shall notify the Administration.

(4)

Prior to renewing a written certification, a certifying provider shall conduct a full assessment of the qualifying patient within 365 days before the reissuance.

(5)

The full assessment in §B(4) of this regulation may be conducted via telehealth as defined by the certifying provider’s licensing board.

Regulation .04 Product Reservation for Qualifying Patients.Link Copy Citation

A dispensary may only sell or dispense high potency products to a qualified patient or registered caregiver, as specified in COMAR 14.17.13.03.

Regulation .05 Accommodations for Qualifying Patients.Link Copy Citation

A standard dispensary licensed under COMAR 14.17.06.08 shall:

(1)

Provide exclusive access to the licensed premises to qualifying patients and registered caregivers for at least 1 hour per day that the dispensary is operational or a dedicated service line to serve only qualifying patients and caregivers for the duration of the licensed premises’ operating hours;

(2)

Conspicuously display information about the reserved hours or dedicated service line for qualifying patients and registered caregivers, whichever is applicable on:

(a)

The front of the licensed premises; and

(b)

If applicable, the licensed dispensary’s social media accounts and public-facing website;

(3)

If providing reserved hours, maintain a consistent schedule; and

(4)

If providing a dedicated service line, shall make a good faith effort to prioritize qualifying patients and registered caregivers.

A standard dispensary may offer additional time and accommodation for qualifying patients and registered caregivers beyond the requirements in §A of this regulation, including reserving for qualifying and registered caregivers:

(1)

Priority access to the dispensary service area; and

(2)

Parking spaces near the entrance of the dispensary, if applicable.

Regulation .06 Compassionate Use Fund.Link Copy Citation

The purpose of the Compassionate Use Fund is to reduce the cost of obtaining a medical assessment to determine the appropriateness of treatment with cannabis or reduce the cost of medical cannabis for individuals enrolled in the Maryland Medical Assistance Program or in the Veterans Affairs Maryland Health Care System.

Eligibility for Compassionate Use Fund.

(1)

A patient enrolled in the Maryland Medical Assistance Program or in the Veterans Affairs Maryland Health Care System may attest to a certifying provider eligibility for the Compassionate Use Fund due to their coverage status.

(2)

A certifying provider shall verify the individual’s eligibility for the Compassionate Use Fund due to their coverage status and provide documentation of eligibility status to the Administration.

(3)

A certifying provider shall reverify patient enrollment in the Maryland Medical Assistance Program or in the Veterans Affairs Maryland Health Care System annually.

Reimbursement of Written Certification.

(1)

A certifying provider may submit to the Administration for reimbursement of the written certification for individuals enrolled in the Maryland Medical Assistance Program or in the Veterans Affairs Maryland Health Care System.

(2)

In order to submit for reimbursement under this section, a certifying provider shall:

(a)

Verify a patient’s active enrollment in the Maryland Medical Assistance Program or the Veterans Affairs Maryland Health Care System at the time the written certification is given;

(b)

Conspicuously display a standard assessment and evaluation fee to be paid by the patient to obtain a written certification;

(c)

Offer a discount of $50 off the provider’s fee to provide written certifications to patients eligible under §B of this regulation; and

(d)

Charge an assessment and evaluation fee not to exceed the amount conspicuously displayed in §C(2)(b) of this regulation to obtain a written certification to all patients, regardless of eligibility under §B of this regulation.

(3)

Nothing in this section prohibits a certifying provider from offering a discount above $50 off the provider’s fee to provide written certifications to patients eligible under §B of this regulation.

Reimbursement.

(1)

On a monthly basis, a certifying provider may request reimbursement from the Administration for the discounted prices offered to eligible patients under this regulation.

(2)

A certifying provider may submit a request for reimbursement by the 15^th of the following month, in the manner specified by the Administration.

(3)

To request reimbursement, a certifying provider shall provide the Administration with detailed records of the discounts provided, including:

(a)

A list of qualifying patients who obtained discounts in the past month, and whether the patient was enrolled in the Maryland Medical Assistance Program or the Veterans Affairs Maryland Health Care System;

(b)

An itemized account of the discounts provided to eligible patients in the past month, indicating:

(i)

The full price of the written certification; and

(ii)

Reduced cost paid by the eligible patient; and

(c)

Any additional information requested by the Administration.

(4)

To the extent funds are available within the Compassionate Use Fund, the Administration shall reimburse a certifying provider for eligible expenses.

(5)

If the Compassionate Use Fund lacks sufficient funds to reimburse a certifying provider:

(a)

The Administration shall cease providing reimbursements; and

(b)

A certifying provider is no longer required to provide discounts pursuant to this regulation.

Regulation .07 Clinical Directors.Link Copy Citation

A licensed dispensary shall appoint at least one individual to function as clinical director who:

(1)

Is eligible to serve as a certifying provider, as defined in COMAR 14.17.01;

(2)

Is a licensed pharmacist in good standing with the State Board of Pharmacy; or

(3)

Has substantial education, training, and experience in the medical use of cannabis, as determined by the Administration and is a:

(a)

Registered nurse in good standing with the State Board of Nursing; or

(b)

Licensed naturopathic doctor in good standing with the State Board of Physicians.

During the hours of operation, a licensed dispensary shall have a clinical director:

(1)

On-site; or

(2)

Available via electronic communication.

A clinical director shall:

(1)

(2)

Complete at least one training course each year that is approved by the Administration, which includes:

(a)

The latest scientific research on medical cannabis;

(b)

The risks and benefits of medical cannabis; and

(c)

Other information considered necessary by the Administration;

(3)

Educate qualifying patients and caregivers on:

(a)

Treatment of the qualifying patient’s medical condition with medical cannabis;

(b)

Potential drug-to-drug interactions, including interactions with alcohol, prescription drugs, non-prescription drugs, and supplements;

(c)

Possible side effects or contraindications of medical cannabis use;

(d)

The potential for differing strengths and effects of medical cannabis strains; and

(e)

Different methods, forms, and routes of medical cannabis administration; and

(4)

Provide training to dispensary agents on:

(a)

Guidelines for providing information to qualifying patients related to risks, benefits, and side effects associated with medical cannabis;

(b)

Recognizing signs and symptoms of substance abuse; and

(c)

Guidelines for refusing to provide medical cannabis to an individual who appears to be under the influence of drugs or alcohol.

A clinical director for a licensed dispensary may not provide a written certification for medical cannabis to any qualifying patient.

A standard dispensary is not subject to §§A—C of this regulation until the licensee has been licensed and operational for a period of at least 24 months.

A micro dispensary is not subject to §§A—C of this regulation.

The Administration may request information from licensed dispensaries on clinical director utilization in a manner specified by the Administration.

Regulation .08 Tax Exemption of Medical Cannabis.Link Copy Citation

Medical cannabis sold to qualifying patients or registered caregivers under this chapter shall be exempt from any sales and use tax assessment.

Regulation .09 Medical Product Availability.Link Copy Citation

A qualifying patient, registered caregiver, certifying provider, licensee, or clinical director may submit to the Administration, in a manner prescribed by the Administration, information about medical cannabis products that are scarce, limited in production, or no longer available.

The Administration may implement programs or incentives to address product scarcity.

Subtitle 17 — Maryland Cannabis Administration

Chapter 05. Application Process and Issuance of Licenses

Regulation .01 Scope.Link Copy Citation

This chapter applies to the distribution of any cannabis licenses through a lottery system, including a:

Standard grower license;

Standard processor license;

Standard dispensary license;

Micro grower license;

Micro processor license;

Micro dispensary license;

On-site consumption establishment license; and

Incubator space license.

Regulation .02 Application Requirements.Link Copy Citation

An applicant shall submit an application to the Administration for a license.

A submitted application shall conform with the requirements established under Alcoholic Beverages and Cannabis Article, §36-404, Annotated Code of Maryland.

An application shall be:

(1)

Completed on a form designated by the Administration; and

(2)

Accompanied by the application fee as specified in COMAR 14.17.21.

An applicant, including any individual or entity that holds an ownership interest in or control of the applicant, may only be listed on:

(1)

One application per license type per application round; and

(2)

Two applications for any license type per application round.

Any applicant that violates §D of this regulation may not be considered by the Administration for licensure.

The Administration may not require an applicant to possess or own any property or facility to operate a cannabis business at the time of the application.

The Administration may verify an applicant’s status as a social equity applicant prior to the initial application and licensure.

Any information an applicant submits in support of their social equity status in §G of this regulation is considered part of the application and is subject to verification by the Administration.

Regulation .03 Application Notification, Submission, and Review.Link Copy Citation

The Administration shall announce an application round at least 60 days prior to the acceptance of applications. The announcement shall include:

(1)

Types of licenses available during the licensing round;

(2)

Number of licenses available by license type;

(3)

Beginning and closing day of the application period; and

(4)

Any regional, jurisdictional, or other geographical considerations in the licensing round.

The Administration shall accept applications for a period of 30 calendar days.

The Administration shall conduct extensive outreach to small, minority, and women business owners and potential social equity applicants prior to accepting applications.

Upon the closing of any application period, the Administration shall announce the number of applications submitted and the maximum number of licenses that may be awarded within each license category and pool of applications.

Application Review.

(1)

The burden of proving an applicant’s qualifications rests on the applicant.

(2)

The Administration may:

(a)

Deny an application that:

(i)

Is not complete in every material detail;

(ii)

Contains a material misstatement, omission, misrepresentation, or untruth;

(iii)

Does not meet the minimum qualifications for the lottery; or

(iv)

Is not submitted by the established deadline;

(b)

Request any additional information from any applicant, if it deems the information necessary to review or process the application; and

(c)

If the applicant does not provide the additional requested information within 10 calendar days, deny the application.

(3)

The Administration shall determine whether a submitted application meets the minimum qualifications for the lottery on a pass-fail basis by reviewing:

(a)

A detailed operational plan for the safe, secure, and effective operation of the business;

(b)

A business plan demonstrating a likelihood of success and sufficient ability and experience on the part of the applicant, and providing for appropriate employee working conditions;

(c)

A detailed diversity plan; and

(d)

For the first round of licensing and otherwise as required under Alcoholic Beverages and Cannabis Article, §36-404, Annotated Code of Maryland, for any subsequent round of licensing, documentation that the applicant meets the requirements of a social equity applicant.

Minimum qualifications in §E(3) of this regulation shall be established by the Administration and communicated to prospective applicants prior to the application period.

The Administration may award fewer licenses than authorized under law in any licensing round.

The Administration may require an applicant, or any individual or entity that holds an ownership interest in or control of the applicant, to complete an attestation demonstrating the applicant meets the requirements for award established in Alcoholic Beverages and Cannabis Article, Title 36, Subtitle 4, Annotated Code of Maryland.

Regulation .04 Lottery Award and Conditional License.Link Copy Citation

Lottery.

(1)

The Administration shall conduct a lottery that is impartial, random, and in a format selected by the Administration.

(2)

Any applicant that meets the minimum qualifications for licensing shall be placed in the lottery.

(3)

Subsequent to the lottery, the Administration shall notify all applicants of whether their application was selected in the lottery.

(4)

The Administration may request any additional information or supporting documentation from an applicant selected in the lottery necessary to verify aspects of the application, including but not limited to additional information and supporting documentation related to the:

(a)

Operational plan for the safe, secure, and effective cultivation, manufacture, or dispensing of cannabis;

(b)

Business plan demonstrating a likelihood of success and sufficient business ability and experience on the part of the applicant, and providing for appropriate employee working conditions;

(c)

Detailed diversity plan; and

(d)

Ownership and control of the applicant.

(5)

The Administration may deny issuing a conditional license to an applicant selected in the lottery if:

(a)

The applicant fails to provide any additional information or supporting documentation requested pursuant to §A(4) of this regulation within 10 calendar days;

(b)

Any additional information or supporting documentation submitted by the applicant demonstrates the applicant is not eligible for a license under this subtitle or Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland; or

(c)

The Administration determines that the applicant violated Regulation .02D of this chapter.

(6)

The Administration shall notify an applicant who has been awarded a conditional license within 5 calendar days of the award.

Conditional License.

(1)

A conditional licensee shall complete a supplemental license application.

(2)

A supplemental license application shall require a conditional licensee to:

(a)

Undergo a criminal history records check in accordance with Alcoholic Beverages and Cannabis Article, §36-505, Annotated Code of Maryland;

(b)

Complete a financial background investigation conducted by the Administration;

(c)

Verify any information or supporting documentation provided in the application;

(d)

Disclose any adverse action taken against a professional or business license held in any jurisdiction by the applicant or any individual or entity holding an ownership interest in the applicant;

(e)

Waive any contractual, statutory, or common law obligation of confidentiality and authorize any government agency in any jurisdiction to release to the Administration all information the conditional licensee has provided to any other jurisdiction while seeking a cannabis-related license in that other jurisdiction, as well as the information obtained by that other jurisdiction during any investigation it may have conducted regarding the applicant;

(f)

Release all financial institutions, fiduciaries, and other parties from any contractual, statutory, or common law obligation of confidentiality to provide financial, personal and background information relevant to the conditional licensee’s capacity to manage a licensed facility; and

(g)

Identify and demonstrate legal control of the proposed site, through lease, purchase, or other means, for the cannabis business.

Any conditional license not awarded due to circumstances in §A of this regulation may be awarded by lottery using the same pool of applicants as the initially selected application.

Regulation .05 Issuance of a License or Rescission of a Conditional License.Link Copy Citation

Conditional License Period.

(1)

The conditional license period:

(a)

Begins on the day that a conditional license is issued to the selected applicant; and

(b)

Expires 24 months after the day that conditional license was issued or at the end of an extension granted by the Administration.

(2)

A conditional licensee may apply for an extension of the conditional license.

(3)

The Administration may approve a one-time extension of up to 6 months, if the Administration determines the conditional licensee has made consistent good faith efforts to establish a cannabis business.

(4)

For purposes of determining consistent good faith effort in §A(3) of this regulation, the Administration:

(a)

Will consider demonstrating legal control of a premises to indicate consistent good faith effort if the premises:

(i)

Is suitable for the operations of the cannabis license; and

(ii)

Complies with local planning and zoning requirements; and

(b)

May use its discretion to determine that a conditional licensee has demonstrated consistent good faith effort if the conditional licensee provides adequate documentation that a political subdivision has unduly burdened its efforts toward becoming operational, as defined in Alcoholic Beverages and Cannabis Article, §36-405, Annotated Code of Maryland.

(5)

During the conditional license period, a conditional licensee shall:

(a)

Complete a supplemental license application;

(b)

Establish legal control of the proposed site, through lease, purchase, or other means, for the cannabis business;

(c)

Notify the Administration of establishment of legal control of the proposed site;

(d)

Within 6 months of being issued a conditional license, demonstrate adequate capitalization to enable the business to become operational;

(e)

Gain zoning or planning approval from a political subdivision, if applicable; and

(f)

(6)

During a conditional license period, a conditional licensee may not:

(a)

Engage in purchasing, possessing, cultivating, manufacturing, or selling cannabis or cannabis products;

(b)

Make any transfer of an ownership interest that causes a change in the individual or entity that holds the controlling ownership interest;

(c)

Make any transfer of control, as defined in COMAR 14.17.01; and

(d)

If the conditional licensee qualified as a social equity applicant, make any transfer of an ownership interest that causes the conditional licensee to no longer comply with the social equity applicant definition in COMAR 14.17.01.

(7)

During a conditional license period, a conditional licensee may obtain additional resources by adding:

(a)

Grants and loans from new or existing financial sources not listed in the initial application; and

(b)

Owners and passive investors.

(8)

Any additional resources obtained by a conditional licensee made under §A(7) of this regulation may not violate this subtitle or Alcoholic Beverages and Cannabis Article, Title 36, Subtitle 4, Annotated Code of Maryland.

Rescission of a Conditional License. The Administration may rescind a conditional license if a conditional licensee, or any individual or entity included in the supplemental license application:

(1)

Has been convicted of or pleaded nolo contendere to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have conviction or plea set aside;

(2)

Fraudulently or deceptively attempts to obtain a license;

(3)

Is ineligible to hold an ownership interest in or control of a business licensed under Alcoholic Beverages and Cannabis Article, Title 36, Subtitle 4, Annotated Code of Maryland;

(4)

Fails to reveal any material fact pertaining to the conditional licensee’s qualification for a license;

(5)

Fails to submit a complete supplemental license application;

(6)

Fails to become licensed and operational within:

(a)

24 months after the day the conditional license was issued; or

(b)

If granted an extension, the day after the expiration of any extension granted by the Administration;

(7)

Fails to comply with §A(5) and (6) of this regulation;

(8)

Is not registered or in good standing with the State Department of Assessment and Taxation; or

(9)

Has taxes in arrears in any jurisdiction.

The Administration may award a license on a determination that:

(1)

The conditional licensee has submitted a complete supplemental license application;

(2)

The supplemental license application, including any individual or entity included in the application, does not violate §B of this regulation;

(3)

The license fee specified in COMAR 14.17.21 has been paid;

(4)

All inspections are passed, and all the conditional licensee’s operations conform to the specifications of the application as approved pursuant to this chapter; and

(5)

The proposed premises:

(a)

Are under the legal control of the conditional licensee; and

(b)

Comply with all zoning and planning requirements.

A licensed business may not grow, process, distribute, dispense, or otherwise begin business operations without approval of written documentation under §C of this regulation by the Administration.

The Administration may not award a license to a business who has registered with the State Department of Assessment and Taxation using a legal name that:

(1)

Uses the terms “cannabis”, “marijuana”, or other synonym related to controlled substances;

(2)

Suggests the use of cannabis as an intoxicant; or

(3)

Incorporates any copyrighted material or trademark or service mark attributable to another entity.

The Administration may suspend, fine, restrict, or revoke a license, including a conditional license, if:

(1)

A licensee has fraudulently or deceptively submitted written documentation to the Administration;

(2)

A licensee has violated Alcoholic Beverages and Cannabis Article, Title 36, Subtitle 11, Annotated Code of Maryland;

(3)

A licensee began operations prior to Administration approval; or

(4)

It is determined that a licensee has not complied with statements in the application, including statements about standards of operation or employment practices related to diversity, equity, and inclusion.

Regulation .06 Application Retention.Link Copy Citation

Upon notification that an applicant was not selected by the lottery, the applicant may request the Administration retain the application for subsequent licensure application rounds.

The Administration shall retain any application requested for retention by the applicant for a period of 1 year.

The Administration may contact an applicant with a retained application for any additional information required for subsequent licensing rounds.

Any application retained by the Administration that meets the specifications and requirements of a subsequent licensing round within the 1-year retention period shall be automatically entered into the lottery if:

(1)

The applicant has properly amended the application if requested by the Administration under §C of this regulation; and

(2)

Any additional information requested by the Administration has been updated.

The Administration may not enter a retained application into a subsequent lottery round if:

(1)

Any individual included in the application is associated with additional applications in the licensing round that exceed the restrictions in Regulation .02D of this chapter;

(2)

Any individual included in the application is in violation of ownership restrictions under COMAR 14.17.16, or the awarding of a license would place the individual in violation of ownership restrictions under COMAR 14.17.16; and

(3)

Any individual associated with the application has been found to be in violation of Alcoholic Beverages and Cannabis Article, Title 36, Subtitle 11, Annotated Code of Maryland.

Regulation .07 Hearing Rights of Applicants.Link Copy Citation

Records Review.

(1)

An applicant not entered into the lottery by the Administration may request a records review of the submitted application within 10 days of notification that their application does not meet the minimum qualifications for the lottery on a pass-fail basis.

(2)

A records review shall consist of an opportunity for the applicant to examine the applicant’s records received by the Administration and verify the basis on which the application was deemed ineligible for the lottery.

(3)

No applicant may gain access to records submitted by any other applicant through the records review process.

A selected applicant or an applicant who applies pursuant to COMAR 14.17.05.06 who subsequently has their application denied by the Administration or a conditional licensee who has their conditional license rescinded pursuant to Regulation .05B of this chapter may request a hearing under COMAR 14.17.22.

An applicant who meets the minimum qualifications for the lottery, but is not selected in the lottery, may not appeal or request a hearing. The application shall be retained by the Administration in accordance with Regulation .06 of this chapter.

Regulation .08 Lottery Exemption.Link Copy Citation

Pigford v. Glickman Class Members.

(1)

The Administration may issue up to five conditional grower licenses to recognized class members of Pigford v. Glickman, 185 32 F.R.D. 82 (D.D.C. 1999), or In Re Black Farmers Litig., 856 F. Supp. 2d 1 (D.D.C. 2011) who:

(a)

Were awarded damages related to farming operations in Maryland;

(b)

Have provided evidence to the Administration that they have not been fully compensated for discrimination and continue to experience challenges due to past or present discrimination; and

(c)

Meet all other application criteria established by the Administration under this chapter.

(2)

If there are more qualified applications than the number of licenses available, the Administration shall conduct a lottery for all applicants that meet the minimum qualifications for licensing established under §A(1) of this regulation.

(3)

Notwithstanding any other provision of law, a license issued under this regulation is in addition to and not subject to the limitations on the total number of licenses that the Administration may issue under Alcoholic Beverages and Cannabis Article, Title 36, Subtitle 4, Annotated Code of Maryland.

A business awarded a grower license pursuant to Ch. 598, Acts of 2018, may be awarded a standard dispensary license, if the grower:

(1)

Submits an application that meets the minimum qualifications for a standard dispensary license, as determined by the Administration; and

(2)

Including any individual or entity that holds an ownership interest in or control of the grower, does not own or control a dispensary license.

Subtitle 17 — Maryland Cannabis Administration

Chapter 06. Standard Cannabis Licenses

Regulation .01 Scope.Link Copy Citation

This chapter applies to all standard cannabis licenses, including:

Standard grower, processor, and dispensary licenses authorized under Alcoholic Beverages and Cannabis Article, §36-401(c)(1), Annotated Code of Maryland;

Converted licenses under Alcoholic Beverages and Cannabis Article, §36-403, Annotated Code of Maryland;

Converted micro licenses under COMAR 14.17.07.08;

Incubator space licenses, authorized under Alcoholic Beverages and Cannabis Article, §36-406, Annotated Code of Maryland; and

On-site consumption licenses, authorized under Alcoholic Beverages and Cannabis Article, §36-407, Annotated Code of Maryland.

Regulation .02 Term of License and License Renewal.Link Copy Citation

Licenses converted under Alcoholic Beverages and Cannabis Article, §36-403, Annotated Code of Maryland, are valid for 5 years from the date of the initial conversion fee payment to the Administration.

As a condition of licensure, a licensee shall comply with all subregulatory guidance issued by the Administration, including but not limited to bulletins, notices, resolutions, seed-to-sale tracking system guidance, and technical authorities posted to the Administration’s website.

A cannabis license under this chapter is valid for:

(1)

5 years on initial licensure; and

(2)

5 years on renewal.

At least 90 calendar days before the expiration of a license, the Administration shall notify the licensee of the:

(1)

Date on which the license expires;

(2)

Process and the fee required to renew the license; and

(3)

Consequences of a failure to renew the license.

At least 30 calendar days before a license expires, a licensee seeking approval shall submit:

(1)

The renewal application in the form designated by the Administration;

(2)

Proof that fingerprints have been submitted to Criminal Justice Information System and the Federal Bureau of Investigation for each agent and any owner with an ownership interest of 5 percent or more;

(3)

To a full inspection of the licensed premises as described in COMAR 14.17.14.03, unless a full inspection was satisfactorily completed within 3 months before the date of the license expiration; and

(4)

Payment of the fee specified in COMAR 14.17.21.

The Administration may renew a license that meets the requirements for renewal as stated in §E of this regulation.

If a licensee fails the inspection or submits a deficient application for renewal, the licensee may apply for reinstatement by:

(1)

Submitting a plan to correct the deficiencies noted during an inspection; and

(2)

Amending the application for renewal.

The Administration may deny a license renewal if:

(1)

The plan to correct deficiencies identified in an inspection is deficient;

(2)

The amended application for renewal is deficient;

(3)

The licensee is repeatedly found in violation of health and safety regulations during the license period; or

(4)

The licensee is repeatedly found in violation of this subtitle or Title 36, Alcoholic Beverages and Cannabis Article, Annotated Code of Maryland.

A licensee who fails to apply for license renewal by the date specified by the Administration, or whose license was not renewed by the Administration:

(1)

Shall cease operations at all premises; and

(2)

May not provide cannabis to any entity or individual.

A license may be reinstated upon:

(1)

Payment of the reinstatement fee specified in COMAR 14.17.21; and

(2)

Submission of a reinstatement application approved by the Administration.

A licensee may not register with the State Department of Assessment and Taxation using a legal name that:

(1)

Uses the terms “cannabis”, “marijuana”, or other synonym related to controlled substances;

(2)

Suggests the use of cannabis as an intoxicant; or

(3)

Incorporates any copyrighted material or trademark or service mark attributable to another entity.

The Administration may specify the format and manner for all required licensee and conditional licensee submissions.

Regulation .03 Change of Location.Link Copy Citation

A licensee may apply to change the location of the licensee’s operation.

The licensee shall apply for a change of location in the form designated by the Administration along with the fee specified in COMAR 14.17.21.

A licensee may not begin cultivation, processing, or dispensing of cannabis at a new location until the Administration approves the change.

A dispensary may only change location within the county that the dispensary was awarded a license.

A grower or processor may only change location outside of the region in which the grower or processor was awarded a license if the proposed location is part of a co-location agreement as described in COMAR 14.17.06.11.

The Administration may deny a change of location application if:

(1)

The application is not complete in every material detail;

(2)

Notwithstanding §E of this regulation, the change of location would move the proposed licensed location outside of the region or jurisdiction in which it was awarded; or

(3)

The change of location otherwise violates a provision of State or local law pertaining to the licensed locations of cannabis businesses.

A licensee’s proposed location shall conform to local zoning and planning requirements.

Regulation .04 Transfer of Ownership Interest in a License.Link Copy Citation

A cannabis licensee, including a cannabis licensee whose license was converted in accordance with Alcoholic Beverages and Cannabis Article, §36-401, Annotated Code of Maryland, is not transferable except as provided under Alcoholic Beverages and Cannabis Article, §36-503, Annotated Code of Maryland.

If a proposed transfer is for less than 5 percent of a cannabis licensee and the proposed transfer will not result in the transferee holding 5 percent or more of the licensee, then the proposed transfer does not require approval by the Administration.

The Administration may approve a transfer or assignment of ownership if:

(1)

The Administration receives notice of the intent of the owner of the interest, or of the estate of the owner of the interest, to transfer or assign an ownership interest in a license to another party, in a form prescribed by the Administration;

(2)

The proposed transfer does not violate Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland;

(3)

The transferee has paid the required fee specified in COMAR 14.17.21; and

(4)

The transferee has provided criminal history record and financial information to the Administration.

The Administration shall deny transfer of an interest for any proposed transferee:

(1)

If the transfer violates COMAR 14.17.16;

(2)

If the transfer would convey a controlling interest in the license prior to the cannabis licensee being licensed and operational for a period of at least 5 years, and is not proposed due to death, disability, incapacity, bankruptcy, or receivership in accordance with a lending agreement of a cannabis licensee or court order; or

(3)

If, prior to the cannabis licensee being licensed and operational for a period of at least 5 years, the transfer would convey to the transferee the right or authority to obtain a controlling interest in the license at a later date.

The Administration may deny transfer of an interest for any proposed transferee if the:

(1)

Transferee or an individual with ownership or control of the transferee has been convicted of or pleaded nolo contendere to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside;

(2)

Payment of taxes due in any jurisdiction is in arrears.

The Administration may deny transfer of a controlling interest in a license or in an ownership interest of 5 percent or more if the Administration finds good cause to deny the proposed transfer.

Any individual or entity identified as having ownership or control of a license may not hold an ownership interest that exceeds the limitations set forth in Alcoholic Beverages and Cannabis Article, §36-401(e), Annotated Code of Maryland.

If the Administration approves a transfer of an ownership interest of a license and subsequently the Administration finds that such a transfer violates State, local, or federal law, the Administration may:

(1)

Issue a fine against any parties involved in the transfer;

(2)

Declare the transfer void; and

(3)

Rescind the license.

Prior to the transfer, the licensee shall conduct a full inventory of all cannabis and cannabis products, in a manner prescribed by the Administration.

Employee Incentive Programs.

(1)

In this section, the term “incentive unit” means a unit of ownership in the licensee or its parent, subsidiary, or affiliate such as stock or limited liability company membership, issued to an individual as part of a licensee’s employee incentive program or other compensation.

(2)

A licensee may issue employee incentive units as part of an employee compensation plan.

(3)

A licensee shall:

(a)

Establish a detailed employee incentive plan for each individual to whom it intends to issue incentive units and issue incentive units in accordance with the plan; and

(b)

Upon request, provide a copy of the plan in §J(3)(a) of this regulation, in a manner prescribed by the Administration.

(4)

A licensee may not issue employee incentive units in a way that violates:

(a)

This regulation;

(b)

This chapter;

(c)

This subtitle;

(d)

Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland.

(5)

Incentive units issued to employees under this section may not:

(a)

Exceed 5 percent total ownership to any one individual; or

(b)

Change the control structure of the license.

(6)

In the annual disclosure of ownership and control report required by COMAR 14.17.16.02, a licensee shall disclose any employee incentive unit issuances or transfers that have occurred since the date of the licensee's last annual disclosure submission.

Regulation .05 Management Agreements.Link Copy Citation

Definitions.

(1)

In this regulation, the following terms have the meaning indicated.

(2)

Terms Defined. “Management company” means an entity that provides management services to a licensed entity.

(a)

Management Agreement.

(i)

“Management agreement” means an arrangement between a management company and a licensee for the provision of services, including but not limited to consulting, advisory, or marketing services related to the licensee’s operations.

(ii)

“Management agreement” does not include arrangements for legal, financial, or other services that do not delegate operational aspects of the business to the service provider.

(b)

“Management company” means an entity that provides management services to a licensed entity.

A management company shall be:

(1)

Approved by the Administration, in a manner prescribed by the Administration; and

(2)

In good standing with the State Department of Assessments and Taxation.

A licensee shall provide a copy of a management agreement to the Administration and include:

(1)

Information detailing any compensation paid in exchange for the management services;

(2)

Criminal history record and financial information of the third party providing the management services; and

(3)

Any other information relevant to the management agreement requested by the Administration.

A management agreement may not take effect unless the Administration has:

(1)

Received proper notice of the management agreement, as specified in §C of this regulation;

(2)

Received the required fee specified in COMAR 14.17.21; and

(3)

Approved the management agreement.

The Administration may deny a management agreement:

(1)

If the management agreement constitutes an invalid transfer of an ownership interest in a license, as specified in Regulation .04 of this chapter;

(2)

If the criminal history record information or the background investigation reveals the personnel of a third party providing the management services has been convicted of or pleaded nolo contendere to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside;

(3)

If the management agreement transfers control of a license:

(a)

In violation of Alcoholic Beverages and Cannabis Article, §36-503, Annotated Code of Maryland; or

(b)

As established in §H of this regulation;

(4)

If the licensee fails to produce additional documentation requested by the Administration;

(5)

If the management agreement is found to be in violation of §G of this regulation; or

(6)

For any other good cause.

In the case of material change to a management agreement, including but not limited to a change of ownership or control of the management company, the licensee shall:

(1)

Provide any relevant records, files, or information to the Administration; and

(2)

Receive Administration approval prior to the material change to the management agreement taking effect.

A management agreement under this regulation may not require a licensee to:

(1)

Operate the business under a marketing plan or system that is associated with the trademark, service mark, trade name, logotype, advertising, or other commercial symbol that designates the licensee as same or similar to the management company;

(2)

Offer, sell, or distribute cannabis or cannabis products under a marketing plan or system prescribed in substantial part by the entity providing the management agreement;

(3)

Limit the offerings of cannabis or cannabis products to another licensed entity holding a direct or indirect financial relationship to the management company; or

(4)

Sell or transfer ownership interest in the license at a later date to the management company.

A management agreement may constitute a transfer of control if it conveys to a management company:

(1)

Unilateral control as defined in COMAR 14.17.01; or

(2)

The right or authority to make major marketing, production, and financial decisions, including:

(a)

The right or authority to operate the business under a trademark, service mark, trade name, logotype, or other commercial symbol that is the same as the management company or another licensee;

(b)

The right or authority to purchase a controlling interest in, or control of, the license at a later date; or

(c)

The right to or actual payment from the licensee over the course of a calendar year exceeding the greatest of:

(i)

25 percent of the licensee’s gross revenue;

(ii)

50 percent of the licensee’s net profits; or

(iii)

$250,000.

Regulation .06 Standard Grower License.Link Copy Citation

A standard grower license authorizes the licensee to:

(1)

Cultivate or package cannabis; and

(2)

Provide cannabis, or usable cannabis, to other licensees and registered independent testing laboratories.

A standard grower’s canopy may not exceed the canopy restrictions as established in Alcoholic Beverages and Cannabis Article, §36-402, Annotated Code of Maryland.

On or before October 1 of each year a standard grower shall report to the Administration the square footage of indoor and outdoor canopy as defined in COMAR 14.17.01. The Administration may:

(1)

Inspect the licensed premise to verify the standard grower’s annual submission of canopy square footage; and

(2)

Restrict, reduce, fine, or otherwise sanction any standard grower who misrepresents canopy square footage.

For any standard grower found in violation of §B of this regulation, the Administration may:

(1)

Reduce the canopy of the standard grower by the same percentage as it exceeds the authorized canopy; and

(2)

Seize, destroy, confiscate, or place an administrative hold on any flowering cannabis plants produced in the excess of the canopy restrictions.

For the purposes of calculating canopy under §§B—D of this regulation, canopy that is rented, leased, operated, or otherwise controlled by a standard grower other than its owner shall only be attributed to the standard grower in control of the square footage.

For the purposes of calculating canopy under §§B—D of this regulation, 1 square foot of indoor canopy is equal to 4 square feet of outdoor canopy.

A standard grower licensed under this regulation shall operate in accordance with COMAR 14.17.10.

Regulation .07 Standard Processor License.Link Copy Citation

A standard processor license authorizes the licensee to:

(1)

Transform cannabis into another product or an extract and package and label the cannabis product; and

(2)

Provide cannabis to licensed dispensaries and independent testing laboratories.

A standard processor licensed under this regulation shall operate in accordance with COMAR 14.17.11.

Regulation .08 Standard Dispensary License.Link Copy Citation

A standard dispensary license authorizes the licensee operating a store at a physical location to acquire, possess, sell, or dispense cannabis products and related materials in accordance with Alcoholic Beverages and Cannabis Article, §36-401(c)(1), Annotated Code of Maryland, including for use by qualifying patients or consumers through a physical storefront.

A standard dispensary may not operate a delivery service as defined in COMAR 14.17.01, unless the standard dispensary:

(1)

Has a qualifying partnership with a micro dispensary under Alcoholic Beverages and Cannabis Article, §1-323, Annotated Code of Maryland, to conduct delivery services on behalf of the standard dispensary; or

(2)

Otherwise partners or contracts with a micro dispensary to conduct delivery services for the standard dispensary.

A standard dispensary licensed under this regulation shall operate in accordance with COMAR 14.17.12.

Regulation .09 Incubator Space License.Link Copy Citation

An incubator space license authorizes the licensee to operate a facility within which a micro licensee may operate in accordance with Alcoholic Beverages and Cannabis Article, §36-406, Annotated Code of Maryland.

Any individual with ownership or control of an incubator space license may not have any ownership or control any other cannabis license type.

Prior to the issuance of incubator space licenses, the Maryland Economic Development Corporation shall identify regional sites in accordance with Chs. 254 (H.B. 556) and 255 (S.B. 516), §13, Acts of 2023.

Regulation .10 On-Site Consumption License.Link Copy Citation

An on-site consumption establishment license authorizes the licensee to operate a licensed premises in which cannabis may be consumed in accordance with Alcoholic Beverages and Cannabis Article, §36-407, Annotated Code of Maryland.

An on-site consumption establishment may operate only if the county or, if applicable, the municipality, where the business is located has issued a permit or license that expressly allows the operation of the on-site consumption establishment subject to the limitations in Alcoholic Beverages and Cannabis Article, §36-405, Annotated Code of Maryland.

An on-site consumption license does not authorize the holder of the license to:

(1)

Cultivate cannabis;

(2)

Process cannabis or cannabis–infused products; or

(3)

Add cannabis to food prepared or served on the premises.

Any individual or entity who holds an ownership interest in or control of an on-site consumption license may not have any ownership interest or control in any other cannabis license.

An on-site consumption establishment may apply to change the location of the on-site consumption establishment’s operation.

The on-site consumption establishment shall submit an application to the Administration along with the fee specified in COMAR 14.17.21.

The application shall include documentation:

(1)

Of approval from the jurisdiction where the on-site consumption establishment plans to relocate; and

(2)

That the proposed premises:

(a)

Is under legal control of the applicant; and

(b)

Comply with all zoning and planning requirements.

The Administration may not award licenses for on-site consumption establishments prior to May 1, 2024.

No other cannabis licensee may authorize or permit on-site consumption at the licensed premise, or at any space owned or controlled by the licensee.

Prior to operating a facility where the consumption of cannabis is permitted on the premises, a person shall obtain an on-site consumption licensed.

An on-site consumption establishment may obtain cannabis and cannabis products from licensed growers, processors, and standard dispensaries.

Regulation .11 Licensee Co-Location.Link Copy Citation

In this regulation, the following terms have the meanings indicated.

Terms Defined.

(1)

“Co-located licensee” means a grower or processor licensee who has entered an agreement to share a licensed premises.

(2)

“Commingling” means mixing any cannabis belonging to one licensee with cannabis that belongs to another licensee.

(3)

“Storage area” means any single room or container designated for cannabis to be kept before distribution, transfer, or processing.

A maximum of three licensees may enter an agreement to share a licensed premises, provided:

(1)

Provided at least one of the licensees operates in the region in which they were awarded a license; and

(2)

The licensees are growers or processors.

If co-located licensees share equipment or production materials, each licensee shall:

(1)

Use equipment at separate times;

(2)

Sanitize any equipment and work space before it is used by another licensee; and

(3)

Maintain independent and unique storage areas.

A co-located licensee shall:

(1)

Adhere to all requirements for operating a licensed grower or processor premises, whichever applies;

(2)

Establish and follow all standard operating procedures for sharing a licensed premises and, if applicable, sharing equipment;

(3)

Store and keep separate all of its cannabis at all times to avoid commingling at any stage of the growth or production process;

(4)

Have equal, independent, and unique control over access to its storage area, including the ability to add or remove its badged agents to access any area in which their plants or products are stored;

(5)

Have equal independent and unique access to its video surveillance recordings, which shall be recorded and saved as required by COMAR 14.17.10.02 or COMAR 14.17.11.02, whichever applies; and

(6)

Maintain independent and accurate records within the seed-to-sale tracking system as required by regulations for their license type.

A co-location agreement:

(1)

May not transfer ownership or control of a license in violation of Alcoholic Beverages and Cannabis Article, §36-503, Annotated Code of Maryland;

(2)

May not be used to circumvent any requirements for operating a licensed premises;

(3)

May not take effect prior to Administration:

(a)

Approval of the agreement terms; and

(b)

Inspection of the shared premises; and

(4)

If co-located licensees are sharing security or video surveillance systems, shall specify which licensee is responsible for ensuring a shared system complies with COMAR 14.17.10.02F and G or COMAR 14.17.11.02E and F, whichever apply.

Upon signing a co-location agreement, a co-locating licensee shall provide to the Administration:

(1)

A copy of the co-location agreement; and

(2)

Any other documents relevant to the co-location as requested by the Administration.

If the Administration determines a co-location agreement violates §F of this regulation, the Administration may:

(1)

Deny or rescind approval of the co-location agreement; and

(2)

Fine, suspend, restrict, revoke, or otherwise sanction a co-locating licensee.

Regulation .12 Protest of Renewal.Link Copy Citation

Individuals may file a protest against cannabis license renewal with the Administration in a manner prescribed by the Administration.

A valid filing of a protest against license renewal under this regulation shall be made by ten or more individuals who are located within 1,000 feet of the license location and are:

(1)

Residents;

(2)

Commercial tenants; or

(3)

Real estate owners.

A protest against license renewal shall be made on the basis of:

(1)

A violation by the licensee of this subtitle or Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland;

(2)

A violation by the licensee of civil or criminal law; or

(3)

Conduct by the licensee that creates or maintains conditions that allow other individuals to act in a manner that disturbs the public peace, including:

(a)

Obstruction of public rights-of-way by unruly crowds;

(b)

Assault, battery, or other disorderly conduct that disturbs the public peace;

(c)

Vandalism; or

(d)

Littering.

Reasonable Grounds.

(1)

Individuals may only demonstrate reasonable grounds for a protest against license renewal by:

(a)

Submitting criminal or civil citations, violations, incident reports, or other sanctions against the licensee by:

(i)

Local law enforcement;

(ii)

The Maryland Cannabis Administration;

(iii)

The Alcohol, Tobacco or Cannabis Commission; or

(iv)

Any other unit of government with the legal authority to issue fines, citations, or other violations; or

(b)

Submitting criminal or civil citation, violations, or other sanctions against an individual for conduct occurring within 1,000 feet of the licensed establishment by:

(i)

Local law enforcement; or

(ii)

Any other unit of government with the legal authority to issue fines, citations, or other violations.

(2)

The Administration shall determine if the protest filed is based on reasonable grounds.

(3)

In making the determination of reasonable grounds, the Administration may consider the number of citations, violations, or other sanctions filed under §D(1) of this regulation.

(4)

A submission under §D(1) of this regulation may only be used for the purposes of a single protest against license renewal filing.

Protest of Renewal Hearing.

(1)

If the Administration determines that the protest is based on reasonable grounds, the Administration shall:

(a)

Hold a hearing in accordance with COMAR 14.17.22 of this subtitle; and

(b)

Notify the licensee no later than 30 days prior to the hearing date.

(2)

A hearing under this regulation shall be held within 6 months of the determination by the Administration that the protest was filed on the basis of reasonable grounds.

Sanctions.

(1)

As a result of a hearing held under this regulation, the Administration may immediately:

(a)

Suspend, fine, or revoke a license; and

(b)

Develop a corrective action plan for the licensee.

(2)

In determining sanctions against the licensee, the Administration may consider the:

(a)

Number of individuals filing the protest;

(b)

Grounds on which the protest was filed;

(c)

Number of citations, violations, or other sanctions filed against the license as a part of the protest against license renewal; and

(d)

Any prior protest against license renewal filings or other violations issued by the Administration.

Subtitle 17 — Maryland Cannabis Administration

Chapter 07. Micro Licenses

Regulation .01 Scope.Link Copy Citation

This chapter applies to all micro licenses authorized under Alcoholic Beverages and Cannabis Article, §36-401(c)(2), Annotated Code of Maryland.

Regulation .02 Term of License and License Renewal.Link Copy Citation

In addition to §§B—D of this regulation, terms of license and license renewal for micro licenses are as established in COMAR 14.17.06.02B—K.

A micro licensee may not exceed growing, processing or dispensing operational restrictions set forth in Alcoholic Beverages and Cannabis Article, §36-401(c)(2), Annotated Code of Maryland.

The Administration may verify compliance with the operational restrictions under §B of this regulation within the first 24 months of a micro licensee’s operations by:

(1)

For growers, measuring and inspecting the canopy owned or otherwise controlled by the licensed micro grower;

(2)

For processors, querying the seed-to-sale tracking system for the prior 12 months of operations; and

(3)

For dispensaries, investigating or otherwise verifying that the licensee:

(a)

Operates only in the region in which the license was awarded or authorized;

(b)

Employs no more than ten registered agents; and

(c)

Does not operate a physical storefront.

The Administration may restrict, reduce, fine, or otherwise sanction any micro licensee who is found to be in violation of §B of this regulation.

Regulation .03 Change of Location.Link Copy Citation

Change of location procedures and requirements are as established in COMAR 14.17.06.03.

A petition to expand the authorized service area of a micro dispensary does not constitute a change of location under this regulation.

Regulation .04 Ownership, Control, and Management Agreements for Micro Licenses.Link Copy Citation

Transfer of ownership interest requirements and procedures for micro licenses are established in COMAR 14.17.06.04.

Management agreement requirements and procedures for micro licenses are established in COMAR 14.17.06.05.

Regulation .05 Micro Grower License.Link Copy Citation

A micro grower license authorizes the licensee to:

(1)

Cultivate or package cannabis; and

(2)

Provide cannabis to other licensees and registered independent testing laboratories.

A micro grower’s canopy may not exceed the restrictions as established in Alcoholic Beverages and Cannabis Article, §36-401(c)(2)(i), Annotated Code of Maryland.

On or before October 1 of each year, micro growers shall report to the Administration the square footage of indoor and outdoor canopy as defined in COMAR 14.17.01.

The Administration may:

(1)

Inspect the licensed premise to verify the micro grower’s annual submission of canopy square footage; and

(2)

Restrict, reduce, fine, or otherwise sanction any micro grower who misrepresents canopy square footage.

For any micro grower found in violation of §B of this regulation, the Administration may:

(1)

Reduce the canopy of the micro grower by the same percentage as it exceeds the authorized canopy; and

(2)

Seize, destroy, confiscate, or place an administrative hold on any flowering cannabis plants produced in the excess of the canopy.

For the purposes of calculating canopy under §§B—E of this regulation, canopy that is rented, leased, operated, or otherwise controlled by one micro grower to another micro grower shall only be attributed to the micro grower in control of the square footage.

A micro grower licensed under this regulation shall operate in accordance with COMAR 14.17.10.

A micro grower licensed under this regulation may convert to a standard grower license under COMAR 14.17.06.06 in accordance with Regulation .08 of this chapter.

Regulation .06 Micro Processor License.Link Copy Citation

A micro processor license authorizes the licensee to:

(1)

Transform cannabis into another product or an extract and package and label the cannabis product; and

(2)

Provide cannabis to licensed dispensaries and independent testing laboratories.

A micro processor licensed under this chapter may not exceed the restrictions as established in Alcoholic Beverages and Cannabis Article, §36-401(c)(2)(ii), Annotated Code of Maryland, for the processing of cannabis products.

A micro processor licensed under this regulation shall operate in accordance with COMAR 14.17.11.

A micro processor licensed under this regulation may convert to a standard processor license under COMAR 14.17.06.07 in accordance with Regulation .08 of this chapter.

Regulation .07 Micro Dispensary License.Link Copy Citation

A micro dispensary license authorizes the licensee to operate a delivery service as defined in COMAR 14.17.01.

A micro dispensary may not:

(1)

Operate a physical storefront; or

(2)

Employ more than 10 individuals.

A micro dispensary licensed under this regulation shall only deliver cannabis products to residences and medical facilities in the authorized service area under §D of this regulation.

Authorized Service Area.

(1)

A micro dispensary may only make deliveries of cannabis or cannabis products:

(a)

In the region in which its license was awarded; and

(b)

As specifically permitted by the Administration in §D(3) of this regulation, its expanded authorized service area.

(2)

A micro dispensary may submit a petition to expand its authorized service area in the manner specified by the Administration.

(3)

The Administration may approve, deny, or issue temporary approval of a petition to expand a micro dispensary’s authorized service area.

(4)

The authorized service area shall be entirely within the State of Maryland.

(5)

A micro dispensary may:

(a)

Store cannabis in a facility outside of the authorized service area in accordance with COMAR 14.17.12.03; or

(b)

Transit outside the authorized service area:

(i)

For the purpose of stocking or restocking inventory; or

(ii)

When it is most efficient, as part of a planned delivery route.

A micro dispensary licensed under this regulation shall operate in accordance with COMAR 14.17.12.03—.11.

A micro dispensary licensed under this regulation may convert to a standard dispensary license under COMAR 14.17.06.08 in accordance with Regulation .08 of this chapter.

Regulation .08 Conversion to Standard License.Link Copy Citation

A micro licensee in good standing may apply to the Administration to convert to a standard license once it has been operational for at least 24 months, in a manner determined by the Administration.

The Administration may deny the micro licensee for conversion to a standard license if the micro licensee:

(1)

Has been operational for 24 or fewer months;

(2)

Has been found to violate any operational restrictions in Regulation .02B of this chapter;

(3)

Would be in violation of the ownership or control restrictions in COMAR 14.17.16;

(4)

Does not provide adequate notice to the Administration; or

(5)

For any other good cause determined by the Administration.

A micro license converted under §§A and B of this regulation to a standard license shall be valid through the date of the initial micro license.

Prior to the conversion of micro license to a standard license the licensee shall pay in full a pro-rated license fee.

The pro-rated license fee required under §D of this regulation shall be calculated by the Administration by:

(1)

Subtracting any previous license fee paid for the valid micro license that is being converted into the standard license from the standard fee under COMAR 14.17.21; and

(2)

Pro-rating the remaining license fee total by months remaining on the initial 5-year term of the micro license.

A micro license converted under this regulation:

(1)

Shall be forfeited by the licensee as a condition of conversion and the Administration may award the forfeited license in a subsequent licensing round;

(2)

Shall only be for the corresponding standard license type; and

(3)

May not be converted to an incubator space license under COMAR 14.17.06.09 or on-site consumption license under COMAR 14.17.06.10.

The Administration shall reserve enough standard licenses, by license type, to allow a reasonable number of micro licenses to convert to a standard license.

Regulation .09 Licensee Co-Location.Link Copy Citation

Licensee co-location requirements and procedures are as established in COMAR 14.17.06.11.

Subtitle 17 — Maryland Cannabis Administration

Chapter 08. Laboratory Registration and Operations

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Accreditation body” means a nonprofit, impartial organization that requires conformance to 17025 ISO/IEC requirements and is a signatory to the international laboratory accreditation cooperation (ILAC) mutual recognition arrangement for testing.

(2)

“Cannabis industry” means all cannabis registrants, licensees, and their agents in Maryland.

Regulation .02 Independent Testing Laboratory Registration.Link Copy Citation

An independent testing laboratory shall register with the Administration.

To register, an independent laboratory shall:

(1)

Submit a completed independent laboratory registration form;

(2)

Pay the registration fee specified in COMAR 14.17.21;

(3)

Submit a copy of the certificate of accreditation accompanied by the scope of accreditation; and

(4)

Submit the name, address, date of birth, and Social Security Number or Individual Taxpayer Identification Number of each independent testing laboratory employee and a copy of the application form completed by each independent testing laboratory employee.

The Administration may issue a provisional registration to an independent testing laboratory that has not yet been issued a certificate of accreditation in Maryland if the independent testing laboratory submits:

(1)

A copy of the contract with the accreditation body with which it is applying to become accredited and a copy of the proposed scope of the accreditation;

(2)

Evidence the independent testing laboratory has been accredited by the accreditation body in another jurisdiction; and

(3)

All other required components listed in §B of this regulation.

Once it has obtained a certificate of accreditation, a provisionally registered independent testing laboratory shall apply to be registered, subject to the following terms:

(1)

The term of the registration may not exceed the term of the provisional registration; and

(2)

No additional registration fee need be paid for that term.

Regulation .03 Standards of Care.Link Copy Citation

The independent testing laboratory shall:

(1)

Follow the methodologies, ranges and parameters which are contained in the scope of the accreditation for testing cannabis or cannabis products;

(2)

Establish standard operating procedures and method validation or verification, if applicable, for testing that are approved by the accrediting body and the Administration;

(3)

Establish and follow written procedures for verifying the experience and education of laboratory employees;

(4)

Before an independent testing laboratory employee works or volunteers for the independent testing laboratory, register the employee with the Administration;

(5)

Upon termination of the independent testing laboratory’s association with a registered independent testing laboratory employee:

(a)

Obtain any keys or other entry devices from the terminated independent testing laboratory employee;

(b)

Ensure the terminated independent laboratory employee can no longer gain access to the laboratory premises; and

(c)

Within 1 business day of the termination of independent laboratory employee, notify the Administration of the termination;

(6)

Notify the Administration within 1 business day after the independent testing laboratory obtains notice of any kind that its accreditation has been denied, suspended, or revoked;

(7)

Implement the testing requirements established in Regulation .05 of this chapter and identified in the Administration’s Technical Authority for cannabis testing;

(8)

Maintain a continuous or motion-activated video surveillance recording system that:

(a)

Records all activity high quality and high resolution images capable of clearly revealing facial detail;

(b)

Operates 24 hours a day, 365 days a year without interruption;

(c)

Provides a date and time stamp for every recorded frame; and

(d)

Captures activity at each area where cannabis is tested, disposed of, or stored;

(9)

Store and retain all recordings of security video surveillance in a format that can be easily accessed for investigational purposes for a minimum of 90 calendar days;

(10)

Make any security video surveillance recording available to the Administration or law enforcement agency for just cause as requested within 48 hours;

(11)

Maintain a log of all visitors to the premises for 2 years; and

(12)

Conspicuously display a copy of its laboratory registration at the registered premises.

Violation.

(1)

Failure to provide the Administration with any video surveillance recording within 48 hours of a request from the Administration is a violation of COMAR 14.17.14.04.

(2)

Each day of recording within the minimum timeframe stated in §A(9) of this regulation that a licensee fails to provide to the Administration constitutes a separate violation.

Regulation .04 Term and Renewal.Link Copy Citation

The registration is valid for 2 years.

An independent testing laboratory may renew its registration by submitting to the Administration:

(1)

A registration renewal form completed in the manner specified by the Administration;

(2)

Payment of the registration fee specified in COMAR 14.17.21; and

(3)

Submission of copies of the most recent:

(a)

Assessment from the accreditation body; and

(b)

Proficiency testing results obtained by the independent testing laboratory.

Regulation .05 Independent Testing Laboratory Responsibilities.Link Copy Citation

In this regulation, “supporting data” means charts, graphs, spectra, or other information resulting from the testing of cannabis or cannabis products.

An independent testing laboratory shall:

(1)

Establish and follow statistically valid sampling methods to obtain samples from licensees;

(2)

Adopt standard operating procedures that are approved by the Administration to test cannabis, cannabis concentrate, and any other product that contains more than 0.5 milligrams of THC per serving and 2.5 milligrams of THC per package;

(3)

Perform sampling, testing, and analysis of cannabis and cannabis products in accordance with the Administration’s Technical Authority;

(4)

In the event a test result is outside action limits:

(a)

Follow standard operating procedure to confirm or refute the original result;

(b)

Notify the Administration of the failed test result via reporting in the seed-to-sale tracking system within 24 hours of the determination; and

(c)

Follow testing protocols established in the MCA’s Technical Authority.

(5)

Issue to the licensee a certificate of analysis for each batch or lot, with supporting data upon request, to report concentrations of compounds, presences of contaminants, and whether the batch or lot is within action limits for certain characteristics, as required by the Technical Authority; and

(6)

After the analysis is complete, weigh, document, and destroy all green waste in accordance with a standard operating procedure approved by the Administration.

An independent testing laboratory may only handle, test, or analyze cannabis or cannabis products if it:

(1)

Has been registered by the Administration;

(2)

Is independent from any entity licensed under Alcoholic Beverages and Cannabis Article, §36-401, Annotated Code of Maryland, to grow, process, or dispense cannabis;

(3)

Is accredited by an accreditation body or has a provisional registration from the Administration;

(4)

Has established standard operating procedures that provide for adequate chain of custody controls for samples transferred to the independent testing laboratory for testing, which are approved by the Administration; and

(5)

Enters timely and accurate data into the seed-to-sale tracking system that identifies and tracks samples.

Upon request, in a format determined by the Administration, independent testing laboratories shall:

(1)

Provide materials to the State Cannabis Testing Laboratory to conduct the activities under Regulation .07B of this chapter; and

(2)

As part of a licensee inspection, analyze samples and provide a written report to the Administration.

Regulation .06 Transportation of Products Containing Cannabis.Link Copy Citation

A registered independent testing laboratory may transport samples of cannabis and products containing cannabis from the premises of a licensed grower, processor, or dispensary to the independent testing laboratory.

A registered independent testing laboratory shall transport samples of cannabis and products containing cannabis:

(1)

With oversight by at least one independent testing laboratory employee registered with the Administration; and

(2)

Using a vehicle that meets the criteria specified in COMAR 14.17.09.03.

Regulation .07 State Cannabis Testing Laboratory.Link Copy Citation

The Administration shall operate a State Cannabis Testing Laboratory under Alcoholic Beverages and Cannabis Article, §36-204, Annotated Code of Maryland.

The Administration shall operate a State Cannabis Testing Laboratory to:

(1)

Prepare, conduct, and analyze proficiency testing events for independent testing laboratories registered under this chapter;

(2)

Develop cannabis testing methodologies;

(3)

Conduct compliance testing on cannabis samples;

(4)

Establish and verify standard operating procedures for independent testing laboratories;

(5)

Develop and facilitate quality assurance and compliance controls for micro growers and micro processors;

(6)

Remediate problems with registered independent testing laboratories and recommend Administration sanctions; and

(7)

Test products for adverse event reporting, research, and other purposes deemed necessary by the Administration, including:

(a)

Licensed cannabis products produced and sold in accordance with this subtitle;

(b)

Unlicensed cannabis products produced or sold in violation of this subtitle;

(c)

Hemp derived products; and

(d)

Any other products required to be tested for the public health or public safety of Maryland.

Pilot Programs.

(1)

The State Cannabis Testing Laboratory may establish pilot programs for the purposes of:

(a)

Improving public health and safety;

(b)

Reviewing existing regulatory standards; or

(c)

Developing new regulatory standards.

(2)

As part of a pilot program established under this section, the Administration may waive, reduce, or amend existing testing standards.

(3)

Participation in a pilot program will be determined by the Administration, in a manner prescribed by the Administration.

Subtitle 17 — Maryland Cannabis Administration

Chapter 09. Other Cannabis Businesses

Regulation .01 Scope.Link Copy Citation

This chapter applies to any registrant who conducts transportation, disposal, or security services for any cannabis licensee in Maryland.

Regulation .02 Cannabis Registrants.Link Copy Citation

A registrant shall be registered with the Administration prior to providing any laboratory, transportation, disposal, or security services for any cannabis licensee in Maryland.

To register, a cannabis business shall submit:

(1)

A completed registration form in the manner specified by the Administration;

(2)

The name of each agent for the cannabis business;

(3)

The registration fee specified in COMAR 14.17.21;

(4)

Any secure cannabis transport vehicle for inspection by the Administration; and

(5)

Proof that fingerprints have been submitted to CJIS and the FBI for every cannabis agent.

The Administration may approve a cannabis registration if the business:

(1)

Submits a complete and accurate registration form;

(2)

Is authorized to do business in Maryland; and

(3)

Pays the required fee specified in COMAR 14.17.21.

The Administration may deny a registration or renewal for any good cause as determined by the Administration.

The Administration may collect demographic information from applicants at the time of registration.

The Administration may deny or revoke a cannabis business registration if any agent or individual with ownership interest in the business is convicted of or pleads nolo contendere to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside.

The registration is valid for 2 years.

The business may renew its registration by submitting to the Administration:

(1)

A registration renewal form completed in the manner specified by the Administration; and

(2)

The registration fee established in COMAR 14.17.21.

A licensee may only contract with Administration-registered cannabis businesses for the provisions of services under this regulation.

Regulation .03 Transport Operations.Link Copy Citation

This regulation governs the transport of cannabis or cannabis products by a licensed grower, processor, dispensary, or a registered transporter business between the premises of licensees, independent testing laboratories, the State Cannabis Testing Laboratory, and for green waste disposal.

A licensee or registrant shall ensure:

(1)

Agents have on their person their current, active driver’s license;

(2)

Agents have on their person Administration-issued proof of:

(a)

The licensee’s or registrant’s current licensure or registration; and

(b)

Their own registration;

(3)

While in transit, agents do not wear any clothing or symbols that may indicate ownership or possession of cannabis;

(4)

Each vehicle used to transport cannabis is operated by at least one registered agent; and

(5)

All cannabis is transported in one or more locked and secure storage containers which may not be accessible while in transit.

A vehicle used to transport cannabis:

(1)

Shall have and display current vehicle registration;

(2)

Shall be insured as required by law;

(3)

Shall be equipped with locked and secure storage containers anchored to the inside of the vehicle;

(4)

Shall conceal storage containers so they are not visible or identifiable from outside of the vehicle; and

(5)

May not display any sign or illustration related to cannabis or a licensee.

The requirements in §C(2) and (3) do not apply to a registrant that only disposes of green waste.

Electronic Manifest.

(1)

A shipping licensee shall create an electronic manifest to record the chain of custody for each cannabis shipment.

(2)

The electronic manifest shall record:

(a)

The name and address of the shipping licensee;

(b)

The shipping licensee’s shipment identification number;

(c)

The weight and description of each individual package that is part of the shipment, and the total number of individual packages;

(d)

The name of the registered grower agent, processor agent, or dispensary agent that prepared the shipment;

(e)

The name and address of the receiving licensee or other receiving party if applicable; and

(f)

Any handling or storage instructions.

(3)

The electronic manifest shall contain the following entries as points in the chain of custody:

(a)

An entry by a registered grower agent, registered processor agent, or registered dispensary agent who has prepared the shipment, including the date and time of preparation;

(b)

An entry by a registered grower agent, processor agent, or dispensary agent of the date and time of the placement of the shipment into the secure cannabis transport vehicle;

(c)

An entry by the receiving licensee’s agent receiving the shipment, including the date and time of the acceptance; and

(d)

If any other person had custody or control of the shipment, that person’s identity, the circumstances, duration, and disposition.

Delivering and Receiving Cannabis Shipments.

(1)

Upon arrival of a secure cannabis transport vehicle, the shipping licensee agent who delivers the shipment shall notify an appropriate receiving licensee agent to continue the chain of custody in the electronic manifest of the shipment of cannabis or cannabis products.

(2)

An agent of the receiving licensee shall:

(a)

Log into the seed-to-sale tracking system;

(b)

Take custody of a shipment of products containing cannabis;

(c)

Confirm that:

(i)

The agent who delivers the shipment is carrying appropriate identification;

(ii)

The packaging is secure, undamaged, and appropriately labeled;

(iii)

Each package in the shipment is labeled as described in the electronic manifest; and

(iv)

The contents of the shipment are as described in the electronic manifest;

(d)

Record the confirmations in the electronic manifest;

(e)

Obtain in the electronic manifest the signature or identification number of the agent who delivers the shipment;

(f)

Record in the electronic manifest the date and time the receiving licensee agent takes custody of the shipment;

(g)

Enter the products containing cannabis into the seed-to-sale tracking system;

(h)

Segregate the items in the shipment from the inventory until the item can be inspected;

(i)

Inspect each item to ensure that the packaging of each item is undamaged, accurate, and complete; and

(j)

Upon determining the item passes inspection, release the item into the stock.

(3)

The agent who delivers the shipment shall provide a copy of the electronic manifest for the shipment to the receiving licensee.

(4)

The agent who delivers the shipment shall provide the completed electronic manifest to the shipping licensee.

(5)

The shipping licensee shall retain the electronic manifest for the shipment for 2 years.

(6)

Discrepancy in the Shipment.

(a)

A discrepancy between the electronic manifest and the shipment, identified by an agent who delivers the shipment or a receiving agent, shall be reported by each agent to the agent’s supervisor.

(b)

If a discrepancy can be immediately rectified, the accepting processor supervisor shall record the rectification in the electronic manifest.

(c)

A discrepancy that cannot be immediately rectified shall be reported to the Administration by the receiving licensee within 24 hours of the observation of the discrepancy and the shipping licensee shall initiate an investigation of the discrepancy.

(d)

The shipping licensee shall submit to the Administration:

(i)

Within 7 calendar days of the observation of the discrepancy, a preliminary report of an investigation of a discrepancy; and

(ii)

Within 30 calendar days, a final report of the investigation.

Licensees and registrants transporting or receiving edible cannabis products shall comply with COMAR 14.17.11.14.

A registered transporter business may not deliver cannabis to qualifying patients, registered caregivers, or adult-use consumers.

Regulation .04 Incubator Spaces.Link Copy Citation

An incubator space may provide one or more of the following:

(1)

Secure storage of cannabis or cannabis products for licensed micro dispensaries;

(2)

Commercial kitchen space for the processing and production of cannabis products by licensed micro processors; or

(3)

Space for the cultivation of cannabis by licensed micro growers.

An incubator space shall comply with the requirements of COMAR 14.17.10, 14.17.11, and 14.17.12 for the:

(1)

Security of the premises;

(2)

Sanitation of any cannabis or cannabis product produced at the incubator space;

(3)

Safety of any cannabis cultivated at the incubator space, including the use of pesticides;

(4)

Storage of cannabis and cannabis products; and

(5)

Use of the seed-to-sale tracking system.

The incubator space licensee shall make a good faith effort to:

(1)

Secure any cannabis, cannabis products, inventory, equipment, or other materials on the licensed premise; and

(2)

Prevent theft or diversion of any cannabis, cannabis products, inventory, equipment, or other materials by license holders, agents, or members of the public.

The incubator space licensee holder may assess a fair market rent for the use or storage of the facility.

The incubator space licensee may not accept or receive any equity stake, ownership share, or control of a micro license facility as a condition of rent or use of the space.

Subtitle 17 — Maryland Cannabis Administration

Chapter 10. Cannabis Grower Operations

Regulation .01 Scope.Link Copy Citation

Unless otherwise specified this chapter applies to a business licensed to grow cannabis under COMAR 14.17.06.06 and 14.17.07.05.

This chapter applies to all cannabis grown in Maryland intended for either adult-use or medical-use sales.

Regulation .02 Cannabis Grower Premises.Link Copy Citation

In this regulation, the following terms have the meanings indicated.

(1)

“Indoor cultivation” means producing cannabis plants in a permanent structure that provides control of environmental conditions using artificial heating, air conditioning, or other climate control.

(2)

“Outdoor cultivation” means producing flowering cannabis plants in an area that is directly or indirectly exposed to outdoor elements.

(3)

“Permanent structure” means a building, shipping container, greenhouse, or other structure that is used for cultivation for 180 days or more in a one year period.

A grower premises shall:

(1)

Be located within Maryland;

(2)

Conform to local zoning and planning requirements; and

(3)

Conspicuously display an Administration-issued grower license at the licensed premises.

Outdoor cultivation premises are subject to the following, additional provisions:

(1)

A grower premises for outdoor cultivation of cannabis shall be situated to maintain the greatest achievable level of privacy and security.

(2)

An area of cultivation shall be securely surrounded by fencing and gates constructed to prevent unauthorized entry.

(3)

Fencing and gates shall be equipped with a security alarm system that:

(a)

Covers the entire perimeter;

(b)

Is continuously monitored; and

(c)

Is capable of detecting power loss.

(4)

The premises shall be protected by a video surveillance recording system to ensure:

(a)

Surveillance of the entire perimeter of the area of cultivation;

(b)

Surveillance over all portions of the security fence and all gates; and

(c)

Adherence to the video surveillance requirements of this chapter.

(5)

A grower may modify its security lighting to protect light-dark cycles for proper cultivation, provided the security lighting complies with §§C(4) and F of this regulation.

(6)

An outdoor cultivation area may not:

(a)

Be enclosed by a permanent structure; or

(b)

Employ any artificial heating, air conditioning, or other climate control.

(7)

In determining whether a cultivation premises qualifies as outdoor, the Administration may consider the number of cultivation cycles that can be produced at the facility.

A grower may not make modifications or renovations:

(1)

Without prior approval by the Maryland Cannabis Administration in a manner prescribed by the Administration; or

(2)

That increase a standard grower’s capacity to greater than the canopy limits prescribed in Alcoholic Beverages and Cannabis Article, §36-402(b), Annotated Code of Maryland.

A grower facility premises shall be constructed to prevent unauthorized entry.

Security Lighting. The grower shall design and install lighting fixtures to ensure proper surveillance of the perimeter of the cultivation area.

Security Alarm Systems.

(1)

A grower shall maintain a security alarm system that covers all:

(a)

Perimeter entry points and portals at all premises;

(b)

Rooms that hold cannabis;

(c)

Locations where records are stored on-site; and

(d)

Locations where records are stored off-site.

(2)

A security system shall:

(a)

Be continuously monitored;

(b)

Be capable of detecting smoke and fire;

(c)

Be capable of detecting power loss;

(d)

Include panic alarm devices mounted at convenient, readily accessible locations throughout the licensed premises;

(e)

Remain operational until a licensed premises no longer has any cannabis, seeds, or cuttings on the premises; and

(f)

Be equipped with auxiliary power sufficient to maintain operation for at least 48 hours.

Video Surveillance Requirements.

(1)

A grower shall maintain a motion-activated video surveillance recording system at all premises that:

(a)

Records all activity in images of high quality and high resolution capable of clearly revealing facial detail;

(b)

Operates 24-hours a day, 365 days a year without interruption; and

(c)

Provides a date and time stamp for every recorded frame.

(2)

A grower shall post appropriate notices advising visitors of the video surveillance.

(3)

A surveillance camera shall be located and operated to capture each exit from the premises.

(4)

A surveillance camera shall capture activity at each:

(a)

Entrance to an area where cannabis is grown, tested, cured, manufactured, processed, or stored; and

(b)

Area where cannabis is trimmed, packaged, cured, or stored.

(5)

The storage of all recordings of security video surveillance shall be:

(a)

Access-limited;

(b)

Secured by a security alarm system that is independent of the main premises security alarm system;

(c)

In a format that can be easily accessed for investigational purposes; and

(d)

Retained for a minimum of 90 calendar days.

(6)

Any recording of security video surveillance shall be made available to the Administration or law enforcement agency for just cause as requested within 48 hours.

(7)

Violation.

(a)

Failure to provide the Administration with any recording of video surveillance within 48 hours of a request from the Administration is a violation of COMAR 14.17.14.04.

(b)

Each day of recording within the timeframe in [§G(5)(d)] §H(5)(d) of this regulation that a grower fails to provide to the Administration constitutes a separate violation..

Handwashing Sinks. A grower shall:

(1)

Ensure that agents engaged in creating usable cannabis products have easy access to a handwashing sink that provides warm water of sufficient volume under pressure for effective handwashing procedures; and

(2)

Maintain at least one handwashing sink for the following number of agents who are engaged in creating usable cannabis products while on duty at the same time:

(a)

Every 15 agents; and

(b)

Any fraction of 15 agents.

Micro growers may not operate a facility greater than the limits established in Alcoholic Beverages and Cannabis Article, §36-401(c)(2)(i), Annotated Code of Maryland.

Regulation .03 Cannabis Grower Controls.Link Copy Citation

Receipt of Material.

(1)

A grower shall quarantine material that is received to produce cannabis.

(2)

A grower shall inspect material for defects, contamination, and compliance with a grower’s specifications.

(3)

Material may not be released from quarantine by a grower until the material:

(a)

Passes inspection; and

(b)

Is determined to be acceptable for use as intended.

Growing Cannabis.

(1)

Horticultural Controls.

(a)

Water. The grower shall keep a record of water quality testing on-site and make it available for inspection.

(b)

Fertilizer. As part of the standard operating procedure, a grower shall:

(i)

Adopt a nutrient management plan prepared by a certified nutrient management consultant;

(ii)

Use fertilizer or hydroponic solution of a type, formulation, and at a rate, to support healthy growth of cannabis; and

(iii)

Maintain records of the type and amounts of fertilizer and any growth additives used.

(c)

Unless the cannabis is field grown, a grower shall install, as part of the standard operating procedure, a system to monitor, record, and regulate:

(i)

Temperature;

(ii)

Humidity;

(iii)

Ventilation; and

(iv)

Lighting, if used.

(d)

Unless the cannabis is field grown, a grower shall seal or screen the premises ventilation system with a mesh or filtering system fine enough to exclude most plant pests.

(e)

Pest Monitoring. A grower shall use integrated pest management practices and techniques to identify and manage plant pathogen and pest problems, including:

(i)

A door control system sufficient to prevent pest entry;

(ii)

Regular visual inspection of plants and growing areas for the presence of pests;

(iii)

The use of sticky cards in growing areas, when applicable; and

(iv)

Identification and recording of all pests or pathogens detected and the measures taken for control.

(f)

Pest Control. Pesticide applicators and applications shall follow State and federal pesticide requirements for any pesticide applied.

(g)

Sanitation. Sanitation shall comply with the grower’s standard operating procedures.

(h)

Green Waste. A grower shall weigh, document, and destroy all green waste in accordance with the standard operating procedures.

(2)

Equipment. A grower shall:

(a)

Maintain equipment that comes in contact with cannabis to prevent contamination;

(b)

Maintain cleaning and equipment maintenance logs;

(c)

Ensure all scales are National Type Evaluation Program-approved;

(d)

Have any scale, balance, or other measurement device, and any automatic, mechanical, or electronic equipment:

(i)

Annually calibrated by a calibration laboratory accredited to International Organization for Standardization (ISO) standard 17025 ISO/IEC by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement; and

(ii)

Checked at least once per month to ensure accuracy; and

(e)

Make records and certifications required under §B(2)(c) and (d) of this regulation available to the Administration available upon request.

Inventory Controls.

(1)

A grower shall enter timely and accurate data into the Administration’s designated seed-to-sale tracking system to track the grower’s stock of cannabis from the time the cannabis is propagated from seed or cutting to the time it is delivered to a:

(a)

Licensed processor; or

(b)

Licensed dispensary.

(2)

Upon receipt of raw material for cultivation, a grower shall record in the seed-to-sale tracking system:

(a)

The date delivered; and

(b)

The number of cuttings or seeds delivered or the weight of the seeds for each variety in the shipment.

(3)

Requirements for Receipt of Material. A grower:

(a)

Shall quarantine material that is received to be used to produce cannabis;

(b)

Shall inspect material for defects, contamination, and compliance with a grower’s specifications; and

(c)

May not release material from quarantine until it:

(i)

Passes inspection; and

(ii)

Is determined acceptable for use as intended.

(4)

Plant Tagging and Entry into Seed-to-Sale Tracking System.

(a)

For each plant, as soon as practical, a grower shall:

(i)

Create a unique identifier for each plant;

(ii)

Assign each plant to a batch;

(iii)

Enter information regarding the plant into the seed-to-sale tracking system;

(iv)

Create a tag with the unique identifier and batch number; and

(v)

Securely attach the tag to a plant container or plant.

(b)

A tag shall be:

(i)

Indelible and tamper-evident; and

(ii)

Made of a material that resists variation in temperature and moisture.

(5)

Control of Harvested Cannabis. A grower shall:

(a)

Upon completion of curing or drying of each batch, weigh cannabis to update the seed-to-sale tracking system for the batch; and

(b)

At least monthly, conduct a physical inventory of the stock and compare the physical inventory of stock with the stock reflected in seed-to-sale tracking system.

Quality Controls.

(1)

Production and Process Controls.

(a)

A grower shall cultivate each plant and produce each batch of cannabis in conformity with standard operating procedures.

(b)

A grower shall record the cultivation process in accordance with standard operating procedures to ensure:

(i)

Consistency of the batch with the variety; and

(ii)

Accuracy of the day-to-day production.

(c)

A grower shall record any deviation defined as a material change from the standard operating procedure which would impact the quality of the batch in the log.

(d)

A grower may not release any batch of cannabis if there was any deviation in production of the batch from the standard operating procedure unless:

(i)

After independent testing of the batch in accordance with the criteria set forth in COMAR 14.17.08.05A, the grower determines, as a result of such testing, that the batch meets the specification for the variety; and

(ii)

The determination is recorded.

(2)

During the process of cultivation, a grower shall regularly inspect each plant to ensure proper growth and absence of pests and disease.

(3)

A grower shall hold cannabis in secure, segregated storage until released for distribution.

(4)

A grower shall use an Administration-registered independent testing laboratory to test each batch of cannabis and obtain a certificate of analysis.

(5)

Batch Release Controls.

(a)

If a grower, upon review of the certificate of analysis, determines that a batch meets the specification for the variety, the grower may:

(i)

Assign an expiration date to the batch;

(ii)

Release the batch for distribution; and

(iii)

Revise the status of the batch in the seed-to-sale tracking system.

(b)

If a grower receives test results that fall outside action limits, the grower:

(i)

May rework or reprocess the batch according to their standard operating procedure; and

(ii)

If applicable, shall ensure the reworked or reprocessed batch is resampled and retested by the independent testing laboratory to confirm that all required specifications are met.

(c)

If a batch is being transferred to a licensed processor for processing, the grower may release the batch for distribution without having a certificate of analysis or being sampled or tested by an independent testing laboratory.

(d)

All cannabis products shall have a certificate of analysis, as specified in COMAR 14.17.08.05, prior to transfer to a licensed dispensary.

(6)

A grower shall retain every certificate of analysis.

(7)

Stability Testing and Retention Sampling.

(a)

A grower shall provide a sample from each released batch to an independent testing laboratory sufficient to perform stability testing at 6-month intervals to:

(i)

Ensure product potency and purity; and

(ii)

Provide support for expiration dating.

(b)

Retention samples retained from each released batch shall be:

(i)

Tested by a registered independent testing laboratory other than the original certifying laboratory following an adverse event reported to the Administration;

(ii)

Properly stored by the grower; and

(iii)

Properly discarded 6 months after the expiration date of the batch.

Sanitation.

(1)

Scales, surfaces, and other equipment use for the purposes of creating usable cannabis products shall be cleaned and sanitized:

(a)

Between shifts;

(b)

Between packaging, repackaging, or otherwise creation of usable cannabis products with different usable cannabis batches;

(c)

Before beginning any packaging, repackaging, or other creation of usable cannabis products; and

(d)

After the completion of any packaging or creation of usable cannabis products.

(2)

A grower shall maintain an accurate log of cleaning and sanitation required under §E(1) of this regulation.

Regulation .04 Micro Grower Premises and Operations.Link Copy Citation

A micro grower’s canopy may not exceed the restrictions established in Alcoholic Beverages and Cannabis Article, §36-401(c)(2)(i), Annotated Code of Maryland.

Regulation .05 Product Returned for Destruction and Disposal of Green Waste.Link Copy Citation

A grower shall accept any product returned for destruction and record as green waste.

A grower shall otherwise destroy any other product recorded as green waste with standard operating procedures.

Regulation .06 Product Reservations and Trade Practices.Link Copy Citation

Except as specified in §C of this regulation, a grower licensed under COMAR 14.17.06.06 shall make a good faith effort to transfer at least 10 percent of cannabis grown to:

(1)

Licensed processors and dispensaries that have no common ownership interest or control with the grower; or

(2)

Social equity licensees as defined in COMAR 14.17.01 .

In fulfilling the requirement in §A of this regulation, a grower shall to the extent practicable:

(1)

Prioritize social equity licensees; and

(2)

Ensure that approximately equal amounts of cannabis are transferred to licensed processors and dispensaries.

A social equity grower licensee shall make a good faith effort to transfer at least 10 percent of cannabis grown to licensed processors and dispensaries that have no common ownership interest or control with the social equity grower licensee.

The Administration may query the seed-to-sale tracking system to ensure compliance with this regulation.

If a grower is found in violation of this regulation, the Administration may:

(1)

Issue a fine; and

(2)

Restrict, suspend, or revoke the license.

Regulation .07 Visitor to the Premises.Link Copy Citation

When a visitor is admitted to an area of the premises used for cannabis operations, an agent shall:

(1)

Log the visitor in and out;

(2)

Retain with the log a photocopy of the visitor’s government-issued identification;

(3)

Continuously, physically supervise the visitor while they are on the premises; and

(4)

Ensure that the visitor does not touch any cannabis.

An Administration investigator is not subject to the visitor requirements established in §A of this regulation.

The grower shall maintain a log of all visitors for 2 years.

A firefighter, a rescue squad member, law enforcement officer, or emergency medical services personnel who is actively responding to a call for emergency services is not subject to §A(1)—(3) of this regulation.

Regulation .08 Discrepancy, Theft, and Diversion Reporting.Link Copy Citation

Discrepancy Reporting.

(1)

If a grower discerns a discrepancy between the inventory of stock and the seed-to-sale tracking system outside of normal weight loss due to moisture loss and handling, the grower shall:

(a)

Commence an investigation of the discrepancy within 1 business day; and

(b)

If the grower cannot resolve the discrepancy within 30 business days, report the discrepancy to MCA.

(2)

Failure to report an unresolved discrepancy may be used as evidence of diversion.

Theft or Diversion. If the grower finds evidence of a theft or diversion, the grower shall report the theft or diversion to the Administration within 1 business day.

Within 30 business days of discovering the theft, diversion, or unresolved discrepancy, the grower shall:

(1)

Complete an investigation;

(2)

Amend its standard operating procedures, if necessary; and

(3)

Send a report of the investigation to the Administration.

Regulation .09 Standard Operating Procedures.Link Copy Citation

A grower shall establish written standard operating procedures in accordance with this subtitle to include all aspects of:

(1)

Inventory control, including:

(a)

Identifying and tracking the grower’s stock of cannabis in the seed-to-sale tracking system; and

(b)

Monthly physical inventory;

(2)

Receiving material used to produce cannabis;

(3)

Shipping and transporting cannabis or products containing cannabis;

(4)

Sanitation, including:

(a)

Storage of cannabis;

(b)

Maintaining the sanitation of equipment that comes into contact with cannabis; and

(c)

Good hygiene practices and the wearing of protective clothing by agents;

(5)

Equipment maintenance and calibration;

(6)

Handling, packaging, and labeling of cannabis products and byproducts;

(7)

Rework or reprocessing;

(8)

Green waste procedures;

(9)

Non-green waste procedures;

(10)

Security and visitor procedures, including theft and diversion prevention;

(11)

Storage, handling, and disposal of recalled materials.

(12)

Irrigation, propagation, cultivation, fertilization, including the use of growing media or hydroponic solution;

(13)

Recording the cultivation process;

(14)

Pest monitoring and management;

(15)

Harvesting, drying, curing;

(16)

Research and development procedures;

(17)

Decontamination, including but not limited to:

(a)

Preventing contamination;

(b)

Investigating decontaminating after repeated tests falling outside action limits; and

(c)

Remediation steps and resulting environmental analysis.

(18)

If applicable, co-locating with another licensee, including:

(a)

Sharing equipment and production materials; and

(b)

Maintaining independent and unique security video surveillance control.

A grower’s standard operating procedures shall:

(1)

Be available to each agent in a form the agent understands;

(2)

Be available on-site for inspection by the Administration; and

(3)

Accurately reflect the procedures used at the premises.

Subtitle 17 — Maryland Cannabis Administration

Chapter 11. Cannabis Processor Operations

Regulation .01 Scope.Link Copy Citation

Unless otherwise specified, this chapter applies to a business licensed to process cannabis under COMAR 14.17.06.07 and COMAR 14.17.07.06.

Regulation .02 Cannabis Processor Premises.Link Copy Citation

A processor premises shall:

(1)

Be located within Maryland;

(2)

Conform to local zoning and planning requirements; and

(3)

Conspicuously display a processor license at the licensed premises.

A processor may not make modifications or renovations to a processor premises without prior approval by the Administration in a manner prescribed by the Administration.

A processor facility premises shall be constructed to prevent unauthorized entry.

The processor shall design and install lighting fixtures to ensure proper surveillance.

Security Alarm Systems.

(1)

A processor shall maintain a security alarm system that covers all:

(a)

Perimeter entry points and portals at all premises;

(b)

Rooms that hold cannabis;

(c)

Locations where records are stored on-site; and

(d)

Locations where records are stored off-site.

(2)

A security system shall:

(a)

Be continuously monitored;

(b)

Be capable of detecting smoke and fire;

(c)

Be capable of detecting power loss;

(d)

Include panic alarm devices mounted at convenient, readily accessible locations throughout the licensed premises;

(e)

Remain operational until a licensed premises no longer has any cannabis, seeds, or cuttings on the premises; and

(f)

Be equipped with auxiliary power sufficient to maintain operation for at least 48 hours.

Video Surveillance Requirements.

(1)

A processor shall maintain a motion-activated video surveillance recording system at all premises that:

(a)

Records all activity in images of high quality and high resolution capable of clearly revealing facial detail;

(b)

Operates 24-hours a day, 365 days a year without interruption; and

(c)

Provides a date and time stamp for every recorded frame.

(2)

A processor shall post appropriate notices advising visitors of the video surveillance.

(3)

A surveillance camera shall be located and operated to capture each exit from the premises.

(4)

A surveillance camera shall capture activity at each:

(a)

Entrance to an area where cannabis is processed, tested, packaged, or stored; and

(b)

Area where cannabis is processed, packaged, or stored.

(5)

The storage of all recordings of security video surveillance shall be:

(a)

Access-limited;

(b)

Secured by a security alarm system that is independent of the main premises security alarm system;

(c)

In a format that can be easily accessed for investigational purposes; and

(d)

Retained for a minimum of 90 calendar days.

(6)

Any recording of security video surveillance shall be made available to the Administration or law enforcement agency for just cause as requested within 48 hours.

(7)

Violation.

(a)

Failure to provide the Administration with any recording of video surveillance within 48 hours of a request from the Administration is a violation of COMAR 14.17.14.04.

(b)

Each day of recording within the time frame stated in §F(5)(d) of this regulation that a processor fails to provide to the Administration constitutes a separate violation.

Handwashing Sinks. A processor shall:

(1)

(2)

Maintain at least one handwashing sink for the following number of agents who are engaged in creating usable cannabis products while on duty at the same time:

(a)

Every 15 agents; and

(b)

Any fraction of 15 agents.

Regulation .03 Cannabis Processor Facility Operations.Link Copy Citation

A processor shall:

(1)

Create and enter timely and accurate data into the seed-to-sale tracking system to identify and track the processor’s stock of cannabis from the time it is delivered or produced to the time it is delivered to another licensee; and

(2)

At least monthly, conduct a physical inventory of the stock and compare the physical inventory of stock with the stock reflected in the seed-to-sale tracking system.

Receipt of Products Containing Cannabis.

(1)

A processor may not:

(a)

Acquire cannabis from an individual or entity in Maryland other than a licensee;

(b)

Acquire cannabis from outside of Maryland unless authorized by the Administration; or

(c)

Transport cannabis to any place outside of Maryland.

(2)

Hemp.

(a)

A processor may acquire hemp, as defined in Agriculture Article, §14-101, Annotated Code of Maryland, from a person licensed to produce hemp by:

(i)

The Maryland Department of Agriculture;

(ii)

The Secretary of the U.S. Department of Agriculture; or

(iii)

An agency of another state pursuant to a hemp production plan that has been approved by the Secretary of the U.S. Department of Agriculture.

(b)

Any product derived from hemp shall comply with:

(i)

The testing standards established in COMAR 14.17.08 and the Technical Authority;

(ii)

The relevant manufacturing standards established in this chapter and COMAR 14.17.13; and

(iii)

The relevant packaging and labeling standards established in COMAR 14.17.18.

(c)

A licensed processor shall:

(i)

After placing an order to acquire hemp and before accepting delivery of hemp, submit a request for Administration approval to acquire hemp in the manner specified by the Administration.

(ii)

Follow the process for receiving cannabis established in this regulation.

Sanitary Storage of Cannabis. A processor shall:

(1)

Maintain the cleanliness of any building or equipment used to store or display cannabis;

(2)

Ensure cannabis is free from contamination;

(3)

Require a processor agent to report any personal health condition that might compromise the cleanliness or quality of the cannabis the processor agent might handle;

(4)

Dispose and segregate storage of any cannabis:

(a)

That is outdated, damaged, deteriorated, misbranded, or adulterated; or

(b)

Whose containers or packages have been improperly or accidentally opened.

Equipment Sanitation, Accuracy, and Maintenance of Logs. A processor shall:

(1)

Maintain the sanitation of equipment that comes in contact with cannabis;

(2)

Ensure all scales are National Type Evaluation Program-approved;

(3)

Ensure that any scale, balance, or other measurement device and any automatic, mechanical, or electronic equipment is:

(a)

Annually calibrated by a calibration laboratory accredited to International Organization for Standardization (ISO) standard 17025 ISO/IEC by an accreditation body that is signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement; and

(b)

Checked at least once each month to ensure accuracy;

(4)

Maintain an accurate log recording the:

(a)

Cleaning of equipment;

(b)

The maintenance of equipment; and

(c)

The calibration of equipment; and

(5)

Make records and certifications required under §D(2) and (3) of this regulation available to the Administration available upon request.

Sanitation.

(1)

Scales, surfaces, and other equipment use for the purposes of creating usable cannabis products shall be cleaned and sanitized:

(a)

Between shifts;

(b)

Between packaging, repackaging, or otherwise creation of usable cannabis products with different usable cannabis batches;

(c)

Before beginning any packaging, repackaging, or otherwise creation of usable cannabis products; and

(d)

After the completion of any packaging or creation of usable cannabis products.

(2)

A processor shall maintain an accurate log of cleaning and sanitation required under §E(1) of this regulation.

Regulation .04 Cannabis Product Processing.Link Copy Citation

Controls for Processing of Cannabis Concentrates and Cannabis-Infused Products.

(1)

A licensed processor of cannabis concentrates and cannabis-infused products shall:

(a)

Develop standard operating procedures in accordance with COMAR 14.17.11.19, good manufacturing practices, and a training plan before producing cannabis concentrates and cannabis-infused products;

(b)

Require that any person involved in processing cannabis concentrates and cannabis-infused products:

(i)

Is appropriately trained in accordance with their job description to safely operate and maintain the system used for processing;

(ii)

Has direct access to applicable material safety sheets and labels; and

(iii)

Follows OSHA protocols for handling and storage of all chemicals;

(c)

Assign a unique lot number to each lot of cannabis concentrate or cannabis-infused product;

(d)

If using a solvent-based extraction method, ensure solvents are at least 99 percent pure;

(e)

Require:

(i)

The use of solvents in a professional grade, closed-loop extraction system designed to recover the solvents;

(ii)

Work in a spark-free environment with proper ventilation; and

(iii)

Following all applicable OSHA regulations, and local fire, safety, and building codes in the processing and storage of the solvents; and

(f)

If using carbon dioxide gas extraction, ensure:

(i)

Every vessel is rated to a minimum of 900 pounds per square inch;

(ii)

The use of a professional grade, closed-loop system; and

(iii)

The use of carbon dioxide that is at least 99 percent pure.

(2)

A licensed processor may use heat, screens, presses, steam distillation, ice water, and other methods to produce cannabis concentrates.

Upon successful completion of a validation process, the licensed processor shall use an Administration-registered independent testing laboratory to test each unique lot of cannabis concentrate or cannabis-infused product and obtain a certificate of analysis.

Batch Release Controls.

(1)

If a licensed processor, upon review of the certificate of analysis, determines that a lot meets the specification for the product, the licensed processor may:

(a)

Assign an expiration date to the lot;

(b)

Release the lot for distribution; and

(c)

Revise the status of the lot in the seed-to-sale tracking system.

(2)

If a licensed processor receives test results that the lot falls outside action limits, the licensed processor:

(a)

May rework or reprocess the lot according to their standard operating procedure; and

(b)

If applicable, shall ensure the reworked or reprocessed lot is resampled and retested by the independent testing laboratory to meet all required specifications.

(3)

A licensed processor shall retain every certificate of analysis.

(4)

All cannabis products shall have a certificate of analysis, as specified in COMAR 14.17.08.05A(5), prior to transfer to a licensed dispensary.

Stability Testing and Retention Sampling.

(1)

A processor shall provide a sample from each unique lot to an independent testing laboratory sufficient to perform stability testing at 6-month intervals to:

(a)

Ensure product potency and purity; and

(b)

Provide support for expiration dating.

(2)

Retention samples retained from each released lot shall be:

(a)

Tested by the State Cannabis Testing Laboratory following an adverse event reported to the Administration;

(b)

Properly stored by the licensed processor; and

(c)

Properly discarded 6 months after the expiration date of the lot.

Correction and Prevention Action.

(1)

If a processor’s test results indicate the confirmed presence of a pathogen more than once in a 60-day period, the processor shall:

(a)

Conduct environmental swab testing as required by the Administration’s Technical Authority;

(b)

Conduct an investigation to determine the root cause of contamination;

(c)

Decontaminate all areas, including rooms, equipment, and surfaces used for cannabis product processing;

(d)

Provide, in the manner designated by the Administration:

(i)

A report of the investigation; and

(ii)

The licensee’s corrective action plan; and

(e)

If applicable, update and implement standard operating procedures needed to ensure passing samples in the future.

(2)

The Administration may require a processor to:

(a)

Conduct further investigation; and

(b)

Implement additional procedures to prevent future contamination.

Regulation .05 Edible Cannabis Product Processing.Link Copy Citation

A processor that produces edible cannabis products as defined in COMAR 14.17.01 shall maintain facilities and manufacture and transport edible products in accordance with this regulation, Regulations .06—.14 of this chapter, and COMAR 14.17.13.05.

Issuance of Permit.

(1)

Before engaging in the business of possessing, processing, packaging, labeling, transferring, transporting, selling, or distributing edible cannabis products, a processor shall obtain a permit from the Administration.

(2)

To obtain a permit, a processor shall:

(a)

Submit a completed permit application;

(b)

Pay the registration fee specified in COMAR 14.17.21;

(c)

Make available all edible cannabis product processing standard operating procedures required by Regulation .19 of this chapter;

(d)

Pass a pre-operation inspection; and

(e)

Conspicuously post applicable State and local licenses at the licensed premises.

(3)

The processor may apply for a permit to manufacture edible cannabis products at:

(a)

The processor’s premises; or

(b)

A facility under the legal control of the processor that meets:

(i)

All zoning and planning requirements; and

(ii)

The requirements of this chapter.

(4)

The Administration may deny a permit if the processor:

(i)

Violates or fails to meet the requirements of this chapter; or

(ii)

Fraudulently or deceptively attempts to obtain a permit.

Trade Secrets.

(1)

A processor shall provide the Administration with the recipe for each edible cannabis product prior to offering the product for distribution or sale to a licensed dispensary.

(2)

A processor shall notify the Administration of any ingredient or recipe that the processor considers a trade secret.

(3)

The Administration shall maintain the confidentiality of trade secret information in accordance with State Government Article, §10-617, and Health-General Article, §21-259, Annotated Code of Maryland.

(4)

If the Administration determines that the information about an ingredient or recipe is necessary to conduct a disease outbreak investigation, the Administration may disclose the trade secret to the appropriate investigators.

Regulation .06 Edible Cannabis Product Processing — Definitions.Link Copy Citation

In Regulations .05—.14 of this chapter, the following terms have the meaning indicated.

Terms Defined.

(1)

“Approved source” means a source of:

(a)

Cannabis approved, licensed, and regulated by the Administration; or

(b)

Food ingredients regulated by an approving authority.

(2)

“Approving authority” means the agency designated in the laws of Maryland, another state, or another country to license or permit a food processing plant.

(3)

“Commercially sterile” means the condition achieved by the:

(a)

Application of heat, pressure, or other energy or matter that renders a food ingredient free of:

(i)

Microorganisms capable of reproducing in the food ingredient under normal non-refrigerated conditions of storage and distribution; and

(ii)

Viable microorganisms, including spores, that cause disease; or

(b)

Control of water activity and the application of heat, pressure, or other energy or matter that renders the food ingredient free of microorganisms capable of reproducing in the food ingredient under normal non-refrigerated conditions of storage and distribution.

(4)

“Cookware” means items used during the processing of ingredients or edible cannabis products, including pots, pans, utensils, and containers.

(5)

“Critical control point” means a point in the receiving, storage, processing, or distribution of ingredients or edible cannabis products where there is a reasonable likelihood that improper control may cause, allow, or contribute to a hazard to public health.

(6)

Critical Item.

(a)

“Critical item” means a safety requirement that if violated requires:

(i)

Immediate correction;

(ii)

Destruction of any ingredients or edible cannabis products which may be affected;

(iii)

The cessation of some or all processing operations; or

(iv)

Closure of the licensed premises.

(b)

“Critical item” includes the following requirements:

(i)

Food ingredients be obtained from an approved source and approved for human consumption by an approving authority;

(ii)

Cannabis ingredients be obtained from an approved source;

(iii)

All ingredients and edible cannabis products be protected from contamination;

(iv)

All processes provide safe edible cannabis products with proper control at critical control points;

(v)

Licensed processor sanitation be adequate, provide safety, and prevent illness transmissible through edible cannabis products or ingredients;

(vi)

Equipment allows for proper processing and sanitation;

(vii)

Edible cannabis products be packaged and labeled for safety;

(viii)

A sufficient volume of potable hot and cold water supply under adequate pressure be available to facilitate proper handwashing procedures outlined in this chapter; and

(ix)

Sewage be discharged in compliance with applicable laws and regulations.

(7)

“Food” means any substance that is used as food or drink for human beings or as a component of food or drink for human beings.

(8)

“Food ingredient” means a substance that is used as a component of food, including:

(a)

Flavoring;

(b)

Food coloring; and

(c)

Preservatives.

(9)

“Ingredient” means any component of an edible cannabis product that is intended for human consumption, approved by the Administration, and composed of:

(a)

Food or food ingredients; or

(b)

Cannabis.

(10)

“Permit” means a permit issued by the Administration to a licensed processor for the purpose of manufacturing edible cannabis products.

(11)

“Permittee” means a licensed processor authorized by the Administration to manufacture edible cannabis products.

(12)

Potentially Hazardous Edible Cannabis Product.

(a)

“Potentially hazardous edible cannabis product” means an edible cannabis product that requires temperature control because the product is in a form capable of supporting:

(i)

The rapid and progressive growth of infectious or toxigenic microorganisms; or

(ii)

The growth and toxin production of Clostridium botulinum.

(b)

“Potentially hazardous edible cannabis product” does not include products with a water activity (aw) value of 0.85 or less.

(13)

Potentially Hazardous Ingredient.

(a)

“Potentially hazardous ingredient” means a natural or synthetic component of food or an edible cannabis product intended for human consumption that requires temperature control because the ingredient is in a form capable of supporting the:

(i)

Rapid and progressive growth of infectious or toxigenic microorganisms; or

(ii)

Growth and toxin production of Clostridium botulinum.

(b)

“Potentially hazardous ingredient” does not include an ingredient with a:

(i)

Water activity (aw) value of 0.85 or less;

(ii)

Commercially sterile ingredient in a hermetically sealed container.

(14)

“Quarantine area” means an area within a licensed premise in which ingredients, cannabis, or cannabis finished products that may be contaminated are temporarily stored prior to disposal or collection by a public health agency.

Regulation .07 Edible Cannabis Product Processing — General Premises Requirements.Link Copy Citation

The premises and operations shall conform to all local zoning and planning requirements.

A permittee shall conspicuously display at the premises a permit to process edible cannabis products.

No modifications or renovations to licensed processor premises shall be undertaken without prior approval by the Maryland Cannabis Administration.

The premises shall be completely separated from an area used as living quarters by solid, impervious floors, walls, and ceilings with no connecting openings.

A room or area in which ingredients or edible cannabis products are processed or stored, or in which cookware equipment is cleaned, sanitized, or stored, shall:

(1)

Be separated from other rooms or areas at the licensed premises by tight walls, ceilings, and self-closing doors;

(2)

Be refrigerated or mechanically ventilated using exhaust and supply fans to:

(a)

Remove grease vapors, steam, condensation, heat, and odor;

(b)

Provide filtered air and positive air pressure to the room; and

(c)

Prevent condensation and grease from accumulating on surfaces and equipment;

(3)

Have a floor, ceiling, and walls that are smooth, washable, and impervious to water;

(4)

Have floor-wall joints that are coved and impervious to water; and

(5)

Prevent overhead pipes, ducts, conduits, evaporators, and other structures required to manufacture edible cannabis products from:

(a)

Being located over ingredient or edible cannabis product storage, preparation, manufacturing, packaging, or labeling areas; and

(b)

Leaking on or contaminating ingredients, edible cannabis products, cookware, or packaging or labeling materials.

Artificial Lighting.

(1)

A room or area in which ingredients or edible cannabis products are processed or stored, or in which cookware or equipment are cleaned, sanitized, or stored, shall have artificial lights that provide at a minimum:

(a)

40-foot candles of light on all work surfaces used for processing and warewashing; and

(b)

20-foot candles of light on surfaces used solely for storage.

(2)

The artificial lighting shall consist of:

(a)

Shatter-resistant bulbs; or

(b)

Light shields that protect exposed light bulbs or fixtures from breakage and prevent glass fragments from contacting ingredients, edible cannabis products, or contact surfaces.

Floor Drains.

(1)

The permittee shall:

(a)

If a floor receives water because of processing or cleaning, install and maintain floor drains at a rate of one floor drain for every 400 square feet of floor area; and

(b)

Ensure that the floor is sloped to one or more floor drains at a pitch of 1/8 to 1/4 inch per foot.

(2)

Pooling or standing water is not allowed.

Lavatories.

(1)

The premises shall be constructed to include:

(a)

A separate, gender-segregated lavatory for men and women, or a gender-neutral lavatory; and

(b)

One toilet for the following number of agents who are on duty at the same time:

(i)

Every 15 agents; and

(ii)

Any fraction of 15 agents.

(2)

A lavatory may not open directly into an area in which:

(a)

Ingredients or edible cannabis products are stored, processed, packaged, or labeled; or

(b)

Cookware or equipment is washed or stored.

(3)

Each lavatory shall be equipped with:

(a)

Ventilation with mechanical air exhaust at the rate of 2 cubic feet per minute of air for each square foot of floor area or a screened window that allows the entrance of outside air;

(b)

Easily cleanable and durable walls and ceiling;

(c)

A smooth, impervious, and easily cleanable floor;

(d)

Artificial lighting that provides 20-foot candles of light when measured 30 inches above the floor;

(e)

A handwashing sink;

(f)

Soap;

(g)

Paper towels or warm air hand drying devices;

(h)

Warm water of sufficient volume under pressure for effective handwashing; and

(i)

A covered trash receptacle.

Non-Green Waste.

(1)

The premises shall include non-green waste containers that are:

(a)

Adequate in number to maintain sanitary conditions;

(b)

Accessible to agents at locations where non-green waste is generated;

(c)

Labeled as not suitable for any green waste;

(d)

Easily cleanable; and

(e)

Placed on a hard and impermeable surface.

(2)

Non-green waste containers located inside shall be leak-proof and emptied and cleaned at least daily.

(3)

Non-green waste containers located outdoors shall be:

(a)

Impervious to leaks, vermin, and insects;

(b)

Equipped with a drain that conveys wastewater from the container directly into a sewerage system that meets all applicable State and local codes and properly disposes of the wastewater;

(c)

Large enough to hold waste until the waste is taken off-site; and

(d)

Covered.

In any event where the permittee is unable to ensure adequate sanitation, such as during an electrical outage or water shut-off, the permittee shall:

(1)

Cease all edible cannabis processing;

(2)

Conduct a risk analysis to determine whether any ingredients, edible cannabis products, or packaging or labeling materials were contaminated; and

(3)

Notify the Administration within 24 hours of the event.

Regulation .08 Edible Cannabis Product Processing — Receipt of Ingredients.Link Copy Citation

Ingredients and other supplies necessary to process edible cannabis products shall be received in a designated area identified in the standard operating procedures.

This regulation does not apply to the receipt of cannabis, cannabis concentrates, or cannabis-infused products that are not intended to be used as an ingredient in edible cannabis products.

Each receiving area shall have a barrier that reasonably prevents the entry of:

(1)

Insects;

(2)

Vermin;

(3)

Pathogenic microorganisms;

(4)

Toxic or deleterious chemicals;

(5)

Foreign matter;

(6)

Dust; or

(7)

Animals.

Any dock or overhead door may only be open when ingredients, edible cannabis products, waste, or other items are:

(1)

Received;

(2)

Removed from the premises; or

(3)

Moved between receiving areas.

Upon receipt of each delivery, a permittee shall:

(1)

Inspect the delivery for damage and potential contamination;

(2)

Inspect the delivery for potentially hazardous ingredients;

(3)

Enter timely and accurate temperature data for potentially hazardous ingredients; and

(4)

Confirm that each:

(a)

Delivery is not damaged or contaminated; or

(b)

Damaged or contaminated item is recorded in the receiving log.

All ingredients shall be clearly labeled by the permittee with the:

(1)

Name of the ingredient;

(2)

Batch or lot number;

(3)

Date of receipt; and

(4)

Expiration or use-by date.

A permittee shall maintain for at least 2 years a log of the:

(1)

Date and time of each delivery of ingredients;

(2)

Name and quantity of ingredients received;

(3)

Batch or lot number of each ingredient received;

(4)

Temperature data required under §E(3) of this regulation;

(5)

Name of the product manufacturer or licensee and, if different, the name of the shipping company; and

(6)

Name of processor agent responsible for receiving the shipment.

All food ingredients shall be produced by a commercial manufacturer that is licensed by an approving authority.

Spoiled, unwholesome, vermin-infested, or insect-infested ingredients are not allowed onto the premises and shall be:

(1)

Removed immediately from the premises and properly disposed of;

(2)

If it is not practicable to remove immediately, placed in a quarantine area temporarily until proper disposal; or

(3)

If deemed necessary as part of an investigation by the Administration or other State, local, or federal regulatory agency, placed in a quarantine area until collection.

Regulation .09 Edible Cannabis Product Processing — Storage of Ingredients and Edible Cannabis Products.Link Copy Citation

All ingredients and edible cannabis products shall be kept in a secure controlled environment that:

(1)

Meets the requirements set forth in this chapter; and

(2)

Is a dry storage area, refrigerated storage area, or freezer storage area.

Storage standard operating procedures shall preserve freshness, prevent contamination, and maintain cannabinoid content of any ingredients or edible cannabis products.

Food ingredients may not be stored in the same areas as cannabis unless as outlined in standard operating procedures and approved by the Administration.

Storage equipment shall be positioned so that:

(1)

Storage surfaces are at least 6 inches:

(a)

Above the floors; and

(b)

Away from the walls; and

(2)

Ingredient contact surfaces are at least 18 inches above the floor.

Dry Storage Area.

(1)

A dry storage area shall be maintained between 50°F and 70°F.

(2)

A dry storage area shall have:

(a)

Adequate ventilation to remain below 60 percent relative humidity; and

(b)

A thermometer and hygrometer in plain sight that are calibrated based on the manufacturer’s recommendations to ensure accuracy.

Refrigerated Storage Area.

(1)

A refrigerated storage area shall:

(a)

Be maintained at or below 40°F; and

(b)

Have thermometers that are easily readable and accurate to plus or minus 2°F.

(2)

A permittee shall:

(a)

Position a temperature sensor to register the warmest air in the temperature-controlled space; or

(b)

Have several thermometers throughout the area to ensure accuracy, consistency, and adequate cooling.

(3)

A refrigerator unit shall have doors that close tightly and seal fully.

(4)

In the case of a power outage, if the refrigerator unit:

(a)

Remains below 40°F for the duration of the power outage, the refrigerator contents are considered safe; and

(b)

Rises above 40°F for more than 2 hours, then:

(i)

Any ingredients or edible cannabis products shall be discarded; and

(ii)

The permittee shall notify the Administration within 24 hours.

If any ingredients or edible cannabis products that were stored in the refrigerator do not require temperature control for safety, a permittee may conduct a risk analysis to determine whether the ingredients or edible cannabis products remain safe for human consumption.

The permittee shall maintain a record of any risk analysis conducted, the agent responsible for the risk analysis, and any ingredients or edible cannabis products that the permittee determines remain safe for human consumption.

Freezer Storage Area.

(1)

A freezer storage area shall:

(a)

Be maintained at or below 0°F; and

(b)

Have thermometers that are easily readable and accurate to plus or minus 2°F.

(2)

A permittee shall:

(a)

Position a temperature sensor to register the warmest air in the temperature-controlled space; or

(b)

Have several thermometers throughout the area to ensure accuracy, consistency, and adequate cooling.

(3)

A freezer unit shall have doors that close tightly and seal fully.

(4)

In the case of a power outage, if the freezer unit:

(a)

Remains at or below 0°F for the duration of the power outage, its contents are considered safe; and

(b)

Rises above 0°F for more than 2 hours, then:

(i)

Any ingredients or edible cannabis products that were stored in the freezer shall be discarded; and

(ii)

The permittee shall notify the Administration within 24 hours.

(5)

If any ingredients or edible cannabis products that were stored in the freezer do not require temperature control for safety, a permittee may conduct a risk analysis to determine whether the ingredients or edible cannabis products remain safe for human consumption.

(6)

Potentially Hazardous Ingredients.

(1)

The internal temperature of a potentially hazardous ingredient shall:

(a)

Be kept at 41°F or less, or 135°F or greater; and

(b)

For ingredients with a non-proteolytic Clostridium botulinum potential hazard, be kept at 38°F or less during refrigerated storage.

(2)

When the internal temperature of a potentially hazardous ingredient is kept at temperatures other than specified in §J(1) of this regulation:

(a)

A scheduled process approved by the Administration, specifying the temperature and amount of time at that temperature, shall be used; and

(b)

Documentation of any corrective action taken and the agent responsible for monitoring the corrective action plan shall be kept for a minimum of 2 years and made available to the Administration upon request.

All ingredients and edible cannabis products shall be clearly labeled and stored in a manner that:

(1)

Facilitates first-expired, first-out (FEFO) procedures; and

(2)

Is approved by the Administration.

Each temperature-controlled equipment unit shall have a temperature sensor visible from outside of the temperature-controlled equipment unit.

For each dry storage area, refrigerator storage area, and freezer storage area, a permittee shall:

(1)

Monitor the temperature 24 hours a day, 365 days a year without interruption;

(2)

Document the temperature at least two times a day, 365 days a year without interruption; and

(3)

If outside the specified temperature range, document the time, date, any appropriate corrective action, and the agent responsible for monitoring the corrective action plan.

Poisonous or Toxic Materials.

(1)

A permittee shall ensure that any poisonous or toxic materials are:

(a)

Kept in the original bulk container before use;

(b)

Prominently and distinctively marked or labeled for easy identification;

(c)

Used in accordance with manufacturer’s guidelines; and

(d)

Not used or stored in a way that is likely to contaminate cannabis, ingredients, edible cannabis products, or packaging and labeling materials.

(2)

A permittee shall make a safety data sheet that is specific to any poisonous or toxic material available to each agent in a form that the agent understands.

Regulation .10 Edible Cannabis Product Processing — Equipment.Link Copy Citation

General Requirements.

(1)

The permittee shall prevent any ingredient or edible cannabis product from coming into contact with a surface or substance other than a clean and sanitary surface or substance intended for food contact or incorporation into food.

(2)

Any heating and cooling equipment in close contact with ingredients or edible cannabis products shall be:

(a)

Food grade;

(b)

Approved for use in food processing areas; or

(c)

Designed to prevent any contact with any ingredient or edible cannabis product.

(3)

The permittee shall ensure that:

(a)

The warewashing area includes a three-compartment sink able to hold and wash cookware and equipment in the kitchen;

(b)

Larger cookware or equipment that cannot have at least 50 percent of its contact surface submerged in the three-compartment sink complies with approved standard operating procedures for cleaning and sanitizing the cookware or equipment;

(c)

Agents are trained to clean the larger cookware and equipment according to the standard operating procedures; and

(d)

A log is maintained for 2 years detailing the date, time, and agent responsible for cleaning and sanitizing the larger cookware or equipment.

(4)

Equipment used to process ingredients and edible cannabis products shall be:

(a)

Maintained in a sanitary and working condition;

(b)

Tested and calibrated according to the equipment manufacturer’s instructions to ensure accuracy; and

(c)

Positioned in a manner that does not impede proper cleaning and sanitation procedures.

(5)

Equipment used to process ingredients and edible cannabis products shall meet design standards intended for food production equipment, such as those established by the:

(a)

National Sanitation Foundation (NSF);

(b)

Bakery Industry Sanitation Standards Committee;

(c)

National Automatic Merchandising Association;

(d)

International Association of Milk and Food Sanitarians;

(e)

American Society of Mechanical Engineers; or

(f)

U.S. Department of Agriculture.

(6)

A thermometer used to monitor the temperature of any ingredient, edible cannabis product, or storage area shall be:

(a)

Validated at least once per month using standard operating procedures approved by the Administration; and

(b)

Calibrated based on the manufacturer’s recommendations to ensure accuracy, and at a minimum:

(i)

Annually; or

(ii)

When validation procedures identify a thermometer is not accurate to plus or minus 2°F.

Contact Surfaces.

(1)

Materials used as contact surfaces of equipment or cookware shall be:

(a)

Nontoxic;

(b)

Inert to ingredients;

(c)

Nonporous and nonabsorbent;

(d)

Corrosion-resistant;

(e)

Durable;

(f)

If stainless steel, made of stainless steel of American Iron and Steel Institute Type 304, or equivalent; and

(g)

Maintained in good condition.

(2)

Contact surfaces of equipment or cookware shall be designed, constructed, and maintained to be:

(a)

Smooth;

(b)

Easily cleanable;

(c)

Free of difficult-to-clean internal surfaces;

(d)

Self-emptying or self-draining if an interior surface;

(e)

Visible for inspection or readily disassembled for inspection;

(f)

If manually cleaned:

(i)

Readily accessible for cleaning without tools; or

(ii)

If not readily accessible, readily disassembled for cleaning with the use of simple tools kept available near the equipment; and

(g)

If cleaned and sanitized by pressurized cleaning-in-place system, readily accessible to the cleaning and sanitizing solutions without disassembly.

Regulation .11 Edible Cannabis Product Processing — Cleaning and Sanitation Procedures.Link Copy Citation

General Requirements.

(1)

A permittee shall establish standard operating procedures for cleaning and sanitizing any surface, cookware, or equipment that comes into contact with ingredients or edible cannabis products that:

(a)

Ensure proper sanitation throughout the premises;

(b)

Are available to each agent in a form the agent understands; and

(c)

Are approved by the Administration.

(2)

Any surface that comes into contact with ingredients or edible cannabis products shall be cleaned and sanitized:

(a)

In accordance with cleaning and sanitation procedures for food contact surfaces of cookware and equipment specified in COMAR 10.15.03;

(b)

After preparing potentially hazardous ingredients; and

(c)

When there is an interruption in processing of greater than 2 hours.

(3)

The permittee shall use a cleaning and sanitizing schedule and procedure demonstrated by scientific evidence to kill pathogens and be safe for use on surfaces that come into contact with ingredients and edible cannabis products.

(4)

Any surface that only comes into contact with fully processed edible cannabis products shall be cleaned and sanitized:

(a)

Each time more than 8 hours elapse between the start of processing and the previous cleaning and sanitizing;

(b)

If processing more than one type of edible cannabis product, at a frequency sufficient to prevent cross-contamination of allergens or different dosage forms;

(c)

After processing has been completed;

(d)

When there is an interruption in processing of greater than 2 hours; and

(e)

As often as needed during processing to prevent contamination of edible cannabis products.

Any surface, utensil, or equipment that does not contact ingredients or edible cannabis products shall be cleaned:

(1)

According to COMAR 10.15.04; and

(2)

As often as necessary to maintain sanitary conditions.

Vermin and insects shall be eliminated so that there is minimal potential for contamination of ingredients or edible cannabis products.

Pesticides may not be used to exterminate vermin unless:

(1)

Approved for use in food processing areas; or

(2)

The permittee:

(a)

Applies the pesticides only in areas not used for storage or processing of ingredients or edible cannabis products; and

(b)

Accurately enters the data into the seed-to-sale tracking system.

Regulation .12 Edible Cannabis Product Processing — Agent Sanitation.Link Copy Citation

The permittee shall ensure that each agent:

(1)

Practices good personal hygiene and does not contaminate ingredients or edible cannabis products;

(2)

Wears clean outerwear and, if necessary, a hair or beard covering, or both;

(3)

Wears gloves when handling any cannabis plant material or cannabis concentrate;

(4)

If wearing gloves:

(a)

Uses gloves that are intended for food contact;

(b)

Washes their hands thoroughly before putting on the gloves; and

(c)

Washes their hands and replaces the gloves in accordance with COMAR 10.15.03.14J and after an activity that:

(i)

Is likely to soil the gloves; or

(ii)

Damages the gloves;

(5)

If not wearing gloves, washes their hands and the exposed portions of their arms:

(a)

Frequently, and after an activity that is likely to soil their hands;

(b)

Immediately upon entrance to any area containing ingredients or edible cannabis products;

(c)

Immediately before engaging in preparation for the production of edible cannabis products;

(d)

After using the lavatory;

(e)

After coughing, sneezing, or using a handkerchief or disposable tissue;

(f)

After using tobacco;

(g)

After eating or drinking;

(h)

After handling soiled linens, equipment, or cookware;

(i)

During preparation for production of edible cannabis products, as often as necessary to remove soil and contamination and to prevent cross-contamination when changing tasks;

(j)

When switching between working with ingredients or unfinished edible cannabis products and working with fully processed edible cannabis products;

(k)

Before donning gloves for working with edible cannabis products or ingredients; and

(l)

After engaging in any other activities that may contaminate the hands;

(6)

If handling ingredients or edible cannabis products, maintains trim and clean fingernails and does not wear artificial fingernails; and

(7)

Is excluded from working with ingredients or edible cannabis products, packaging materials, labeling materials, clean equipment, clean utensils, or clean linens:

(a)

If the agent has any disease caused by:

(i)

Entamoeba histolytica;

(ii)

Vibrio cholera;

(iii)

Staphylococcus aureus;

(iv)

Escherichia coli O157:H7or other Enterohemorrhagic or Shiga-toxin producing Escherichia coli;

(v)

Hepatitis A;

(vi)

Salmonella spp.;

(vii)

Shigella spp.;

(viii)

Norovirus;

(ix)

Group A beta-hemolytic Streptococcus; or

(x)

Salmonella Typhi, typhoid-like fever or carrier thereof;

(b)

If the agent has an:

(i)

Illness transmissible through food or edible cannabis products; or

(ii)

Exposed and open sore or cut; or

(c)

If the agent is experiencing:

(i)

Persistent sneezing, coughing, or a runny nose that causes discharges from the eyes, nose, or mouth;

(ii)

Fever;

(iii)

Diarrhea, unless a physician has certified the agent as noninfectious;

(iv)

Vomiting; or

(v)

Jaundice, unless a physician has certified the agent as noninfectious.

The premises shall ensure good personal hygiene by providing:

(1)

Lockers or similar storage facilities for the secure storage of personal items in a designated non-working area;

(2)

Adequate hand-washing facilities as set forth in this chapter;

(3)

Signage in each lavatory that instructs agents to wash their hands before returning to work;

(4)

A water fountain or other water dispenser that provides potable water without the use of reusable cups;

(5)

An area for agents to consume food and beverages that is not used in conjunction with the processing or storage of:

(a)

Ingredients;

(b)

Edible cannabis products;

(c)

Packaging and labeling materials; or

(d)

Cookware; and

(6)

If necessary, to ensure safety and sanitation, sanitizer foot baths, footwear covers, or hand dips.

The permittee shall:

(1)

Ensure that each agent who handles ingredients or edible cannabis products successfully completes a food handler certificate course, from an entity accredited by the American National Standards Institute (ANSI) or an equivalent food safety accrediting body:

(a)

Within 90 days of commencing employment at the premises; and

(b)

Every 3 years during employment; and

(2)

Maintain a log of agent training in ingredient and edible cannabis product handling.

Regulation .13 Edible Cannabis Product Processing — Manufacture.Link Copy Citation

Potentially hazardous edible cannabis products may not be manufactured unless approved by the Administration.

A permittee shall ensure:

(1)

The consistent and safe manufacture of edible cannabis products;

(2)

Pathogenic microorganisms are excluded or eliminated from edible cannabis products before being offered for human consumption;

(3)

All edible cannabis products undergo thermal processing or another process scientifically proven to kill pathogenic microorganisms that pose a threat to human health, as outlined in applicable standard operating procedures and approved by the Administration;

(4)

The heating, cooling, or re-heating of ingredients or edible cannabis products use methods that prevent contamination; and

(5)

All edible cannabis products are safe for human consumption.

The permittee shall provide a shelf-life study in accordance with the Administration’s Technical Authority for cannabis testing, to prove the manufacturing processes prevent contamination of edible cannabis products or premature degradation of therapeutic compounds.

Regulation .14 Transport of Edible Cannabis Products.Link Copy Citation

If transporting or shipping edible cannabis products that require temperature control for safety and stability, a permittee shall ensure the vehicle or transportation equipment:

(1)

Provides adequate temperature control to prevent the edible cannabis products from becoming unsafe during transport; and

(2)

Complies with the requirements established in 21 CFR §1.908(c).

A permittee shall maintain a detailed log of the temperature of the edible cannabis products at the time of departure for at least 2 years.

The receiving licensee shall maintain a detailed log of the temperature of the edible cannabis products at the time of arrival at the licensed dispensary for at least 2 years.

If any edible cannabis products are declined upon arrival to the licensed dispensary due to contamination, damage, or an unsafe temperature, the permittee shall, within 24 hours:

(1)

Document the declination and the reason for the declination in the seed-to-sale tracking system; and

(2)

Dispose of the rejected material in accordance with the permittee’s approved green waste disposal plan.

Regulation .15 Micro Processor Premise and Operations.Link Copy Citation

Micro processors may not process more cannabis than the limits established in Alcoholic Beverages and Cannabis Article, §36-401(c)(2)(ii), Annotated Code of Maryland

Regulation .16 Product Returned for Destruction and Disposal of Green Waste.Link Copy Citation

A processor shall accept any product returned for destruction and record as green waste.

A processor shall otherwise destroy any other product recorded as green waste in accordance with standard operating procedures.

Regulation .17 Visitor to the Premises.Link Copy Citation

When a visitor is admitted to an area of the premises used for cannabis operations, a registered agent shall:

(1)

Log the visitor in and out;

(2)

Retain with the log a photocopy of the visitor’s government-issued identification;

(3)

Continuously, physically supervise the visitor while they are on the premises; and

(4)

Ensure that the visitor does not touch any cannabis.

An Administration investigator is not subject to the visitor requirements established in §A of this regulation.

The processor shall maintain a log of all visitors for 2 years.

Regulation .18 Discrepancy, Theft, and Diversion Reporting.Link Copy Citation

Discrepancy Reporting.

(1)

If a processor discerns a discrepancy between the inventory of stock and the seed-to-sale tracking system outside of normal weight loss due to moisture loss and handling, the processor shall:

(a)

Commence an investigation of the discrepancy within 1 business day; and

(b)

If the processor cannot resolve the discrepancy within 30 business days, report the discrepancy to MCA.

(2)

Failure to report an unresolved discrepancy may be used as evidence of diversion.

Theft or Diversion. If the processor finds evidence of a theft or diversion, the processor shall report the theft or diversion to the Administration within 1 business day.

Within 30 business days of discovering the theft, diversion, or unresolved discrepancy, the processor shall:

(1)

Complete an investigation;

(2)

Amend its standard operating procedures, if necessary; and

(3)

Send a report of the investigation to the Administration.

Regulation .19 Standard Operating Procedures.Link Copy Citation

A processor shall establish standard operating procedures for all aspects of:

(1)

Inventory control, including:

(a)

Identifying and tracking the processor’s stock of cannabis in the seed-to-sale tracking system; and

(b)

Monthly physical inventory;

(2)

Receiving, shipping, and transporting cannabis or products containing cannabis;

(3)

Sanitation, including:

(a)

Storage of cannabis;

(b)

Maintaining the sanitation of equipment that comes into contact with cannabis; and

(c)

Good hygiene practices and the wearing of protective clothing by agents;

(4)

Equipment maintenance and calibration;

(5)

Handling, packaging, and labeling cannabis and cannabis products;

(6)

Reworking or reprocessing a lot if the processor receives a test result that the lot does not meet specifications;

(7)

Green waste procedures;

(8)

Security and visitor procedures, including theft and diversion procedures;

(9)

Storage, handling, and disposing of recalled materials;

(10)

Producing cannabis concentrates and cannabis-infused products, including:

(a)

Methods, equipment, solvents, and gases when processing cannabis concentrates and cannabis-infused products;

(b)

Use of solvents in a professional grade, closed-loop extraction system designed to recover the solvents;

(c)

Work in a spark-free environment with proper ventilation;

(d)

Following all applicable OSHA regulations, and local fire, safety, and building codes in the processing and storage of the solvents; and

(e)

If applicable, carbon dioxide extraction;

(11)

Decontamination, including but not limited to:

(a)

Preventing contamination;

(b)

Investigating decontaminating after presumptive positive pathogen detection; and

(c)

Remediation steps and resulting environmental analysis.

(12)

If applicable, producing edible cannabis products, including receipt of ingredients, storage, equipment maintenance, sanitation, manufacture, and transport; and

(13)

If applicable, co-locating with another licensee, including:

(a)

Sharing equipment and production materials; and

(b)

Maintaining independent and unique security and video surveillance control.

A processor’s standard operating procedures shall:

(1)

Be available to each agent in a form the agent understands;

(2)

Be available on-site for inspection by the Administration; and

(3)

Accurately reflect the procedures used at the premises.

Subtitle 17 — Maryland Cannabis Administration

Chapter 12. Cannabis Dispensary Operations

Regulation .01 Scope.Link Copy Citation

Unless otherwise specified, this chapter applies to all business licensed to dispense cannabis under COMAR 14.17.06.08 or COMAR 14.17.07.08.

Regulation .02 Standard Cannabis Dispensary.Link Copy Citation

A dispensary licensed under COMAR 14.17.06.08 shall:

(1)

Be located in Maryland;

(2)

Conform to all local zoning and planning requirements;

(3)

Conspicuously display valid proof of dispensary licensure; and

(4)

Provide accommodations for qualifying patients and registered caregivers in accordance with COMAR 14.17.04.05.

A dispensary may not make modifications or renovations to the standard dispensary premises licensed under COMAR 14.17.06.08 without the prior approval of Maryland Cannabis Administration.

The Administration may require a dispensary licensed under this regulation to conspicuously display:

(1)

Minimum purchase age and identification requirements; and

(2)

Other information related to health and safety provided by the Administration.

Any display required by the Administration under §C of this regulation shall be in a manner and size determined by the Administration.

A dispensary shall restrict access to the licensed premises to only:

(1)

Qualifying patients;

(2)

Registered caregivers; and

(3)

Individuals 21 years old or older.

Notwithstanding §E of this regulation, a dispensary may allow children younger than 8 years old to enter the licensed premises if they are accompanied for the duration of their visit by a:

(1)

Qualifying patient; or

(2)

Registered caregiver.

A standard dispensary premises shall:

(1)

Be constructed to prevent unauthorized entry; and

(2)

Contain a secure room to store the cannabis inventory, which:

(a)

Shall be constructed of concrete or similar building material that prevents unauthorized entry;

(b)

May not be placed adjacent to an exterior wall of the premises; and

(c)

Shall have only one entrance door that:

(i)

Prevents unauthorized entry;

(ii)

Is equipped with a cipher or chip-activated keyed lock or equivalent; and

(iii)

Is not visible from public areas of the premises.

A dispensary shall store its cannabis inventory in the secure room other than while the licensed dispensary is open for business and 2 hours before and 2 hours after.

A dispensary may request an exemption to §H of this regulation for the purposes of conducting inventory review. Requests for an exemption shall be:

(1)

Made in a manner prescribed by the Administration; and

(2)

Explicitly authorized by the Administration prior to the exemption.

The licensed dispensary shall design and install lighting fixtures to ensure proper surveillance.

Security Alarm Systems.

(1)

A dispensary shall maintain a security alarm system that covers all:

(a)

Perimeter entry points and portals at all premises;

(b)

Rooms that hold cannabis;

(c)

Locations where records are stored on-site; and

(d)

Locations where records are stored off-site.

(2)

A security system shall:

(a)

Be continuously monitored;

(b)

Be capable of detecting smoke and fire;

(c)

Be capable of detecting power loss;

(d)

Include panic alarm devices mounted at convenient, readily accessible locations throughout the licensed premises;

(e)

Remain operational until a licensed premises no longer has any cannabis, seeds, or cuttings on the premises; and

(f)

Be equipped with auxiliary power sufficient to maintain operation for at least 48 hours.

Video Surveillance Requirements.

(1)

A dispensary shall maintain a motion-activated video surveillance recording system at all premises that:

(a)

Records all activity in images of high quality and high resolution capable of clearly revealing facial detail;

(b)

Operates 24-hours a day, 365 days a year without interruption; and

(c)

Provides a date and time stamp for every recorded frame.

(2)

A dispensary shall post appropriate notices advising visitors of the video surveillance.

(3)

A surveillance camera shall be located and operated to capture each exit from the premises.

(4)

A surveillance camera shall capture activity at each:

(a)

Entrance to an area where cannabis is packaged, stored, or dispensed; and

(b)

Area where cannabis is packaged, stored, or dispensed.

(5)

Recordings of security video surveillance shall be:

(a)

Access-limited;

(b)

Secured by a security alarm system that is independent of the main premises security alarm system;

(c)

In a format that can be easily accessed for investigational purposes; and

(d)

Retained for a minimum of 90 calendar days.

(6)

Any recording of security video surveillance shall be made available to the Administration or law enforcement agency for just cause as requested within 48 hours.

(7)

Violation.

(a)

Failure to provide the Administration with any recording of video surveillance within 48 hours of a request from the Administration is a violation of COMAR 14.17.14.04.

(b)

Each day of recording within the timeframe stated in §L(5)(d) that a dispensary fails to provide to the Administration constitutes a separate violation.

Standard Dispensary Premises Organization.

(1)

A dispensary premises shall be divided into a public zone and an operations zone.

(2)

Public Zone.

(a)

The public zone shall have:

(i)

A waiting area open to the general public; and

(ii)

A service area in which an adult-use consumer, qualifying patient, or caregiver may consult with a dispensary agent and receive cannabis.

(b)

The dispensary shall restrict entry into the service area to verified adult-use consumers, qualifying patients, and registered caregivers.

(3)

Operations Zone.

(a)

All operations other than consulting with adult-use consumers, qualifying patients, and registered caregivers and dispensing cannabis shall be carried out in the operations zone.

(b)

The operations zone shall be appropriately divided into separate areas for:

(i)

Cannabis storage;

(ii)

Cannabis preparation and packaging;

(iii)

Use by dispensary agents for breaks; and

(iv)

Changing clothing and dispensary agent lockers.

(c)

Tamper-evident logbooks or electronic identification logs shall document the movement of persons to and from the operations zone.

(4)

Appropriate signage shall clearly delineate the separate zones.

(5)

Doors and other access points between zones shall be secured.

(6)

Security alarms systems and video surveillance, as described in §§K and L of this regulation, shall be used to monitor the separation between zones.

(7)

All cannabis, other than that being displayed, packaged, or dispensed during hours of operation, shall be kept in a secure room that complies with §G(2) of this regulation.

(8)

No individual other than a dispensary agent may handle the inventory in a display case or elsewhere in the dispensary until dispensed.

Visitors.

(1)

When a visitor is admitted to the operations zone of the premises, a registered dispensary agent shall:

(a)

Log the visitor in and out;

(b)

Retain with the log a photocopy of the visitor’s government-issued identification;

(c)

Continuously, physically supervise the visitor while they are on the premises; and

(d)

Ensure that the visitor does not touch any cannabis.

(2)

The dispensary shall maintain a log of all visitors to the operations zone for 2 years.

(3)

An Administration investigator is not subject to the visitor requirements in this section.

(4)

Drive-through or Walk-up Dispensing Services.

(1)

A dispensary providing drive-through or walk-up dispensing services shall:

(a)

Dispense through a window or other opening in the exterior wall of a dispensary that enables a registered dispensary agent to serve an adult-use consumer, a qualifying patient, or a registered caregiver without a:

(i)

Registered dispensary agent leaving the dispensary service area; or

(ii)

If applicable, qualifying patient, registered caregiver, or adult-use consumer leaving their vehicle;

(b)

Pass a pre-operation inspection before use;

(c)

Meet all other requirements for a dispensary service area, including:

(i)

The window or opening in the exterior wall shall be constructed to prevent unauthorized entry;

(ii)

Security lighting, alarms systems, and video surveillance, as described in this regulation;

(iii)

Displaying the licensed dispensary’s license and hours of operation at the entrance to the drive-through dispensing zone; and

(iv)

Secured doors and other access points between public and operations zones; and

(d)

Adhere to its standard operating procedures and requirements for dispensing cannabis established in Regulation .04 of this chapter.

(e)

Fulfill pre-orders in compliance with Regulation .08 of this chapter through the drive-through or walk-up dispensing method.

(2)

A dispensary that provides both drive-through and walk-up dispensing services shall designate separate windows or openings for each type of service.

To provide curbside pick-up, a standard dispensary shall:

(1)

Designate curbside pick-up parking spots within 100 feet from the dispensary’s entrance and ensure that dispensary agents only deliver cannabis or cannabis products to the designated parking spots;

(2)

Capture the on-site delivery on its motion-activated video surveillance recording system as required in §L of this regulation;

(3)

Fulfill pre-orders in compliance with Regulation .08 of this chapter; and

(4)

Adhere to:

(a)

Its standard operating procedures; and

(b)

Dispensing requirements in Regulation .04 of this chapter.

Cannabis Display. A dispensary may store cannabis in a clear, tamper-evident canister for display purposes, provided the following conditions are met:

(1)

During hours of operation, the canister is:

(a)

Stored out of reach behind the service area counter when not being actively examined by a qualifying patient, registered caregiver, or adult-use consumer; or

(b)

Otherwise stored securely to prevent unauthorized removal of the canister;

(2)

Outside of hours of operation, the canister is stored in the dispensary’s secure room;

(3)

Once the display is no longer in use, the dispensary green wastes the cannabis in accordance with its standard operating procedures;

(4)

Product stored inside the display jars is not easily accessible or removable by qualifying patients, registered caregivers, or adult-use consumers; and

(5)

Cannabis used for display is recorded in accordance with seed-to-sale tracking system procedures.

Regulation .03 Micro Dispensary.Link Copy Citation

A micro dispensary may store its inventory in up to three storage facilities:

(1)

That it controls and operates, in accordance with §D of this regulation;

(2)

Controlled and operated by a licensed grower, processor, or incubator space, in accordance with §D of this regulation; or

(3)

Controlled and operated by a licensed standard dispensary, in accordance with Regulation .02 of this chapter.

A micro dispensary storing inventory in a storage facility controlled and operated by another licensee shall:

(1)

Ensure each licensee’s cannabis inventory is physically separated and only accessible to the licensee’s agents and owners;

(2)

Have equal, independent, and unique control over access to its cannabis inventory, including the ability to add or remove its badged agents to access any area or container in which their cannabis or cannabis products are stored; and

(3)

Have equal independent and unique access to its video surveillance recordings, which shall be recorded and saved as required by §K of this regulation or COMAR 14.17.12.02L, whichever applies.

A micro dispensary shall ensure any cannabis or cannabis product has been transferred within the seed-to-sale tracking system to the control of the micro dispensary as prescribed in COMAR 14.17.09.03 prior to:

(1)

Any delivery of the cannabis or cannabis product;

(2)

Any transportation of the cannabis or cannabis product to a storage facility; and

(3)

Any receipt of cannabis or cannabis product to a storage facility.

Except as specified in §A(3) of this regulation, a micro dispensary storage facility shall adhere to the following requirements:

(1)

The storage facility shall:

(a)

Be located in Maryland;

(b)

Maintain relevant and current building codes and standards;

(c)

Be constructed to prevent unauthorized entry;

(d)

In areas where cannabis is stored, provide adequate lighting, ventilation, temperature, humidity, space, and equipment to maintain product quality;

(e)

Be maintained in a clean and orderly condition; and

(f)

Be free from infestation by insects, rodents, birds, and pests of any kind.

(2)

The micro dispensary shall:

(a)

Prohibit access to the storage facility to anyone other than:

(i)

The micro dispensary owner;

(ii)

The micro dispensary agents; and

(iii)

If applicable, the owner and agents of the licensee that controls or operates the storage facility;

(b)

Ensure the storage facility is securely locked and protected from entry, except for the actual time required to remove, replace, or repackage cannabis;

(c)

Design and install lighting fixtures to ensure proper surveillance;

(d)

Maintain a security alarm system that covers all:

(i)

Perimeter entry points and portals at all premises;

(ii)

Rooms that hold cannabis;

(iii)

Locations where records are stored on-site; and

(iv)

Locations where records are stored off-site;

(e)

Ensure that the security system in §C(2)(d) of this regulation shall:

(i)

Be continuously monitored;

(ii)

Be capable of detecting smoke and fire;

(iii)

Be capable of detecting power loss;

(iv)

Include panic alarm devices mounted at convenient, readily accessible locations throughout the licensed premises;

(v)

Remain operational until a licensed premises no longer has any cannabis, seeds, or cuttings on the premises; and

(vi)

Be equipped with auxiliary power sufficient to maintain operation for at least 48 hours;

(f)

Maintain a motion-activated video surveillance recording system that:

(i)

Records all activity in images of high quality and high resolution capable of clearly revealing facial detail;

(ii)

Operates 24-hours a day, 365 days a year without interruption;

(iii)

Provides a date and time stamp for every recorded frame;

(iv)

Shall capture activity at each area and entrance to an area where cannabis is packaged, stored, or prepared for transport; and

(g)

Keep all locks and security equipment, including video surveillance and alarm systems, in good working order.

Delivery Operations.

(1)

A micro dispensary shall verify that the individual placing the order is a consumer who is at least 21 years old, a qualifying patient, or a registered caregiver prior to order placement, using an ordering system that complies with Regulation .08 of this chapter.

(2)

A micro dispensary shall only travel:

(a)

Between licensees, registrants, or from one delivery address to another delivery address; and

(b)

In Maryland.

(3)

A micro dispensary shall only make deliveries to residences as defined in COMAR 14.17.01 and medical facilities in the authorized service area.

(4)

Agents conducting deliveries shall have on their person:

(a)

Their current, active driver’s license; and

(b)

Administration-issued proof of the micro dispensary’s licensure and their own registration.

(5)

While in transit, delivery agents may not wear any clothing or symbols that may indicate ownership or possession of cannabis.

(6)

Each secure cannabis transport vehicle shall be operated by at least one registered agent.

(7)

Only registered agents may occupy the delivery vehicle while the vehicle contains cannabis or cannabis products.

(8)

All cannabis shall be transported in one or more locked and secure storage containers which may not be accessible while in transit.

(9)

A micro dispensary agent shall transport cannabis or cannabis products in an enclosed vehicle that:

(a)

Has and displays a current vehicle registration;

(b)

Is insured as required by law;

(c)

Is equipped with:

(i)

A global positioning system (GPS) that enables the micro dispensary to monitor the vehicle’s location for the entirety of its delivery routes;

(ii)

Locked and secure storage containers anchored to the inside of the vehicle; and

(iii)

A motion-activated video-surveillance system that captures activity around all storage containers that contain cannabis or cannabis products;

(d)

Conceals storage containers so they are not visible or identifiable from outside of the vehicle; and

(e)

Does not display any sign or illustration related to cannabis, cannabis products, or a cannabis licensee.

A micro dispensary shall:

(1)

Timely and accurately track its stock of cannabis in the seed-to-sale tracking system from the time it is acquired by the micro dispensary to the time it is delivered and dispensed to a qualifying patient, registered caregiver, or adult-use consumer;

(2)

Ensure that all cannabis other than that being packaged or dispensed during hours of operation is kept in the storage facility;

(3)

Follow its standard operating procedure for examining at specified regular interval the GPS records of all delivery vehicles, including stops made along the delivery route.

(4)

When purchasing cannabis from another licensee, coordinate with the licensee to create an electronic manifest to record the chain of custody for each cannabis shipment in accordance with COMAR 14.17.09.03E and F.

A micro dispensary licensed to dispense cannabis under COMAR 14.17.07.07 may not:

(1)

Transport cannabis or cannabis products not associated with an active invoice, order, or product manifest;

(2)

Transport cannabis or cannabis products in any vehicle noncompliant with §D(10) of this regulation;

(3)

Dispense cannabis or cannabis products without a prior order submitted to the licensed business;

(4)

Dispense cannabis or cannabis products from the storage facility premises; or

(5)

Carry cannabis or cannabis products in the delivery vehicle with a value in excess of $5,000 at any time.

For the purposes §G(5) of this regulation, the value of cannabis goods shall be determined using the current retail price of all cannabis or cannabis products carried by or within the delivery vehicle.

A micro dispensary owner shall be a registered agent if they work or volunteer in any operational areas of the premises, including delivery vehicles.

Global Positioning System (GPS) and Video Surveillance Record Requirements.

(1)

GPS and video surveillance recordings required in this regulation shall be:

(a)

Access-limited;

(b)

In a format that can be easily accessed for investigational purposes;

(c)

Retained for a minimum of 90 calendar days; and

(d)

Made available to the Administration or law enforcement agency for just cause as requested within 48 hours.

(2)

Violation.

(a)

Failure to provide the Administration with any GPS or video surveillance record within 48 hours of a request from the Administration is a violation of COMAR 14.17.14.04.

(b)

Each day of recording within the timeframe stated in §J(1)(c) of this regulation that a micro dispensary fails to provide to the Administration constitutes a separate violation.

Visitors.

(1)

When a visitor is admitted to the operations zone of the premises, a registered dispensary agent shall:

(a)

Log the visitor in and out;

(b)

Retain with the log a photocopy of the visitor’s government-issued identification;

(c)

Continuously, physically supervise the visitor while they are on the premises; and

(d)

Ensure that the visitor does not touch any cannabis.

(2)

The dispensary shall maintain a log of all visitors to the operations zone for 2 years.

(3)

An Administration investigator is not subject to the visitor requirements in this section.

(4)

A firefighter, a rescue squad member, or emergency services personnel who is actively responding to a call for emergency services is not subject to §K(1)(a)—(c) of this regulation.

Regulation .04 Dispensary Operations.Link Copy Citation

Dispensing Medical Cannabis.

(1)

A dispensary agent shall dispense medical cannabis only from the service area or other area as designated by the Administration in Regulations .02 and .03 of this chapter to a qualifying patient or caregiver who has presented:

(a)

An Administration-issued patient or caregiver identification number; and

(b)

A valid government-issued photo identification.

(2)

Before any distribution of medical cannabis, a dispensary agent shall query the Administration data network using a unique log-in that identifies the registered dispensary agent and verify:

(a)

That the qualifying patient or caregiver is currently registered;

(b)

That a certifying provider issued a valid written certification to the qualifying patient;

(c)

That the amount of medical cannabis that has already been dispensed pursuant to the written certification; and

(d)

Whether a qualifying patient is actively enrolled in the Maryland Medical Assistance Program or in the Veterans Affairs Maryland Health Care System, and therefore, eligible for discounted medical cannabis pursuant to COMAR 14.17.04.06.

(3)

A dispensary agent may provide information on:

(a)

The available types of medical cannabis, cannabis varieties, and medical cannabis finished products;

(b)

Methods by which medical cannabis can be taken; and

(c)

How unused cannabis may be returned for disposal.

(4)

30-Day Supply.

(a)

A qualifying patient or caregiver may obtain a portion of a 30-day supply at any time once the written certification is presented to a licensed dispensary, provided the portion being sought when added to portions previously obtained does not exceed a 30-day supply.

(b)

The dispensary agent shall enter the weight of usable cannabis or the weight of delta-9-tetrahydrocannabinol (THC) dispensed in the Administration data network.

(5)

A dispensary agent may decline to dispense medical cannabis to a qualifying patient or caregiver if, in the dispensary agent’s professional opinion, the patient or caregiver appears to be currently under the influence of drugs or alcohol.

(6)

A dispensary may not distribute a sample of medical cannabis.

(7)

If not used to purchase medical cannabis within 120 days of issuance, a written certification becomes null and void.

(8)

Any dispensing to a qualified patient or registered caregiver shall be recorded by the dispensary agent as a sale of medical cannabis using the seed-to-sale tracking system.

Dispensing Adult-Use Cannabis.

(1)

A dispensary agent shall dispense cannabis only from the service area or other area as designated by the Administration in Regulations .02 and .03 of this chapter to a consumer who has presented a government-issued photo identification card that is valid, unexpired, and contains the consumer’s birth date.

(2)

A government-issued identification card under §B(1) of this regulation includes:

(a)

State driver’s license;

(b)

U.S. passport;

(c)

U.S. passport card;

(d)

Non-driver’s state photo ID card;

(e)

Foreign passport;

(f)

U.S. military ID card; and

(g)

Tribal card.

(3)

A government-issued photo identification card does not include a student identification card issued by a public institution or university.

(4)

Before any distribution of cannabis, a dispensary agent shall log in to the Administration data network using a unique log-in that identifies the dispensary agent.

(5)

At the point of sale, a dispensary agent shall verify that the consumer is 21 years old or older using the consumer’s government-issued photo identification.

(6)

A dispensary agent may provide information on:

(a)

The available types of cannabis, cannabis varieties, and cannabis finished products;

(b)

Methods of cannabis administration; and

(c)

How to return unused cannabis for disposal.

(7)

Sales Limits.

(a)

A dispensary agent may not knowingly dispense to an individual an amount of cannabis or cannabis products greater than the personal use amount under Criminal Law Article, §5-101, Annotated Code of Maryland, in a single day.

(b)

For the purposes of calculating the personal use amount of cannabis that can be dispensed, an individual may not purchase more than:

(i)

1.5 ounces of usable cannabis products as defined in COMAR 14.17.01;

(ii)

12 grams of concentrated cannabis products; or

(iii)

Edible cannabis products, capsules, and tinctures that do not exceed 750 milligrams of tetrahydrocannabinol.

(c)

For the purpose of determining sales limits under this subsection, cannabis vaporizing devices shall be weighed and considered as concentrated cannabis products.

(8)

A dispensary agent may decline to dispense cannabis to a consumer if, in the dispensary agent’s professional opinion, the consumer appears to be:

(a)

Currently under the influence of drugs or alcohol;

(b)

Attempting to purchase cannabis products for resale or diversion; or

(c)

Obtaining an amount of cannabis products greater than the personal use amounts under §B(7) of this regulation.

(9)

Consumers purchasing cannabis under this section may purchase:

(a)

Usable cannabis products as specified in COMAR 14.17.13.11;

(b)

Cannabis vaporizing devices as specified in COMAR 14.17.13.08;

(c)

Concentrated cannabis products as specified in COMAR 14.17.13.10;

(d)

Home cultivation products;

(e)

Infused non-edible cannabis products;

(f)

Edible cannabis products under COMAR 14.17.13.05 and capsules, and tinctures under COMAR 14.17.13.06 with up to:

(i)

10 milligrams of THC per serving; and

(ii)

100 milligrams of THC per container.

(10)

Consumer Profiles. A dispensary may not:

(a)

Use an adult-use consumer’s personal information, including records of their purchases, to create or maintain a customer profile without the consumer’s express permission; or

(b)

Deny an adult-use consumer the opportunity to purchase adult-use cannabis exclusively on the basis that the customer does not consent to the storage and use of their personal information.

Dispensing Controls.

(1)

A dispensary may not sell, transfer, or deliver cannabis or cannabis products unless the licensee verifies by means of a valid driver’s license or other government–issued photo identification containing the bearer’s date of birth, in accordance with Alcoholic Beverages and Cannabis Article, §36-1101(a), Annotated Code of Maryland.

(2)

A dispensary shall use the seed-to-sale tracking system to track its stock of cannabis from the time it is received by the dispensary to the time it is delivered or dispensed to another licensee, a registrant, a qualifying patient, registered caregiver, or adult-use consumer.

(3)

A dispensary may not distribute samples of cannabis or cannabis products to consumers.

(4)

A dispensary agent or owner may not dispense cannabis to themselves.

(5)

If a dispensary offers reduced cost or discount cannabis or cannabis products to an agent, the reduced cost or discount available shall be distributed in accordance with the standard operating procedure.

At least monthly, a dispensary shall conduct a physical inventory of its stock of cannabis and compare the physical inventory of stock with the stock reflected in seed-to-sale tracking system.

Upon request by a qualifying patient, registered caregiver, or adult-use consumer, a dispensary shall display any labeling information required under COMAR 14.17.18.03 in an easily readable format.

Regulation .05 Coordination of Enforcement Efforts Between Maryland Cannabis Administration and the Comptroller of Maryland.Link Copy Citation

The Administration may query the seed-to-sale tracking system and shall, upon request from the Comptroller of Maryland, provide information from the seed-to-sale tracking system to the Comptroller of Maryland to ensure proper compliance, collection, and assessment of the sales and use tax by dispensaries and on-site consumption establishments.

If a dispensary fails to pay a tax to the Office of the Comptroller when due under Tax-General Article, Annotated Code of Maryland, the Administration may:

(1)

Levy a fine; and

(2)

Restrict, suspend, or revoke the cannabis license.

Regulation .06 Product Reservations and Trade Practices.Link Copy Citation

Products not authorized for adult-use consumers under Regulation .04B of this chapter shall only be sold, distributed, or otherwise dispensed to qualifying patients and caregivers.

Subject to §§C and D of this regulation, a dispensary licensed under COMAR 14.17.06.08 or COMAR 14.17.07.07 shall ensure at least 25 percent of product available for retail sales are products grown, manufactured, extracted, or otherwise produced by:

(1)

Licensees that have no common ownership interest or control with the dispensary licensee; and

(2)

Social equity licensees as defined in COMAR 14.17.01.

In fulfilling the requirement in §B of this regulation, a dispensary shall prioritize social equity licensees.

Social equity dispensary licensees shall ensure at least 25 percent of product available for retail sales are products grown, manufactured, extracted, or otherwise produced by licensees that have no common ownership interest or control with the dispensary licensee.

The Administration may query the seed-to-sale tracking system to ensure compliance with this regulation.

If a dispensary is found in violation of this regulation, the Administration may:

(1)

Issue a fine; and

(2)

Restrict, suspend, or revoke the license.

Regulation .07 Product Returned for Destruction and Disposal of Green Waste.Link Copy Citation

Product Returned for Destruction. A dispensary shall:

(1)

Accept and record the return of any cannabis from an adult-use consumer, qualifying patient, or a registered caregiver; and

(2)

Destroy the returned cannabis.

Disposal of Green Waste. A dispensary may either:

(1)

Ship any cannabis that is surplus or out of date or that is waste from processing or repackaging to a licensed grower for disposal; or

(2)

Dispose of such material in accordance with the dispensary’s approved waste disposal plan.

Regulation .08 Online, Telephone, or Other Remote Ordering.Link Copy Citation

A dispensary may use an online, telephone or other remote order system to place pre-orders for:

(1)

Pick-up at a standard dispensary; and

(2)

Delivery by a micro dispensary.

To fulfill an order, a dispensary shall comply with dispensing requirements in Regulation .04 of this chapter.

An ordering system for cannabis or cannabis products shall:

(1)

Prior to order placement, validate the individual is 21 years old or older, a qualifying patient, or a registered caregiver by:

(a)

Employing a neutral age screen to verify the individual is 21 years old or older or an alternative screening mechanism to verify the individual is a qualifying patient, or a registered caregiver; or

(b)

Using another method to validate that the individual is 21 years old or older, a qualifying patient, or a registered caregiver;

(2)

Include a notice that a valid, government-issued photo identification card as set forth in Regulation .04B(2) of this chapter is required to receive the order of cannabis or cannabis products; and

(3)

Collect the name and date of birth of the individual submitting the order.

Until the consumer, qualifying patient, or registered caregiver presents valid identification as set forth in Regulation .04A(1) or B(2) of this chapter, whichever applies, and the dispensary agent confirms that the identification card displays a name and date of birth that matches the information collected in §C(3) of this regulation, a dispensary may not:

(1)

Dispense cannabis products; or

(2)

Collect payment.

A dispensary may not sell or otherwise transfer any cannabis or cannabis products to a consumer through an unlicensed third party, intermediary business, broker, or any other business or entity.

Effective July 1, 2025, only a micro dispensary may deliver cannabis to qualifying patients, registered caregivers, or adult-use consumers in accordance with Regulation .03 of this chapter.

Regulation .09 Hours of Operations.Link Copy Citation

A dispensary may not conduct sales before 8 a.m. or past 11 p.m.

A dispensary shall display its hours of operation at the main entrance to the premises.

Regulation .10 Discrepancy, Theft, or Diversion.Link Copy Citation

Discrepancy Reporting.

(1)

If a dispensary discerns a discrepancy between the inventory of stock and the seed-to-sale tracking system of greater than 0.5 percent of total product weight or items, the dispensary shall:

(a)

Commence an investigation of the discrepancy within 1 business day; and

(b)

If the dispensary cannot resolve the discrepancy within 30 business days, report the discrepancy to MCA.

(2)

Failure to report an unresolved discrepancy may be used as evidence of diversion.

Theft or Diversion. If the dispensary finds evidence of a theft or diversion, the dispensary shall report the theft or diversion to the Administration within 1 business day.

Within 30 business days of discovering the theft, diversion, or unresolved discrepancy, the dispensary shall:

(1)

Complete an investigation;

(2)

Amend its standard operating procedures, if necessary; and

(3)

Send a report of the investigation to the Administration.

A dispensary shall use the seed-to-sale tracking system for explanation and reporting of discrepancies less than 0.5 percent.

Regulation .11 Standard Operating Procedures.Link Copy Citation

A dispensary shall establish standard operating procedures in accordance with this subtitle for all aspects of:

(1)

Inventory control, including:

(a)

Tracking the dispensary’s stock of cannabis in the seed-to-sale tracking system from the time it is received by the dispensary to the time it is delivered or dispensed to another licensee, a registrant, a qualifying patient, a registered caregiver, or an adult-use consumer; and

(b)

Monthly physical inventory;

(2)

Receiving cannabis or products containing cannabis;

(3)

Receipt, storage, and distribution of edible cannabis products;

(4)

Safe and sanitary storage of cannabis;

(5)

Equipment cleaning, maintenance, calibration;

(6)

Handling, packaging, and labeling cannabis and cannabis products;

(7)

Green waste procedures;

(8)

Security and visitor procedures, including theft and diversion prevention;

(9)

Storage, handling, and disposing of recalled materials;

(10)

Dispensing cannabis and cannabis products to qualifying patients, registered caregivers, and adult-use consumers; and

(11)

If applicable:

(a)

Delivering cannabis to a qualifying patient, a registered caregiver, or an adult-use consumer;

(b)

Repackaging cannabis into usable cannabis products;

(c)

Providing reduced cost or discount cannabis or cannabis products to its agents;

(d)

Drive-through or walk-up window dispensing;

(e)

Curbside dispensing; and

(f)

Examining at a specified regular interval GPS records of all delivery vehicles, including stops made along the delivery route.

A dispensary’s standard operating procedures shall:

(1)

Be available to each agent in a form the agent understands;

(2)

Be available on-site for inspection by the Administration; and

(3)

Accurately reflect the procedures used at the premises.

Subtitle 17 — Maryland Cannabis Administration

Chapter 13. Cannabis Products

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Current Good Manufacturing Practices” or “cGMP” means a manufacturing process that complies with 21 CFR Part 111 or 21 CFR Part 210.

(2)

“Food” means any substance that is used as food or drink for human beings or as a component of food or drink for human beings.

(3)

“Food ingredient” means a substance that is used as a component of food, including:

(a)

Flavoring;

(b)

Food coloring; and

(c)

Preservatives.

(4)

“Ingredient” means any component of an edible cannabis product that is intended for human consumption, approved by the Administration, and composed of:

(a)

Food or food ingredients; or

(b)

Cannabis.

(5)

“Permittee” means a licensed processor authorized by the Administration to manufacture edible cannabis products.

Regulation .02 Finished Products for Retail Sale.Link Copy Citation

A dispensary is only authorized to dispense a finished product that has been sealed, labeled, and packaged in accordance with COMAR 14.17.18.

Except as described in Regulation .11 of this chapter, a dispensary shall only obtain finished cannabis products from a licensed grower or processor.

Regulation .03 Product Reservations.Link Copy Citation

Medical Cannabis Products.

(1)

The Administration shall require that certain finished cannabis products be dispensed only to qualifying patients or registered caregivers to:

(a)

Ensure adequate supply of medical cannabis products; and

(b)

Reserve high potency products for medical patients.

(2)

No part of this section may be construed to prohibit the dispensing of other finished cannabis products to qualifying patients in accordance with COMAR 14.17.12.04, including:

(a)

Cannabis vaporizing devices;

(b)

Home cultivation products;

(c)

Usable cannabis products; and

(d)

Edible cannabis products containing less than:

(i)

10 milligrams of tetrahydrocannabinol per serving; or

(ii)

100 milligrams of tetrahydrocannabinol per package.

Adult-Use Cannabis Products. Individuals purchasing cannabis products for adult-use may purchase:

(1)

Cannabis vaporizing devices;

(2)

Concentrated cannabis products with a total weight of 1 gram or less;

(3)

Home cultivation products;

(4)

Usable cannabis products;

(5)

Infused non-edible cannabis products; and

(6)

Edible cannabis products, tinctures, and capsules containing equal to or less than:

(a)

10 milligrams of tetrahydrocannabinol per serving; and

(b)

100 milligrams of tetrahydrocannabinol per package.

Infused pre-rolls are not subject to the weight limit in §B(2) of this regulation.

Licensed dispensaries shall otherwise provide products for retail sale in accordance with COMAR 14.17.12.06.

Regulation .04 Product Testing.Link Copy Citation

Finished cannabis products for retail sale shall be tested by an independent testing laboratory authorized by the Administration in accordance with COMAR 14.17.08 prior to any sale, distribution, or dispensing.

Testing, sampling, and other laboratory protocols shall be performed by the independent testing laboratory in accordance with the Administration’s Technical Authority.

Regulation .05 Edible Cannabis Products.Link Copy Citation

General Requirements.

(1)

Before engaging in the business of possessing, processing, packaging, labeling, transferring, transporting, selling, or distributing edible cannabis products to a dispensary, a licensed processor shall obtain a permit from the Administration in accordance with COMAR 14.17.11.05B.

(2)

Prior to offering the products for distribution or sale to a licensed dispensary, a permittee shall obtain approval from the Administration for all edible cannabis products by submitting a request in in a manner prescribed by the Administration.

(3)

A permittee seeking approval to offer an edible cannabis product shall submit:

(a)

A photograph, digital image, or digital rendering of the product, labeling, and packaging;

(b)

The varying levels of potency and dosing of the edible cannabis product;

(c)

The recipe, including the production process, for manufacturing the edible cannabis product; and

(d)

Any scientific studies or laboratory testing results supporting the stability and approximate expiration date of the edible cannabis product.

(4)

The Administration shall review and approve each edible cannabis product before the product may be commercially manufactured or sold by a permittee, to ensure the:

(a)

Product complies with the requirements of this chapter; and

(b)

Safety of minors.

Dosage Requirements.

(1)

Unless expressly authorized by the Administration, an edible cannabis product may not contain more than:

(a)

10 milligrams of THC per serving; and

(b)

100 milligrams of THC per package.

(2)

Each single serving contained in a package of a multiple-serving edible cannabis product shall be physically separated in a way that enables an individual to determine how much of the edible cannabis product constitutes a single serving.

(3)

An intact product form containing multiple servings does not meet the requirements of §B(2) of this regulation if it has demarcations or delineations on the product to indicate individual servings.

(4)

The Administration may approve a request to manufacture a high potency edible cannabis product containing more than 10 milligrams of THC per serving or 100 milligrams of THC per package if:

(a)

A permittee submits a request in a form prescribed by the Administration; and

(b)

The request complies with §G of this regulation.

(5)

An edible cannabis product consisting of multiple servings shall be homogenized so that each serving contains the same concentration of THC.

Appearance of Edible Cannabis Products.

(1)

A permittee shall only manufacture or distribute solid edible cannabis product in geometric shapes.

(2)

A permittee may not manufacture an edible cannabis product that due to its shape, design, or flavor is likely to appeal to minors.

(3)

The manufacture or sale of edibles in the following shapes is prohibited:

(a)

Human, animal, toy, or fruit;

(b)

A shape that bears the likeness or contains characteristics of a realistic or fictional human, animal, or fruit, including artistic, caricature, or cartoon renderings; and

(c)

A commercially available food or beverage product that targets or is primarily marketed to minors.

Liquid Edible Product Requirements.

(1)

A liquid edible product container may not contain more than a single serving per container.

(2)

A single serving of a liquid edible product may not exceed 10 milligrams of THC per container.

(3)

A liquid edible product shall otherwise comply with this regulation.

Prohibited Products.

(1)

Edible cannabis products may not contain:

(a)

Meat;

(b)

Seafood;

(c)

Unpasteurized eggs; or

(d)

Unpasteurized dairy of any type.

(2)

The following types of products may not be sold:

(a)

Alcoholic beverages, as defined in Alcoholic Beverage and Cannabis Article, §1-101, Annotated Code of Maryland; and

(b)

Any product containing any non-cannabis additive that would increase potency or toxicity, or that would create an unsafe combination with other psychoactive substances, including nicotine and caffeine.

(3)

The prohibition in §E(2)(b) of this regulation does not apply to products containing naturally occurring caffeine, such as coffee, tea, or chocolate.

Compliance with State and Federal Food Safety Requirements. In addition to the other requirements set forth in this chapter, a permittee shall comply with all applicable food safety regulations, including:

(1)

21 CFR, as amended;

(2)

21 U.S.C. §343, as amended;

(3)

21 U.S.C. §§451—471, as amended; and

(4)

21 U.S.C. §§601—695, as amended.

High Potency Edible Cannabis Products.

(1)

Edible products produced with approval by the Administration under §B(4) of this regulation shall comply with Current Good Manufacturing Practices under 21 CFR Part 111 or 21 CFR Part 210.

(2)

A permittee shall submit to the Administration a third-party certification that demonstrates compliance with §G(1) of this regulation.

(3)

Demonstration of compliance required under §G(2) of this regulation shall include:

(a)

Proof of the third party’s accreditation to certify for Current Good Manufacturing Practices that complies with 21 CFR Part 111 or 21 CFR Part 210;

(b)

An attestation that the third party performed a facility audit of the licensed processor’s facility using an audit checklist within the scope of accreditation that complies with 21 CFR Part 111 or 21 CFR Part 210;

(c)

The audit checklist for cGMP 21 CFR Part 111 or 21 CFR Part 210, facility score, the audit checklist score scale, and a corrective plan to remediate any deficiencies identified during the audit; and

(d)

Documentation that the dosage form is recognized by the United States Pharmacopeia, the National Formulary, or the Food and Drug Administration.

(4)

Edible products produced with approval by the Administration under §B(4) of this regulation may not contain more than:

(a)

40 milligrams of THC per serving; and

(b)

400 milligrams of THC per package.

(5)

A dispensary shall only sell or dispense high potency edible products to qualified patients and registered caregivers.

(6)

A processor shall label high potency edible products in accordance with COMAR 14.17.18.04.

The Administration shall maintain permittee trade secrets in conformity with COMAR 14.17.11.05.

Regulation .06 Capsule and Tincture Products.Link Copy Citation

A tincture shall:

(1)

Contain no additional non-cannabis ingredients except potable water, unless approved by the Administration; and

(2)

For vegetable oil tinctures, be manufactured in accordance with the regulation of edible cannabis products under Regulation .05E—H of this chapter and COMAR 14.17.11.05—.14, except for COMAR 14.17.11.05B; and

(3)

Be dispensed in a container that:

(a)

Has a resealing, child-resistant cap, or closure; and

(b)

Includes a dropper measuring device within the package.

A licensee is encouraged to manufacture varying levels of potency for each tincture or capsule product the permittee distributes, including products containing:

(1)

2.5 milligrams of THC per serving; and

(2)

5 milligrams of THC per serving.

A dispensary shall only sell or dispense capsule and tincture products with more than 10 milligrams of tetrahydrocannabinol per serving and 100 milligrams tetrahydrocannabinol per package to qualifying patients or registered caregivers.

Regulation .07 Home Cultivation Products.Link Copy Citation

A licensed dispensary is authorized to sell and distribute home cultivation products intended to assist with the home cultivation of cannabis.

A licensed dispensary may sell up to:

(1)

Two actively growing plants or seedlings to an adult use consumer; and

(2)

Four actively growing plants or seedlings to a qualifying patient who is 21 years old or older or to a registered caregiver.

Seedlings not sold by a dispensary shall be destroyed and recorded as green waste in accordance with standard operating procedures if the plant is:

(1)

Taller than 8 inches;

(2)

Wider than 8 inches; or

(3)

Otherwise in a flowering or vegetative state.

A licensed dispensary may not cultivate cannabis plants.

A licensed dispensary shall only acquire home cultivation products under this regulation from a licensed grower.

Regulation .08 Cannabis Vaporizing Devices.Link Copy Citation

A dispensary may sell cannabis vaporizing devices to:

(1)

Individuals 21 years old or older; or

(2)

Registered patients and qualifying caregivers.

A cannabis vaporizing device may include a cartridge containing a concentrated or infused cannabis liquid for the purposes of heating and producing a vapor.

Except as authorized by COMAR 14.17.12.04, cannabis vaporizing devices may not include any solvent, solution, or other substance deemed to be a risk to public health or safety by the Administration.

Regulation .09 Infused Non-Edible Products.Link Copy Citation

A dispensary may dispense infused non-edible products to qualifying patients, registered caregivers, or adult use consumers.

Regulation .10 Concentrated Cannabis Products.Link Copy Citation

A dispensary shall only sell or dispense concentrated cannabis products with a total weight that exceeds 1 gram to qualifying patients or registered caregivers.

Concentrated cannabis products with a total weight that exceeds 1 gram shall be labeled in accordance with COMAR 14.17.18.04.

Regulation .11 Usable Cannabis Products.Link Copy Citation

Usable cannabis products may be sold to:

(1)

Individuals 21 years old or older; or

(2)

Qualifying patients and registered caregivers.

A licensed dispensary may package, repackage, wrap, roll, or otherwise create usable cannabis products from usable cannabis in accordance with §§C and D of this regulation.

Repackaging Requirements.

(1)

Handwashing Sinks.

(a)

A dispensary shall ensure that agents engaged in creating usable cannabis products have easy access to a handwashing sink that provides warm water of sufficient volume under pressure for effective handwashing procedures.

(b)

A dispensary shall maintain at least one handwashing sink for the following number of agents who are engaged in repackaging while on duty at the same time:

(i)

Every 15 agents; and

(ii)

Any fraction of 15 agents.

(2)

Scales.

(a)

A scale used by a licensed dispensary for the creation of usable cannabis products shall be:

(i)

A National Type Evaluation Program approved device;

(ii)

Calibrated and recertified annually.

(b)

A licensed dispensary shall make records and certifications required under §C(2)(a) of this regulation available to the Administration available upon request.

(3)

Sanitation.

(a)

Scales, surfaces, and other equipment use for the purposes of creating usable cannabis products shall be cleaned and sanitized:

(i)

Between shifts;

(ii)

Between packaging, repackaging, or otherwise creation of usable cannabis products with different usable cannabis batches;

(iii)

Before beginning any packaging, repackaging, or otherwise creation of usable cannabis products; and

(iv)

After the completion of any packaging, repackaging, or otherwise creation of usable cannabis products.

(b)

Licensed dispensaries shall maintain an accurate log of cleaning and sanitation required under §C(3)(a) of this regulation.

Products produced by dispensaries under this regulation shall be packaged and labeled in accordance with COMAR 14.17.18.

Transfer limits and Inventory Controls on Usable Cannabis.

(1)

Usable cannabis transferred from a licensed grower to a licensed dispensary for the purposes of creation of usable cannabis products may not exceed:

(a)

1 pound in a single package; or

(b)

50 pounds in a single transfer.

(2)

A licensed dispensary shall have no more than 50 pounds of usable cannabis in inventory at a given time for the purposes of creating usable cannabis products.

(3)

The Administration may query the seed-to-sale tracking system to ensure compliance with this section.

A dispensary may not weigh, package, repackage, or create usable cannabis products at the point of sale, or conduct deli-style sales.

Regulation .12 Novel Product Requests.Link Copy Citation

In this regulation, “novel product” means a cannabis product that is:

(1)

Not presently authorized in Maryland; and

(2)

Lawfully produced in another jurisdiction.

A licensed processor may submit a request to the Administration in a manner prescribed by the Administration to approve a novel product.

A valid novel product request shall include:

(1)

A detailed product description;

(2)

An explanation of how the product deviates from current regulations;

(3)

Evidence that the same product type is permitted in at least one other state’s regulated cannabis market; and

(4)

Health and safety information, including but not limited to:

(a)

Available information or studies regarding any beneficial or adverse effects from the use of the product; and

(b)

Packaging and labeling strategies to minimize risk to patients, consumers, and children.

The Administration may:

(1)

Make its own determination to approve or deny the request; or

(2)

Defer the request to the Public Health Advisory Council.

The Administration reserves the right to make a final determination on the request

Subtitle 17 — Maryland Cannabis Administration

Chapter 14. Complaints, Enforcement, Record Keeping, and Inspections of Cannabis Businesses

Regulation .01 Complaints, Adverse Events, and Recall.Link Copy Citation

The Administration, licensees, and certifying providers shall establish a procedure to receive, organize, store, and respond to all oral, written, electronic, or other complaints regarding any cannabis product and severe adverse events.

In the event a licensee or certifying provider receives a complaint regarding the quality or safety of a product, including a report of a serious adverse event, the licensee or certifying provider shall report the complaint within 24 hours to:

(1)

The Administration;

(2)

If applicable, the licensed grower or processor from which the cannabis originated; and

(3)

If applicable, the licensed dispensary that dispensed the cannabis.

Complaint Investigation Process.

(1)

After notifying the Administration about a complaint as required in §B of this regulation, a licensee or certifying provider shall:

(a)

Promptly identify the batch number or lot number of the cannabis or cannabis product, or any other product that is the subject of the complaint;

(b)

Investigate the production of the batch or lot to determine if there was a deviation from the standard operating procedure in the production of the batch or lot;

(c)

Send part of the retention sample of the batch or lot to an independent testing laboratory to determine if it meets quality and safety standards; and

(d)

If there is reasonable cause to suspect communicable disease transmission from or by an agent, collect morbidity history from any suspected agents.

(2)

If the sample analysis conducted under §C(1) of this regulation reveals that the batch or lot fails to meet quality and safety standards, the licensee shall:

(a)

Order a recall of all products derived from or included in the batch or lot;

(b)

To the extent possible, notify all adult-use consumers, patients, caregivers, and dispensaries who may have obtained cannabis products from such a batch or lot of the recall; and

(c)

Pay reimbursement for any returned cannabis.

(3)

In the case of a report of a serious adverse event, if the investigation reveals a deviation from the standard operating procedure in the production of the batch or lot, the licensee shall:

(a)

Order a recall of all products derived from or included in the batch or lot;

(b)

Notify all adult-use consumers, patients, caregivers, and dispensaries who may have obtained cannabis from such a batch or lot of the recall; and

(c)

Pay reimbursement for any returned cannabis.

(4)

If the licensee’s investigation reveals there is reasonable cause to suspect communicable disease transmission from or by an agent, the licensee shall ensure that appropriate follow-up action is taken, whenever applicable, including but not limited to:

(a)

Immediately excluding any indicated agent from the licensed facility;

(b)

Issuing an order to recall all products derived from, or included in, any affected batch or lot;

(c)

To the extent possible, notifying all adult-use consumers, patients, caregivers, and dispensaries who may have obtained cannabis from any affected batch or lot of the recall;

(d)

Reimbursing for any returned cannabis;

(e)

Immediately closing the licensed premises until medical and epidemiological evidence shows that the likelihood of further disease transmission is low; and

(f)

In accordance with COMAR 10.06.01, conducting an investigation, a report, and control of a communicable disease outbreak.

Custody of Returned Recalled Cannabis Products.

(1)

The licensee shall develop a procedure to ensure cannabis that is recalled is stored and segregated until disposal of recalled material is authorized by the Administration.

(2)

Within 24 hours of the receipt of notice from the Administration that the disposal of recalled cannabis is authorized, the licensee shall dispose of the recalled cannabis according to its standard operating procedure.

Regulation .02 Records.Link Copy Citation

A licensee shall maintain:

(1)

Independent of the seed-to-sale tracking system, a searchable, secure, tamper-evident record of each distribution that contains:

(a)

If applicable, the name and address of the patient;

(b)

The quantity delivered; and

(c)

The product name, strength, batch number, and lot number.

(2)

To ensure uniformity, for each batch and lot:

(a)

Records of production and distribution; and

(b)

Daily checklists;

(3)

A record of test methods and test results for each batch and lot;

(4)

A log of individuals visiting each premises; and

(5)

A duplicate set of all records at a secure, off-site location.

Unless otherwise specified, a licensee, or a certifying provider shall retain a record for a period of 2 years.

Regulation .03 Inspections.Link Copy Citation

Definition.

(1)

In this regulation, the following term has the meaning indicated.

(2)

Term Defined. “Investigator” means any Administration employee or contractor designated by the Administration to carry out an inspection under this regulation.

Submission of an application to be a licensee or registrant irrevocably gives the Administration consent to conduct all inspections to ensure compliance with State law and regulations.

The Administration may inspect all of a cannabis business applicant’s premises and operations to ensure conformity with its application, State law, and regulations.

In the case of an inspection before the issuance of a license, the Administration shall arrange the inspection to take place at a mutually agreeable time.

Announced and Unannounced Inspections.

(1)

The Administration may conduct announced and unannounced inspections of a licensee or registrant subject to the Administration’s regulation, mission, and function, to determine compliance with statute and regulations.

(2)

Failure by a licensee or registrant to provide the Administration with immediate access to any part of a premises, requested material, information, or agent as part of an inspection may result in the imposition of a civil fine, suspension of license, or revocation of license.

(3)

During an inspection, the Administration may:

(a)

Review and make copies of any and all records, including but not limited to financial data, sales data, employment data, or other material that would otherwise be considered proprietary;

(b)

Enter any place, including but not limited to vehicles in which cannabis is held, dispensed, sold, produced, tested, delivered, transported, manufactured, or otherwise disposed of;

(c)

Inspect all equipment, raw and processed material, containers, and labeling;

(d)

Inventory any cannabis;

(e)

Inspect any equipment, instruments, tools, or machinery used to process:

(i)

Cannabis; or

(ii)

Cannabis product;

(f)

Investigate complaints; and

(g)

Question personnel present at the location and any agent of the licensee.

(4)

During an inspection, a material misstatement, omission, misrepresentation, or untruth by the cannabis business applicant, licensee, registrant, or agent may result in:

(a)

Denial of the application;

(b)

The imposition of a civil fine;

(c)

Suspension of a license or registration; or

(d)

Revocation of a license or registration.

Sample Collection and Testing as Part of Inspection.

(1)

During an inspection, the Administration may obtain samples for testing of any:

(a)

Cannabis;

(b)

Cannabis product;

(c)

Media used to grow cannabis;

(d)

Chemicals or solvents used to process cannabis concentrate;

(e)

Labels or containers for cannabis;

(f)

Paraphernalia;

(g)

Environmental swabs;

(h)

Any waste material; and

(i)

Raw or processed material.

(2)

An investigator may contract with an independent testing laboratory or the State Cannabis Testing Laboratory to analyze the samples for any deviation from specification questioned by the investigator.

Investigative Actions.

(1)

In the event that an investigator has cause to suspect an operational failure or conditions that create a likelihood of diversion, contamination, or a risk to the public health:

(a)

An investigator may:

(i)

Suspend the distribution of some or all cannabis from the cannabis licensee;

(ii)

Order immediate evacuation of the premises and seal the entry door; or

(iii)

Quarantine some or all cannabis;

(b)

The Administration shall undertake a review of the inspection findings and may:

(i)

Request a recall of the cannabis;

(ii)

Request independent testing of affected cannabis;

(iii)

Approve a procedure to reprocess the cannabis;

(iv)

Notify law enforcement if diversion is suspected; or

(v)

Order the destruction of contaminated or substandard cannabis; and

(c)

The Administration may notify the local fire department or police department, or appropriate regulatory agency, regarding a risk to public health and safety.

(2)

During an inspection or any investigation, a licensee, registrant, or agent, or employee shall comply with an Administration request to:

(a)

Appear for a sworn statement; or

(b)

Submit documents responsive to any Administration request.

The Administration shall leave a receipt and create a documented chain of custody for anything removed from the premises during an inspection.

Report of an Inspection and Letter of Non-Compliance.

(1)

An investigator shall:

(a)

Prepare an investigative report; and

(b)

Deliver a copy of the report and obtain a receipt for the delivery.

(2)

Within 10 business days from the receipt of a letter of non-compliance imposing a fine or demanding corrective action, a licensee shall:

(a)

Respond in writing to each demand for corrective action;

(b)

Set forth a plan for corrective action to be taken and the timetable for correction; and

(c)

Pay the fine set forth in the letter of non-compliance.

(3)

Upon receipt of a letter of non-compliance, a licensee or registrant may request an evidentiary hearing on the same provided such request is made in writing within 30 days of receipt of the letter of non-compliance in accordance with COMAR 14.17.22.

(4)

If a licensee or registrant does not submit a request for a hearing in writing within the 30-day period, the agency action becomes a final determination and is not subject to appeal.

Regulation .04 Discipline and Enforcement.Link Copy Citation

Diversion.

(1)

A licensee, registrant, or agent may not:

(a)

Divert cannabis or cannabis products for any unauthorized sale or distribution;

(b)

Fail to maintain records in accordance with this subtitle or the licensee’s standard operating procedures;

(c)

Fail to accurately track, tag, or otherwise record inventory in the seed-to-sale tracking system; or

(d)

Sell or dispense cannabis or cannabis products in a manner that:

(i)

Exceeds the personal use amount of cannabis or cannabis products;

(ii)

Is reasonably expected to be in violation of the personal use amount; or

(iii)

Could otherwise reasonably give rise to any other violation of law.

(2)

A licensee, registrant, or agent may not conduct a series of transactions that would be in violation of §A(1)(d) of this regulation.

Health Endangerment.

(1)

A licensee, registrant, or agent may not:

(a)

Apply any contaminant to cannabis or cannabis products;

(b)

Handle cannabis or cannabis products in a manner that would endanger health and safety;

(c)

Store cannabis or cannabis products in a manner that would endanger health and safety; or

(d)

Otherwise risk the health and safety of a patient or consumer.

(2)

A licensee, registrant, or agent may not sell, dispense, or otherwise distribute cannabis or cannabis products to an individual younger than 21 years old unless the individual is a qualifying patient 18 years old or older.

A licensee or registrant may not substantially deviate or demonstrate a pattern of deviation from:

(1)

Its standard operating procedures;

(2)

Its application; or

(3)

State, federal, or local:

(a)

Law;

(b)

Regulations; or

(c)

Ordinances.

The Administration may fine, suspend, restrict, revoke, or otherwise sanction any cannabis licensee, registrant, or agent for:

(1)

Any violation of Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland;

(2)

Any violation of this subtitle;

(3)

Restricting, limiting, or otherwise impeding an inspection or investigation by the Administration;

(4)

A material misstatement, omission, misrepresentation, or untruth by the licensee, registrant, registered agent, or other employee; or

(5)

Any other violation of State, federal, or local:

(a)

Law;

(b)

Regulations; or

(c)

Ordinances.

Regulation .05 Fines and Suspension Proceedings.Link Copy Citation

Definitions.

(1)

In this regulation, the following terms have the meanings indicated.

(2)

Terms Defined.

(a)

“Letter of non-compliance” means a written communication from the Administration to a licensee or registrant that imposes a fine or demands corrective action.

(b)

“Respondent” means a licensee, registrant, or selected applicant who is issued a letter of non-compliance, notice of intent to summarily suspend, or order of summary suspension.

(c)

“Show cause hearing” means a non-evidentiary hearing to provide the parties involved with an opportunity for oral argument on a notice of intent to summarily suspend or a summary suspension.

A licensee, registrant, or agent who violates Regulation .04 of this chapter or COMAR 14.17.20 is subject to a fine of up to $10,000 per violation.

Each day a violation continues is a separate violation under this section.

The licensee, registrant, or agent assessed a fine under this regulation may:

(1)

Elect to pay the imposed fine; or

(2)

Request an evidentiary hearing in accordance with COMAR 14.17.22 not later than 30 days after the receipt of the notice of the fine.

If a respondent does not submit a request for an evidentiary hearing within 30 days from receipt of the letter of non-compliance or administrative charges, the agency determination becomes final and is not subject to appeal.

The Administration may impose late fees on respondents who do not pay fines by the date indicated in a Letter of Non-Compliance or in a final agency determination, as described in COMAR 14.17.22.10.

The Administration shall remit any penalty collected under this regulation to the:

(1)

Medical Cannabis Compassionate Use Fund;

(2)

Cannabis Business Assistance Fund;

(3)

Community Reinvestment and Repair Fund; or

(4)

Cannabis Public Health Fund.

Funds from fines remitted under §F of this regulation shall be distributed at the discretion of the Administration by evaluating:

(1)

Available fund balances;

(2)

Uses of the fund; and

(3)

Future needs of the fund.

Summary Suspension.

(1)

The Administration shall order the summary suspension of a license or registration if the Administration determines that the threat to public health, safety, or welfare requires immediate suspension of a license or registration.

(2)

The Administration shall promptly give the licensee or registrant:

(a)

Written notice of the suspension, the findings, and the reasons that support the findings; and

(b)

An opportunity for a hearing before the Administration.

(3)

Service of notice of intent shall be made by:

(a)

Serving the notice of intent via hand delivery to the point of contact on file;

(b)

Sending the notice of intent via certified mail to the address the licensee or registrant is required to maintain with the Administration; or

(c)

Other reasonable means to effect service.

(4)

A licensee or registrant aggrieved by the action of the Administration under this regulation may request a show cause hearing by filing a written request for a hearing not later than 30 days after receipt of notice of the Administration's action.

Notice of Intent to Summarily Suspend a License or Registration.

(1)

The Administration may issue a Notice of Intent to Summarily Suspend a cannabis license or registration if the Administration determines that a suspension of a license or registration is necessary to protect the health and welfare of the public.

(2)

The Administration shall promptly give the licensee or registrant:

(a)

Written notice of the suspension, the findings, and the reasons that support the findings; and

(b)

An opportunity for a hearing before the Administration.

(3)

Service shall be made by:

(a)

Serving the Notice of Intent via hand delivery to the point of contact on file;

(b)

Sending the Notice of Intent via certified mail to the address the licensee or registrant is required to maintain with the Administration; or

(c)

Other reasonable means to effect service.

(4)

A licensee or registrant aggrieved by the action of the Administration under this regulation may request a show cause hearing by filing a request for a hearing in writing not later than 30 days after receipt of notice of the Administration's action.

Show Cause Hearing.

(1)

If requested in writing, the show cause hearing shall be held promptly within a reasonable time after the effective date of the action.

(2)

The show cause hearing shall be conducted before the Administration’s director or a designee who:

(a)

Shall determine procedural issues;

(b)

May impose reasonable time limits on each party’s oral argument; and

(c)

Shall make rulings reasonably necessary to facilitate the effective and efficient operation of the show cause hearing.

(3)

At the conclusion of the show cause hearing, the Administration director or a designee may:

(a)

Affirm the order of summary suspension or notice of intent to summarily suspend;

(b)

Rescind the order of summary suspension;

(c)

Enter into a consent order with the respondent on behalf of the Administration; or

(d)

Enter into an interim order with the respondent on behalf of the Administration warranted by the circumstances of the case, including one providing for a stay of the summary suspension, subject to certain conditions.

(4)

After the show cause hearing, if the Administration Director or a designee decides to continue the summary suspension, the licensee or registrant aggrieved by the decision may pursue a hearing in accordance with COMAR 14.17.22.

(5)

Contesting a summary suspension or notice of intent to summarily suspend through a show cause hearing does not toll or otherwise excuse the requirement that an aggrieved party request a hearing within 30 days of notice of intent to summarily suspend, as set forth in §I(4) or §J(4) of this regulation.

(6)

If the licensee or registrant against whom the action is contemplated does not appear, the Administration may hear and determine the matter.

(7)

A show cause hearing is not subject to the hearing procedures set forth in COMAR 14.17.22.

Regulation .06 Advertising.Link Copy Citation

All advertisements for cannabis products, businesses, licensees, or other cannabis-related services shall comply with the requirements of Alcoholic Beverages and Cannabis Article, §§36-901—36-903, Annotated Code of Maryland.

A licensee, registrant, agent, or certifying provider who violates §A of this regulation:

(1)

Is subject to a fine not exceeding:

(a)

$1,000 for the first violation;

(b)

$10,000 for the second violation occurring within 24 months after the first violation;

(c)

$25,000 the third violation occurring within 24 months after the second violation; and

(d)

$50,000 for each subsequent violation occurring within 24 months after the preceding violation; and

(2)

May elect to:

(a)

Pay the imposed fine; or

(b)

Request a hearing not later than 30 days from the receipt of the fine.

Any violations that occurred between May 3, 2023, and the effective date of these regulations count for purposes of calculating the appropriate fine.

In accordance with the hearing provisions in Regulation .05 of this chapter, the Administration may deny, suspend, or revoke the license or registration of a licensee, registrant, agent, or certifying provider who violates §A of this regulation.

Subtitle 17 — Maryland Cannabis Administration

Chapter 15. Cannabis Business Agents

Regulation .01 Scope.Link Copy Citation

This chapter applies to agents as defined in COMAR 14.17.01.

This chapter applies to individuals who are employed, volunteer, or work for management companies as defined in COMAR 14.17.06.05.

Regulation .02 Registration.Link Copy Citation

To volunteer or work for a licensee or registrant, an individual shall be registered with the Administration as an agent.

Agent registration shall be conducted pursuant to Alcoholic Beverages and Cannabis Article, §36-501, Annotated Code of Maryland.

A licensee shall apply to register an agent by submitting to the Administration:

(1)

The name, address, date of birth, and Social Security Number or Individual Tax Identification Number of an agent;

(2)

Documentation of the submission of fingerprints of the agent of to the Criminal Justice Information System’s Central Repository in accordance with Alcoholic Beverages and Cannabis Article, §36-505, Annotated Code of Maryland;

(3)

The request for the criminal history record information of the agent to be forwarded to the Administration.

As a condition of registration, an agent shall report to the Administration a conviction of or plea of nolo contendere to a crime involving moral turpitude within 14 days of the conviction or plea.

The Administration may:

(1)

Disqualify as an agent an individual who has been convicted of or pleaded nolo contendere to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside;

(2)

Revoke the registration of an agent who is convicted of or pleads nolo contendere to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside; and

(3)

Disqualify as an agent an individual who previously had a registration revoked under Alcoholic Beverages and Cannabis Article, §36-202(a)(7), Annotated Code of Maryland, or for good cause.

The Administration may not deny a cannabis agent registration based on any cannabis-related offense occurring before July 1, 2023.

Regulation .03 Registered Agent Identification Cards.Link Copy Citation

The Administration shall issue to each registered agent an identification card which includes a photograph of the face of the registered agent taken no more than 6 months before the date of the application.

At all times every registered agent at a licensed or registered premises shall visibly wear the identification card issued to the registered agent by the Administration.

The agent shall apply for renewal of the identification card every 2 years.

If a registered agent’s identification card is lost, destroyed, or stolen, within 24 hours of becoming aware of the loss, destruction or theft, the licensee shall:

(1)

Report the loss, destruction, or theft to the Administration;

(2)

Apply for a replacement card; and

(3)

Pay a replacement card fee specified in COMAR 14.17.21.

An identification card remains the property of the Administration and the Administration may order the return or seizure of an identification card if the registration is revoked or expires.

If a registered agent’s identification card is lost, destroyed, or stolen, a copy of the notification to the Administration shall be evidence of registration until a new card is obtained from the Administration.

Regulation .04 Termination.Link Copy Citation

Within 30 days of the termination of a registered agent, the licensee or registrant shall:

(1)

Take custody of the terminated registered agent’s identification card;

(2)

Obtain any keys or other entry devices from the terminated registered agent; and

(3)

Ensure the terminated registered agent can no longer gain access to the licensed premises.

Within 1 business day of the termination of a registered agent, a licensee or registrant shall:

(1)

Notify the Administration:

(a)

Of the termination and the circumstance of the termination; and

(b)

Whether the terminated registered agent has returned the agent’s identification card; and

(2)

Initiate delivery of the terminated registered agent’s identification card to the Administration.

The Administration shall revoke the registration of an agent upon receiving notification that an agent is no longer associated with a licensee.

If a registered agent did not return the agent’s identification card within 30 days of the termination, the Administration shall notify the law enforcement agency with jurisdiction in the licensee’s area.

Regulation .05 Training.Link Copy Citation

The licensee shall train all registered agents on:

(1)

Federal and State cannabis laws and regulation and other laws and regulations pertinent to the agent’s responsibilities;

(2)

Standard operating procedures;

(3)

The State alcohol and drug free workplace policy, as identified in COMAR 21.11.08.03;

(4)

Detection and prevention of diversion of cannabis;

(5)

Security procedures; and

(6)

Safety procedures including responding to:

(a)

A medical emergency;

(b)

A fire;

(c)

A chemical spill; and

(d)

A threatening event such as:

(i)

An armed robbery;

(ii)

An invasion;

(iii)

A burglary; and

(iv)

Any other criminal incident.

The licensee shall retain training materials and attendance records and make the training materials available for inspection by the Administration.

Within 90 days of employment start date and annually thereafter, a registered agent employed by a cannabis licensee shall complete a responsible vendor training program that:

(1)

Meets the minimum requirements under Alcoholic Beverages and Cannabis Article, §§36-1001—36-1003, Annotated Code of Maryland; and

(2)

Is registered with the Administration in accordance with §E(3) of this regulation.

A responsible vendor training program required under §E of this regulation shall be in addition to the training requirements under §A of this regulation.

Responsible Vendor Training Program.

(1)

To offer a responsible medical or adult-use cannabis vendor, server, and seller training program, a person shall submit an application to the Administration.

(2)

To be considered for approval, the proposed training program application shall meet the minimum educational standards established in Alcoholic Beverages and Cannabis Article, §36-1001(c), Annotated Code of Maryland.

(3)

Applications approved by the Administration shall be registered with the Administration for a period of 3 years from the date of approval.

(4)

The Administration shall assess a fee for the application, registration, and renewal of a responsible vendor training program under this regulation as specified in COMAR 14.17.21.

(5)

A person offering a responsible vendor training program under this paragraph may not have ownership or control of any cannabis license.

(6)

A person offering a responsible vendor training program shall:

(a)

Maintain records for at least 4 years; and A

(b)

Make these records available to the Administration upon request.

Subtitle 17 — Maryland Cannabis Administration

Chapter 16. Cannabis Business Owners

Regulation .01 Conditions of Ownership and Control.Link Copy Citation

An individual who holds any amount of ownership interest or control in a cannabis licensee shall be 21 years old or older.

The requirement in §A of this regulation does not apply to beneficiaries of ownership interests held in a trust if:

(1)

The trustee is 21 years old or older; and

(2)

Ownership interests do not vest prior to the beneficiary’s 21^st birthday.

The Administration may force divestiture of an individual with ownership interest or control from the licensed business if they are convicted or plead nolo contendere to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside.

Transfers.

(1)

A person wishing to hold an ownership interest of greater than 5 percent or control in a cannabis license shall comply with the application requirements under Alcoholic Beverages and Cannabis Article, §36-502, Annotated Code of Maryland.

(2)

A license issued, regulated, or otherwise authorized under this subtitle shall only be transferred in accordance with Alcoholic Beverages and Cannabis Article, §36-503, Annotated Code of Maryland.

(3)

Applicants and transferees under this chapter shall submit to a criminal history record check in accordance with Alcoholic Beverages and Cannabis Article, §36-505, Annotated Code of Maryland.

Regulation .02 Disclosure of Ownership and Control.Link Copy Citation

Each licensee shall submit to the Administration a table of organization, ownership, and control in a manner designated by the Administration:

(1)

On or before July 1 of each year;

(2)

Within 10 business days of any change in ownership interest greater than 5 percent; and

(3)

Upon request by the Administration.

The table of organization, ownership, and control shall identify the management structure, ownership, and control of the licensee, including but not limited to the:

(1)

Name of each owner or principal officer and any other individual or entity with the authority to control the licensee;

(2)

The office or position held, if any; and

(3)

The percentage of ownership interest, if any.

The identification of ownership shall include:

(1)

The name and percentage of ownership interest of each individual or business entity with ownership of more than 5 percent of the voting shares of the entity, to the extent such information is known or contained in 13D or 13G Securities and Exchange Division filings; and

(2)

To the extent known, the names and percentage of interest of ownership of persons who are relatives of one another and who together exercise control over or own more than 10 percent of the voting shares of the entity.

A licensee that is owned or controlled, in whole or in part, by another entity shall disclose to the Administration:

(1)

The relationship between the licensee and the parent or affiliate; and

(2)

Each owner, board member, or officer and any other individual with control or management authority over those entities owning or controlling the license.

Any individual identified as having ownership or control of a license may not have other ownership interest that exceeds the limitations set forth in Alcoholic Beverages and Cannabis Article, §36-401(e), Annotated Code of Maryland.

Regulation .03 Annual Reports for Cannabis Business Owners.Link Copy Citation

Annual Report on Minority Owners and Employees.

(1)

On or before August 1 of each year, each licensee and registrant shall submit a report in a manner determined by the Administration in accordance with Alcoholic Beverages and Cannabis Article, §36-801(a), Annotated Code of Maryland.

(2)

Each licensee and registrant shall maintain the data required for the report in §A(1) of this regulation for a period of 5 years.

The Administration may request an annual report regarding a licensee’s or registrant’s environmental resource consumption and waste generation, including but not limited to:

(1)

Energy and water usage; and

(2)

Green waste disposal.

The Administration may require licensees to demonstrate progress toward the stated goals of the diversity plan on a quarterly basis for the first operational year of licensure, in a manner specified by the Administration.

Regulation .04 Mandatory Reporting of Legal Actions.Link Copy Citation

The required reporting under this regulation applies to a legal action whether in Maryland or another jurisdiction.

Notification.

(1)

A licensee or its parent, affiliate, or any subsidiary shall notify and provide a description to the Administration within 30 days of any of the following events:

(a)

The filing of any administrative, civil, or criminal action against the licensee or its parent, affiliate, or subsidiary by any governmental entity, private entity, or individual;

(b)

The disposition of any administrative, civil, or criminal action against the licensee or its parent, affiliate, or subsidiary by any governmental entity, private entity, or individual, whether by judgment, final order, consent order, or other negotiated resolution; or

(c)

The filing for bankruptcy of the licensee or its parent, affiliate, or subsidiary, the entry of a court order for the placement into receivership, or the date of an assignment for the benefit of creditors.

(2)

An individual with ownership interest or control greater than 5 percent shall notify and provide a description to the Administration within 30 days of any of the following events:

(a)

(b)

An owner’s conviction of or plea of nolo contendere to a crime involving moral turpitude whether or not any appeal or other proceeding is pending to have the conviction or plea set aside.

(3)

The notification and description of the event required under §B(1) and (2) of this regulation shall be provided to the Administration within 14 calendar days after receiving:

(a)

Proper service of process in accordance with the rules of civil or criminal procedure of a court of competent jurisdiction; or

(b)

Formal written notice in accordance with the administrative rules of an administrative agency with jurisdiction.

The description under §B(3) of this regulation shall include the following:

(1)

Title and docket number;

(2)

Name and location of the court;

(3)

Names of the parties;

(4)

General nature and scope of the legal action; and

(5)

Any judgment, final order, consent order, or other negotiated resolution.

Regulation .05 Prohibited Acts.Link Copy Citation

A licensee may not transfer ownership of the license for the purpose of:

(1)

Improperly shielding the license or the value of the license from any judgement or liability; or

(2)

Furthering any action or plan of action that violates any State, local or federal law.

Except as authorized under Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland, a licensee may not be:

(1)

A member of the General Assembly;

(2)

An employee of the Administration; or

(3)

Otherwise in violation of Alcoholic Beverages and Cannabis Article, §36-504, Annotated Code of Maryland.

An individual, group of individuals or persons may not own multiple, non-majority or unreported shares or interests in a cannabis license unless every holding is a passive interest that:

(1)

Has an aggregate ownership interest of less than 5 percent; and

(2)

Does not have control over the license.

Owners found in violation of this regulation by the Administration may be subject to any of the following sanctions:

(1)

Fine;

(2)

Suspension or revocation of the licensed business; or

(3)

Forced divestiture of the owner from the licensed business.

Subtitle 17 — Maryland Cannabis Administration

Chapter 17. Secured Creditors and Receivership

Regulation .01 Security Interest in a Cannabis License.Link Copy Citation

Prior to initiating an agreement that involves a security interest in a cannabis license, a creditor shall register with the Administration in the manner specified by the Administration.

A security agreement may not contain provisions that authorize the creditor to:

(1)

Require the security agreement to become due earlier than the terms specified in the agreement, except if the licensee materially breaches or defaults on its material obligations as set forth in the security agreement;

(2)

Convert the debt under the security agreement to equity whether present, optional, or future, in a manner that violates Maryland law concerning ownership and control of a license, including restrictions on transfers of a license;

(3)

Deprive the licensee of the right to operate the license;

(4)

Restrict the ability of the licensee to make payment on the security agreement through a third party unless the payment restriction would cause the creditor to violate a law by which it is governed; or

(5)

Restrict the ability of the licensee to exercise control over the licensed entity as defined in COMAR 14.17.01.

A creditor or licensee shall make a copy of the security agreement available to the Administration upon request.

The Administration may invalidate a provision of a security agreement if it violates §B of this regulation.

Regulation .02 Notice of Receivership Action Involving Cannabis Licensee.Link Copy Citation

Any person who files any receivership or trustee action involving any cannabis licensee shall provide the Administration with original notice of the action:

(1)

Within 1 business day; and

(2)

In a manner specified by the Administration.

The Administration will find a licensee compliant with this chapter only if it receives original notice of the action and the receiver is registered consistent with Administration requirements.

Regulation .03 Selection of an Eligible Receiver.Link Copy Citation

A creditor may select an eligible receiver who is registered with the Administration to oversee the disposition of a cannabis license if the licensee is the subject of a court order requiring appointment of a receiver.

Within 10 business days of a court order requiring appointment of a receiver, the creditor shall submit to the Administration:

(1)

Proof of the creditor’s secured interest in the proceeds from a sale of the license of the associated licensee;

(2)

Proof of a court order requiring appointment of a receiver; and

(3)

Any additional information requested by the Administration.

Regulation .04 Receivership Registration.Link Copy Citation

Prior to serving as a receiver under this chapter, a prospective receiver shall register with the Administration.

The prospective receiver shall submit to the Administration a completed registration form, in a manner specified by the Administration, accompanied by the following:

(1)

Documentation establishing the prospective receiver’s qualifications and ability to oversee the orderly disposition of the secured license and the licensee’s cannabis inventory, in a manner that facilitates continuity of the licensee’s operations to the extent possible, including demonstrated understanding of the laws and regulations that apply to:

(a)

The license type; and

(b)

Receivership, including the provisions of this chapter.

(2)

A list of all owners and principal officers of the applicant and supporting documentation, including:

(a)

Certificate of incorporation;

(b)

Bylaws;

(c)

Articles of organization;

(d)

Operating agreements;

(e)

Certificate of limited partnership;

(f)

Resolution of a board of directors; or

(g)

Other similar business formation documents;

(3)

Documentation establishing that the individual or entity is eligible to do business in Maryland throughout the term of the receivership;

(4)

Criminal history record information demonstrating that the applicant for receivership does not have any disqualifying criminal conviction applicable to licensees under this subtitle;

(5)

Financial records, including a record of tax payments in all jurisdictions in which an applicant has operated a business for the 3 years before the filing of the application;

(6)

An affidavit confirming that the applicant does not have a financial or ownership interest in any licensee in Maryland;

(7)

A disposition of license plan, subject to Administration approval, which includes:

(a)

A detailed description of the plan for the orderly disposition of the license and the licensee’s cannabis inventory, to satisfy the security interest in the right to the proceeds from the sale of the license; and

(b)

A proposed timeline for the orderly disposition of the license of the associated licensee and the licensee’s cannabis inventory; and

(8)

Any additional information requested by the Administration.

The application shall be accompanied by a non-refundable receivership registration fee specified in COMAR 14.17.21.

Administration Determination of Receivership.

(1)

Upon receipt of a completed receiver registration application and associated fee, the Administration shall either approve, deny, or request additional information from the applicant.

(2)

If the applicant fails to provide any additional requested information to the Administration within 30 days of the request, the application shall be considered denied.

(3)

The approved receiver:

(a)

Shall maintain compliance with the eligibility requirements under this chapter, as evidenced by submitting an annual report to the Administration attesting to continued compliance beginning 1 calendar year after the date the receiver is approved;

(b)

Shall be a third party that is not affiliated with a creditor that has or asserts rights regarding a Maryland cannabis licensee; and

(c)

May not have a financial or ownership interest in any Maryland cannabis licensee during the period the receiver is actively carrying out its responsibilities under this chapter.

A receiver may only initiate the disposition of license and the licensee’s cannabis inventory if:

(1)

The creditor and receiver are registered with the Administration; and

(2)

The Administration has approved its disposition of license plan.

The Administration may not approve the plan for disposition of license and the licensee’s cannabis inventory earlier than 10 days after receiving a complete receivership registration application as described in §B of this regulation.

The receiver may not implement any disposition of license plan modifications prior to receiving Administration approval of the plan modifications.

Regulation .05 Receiver’s Responsibilities.Link Copy Citation

A receiver may only engage in growing, processing, or dispensing cannabis, including any plant touching activity associated with operational cannabis licensure, necessary to execute the disposition of license plan approved by the Administration.

A receiver shall comply with the provisions in this subtitle and Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland, governing a Maryland cannabis licensee that is subject to the receivership.

Material Violation.

(1)

In the event of a material violation by the receiver, the Administration shall provide the creditor associated with the receivership with written notice of the violation and an opportunity to cure within 45 days after receipt of the written notice, unless the Administration determines that the violation is an imminent threat to public health and safety, in which case the Administration shall terminate the receivership immediately.

(2)

The Administration shall terminate the receivership if after providing notice and the opportunity to cure, the material violation is not cured within the 45-day period.

(3)

Whenever the Administration terminates a receivership under this regulation, the creditor may select another prospective receiver for Administration approval under Regulation .04 of this chapter.

(4)

If a court is overseeing the matter for which a receiver has been appointed, the Administration shall provide notice to the court of a material violation by the receiver.

(5)

If the violation is an imminent threat to public health and safety, the Administration shall terminate the receivership immediately and notify the court within 1 business day of terminating the receivership.

Regulation .06 Disposition of a Cannabis License.Link Copy Citation

A receiver appointed under this chapter shall initiate and oversee the orderly disposition of a license and associated business assets in accordance with a disposition of license plan submitted to the Administration that includes:

(1)

A detailed description of the plan for the orderly disposition of the license and associated business assets; and

(2)

A proposed timeline for the orderly disposition of the license of the associated licensed grower, processor, or dispensary.

Notification. A receiver shall:

(1)

Issue public notice of the method, manner, time, place, and other terms of the disposition in a newspaper of general circulation in the jurisdiction in which the licensee is located and authorized to do business at least 60 days prior to the planned disposition, including the following information in clear, bold type:

(a)

Name and contact information of the creditor;

(b)

Name of licensee, and doing business as (d/b/a) or trade name, if applicable;

(c)

License number;

(d)

License classification;

(e)

Date, time, and location of planned disposition;

(f)

Deadline for obtaining pre-approval from the Administration to qualify as an eligible bidder at the planned disposition; and

(g)

Terms and conditions imposed by the creditor on the disposition process and on the successful bidder; and

(2)

Provide a copy of the information in §B(1) of this regulation to the Administration for the purpose of posting on the Administration’s website.

To qualify as an eligible bidder seeking to obtain the cannabis license, an individual, or in the case of an entity, each individual who would acquire an ownership interest of 5 percent or more of the cannabis license that is the subject of the disposition, shall provide the following information to the Administration not later than 30 days before the deadline for obtaining Administration approval to qualify as a bidder at the planned disposition of the license:

(1)

Name and contact information;

(2)

Criminal history record information;

(3)

Completed ownership and control attestation form provided by the Administration for each individual who intends to hold an ownership interest of 5 percent or more;

(4)

Evidence of immediately available financial resources sufficient to pay the deposit at the planned disposition and to close the transaction within 10 days of the ratified and final disposition;

(5)

Demonstration that the bidder meets all material requirements for licensure; and

(6)

Any additional information requested by the Administration.

An individual, entity, or an entity’s parent company, subsidiary, or affiliate, may not bid on or obtain a cannabis license that is subject to disposition under this chapter if it has any security interest in the cannabis license.

The Administration shall deny the transfer and sale of any cannabis license to an individual or entity, or an entity’s parent company, subsidiary, or affiliate, if it has any security interest in the cannabis license.

Process for Final Disposition.

(1)

Upon completion of the planned disposition, the successful bidder shall prepare and submit to the Administration, within 3 days after the conclusion of the planned disposition, the necessary documentation to obtain final approval for the transfer and sale of the license, including a completed request to transfer ownership of a cannabis license provided by the Administration.

(2)

Upon receipt of final approval of the transfer and sale of the license by the Administration, the disposition shall be considered ratified and final.

To facilitate the orderly disposition of a secured license and associated assets, the provisions set forth in Alcoholic Beverages and Cannabis Article, §36-503, Annotated Code of Maryland, do not apply to the sale or transfer of the license pursuant to this chapter.

Notwithstanding §E of this regulation, the sale or transfer of a license in accordance with this chapter shall be conducted in good faith, and the provisions of this chapter may not be used as a mechanism to circumvent the sale or transfer of ownership requirements under Alcoholic Beverages and Cannabis Article, §36-503, Annotated Code of Maryland.

All cannabis, as defined in Alcoholic Beverages and Cannabis Article, §36-101, Annotated Code of Maryland, shall be disposed of in accordance with this subtitle and Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland.

Termination of Receivership.

(1)

Upon ratified and final disposition of the cannabis license and associated assets:

(a)

The receivership terminates; and

(b)

The receiver shall be immediately released of any responsibility associated with the receivership, and from liability for any actions or omissions that occur after the termination of the receivership.

(2)

Nothing in this regulation shall be construed as limiting the liability of the receiver for any actions or omissions that occurred during the period that the receivership was in effect.

Regulation .07 Administration Approval Required.Link Copy Citation

Notwithstanding any provision of this regulation, a cannabis license may not be transferred or operated without express approval of the Administration.

Subtitle 17 — Maryland Cannabis Administration

Chapter 18. Finished Product Packaging

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Cartoon” means a drawing showing the features of the subject in a simplified or exaggerated way.

(2)

“Child resistant” means with respect to packaging of cannabis or cannabis product ready for retail sale, designed or constructed to be significantly difficult for a typical child younger than 5 years old to open and not to be significantly difficult for a typical adult to open, and complies with 16 CFR §1700.15(B)(1).

(3)

“Exit packaging” means an opaque bag, pouch, or other container that cannabis, cannabis products and/or cannabis seeds and plants are placed after a retail sale and before the purchased items leave the licensed premise.

(4)

“Lot” means all of a cannabis finished product that is uniform, that is intended to meet specifications, and that is manufactured, packaged, or labeled together during a specified time period according to a single lot record.

(5)

“Marketing layer” means the outermost layer of a retail sale container, which is most predominantly apparent and visible. If the container consists of only a single layer, then the outer surface of the container is the marketing layer.

(6)

“Tamper evident” means with respect to a device or process, bearing a seal, a label or a marking that makes unauthorized access to or tampering with a package, product, or container easily detectable.

Regulation .02 General Packaging Requirements.Link Copy Citation

All items shall be individually packaged by a licensed grower or processor prior to distribution to any licensed dispensary for retail sale.

Packaging Requirements.

(1)

All packaging of any cannabis product for retail sale shall be:

(a)

Tamper evident;

(b)

Child resistant; and

(c)

Plain and opaque.

(2)

Tamper evident packaging required under this section:

(a)

For soft sided packaging:

(i)

Shall be sealed at the opening in a way that indicates if the container has been opened or tampered with; and

(ii)

Once opened shall remain clear that the package has previously been opened; or

(b)

For a rigid container shall:

(i)

Contain a tamper evident seal; or

(ii)

Have an adhesive band or seal on the lid or enclosure that indicates the package has previously been opened.

(3)

Any soft sided package shall be 4 mil or greater in thickness.

(4)

Any package containing multiple servings shall be resealable.

Regulation .03 General Labeling Requirements.Link Copy Citation

All cannabis and cannabis products for retail sale shall be properly labeled in accordance with this regulation.

Labels required under this regulation shall:

(1)

Except as specifically authorized, be printed directly on, or on a label or sticker affixed directly to, the marketing layer;

(2)

Use text no smaller than size 6 font or 1/12 an inch; and

(3)

Use text clearly written and printed in the English language.

Warning Statements.

(1)

All products sold for retail shall include all of the following warning statements in a manner that complies with §B of this regulation:

(a)

“The contents may only be lawfully consumed by a consumer 21 years old or older, or a registered medical cannabis patient.”

(b)

“Consumption of cannabis may impair your ability to drive a car or operate machinery. Please use extreme caution.”

(c)

“There may be health risks associated with cannabis use, especially if pregnant or breastfeeding.”

(d)

“This package contains cannabis. Keep out of reach of children and animals.”

(2)

Any product intended for topical application shall include a statement identifying that the product is not intended for human consumption, ingestion, or inhalation.

(3)

Any product for retail sale shall include the Maryland Poison Center emergency telephone number.

Product Information.

(1)

All products sold for retail shall include the following product information in a manner that complies with §B of this regulation:

(a)

Net weight of the cannabis, or cannabis product;

(b)

Finished product lot number;

(c)

Name of the licensee that packaged the product;

(d)

Name and phone number of the licensee that manufactured the product to report an adverse event;

(e)

An itemization, including weight, of all cannabinoid and terpene ingredients specified for the product, with concentrates of any cannabinoid of less than 1 percent printed with a leading zero before the decimal point;

(f)

If applicable, a list of all major allergens contained in and used to manufacture the cannabis finished product in accordance with the Food Allergen Labeling and Consumer Protection Act of 2004, 21 U.S.C. §343 (2010), specifically milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, and soybeans;

(g)

A list of all noncannabis ingredients;

(h)

A list of any solvents used to produce the product; and

(i)

Dates corresponding to the date that:

(i)

The product was harvested, packaged, or produced; and

(ii)

The product would be considered expired by, or best used by.

(2)

The information required under §D(1)(e)—(g) of this regulation may be printed on an inner layer of a label or made available through a link or QR code.

A certificate of analysis completed by an independent testing laboratory in accordance with COMAR 14.17.08 and the Technical Authority shall be made available on the package through a link or QR code.

Universal Symbol.

(1)

Packages shall display the universal symbol:

(a)

On the front or most predominantly displayed area of the package;

(b)

In an area no smaller than ½ inch by ½ inch;

(c)

In the form provided by the Administration and may not be modified, recreated, stylized, stretched, or otherwise distorted; and

(d)

On a background where the symbol is clearly distinguishable and identifiable.

(2)

The following symbol shall be the only symbol used on packages under this regulation:

Regulation .04 Medical Cannabis Product Packaging and Labeling.Link Copy Citation

Unless otherwise stated, product regulations under Regulations .02 and .03 of this chapter apply to medical cannabis products.

In addition to the packaging and labeling requirements under Regulations .02 and .03 of this chapter, medical cannabis products shall:

(1)

Maintain space for a licensed dispensary to attach a personalized label for the qualifying patient; and

(2)

Notwithstanding the exemption in §D(2) of this regulation, bear a clear warning that it is illegal:

(a)

For any person to possess or consume the contents of the package other than the qualifying patient; and

(b)

To transfer the package or contents to any person other than a transfer by a caregiver to a qualifying patient.

High potency products that are only authorized for sale to qualifying patients under COMAR 14.17.13.03A shall maintain the requirements under §B of this regulation on the product packaging from the licensed grower or processor.

For products that are authorized for sale to either qualifying patients or adult use consumers, the warnings required under §B(2) of this regulation:

(1)

May be applied to a sticker or label that can be attached to the product at the point of sale, such as the personalized label under §E of this regulation; and

(2)

Do not need to be included on a product sold to an adult-use consumer.

All products dispensed to a qualifying patient under COMAR 14.17.12.04A shall include a personalized label for the qualifying patient, which shall include:

(1)

The name of the qualifying patient;

(2)

The name of the certifying provider;

(3)

The name of the licensee where the product was dispensed;

(4)

The date that the medical cannabis was dispensed;

(5)

The name of the product;

(6)

The strength of applicable cannabinoid and terpene compounds:

(a)

Displayed in units appropriate to the dosage form; and

(b)

Concentrations of any cannabinoid of less than 1 percent shall be printed with a leading zero before the decimal point;

(7)

The quantity of medical cannabis dispensed, displayed in units appropriate to the dosage form;

(8)

Any directions for use of the product; and

(9)

The instructions for proper storage or handling of the product.

Regulation .05 Edible Cannabis Product Packaging.Link Copy Citation

Unless otherwise stated, product regulations under Regulations .02—.04 of this chapter apply to edible cannabis products and tinctures.

All edible cannabis product packaging shall include:

(1)

Milligrams per single serving of total THC, total CBD, and any other marketed cannabinoid;

(2)

Milligrams per package of total THC, total CBD, and any other marketed cannabinoid;

(3)

The number of servings per package and, if applicable, the recommended size of a serving;

(4)

A nutritional fact panel consistent with the U.S. Food and Drug Administration Standards;

(5)

A list of all active and inactive ingredients in descending order of predominance by weight in the cannabis product; and

(6)

A warning label that states, “Effects of this product may be delayed by 4 or more hours.”

The nutritional fact panel required in §B(4) of this regulation may be printed on an inner layer of a label or made available on the package through a link or QR code.

Any edible cannabis product containing multiple servings shall:

(1)

Be resealable;

(2)

Contain no greater than 10 milligrams of THC per serving;

(3)

Contain no greater than 100 milligrams of THC per package;

(4)

Clearly indicate the size of a serving; and

(5)

Include within the package a measuring device that is appropriate for the product form, such as a dropper for liquids or a measuring spoon for powders.

Multiple, individually packaged single serving products may be packaged together by a licensed processor using a marketing layer if the marketing layer:

(1)

Contains the necessary labels, warnings, and standards under this chapter; and

(2)

Does not combine products the THC content of which exceeds 100 milligrams.

Regulation .06 Packaging and Labeling Requirements of Cannabis Seeds and Plants.Link Copy Citation

This regulation applies only to cannabis seeds and plants for home cultivation regulated under 14.17.13.07.

Products sold under this regulation are exempt from Regulations .02—.05 of this chapter.

Cannabis Seeds. Packaging for cannabis seeds for sale to consumers shall:

(1)

Keep cannabis seeds dry;

(2)

Prevent germination of the seeds in the packaging; and

(3)

Not impart any deleterious substances into the cannabis seeds.

Labeling Requirements. All cannabis seeds or plants for home cultivation shall display on the marketing layer:

(1)

The name of the licensed facility where the cannabis seeds were derived or propagated;

(2)

The name of the licensed dispensary where the product is being sold to an individual for home cultivation;

(3)

The net weight of the product, or the number of individual seeds; and

(4)

A warning label that states, “For home cultivation only. Must be 21 years old or older or a registered patient for home cultivation.”

Regulation .07 Prohibited Packaging and Labeling.Link Copy Citation

Cannabis products packaging and labeling may not bear any:

(1)

Image that may appeal to minors, including:

(a)

Resemblance to the trademarked, characteristic, or product-specialized packaging of any commercially available candy, snack, baked good or beverage;

(b)

Images of food, candy, baked goods, cereal, fruit, beverages, or the words “candy” or “candies”;

(c)

Images, graphics, features, or likeness to images, graphics, or features that are popularly used to advertise to children, such as cartoons, animals, neon colors, celebrities, mascots, or phrases;

(2)

Statement, artwork, or design that could reasonably mislead any person to believe that the package contains anything other than a cannabis finished product;

(3)

Seal, flag, crest, coat of arms, or other insignia that could reasonably mislead any person to believe that the product has been endorsed, manufactured, or used by any State, county or municipality or any agency thereof;

(4)

Depiction of any form of consumption of cannabis or cannabis products;

(5)

Depiction of overconsumption or intoxicating effects of cannabis or cannabis products;

(6)

Claims regarding health or physical benefits to the consumer; or

(7)

False or misleading statements;

Labels, marketing layers or any other aspect of the product package are prohibited from obscuring any warnings, statements, or information required under this chapter.

Products are prohibited from targeting or being designed to appeal to any individuals younger than 21 years old.

Subtitle 17 — Maryland Cannabis Administration

Chapter 19. Cannabis Research

Regulation .01 Academic Research.Link Copy Citation

An entity eligible to register with the Administration for the purpose of conducting a bona fide research project relating to the uses, properties, or composition of cannabis includes:

(1)

An institution of higher education;

(2)

A related medical facility; or

(3)

An affiliated biomedical research firm.

Academic research institutions and entities shall operate in accordance with Alcoholic Beverages and Cannabis Article, §36-701, Annotated Code of Maryland.

Registration.

(1)

An entity qualified under §A of this regulation shall submit an application to the Administration that includes:

(a)

The name of the primary researcher;

(b)

The expected duration of the research project;

(c)

The primary objectives of the research project, scope of work, and potential application(s) of the research findings;

(d)

An application fee as specified in COMAR 14.17.21; and

(e)

If applicable, a detailed budget.

(2)

Registrations under this regulation shall be valid until:

(a)

There is a change in the research project;

(b)

The institution withdraws the registration; or

(c)

30 days have elapsed from the expected duration of the research project and the Administration has not been notified of any change or extension to the research project.

Modifications.

(1)

The registered entity shall report any modifications to the scope, researcher, or any other information submitted as part of the application within 30 days to the Administration.

(2)

The registered entity may continue to conduct research under this regulation while awaiting Administration approval of any modifications.

Regulation .02 Research and Development.Link Copy Citation

The Administration may register an entity to grow, process, test, or transfer cannabis for the purposes of research and development.

An entity under §A of this regulation shall conduct research and development only for the purposes under Alcoholic Beverages and Cannabis Article, §36-702, Annotated Code of Maryland.

Registration.

(1)

An entity shall submit an application to the Administration that includes:

(a)

The name of the primary researcher or entity;

(b)

The address the research will be primarily taking place;

(c)

The research purpose; and

(d)

An application fee as specified in COMAR 14.17.21.

(2)

Registrations under this regulation shall be valid for 2 years and may be renewed for additional 2 year terms in a manner determined by the Administration.

Research and development entities under this regulation shall otherwise comply with Alcoholic Beverages and Cannabis Article, §36-702, Annotated Code of Maryland, and the following requirements:

(1)

The study shall be conducted in conformity with study protocols provided and any additional Administration guidance;

(2)

The entity shall notify the Administration of any adverse events reported by study participants within 48 hours of the study’s primary researcher being made aware of the adverse event;

(3)

Within 30 days, the entity or primary researcher shall update the Administration with any changes to the study protocols, including but not limited to:

(a)

Scope;

(b)

Researcher;

(c)

Number of participants;

(d)

Study duration; and

(e)

Products used;

(4)

The entity may continue to conduct research under this regulation while awaiting Administration approval of any changes to the study protocols;

(5)

The entity or primary researcher shall provide documentation of Institutional Review Board or Institutional Animal Care and Use Committee, whichever is applicable, approval prior to the beginning of the study;

(6)

An entity shall track the cannabis used for research and development in the seed-to-sale tracking system;

(7)

A batch or lot of cannabis originally used or processed for research and development purposes:

(a)

May not be used in the processing of cannabis sold to a licensed dispensary; and

(b)

Shall be destroyed and logged as green waste; and

(8)

An entity shall maintain a record of all research and development tests for at least 2 years and provide copies of the test results to the Administration, upon request.

Edible Cannabis Product Development. An entity that processes edible cannabis products for research and development shall:

(1)

Quarantine each batch or lot in a quarantine area and label each batch or lot with a distinctive label; and

(2)

Process the cannabis for research and development during a time that does not overlap with the processing of any cannabis that will be intended for distribution.

Limited Testing for Edible Cannabis Product Development.

(1)

An entity may conduct the research and development testing on the entity’s premises or through an independent testing laboratory.

(2)

If an independent testing laboratory conducts the research and development testing on the edible cannabis product, the laboratory shall clearly mark any certificate of analysis or reporting of test results with “R&D TESTING ONLY” on the header and footer of the report in 20-point white font and a red background.

(3)

The cannabis product shall be categorized as “Work in Process” in the seed-to-sale tracking system.

(4)

Any edible cannabis product transferred from the premises for research and development testing shall:

(a)

Be packaged in accordance with COMAR 14.17.18.05;

(b)

Be labeled with the statements:

(i)

“CAUTION: THIS PRODUCT IS FOR APPROVED R&D USAGE ONLY.”; and

(ii)

“This product has not been approved by the Administration and is intended for research and development purposes only.”;

(c)

Identify the name and telephone number of the entity who manufactured the product; and

(d)

Include a unique identifying number.

Regulation .03 Inspections and Controls.Link Copy Citation

The Administration may inspect entities registered under this chapter to ensure compliance with:

(1)

Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland;

(2)

This subtitle;

(3)

Any other violation of State, federal, or local:

(a)

Law;

(b)

Regulations; or

(c)

Ordinances.

Inspections under this regulation may be announced or unannounced.

The Administration may issue identification cards for individuals associated with research entities registered under this chapter.

Regulation .04 Reporting Requirements.Link Copy Citation

The registrant shall submit to the Administration:

(1)

An annual report on the progress and status of any research project; and

(2)

A final report of the findings of the research project to the Administration within 30 days of the completion of the research project.

The final report shall include a summary of the research findings and their applications.

A published article or document on the research project may serve as the final report.

Approval is required by the Administration prior to publication of any findings.

Regulation .05 Prohibitions.Link Copy Citation

Entities registered under this regulation may not dispense, sell, sample, or otherwise distribute cannabis or cannabis products to individuals outside of the scope the defined research project.

Entities registered under this regulation may not otherwise operate in a manner that gives the appearance of the growing, processing, or dispensing of cannabis or cannabis products by a licensee.

Entities registered under this regulation may not perform research activities outside of Maryland.

Subtitle 17 — Maryland Cannabis Administration

Chapter 20. Prohibited Acts

Regulation .01 Definition.Link Copy Citation

In this chapter, the following term has the meaning indicated.

Defined Term. “Naturally occurring biologically active chemical constituent” means a chemical compound, component, or other material found naturally in the Cannabis Sativa L. plant and recognized by the Administration.

Regulation .02 Prohibitions.Link Copy Citation

A licensee may not:

(1)

Sell, transfer, or deliver cannabis to an individual who is visibly intoxicated;

(2)

Offer cannabis or cannabis products as a prize, premium or consideration for a lottery, contest, game of chance, game of skill, or competition of any kind;

(3)

Conduct direct-to-consumer internet sales of adult-use cannabis or cannabis products on or before July 1, 2025; or

(4)

Violate any part of:

(a)

Alcoholic Beverages and Cannabis Article, Title 36, Annotated Code of Maryland;

(b)

This subtitle;

(c)

Any other violation of State, federal, or local:

(i)

Law;

(ii)

Regulation; or

(iii)

Ordinances.

Persons not registered or licensed under this subtitle may not:

(1)

Operate a business or establishment that could reasonably be interpreted to be a licensee; or

(2)

Sell or distribute a product intended for human consumption or inhalation that contains more than:

(a)

0.5 milligrams of THC per serving; or

(b)

2.5 milligrams of THC per package.

Exemptions.

(1)

Persons are exempt from §B(2) of this regulation if they sell or distribute a hemp-derived tincture that complies with Alcoholic Beverages and Cannabis Article, §36-1102(d), Annotated Code of Maryland.

(2)

Products exempted under this subsection shall be tested by an Independent Testing Lab under COMAR 14.17.08.05A.

Sales Restrictions.

(1)

Naturally Occurring Biologically Active Chemical Constituents.

(a)

A person, registered agent, or licensed business may not sell or distribute a cannabinoid that is not derived from naturally occurring biological active chemical constituents.

(b)

A licensed business may submit to the State Cannabis Testing Laboratory, in a manner determined by the Administration, other compounds to be considered for sale, distribution, and regulation.

(2)

Businesses licensed under this subtitle may not:

(a)

Have a license to sell alcoholic beverages under Alcoholic Beverages and Cannabis Article, Title 1 or 2, Annotated Code of Maryland; or

(b)

Allow another business to sell alcoholic beverages within its licensed premises.

(3)

A licensee may not distribute any cannabis to any person if the licensee knows, or may have reason to know, that the distribution of cannabis or cannabis products to an individual does not comply with any provision of Alcoholic Beverages and Cannabis Article, Annotated Code of Maryland, or this subtitle.

(4)

A licensee may not distribute any cannabis to any person if the licensee knows, or may have reason to know, that the cannabis or cannabis products itself does not comply with any provision of Alcoholic Beverages and Cannabis Article, Annotated Code of Maryland, or this subtitle.

Samples.

(1)

A licensed business may not provide samples of cannabis or cannabis product unless authorized by this section.

(2)

Under this section, samples are only authorized from a licensed business to:

(a)

Another licensed business;

(b)

An employee, owner, or agent of another licensed business; or

(c)

An employee, owner, or agent of the licensed business.

(3)

Trade Samples.

(a)

Trade samples shall only be provided by a licensed growers and processors and shall be:

(i)

Provided solely for the purpose of business-to-business marketing;

(ii)

Recorded in the Administration’s seed-to-sale system;

(iii)

Packaged and labeled in accordance with COMAR 14.17.18;

(iv)

Tested in accordance with COMAR 14.17.08; and

(v)

Compliant with product requirements under COMAR 14.17.13.

(b)

Trade samples under this subsection may not be:

(i)

Sold to another licensed business, patient, caregiver, or consumer;

(ii)

Consumed on any licensed premises; or

(iii)

A cannabis plant.

(4)

Employee Samples.

(a)

Employee samples shall only be provided by a licensed business to an employee of the licensed business and shall be:

(i)

Provided solely for the purpose of employee education;

(ii)

Recorded in the Administration’s seed-to-sale system;

(iii)

Packaged and labeled in accordance with COMAR 14.17.18;

(iv)

Tested in accordance with COMAR 14.17.08; and

(v)

Compliant with product requirements under COMAR 14.17.13.

(b)

Employee samples under this subsection may not be:

(i)

Sold to another licensed business, patient, caregiver, or consumer;

(ii)

Consumed on any licensed premises; or

(iii)

A cannabis plant.

Subtitle 17 — Maryland Cannabis Administration

Chapter 21. Fees

Regulation .01 Scope.Link Copy Citation

The following fees are established by the Administration.

Regulation .02 Fees.Link Copy Citation

Application fees:

(1)

For a standard license, on-site consumption license, or incubator space– $5,000; and

(2)

For a micro license — $1,000.

Licensing fees:

(1)

For a standard license, on-site consumption license, or incubator space issued under COMAR 14.17.06, the licensing fees for initial licensure or renewal shall be:

(a)

Grower license — $50,000;

(b)

Processor license — $25,000;

(c)

Dispensary license — $25,000;

(d)

Incubator space license — $10,000; and

(e)

On-site consumption license — $10,000.

(2)

For a micro license issued under COMAR 14.17.07:

(a)

Grower license — $10,000;

(b)

Processor license — $10,000; and

(c)

Dispensary license — $10,000.

(3)

Licensing fees required under this section shall be valid for a 5-year period.

(4)

A licensed social equity licensee shall have the licensing fees in §B(1) and (2) of this regulation reduced by 50 percent by the Administration for each license type held by the social equity licensees.

Registration fees:

(1)

Cannabis agent fees:

(a)

Registration fee to be paid every 2 years —$25; and

(b)

Replacement identification card fee — $50.

(2)

Independent testing laboratory fees:

(a)

Laboratory registration fee to be paid every 2 years — $500;

(b)

Employee registration fee to be paid every 2 years —$25; and

(c)

Replacement employee identification card fee — $50.

(3)

Registrant:

(a)

Business registration fee to be paid every 2 years — $100;

(b)

Agent registration fee to be paid every 2 years —$25; and

(c)

Replacement agent identification card fee — $50.

(4)

Research and development fees:

(a)

Academic research institution fees:

(i)

Registration fee — $500;

(ii)

Renew fee for each subsequent or modified research project — $100;

(iii)

Academic research representative registration fee —$25; and

(iv)

Academic research representative card replacement fee — $50.

(b)

Research and development entity fees:

(i)

Registration fee — $1,000;

(ii)

Renewal fee for each subsequent or modified research project — $500;

(iii)

Research and development representative registration fee — $25; and

(iv)

Research and development representative card replacement fee — $50.

(5)

Responsible vendor training program fees:

(i)

Registration fee — $500; and

(ii)

Renewal fee — $250.

Qualifying patient and caregiver fees:

(1)

Identification card base fee — $25; and

(2)

Replacement identification card fee — $50.

Micro license conversion fees:

(1)

A micro licensee who wishes to convert the micro license into a standard license shall pay a pro-rated amount based on:

(a)

The number of whole months remaining on the initial micro license; and

(b)

The fee amount difference between a standard and micro license of the license type.

(2)

The conversion fee in this section shall be calculated by the Administration using:

(a)

For growers:

(i)

$50,000 for a full 5-year license term; or

(ii)

A pro-rated amount for each remaining whole month the initial micro license is valid.

(b)

For processors:

(i)

$25,000 for a full 5-year license term; or

(ii)

A pro-rated amount for each remaining whole month the initial micro license is valid.

(c)

For dispensaries:

(i)

$25,000 for a full 5-year license term; or

(ii)

A pro-rated amount for each remaining whole month the initial micro license is valid.

(3)

The conversion fee calculated under this section shall be paid in full within 18 months of the date the conversion is in effect.

Edible cannabis product permit application fee —$1,000.

Miscellaneous fees:

(1)

Transfer of 5 percent or more ownership interest in or control of a grower, processor, dispensary, on-site consumption, or incubator space license with entity transferee — $1,000;

(2)

Transfer of 5 percent or more ownership interest in a grower, processor, dispensary, on-site consumption, or incubator space license with individual transferee — $500 per person;

(3)

Change in the location of a grower, processor, or dispensary premises – $500;

(4)

License reinstatement fee — $2,000;

(5)

Receivership application fee — $1,000; and

(6)

Management agreement fee — $1,000.

At its discretion, the Administration may waive or reduce the fees established in this regulation.

Subtitle 17 — Maryland Cannabis Administration

Chapter 22. Hearing Procedures

Regulation .01 Scope.Link Copy Citation

This chapter applies to hearings before the Administration or its designee.

These procedures are intended to supplement the procedures required by law under State Government Article, §10-201 et seq., Annotated Code of Maryland. They are not to be construed as creating rights not set out by law. In the event of conflict, statutory provisions take precedence over this chapter.

The right to a hearing under this regulation is granted to a licensee, registrant, agent, owner, or selected applicant that has been subject to an action by the Administration other than a notice of intent to summarily suspend or summary suspension as set forth in COMAR 14.17.14.05.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Final decision maker” means:

(a)

The Administration’s hearing officer; or

(b)

A designee for the purpose of rendering a final decision in a contested case.

(2)

“Final decision order” means a final ruling in a contested case that is adverse to a party and which shall comply with the requirements of State Government Article §10-221 et seq., Annotated Code of Maryland.

(3)

“Hearing” means a contested case hearing as defined by the Administrative Procedure Act, State Government Article, §10-201 et seq., Annotated Code of Maryland.

(4)

“Hearing officer” means the individual designated to preside over an evidentiary hearing in a contested case.

(5)

“Notice of agency action” means a document issued by the Administration, including:

(a)

Granting a license or registration;

(b)

Denying a license or registration;

(c)

Letter of non-compliance;

(d)

Issuance of a fine;

(e)

Remedial action certification;

(f)

Issuance of administrative charges; or

(g)

Revocation.

(6)

“Party” means a licensee, registrant, selected applicant, or the Administrative Prosecutor.

Regulation .03 Notice of Agency Action.Link Copy Citation

The Administration shall provide notice of agency action and a statement of the right to a hearing required by law when it takes an agency action. The notice shall contain the information required by State Government Article, §§10-207 and 10-208, Annotated Code of Maryland.

The Administration may delegate hearing authority under State Government Article, §10-205, Annotated Code of Maryland, and any delegated hearings shall be conducted in accordance with this chapter.

Regulation .04 Request for a Hearing.Link Copy Citation

A party may file a request for a hearing within 30 days of the date of the notice of agency action.

If a party does not submit a request for a hearing within the 30-day period, the agency action becomes final and is not subject to appeal.

The Administration may delegate a contested case regarding Administration determination to the Office of Administrative Hearings, as permitted and consistent with State Government Article, §10-205, Annotated Code of Maryland.

Regulation .05 Postponement.Link Copy Citation

A hearing officer shall consider a request for postponement only if the requesting party can establish good cause for the postponement.

Except as provided in §D of this regulation, a request for postponement shall be made in writing and be received by the Administration no fewer than 5 business days before the scheduled hearing.

The hearing officer may require documentation of the reasons for the postponement request from the party.

Emergency Request for Postponement.

(1)

For purposes of this paragraph, “emergency” means a sudden, unforeseen occurrence requiring immediate attention which arises within 5 business days of the hearing.

(2)

In an emergency, a request for postponement may be made by telephone.

(3)

The hearing officer may require documentation of the reasons for the emergency postponement request from a party.

Regulation .06 Prehearing Conference and Case Resolution.Link Copy Citation

Before a hearing, the hearing officer may:

(1)

Hold a prehearing conference; and

(2)

Review or request materials relevant to the proceedings.

If all parties agree at a prehearing conference, a hearing officer may dispose of an issue by stipulation or settlement stating whether the disposition is with or without prejudice.

Case Resolution.

(1)

The Administration may initiate a case resolution process with parties after administrative charges have been filed or upon the request for a hearing.

(2)

Any cases that are not resolved through case resolution shall proceed to a hearing in accordance with this chapter.

Regulation .07 Scheduling a Hearing.Link Copy Citation

After receipt of a timely request for a hearing, the Administration shall schedule a hearing as soon as practicable.

The hearing officer or their designee shall notify the party:

(1)

Of the date, time, and location of hearing;

(2)

Of the statutory and regulatory authority of the Administration’s action or proposed action;

(3)

That the party may present witnesses and documents at the hearing;

(4)

That the failure to appear for the scheduled hearing may nonetheless result in a final decision or order issued by the final decision maker;

(5)

Of any applicable deadlines for submission of a prehearing statement, motion, or exchange of hearing exhibits; and

(6)

If the hearing is by telephone, video, or other electronic means, of instructions on how to appear for the hearing.

Upon request by a party, witness, or representative who cannot hear, speak, or understand the spoken or written English language, the Administration shall provide a qualified interpreter during the proceeding in which the party, witness, or representative is participating as required by the Americans with Disabilities Act.

Regulation .08 Filing.Link Copy Citation

Unless otherwise provided by law:

An initial pleading is deemed to be filed on the earlier of the date that a request for hearing, along with all required fees, necessary documents, and other information, is postmarked or received by the Administration, if required to be filed with the Administration;

Other pleadings are deemed to be filed on the earliest of the date on which they are addressed to the Administration and postmarked; and

Non-postmarked documents delivered or electronically transmitted to the Administration after 5 p.m. are deemed to be filed on the Administration’s next business day.

Regulation .09 Hearings.Link Copy Citation

Procedures.

(1)

The Administration shall record all hearings and provide a copy of that recording upon request.

(2)

A party may produce witnesses and documents in support of the party’s position.

Written Subpoenas.

(1)

A party may request that the hearing officer issue subpoenas for witnesses or documents necessary for the hearing.

(2)

A party shall make the request in writing, no later than 21 days before the hearing, explaining why the subpoena is necessary.

(3)

The hearing officer may:

(a)

Question any witnesses;

(b)

In accordance with State Government Article, §10-219(a), Annotated Code of Maryland, consult with any employee of the Administration before making a decision in a case; or

(c)

Decline to issue the subpoena.

Evidence.

(1)

The hearing officer shall consider evidence of the type and in the manner prescribed by State Government Article, §10-213, Annotated Code of Maryland.

(2)

Copies of documents may be admitted, although the Administration’s hearing officer may require production of originals.

(3)

The Administration shall retain documentary or other evidence for at least 60 days after a final order has been issued and all appeal rights have been exhausted or waived. The evidence may then be destroyed unless the owner or person producing it makes a written request for its return.

Burden of Proof.

(1)

The standard of proof in a hearing shall be a preponderance of evidence.

(2)

In the hearing of a contested case involving allegations that a party violated a law or regulation, the Administration shall bear the burden of proof that the party committed the violations that resulted in the Administration’s action against the party.

(3)

In the hearing of a contested case resulting from the denial, or proposed denial, of a license, registration, or permit, the applicant shall have the burden of establishing the applicant's entitlement to the license, registration, or permit.

(4)

In the hearing of a contested case resulting from an advertisement alleged to not comply with the requirements of Alcoholic Beverages and Cannabis Article, §§36-903(a)(1)(iv), Annotated Code of Maryland, there is a rebuttable presumption that the advertisement at issue is prohibited unless or until a respondent demonstrates that it is permissible.

Construction.

(1)

In hearings conducted by an Administrative Law Judge of the Office of Administrative Hearings, COMAR 14.17.22, et seq shall whenever possible be construed as supplementing and in harmony with COMAR 28.02.01.

(2)

In the event of a conflict between COMAR 14.17.22 et seq. and COMAR 28.02.01, this subtitle shall apply.

Hearings Conducted by Electronic Means.

(1)

A hearing officer may conduct all or part of a hearing by telephone, video conferencing, or other electronic means, with the consent of all parties.

(2)

All substantive and procedural rights applicable to hearings described in this regulation apply to telephone, video, or other electronic hearings, subject only to the limitations of the physical arrangement.

(3)

For a telephone, video, or other electronic hearing, a party shall provide documentary evidence to be offered to all parties so that each party and the hearing officer receive it within the time specified by the hearing officer or, if not specified, no less than 15 days before the scheduled hearing.

(4)

For a telephone, video, or other electronic hearing, the following may be considered a failure to appear and result in the assessment or denial of the application for refund becoming final and not subject to appeal:

(a)

Failure to answer the telephone for 15 minutes from the time set for the hearing;

(b)

Failure to free the telephone for a hearing;

(c)

Any other failure without good cause to be ready to proceed with the hearing as scheduled.

Regulation .10 Final Determination.Link Copy Citation

A Notice of Agency Action becomes a final decision or order if a request for a hearing is not made timely.

The Administration may delegate to an Administrative Law Judge responsibility to make:

(1)

Proposed findings of fact;

(2)

Proposed findings of fact and proposed conclusions of law; or

(3)

Proposed findings of fact, proposed conclusions of law, and proposed disposition.

If the Administration does not preside over hearing, it may make changes, modifications, or amendments to the proposed decision in accordance with State Government Article, §10-216, Annotated Code of Maryland.

The notice of final determination issued by an Administration hearing officer shall summarize:

(1)

Findings of fact and conclusions of law;

(2)

Any adjustments to the determination of fines or penalties and the reasons for the Administration’s action;

(3)

The deadline for payment of a fine or penalty; and

(4)

In the case that the Administration orders a suspension or revocation of a license as a result of a hearing, the reason for the Administration's action.

The final determination exhausts all administrative remedies.

Regulation .11 Record.Link Copy Citation

The hearing officer shall create and maintain a record that includes the information set forth in State Government Article, §10-218, Annotated Code of Maryland.

Regulation .12 Judicial Review.Link Copy Citation

A party may appeal the final determination of the Administration to a Maryland circuit court if done so within 30 days of receipt of the final determination.

For purposes of an appeal, the venue in the Circuit Court of Anne Arundel County shall be proper as that is where the Administration resides and carries on its regular business.

Subtitle 18 — State Archives

Chapter 01. Certificates of Reservation and Land Patents

Regulation .01 Application for Certificates of Reservation.Link Copy Citation

All applications for certificates of reservation shall be on forms required by the Commissioner of Land Patents and shall, in the case of a unit of State government, be filed with a copy of the Board of Public Works agenda item approving the request to apply or, in the case of any other governmental body, be filed with a copy of a document from the appropriate authority approving the request to apply. An application may not be considered filed until it has been determined complete and in order by the Commissioner or the Commissioner's authorized agent.

Regulation .02 Applications for Warrants to Survey or Resurvey.Link Copy Citation

All applications for warrants to survey or resurvey shall be on forms required by the Commissioner of Land Patents and shall be filed in triplicate with certified copies of documents, where required, attached to each copy. The application shall be accompanied by cash, check, or money order in the amount of $100. An application may not be considered filed until it has been determined complete and in order by the Commissioner or his duly authorized agent.

In complying with Real Property Article, §13-302(a)(2), Annotated Code of Maryland, that is, in supplying the names and addresses of all persons other than the applicant who would obtain a direct or indirect title interest in the land, the applicant may list a spouse but need not list all possible heirs to the title. It is to be understood that the purpose of Real Property Article, §13-302(a)(2) is to make certain that the applicant is applying solely on his own behalf and not on the behalf of any hidden partners, commercial enterprise, corporate or otherwise, or as an agent on behalf of any undisclosed principals.

Regulation .03 Warrants.Link Copy Citation

Warrants to survey or resurvey shall only be issued to a professional land surveyor or property line surveyor licensed under the Maryland Professional Land Surveyors Act.

Warrants to survey or resurvey shall be on forms prescribed by the Commissioner of Land Patents and shall be sent to the surveyor by the Commissioner with a copy of the application attached. The notice of issuance of warrant required by Real Property Article, §13-308 shall be prepared by the Commissioner and sent to the applicant who shall then see to its newspaper publication and posting and provide the Commissioner with the certificate of publication and the sheriff's certificate of posting. All costs of the publication and posting shall be borne by the applicant, and the Commissioner of Land Patents bears no responsibility for it.

In his acknowledgment of receipt of the warrant, the surveyor shall understand “last publication of notice” in Real Property Article, §13-307(b)(2) to mean the last publication in a newspaper as specified in Real Property Article, §13-308(c)(1)(i). That is to say, the surveyor shall set a date for making the survey which shall be no earlier than 10 days and no later than 6 months after the appearance of the third weekly newspaper notice required by Real Property Article, §13-308(c)(1)(i).

Regulation .04 Surveys.Link Copy Citation

Upon issuance of a warranty to survey or resurvey, the applicant shall immediately contact the surveyor and shall cooperate with the surveyor in all respects as he may require. Compensation of the surveyor shall be the exclusive responsibility of the applicant, and the Commissioner of Land Patents assumes no responsibility for it.

Regulation .05 Previously Performed Surveys.Link Copy Citation

The Commissioner may accept a previously performed survey upon finding that the surveyor is a qualified professional land surveyor or property line surveyor licensed under the Maryland Professional Land Surveyors Act, that the survey was conducted in accordance with standards required by the Commissioner, and that adjoining landowners were given written notice of the survey.

Unless as otherwise provided, the provisions of Real Property Article, Title 13, Annotated Code of Maryland, and this chapter applicable to a survey performed pursuant to a warrant issued by the Commissioner are applicable to a previously performed survey.

Regulation .06 Certificates of Survey.Link Copy Citation

Certificates of survey shall be on forms prescribed by the Commissioner of Land Patents and shall be filed in duplicate.

The plat required by Real Property Article, §13-310(b)(1), shall be filed in duplicate. Both plats shall be submitted on linen sheets or an acceptable equivalent. The signature and seal of the surveyor shall be affixed to to the plats as well as to the certificates of survey.

Upon receipt of the certificates, plats, and the surveyor's description of the land to be patented, the Commissioner shall immediately forward copies to the Department of Transportation and the Department of Natural Resources so those agencies can better determine whether the land will be needed for future public use.

Regulation .07 Certificate of Valuation.Link Copy Citation

In providing the statement of the reasons for the valuation as required by Real Property Article, §13-313(b)(3), the assessors shall be as specific as possible. Mere statements as “based on sales in the area” are inadequate. Examples of recent sales valuations of similar property should be included in the reasons for the valuation.

In the case of an application by a governmental body for a certificate of reservation, the Supervisor of Assessments is not required to assess the value of the land.

Regulation .08 Objections.Link Copy Citation

Persons entitled to object under Real Property Article, §13-401 shall do so in the manner prescribed under Real Property Article, §13-402, within 6 months after the issuance of the warrant to survey or 60 days after the surveyor's return of the certificate of survey, whichever is later.

Acceptance of a previously performed survey does not preclude an objector from raising any objection that might otherwise have been raised had the survey been performed pursuant to a warrant issued by the Commissioner.

Regulation .09 Determination of Forum.Link Copy Citation

Requests of parties to the proceeding for referral to the circuit court may be made in the manner and within the time required by Real Property Article, §13-405, Annotated Code of Maryland, and the Commissioner's determination of an appropriate forum shall be final.

Regulation .10 Hearings Before Commissioner.Link Copy Citation

This regulation governs hearings on an application for a land patent or a certificate of reservation. To the extent that is practical, as determined by the Commissioner, this regulation also governs other hearings conducted by the Commissioner.

Location and Date. The hearing shall take place at the State Archives, 350 Rowe Boulevard, Annapolis, Maryland, on the date and at a time specified by the Commissioner. For cause, the Commissioner may designate another site as the place for the hearing. At the request of a party or at the Commissioner's initiative, a hearing may be postponed or continued to another date and time or moved to another site.

Notice. At least 15 days before the hearing, the Commissioner shall send a written notice to all parties advising them of the place, date, and time of the hearing. To the extent that the issues have been defined, the notice shall state the issues to be considered and decided. In the event of a postponement or continuance, the Commissioner shall give notice as may be effective in the circumstances.

Parties. The applicant and a person or governmental entity which has filed an objection are parties.

Representation. Parties may appear in proper person or by counsel. Parties represented by counsel shall advise the Commissioner of the counsel's name at least 10 days before the hearing.

Presiding Officer. The Commissioner is the presiding officer at the hearing. The Commissioner has complete charge of the hearing and shall conduct it in accordance with the Administrative Procedure Act.

Counsel to the Presiding Officer. If requested by the Commissioner, counsel to the State Archives or another attorney designated by the Attorney General shall serve as counsel to the Commissioner. Counsel to the Commissioner has all the rights and privileges that counsel for a party would have.

Prehearing Conference. The Commissioner may, upon due notice, hold a prehearing conference with the parties for the purpose of defining the issues, entering stipulations, and resolving other matters preliminary to the hearing.

List of Witnesses, Exhibits, and Documents. Before the hearing, the Commissioner may order the parties to file a list of witnesses, exhibits, and documents which they expect to call or introduce into evidence. Copies of the list shall be made available to all parties.

Record and Transcript.

(1)

The Commissioner shall prepare an official record, which includes the pleadings, testimony, exhibits, and other memoranda or material filed in the proceeding.

(2)

Unless waived by all parties, a stenographic record of the hearing shall be made and the expense shall be one of the costs of the hearing. If the record is transcribed at the direction of the Commissioner, a party may obtain a copy upon paying the cost of reproduction. If the record is not transcribed at the direction of the Commissioner, a party may, at the party's own expense, request that the record be transcribed and the Commissioner and any party may obtain a copy upon payment of the cost of reproduction.

Order of Procedure. Unless directed otherwise by the Commissioner, the applicant shall call witnesses and present evidence first. The objecting parties shall then call witnesses and present evidence. The applicant may then call witnesses and present evidence in rebuttal.

Opening Statements. The parties or their counsel may make opening statements.

Witnesses, Evidence, and Motions.

(1)

Subject to the rules of evidence of the Administrative Procedure Act, the parties and the Commissioner may call witnesses and present evidence.

(2)

Witnesses shall testify under oath and are subject to cross examination by the other parties and the Commissioner, or the Commissioner's counsel.

(3)

Parties may make motions, exceptions, and objections. As the Commissioner considers appropriate, the Commissioner may allow other parties to respond. Except for good cause, the Commissioner shall promptly rule on all motions, exceptions, and objections.

(4)

Parties represented by counsel may only examine and cross examine witnesses and make motions, exceptions, objections, and responses by counsel.

(5)

The burden of proof is on the applicant.

Memoranda and Briefs. The Commissioner may allow the parties to submit memoranda and briefs in the form and number as the Commissioner may direct.

Closing Arguments. The parties or their counsel may make closing arguments.

Opinions. The Commissioner shall issue a written opinion within 30 days of the end of the hearing. A copy shall be promptly sent to each party.

Costs. The Commissioner may assess a party with any part of the costs of the hearing.

Regulation .11 Purchase Price.Link Copy Citation

The purchase price shall be the fair market value of the land, as determined by the Commissioner under Real Property Article, §13-313, as amended by Acts of 1977, Chapter 162, less all expenses of the surveyor, reasonable attorney's fees, and costs charged by the Commissioner. Within 15 days after the hearing, the applicant must submit an account of the expenses deductible by law. Publication costs are not deductible items under current legislation.

A governmental body requesting a certificate of reservation is not required to pay the purchase price of the land.

Regulation .12 Certificates of Reservation.Link Copy Citation

In the case of an application for a certificate of reservation, the Commissioner's opinion and findings shall constitute the certificate of reservation and the description of the land provided by the surveyor shall be made an attachment thereto.

Regulation .13 Patents.Link Copy Citation

After the Commissioner has prepared, sealed, and signed the patent, he shall forward it to the assistant attorney general assigned. The assistant attorney general shall then examine the patent as to form and legal sufficiency, and, if the contents be deemed in order, he shall endorse the patent in the space beneath the Commissioner's signature with the statement, “Approved as to form and legal sufficiency this ____ day of __________ , 19____ ”, and affix his signature. The patent shall then be forwarded by the Commissioner to the Board of Public Works as required under Real Property Article, §13-502, as amended by Acts of 1977, Chapter 162. If the patent is approved, the patent shall be endorsed, “Approved by the Board of Public Works this ____ day of __________ , 19____”, and signed by the Secretary of the Board of Public Works.

Regulation .14 Mail.Link Copy Citation

In addition to using restricted delivery for mailing the warrant (Real Property Article, §13-306), the notice of issuance of warrant (Real Property Article, §13-308(a)), the notice of the return of the certificate of survey (Real Property Article, §13-311(b)(2)), the order for hearing or order for referral of hearing (Real Property Article, §13-405(c)(2)), and the notice of purchase price (Real Property Article, §13-409) as required by the Annotated Code of Maryland, the Commissioner shall use restricted delivery for requesting the valuation of the supervisor of assessments, for issuing copies of the final judgment, and for issuing the patent to the applicant.

Regulation .15 Expenses.Link Copy Citation

If the Commissioner finds that an applicant for a land patent acted in bad faith and without substantial justification, the Commissioner may require the applicant to pay the reasonable expenses of the objectors, including the objector's attorneys' fees and expert witness fees, and the reasonable expenses of the Commissioner, including administration, research, and hearing expenses.

Regulation .16 General.Link Copy Citation

These procedural regulations are not intended to change any part of the Real Property Article, Title 13, Annotated Code of Maryland. The intention is to clarify certain provisions thereof and to provide an orderly procedure for the granting of certificates of reservation or the issuance of land patents.

Except as otherwise provided, the provisions of Real Property Article, Title 13, Annotated Code of Maryland, and this chapter applicable to the issuing of land patents are applicable to the granting of certificates of reservation.

Subtitle 18 — State Archives

Chapter 02. Records Retention and Disposition Schedules

Regulation .01 Purpose.Link Copy Citation

The purpose of these regulations is to:

Protect records considered essential to the continuing operation of government;

Guarantee the integrity and preservation of permanent records;

Ensure the legal admissibility of the permanent record;

Secure the rights and privileges of citizens;

Assure public access to the records of government;

Promote agency legal and fiscal accountability; and

Provide a means to document agency administrative history.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Agency” means any office, department, board, commission or other separate unit of Maryland government, including the executive, legislative, and judicial branches of government, and all political subdivisions.

(2)

“Appraisal” is the process of determining how long, in what format, and under what circumstances a record series ought to be preserved, based upon the information contained in the records inventory.

(3)

“Archives” means the Maryland State Archives.

(4)

“Custodian” means an officer or employee of the State or a political subdivision who, whether or not the officer or employee has physical custody and control of a public record, is responsible for keeping the public record.

(5)

“Division” means the Records Management Division of the Department of General Services.

(6)

“Non-permanent record” means a public record with temporary value which may be destroyed after the passage of a specified period of time.

(7)

“Permanent record” means a public record which is considered by law, statute, rule, agency personnel or the State Archivist to have ongoing administrative, fiscal, legal, historical, or other archival value.

(8)

“Publication” means any informational material developed by or for an agency for general public dissemination.

(9)

Record.

(a)

“Record” means any documentary material in any form created or received by an agency in connection with the transaction of public business; and

(b)

“Record” includes:

(i)

Written materials, email, books, photographs, photocopies, publications, forms, microfilms, tapes, computerized records, maps, drawings, and other materials in any format;

(ii)

Data generated, stored, received, or communicated by electronic means for use by, or storage in, an information system or for transmission from one information system to another.

(10)

“Records inventory” means a survey of all records series maintained by an agency resulting in a detailed itemized compilation of the records in the possession of the agency, and is the first step in preparing a records retention and disposition schedule.

(11)

“Records officer” means any person or persons designated according to the provisions of this chapter whose responsibilities include the development and oversight of agency records management programs.

(12)

“Record series” means a set of similar records maintained in any form or format.

(13)

“Schedule” means a records retention and disposition schedule which is an official document listing and describing all records of an agency, and provides:

(a)

For the permanent retention of records considered by statute or the Archivist to be of permanent value; and

(b)

For the destruction of records that are not essential to agency operations after the lapse of a stated period of time.

Regulation .03 Scope.Link Copy Citation

These regulations apply to all:

Agencies; and

Records.

Regulation .04 Agency Responsibilities.Link Copy Citation

Agencies shall:

Develop schedules;

Review and update their schedules at least once every 2 years;

Establish and maintain a records management program;

Provide copies of publications to Archives as soon after release to the public as is practicable;

Initiate appropriate action to recover records removed unlawfully or without authorization; and

Transfer to Archives permanent record material not needed for the current operation of the agency in accordance with procedures outlined in this regulation.

Regulation .05 Duties of Custodians, Public Officials, and Employees.Link Copy Citation

It is the responsibility of all custodians, public officials, and employees to:

(1)

Retain and protect all records in their custody;

(2)

Cooperate with Division and Archives in the establishment and maintenance of an active and continuous program for the economical and efficient management of records;

(3)

Ensure that agency records, including electronic records, are covered by a schedule, which shall outline procedures to ensure the retention and usability throughout the authorized lifecycle of the records.

No officer, employee, or contractor of any agency shall destroy, sell, or otherwise dispose of any record in such person's care or custody or under such person's control without first having followed the procedures under Regulation .07 of this chapter.

Regulation .06 Duties of Division and Archives.Link Copy Citation

The Division shall assist agency personnel in the development of schedules by providing guidance, templates, forms, and advice.

Upon request from an agency or the Division, the Archives will provide assistance in determining what records may be considered permanent.

The Division and Archives shall provide additional instruction and guidance on the scheduling process and records transfers on a website to be maintained by Archives: http://www.msa.md.gov/msa/intromsa/html/record_mgmt/homepage.html

Regulation .07 Procedures.Link Copy Citation

Records Inventory.

(1)

Agencies shall submit to Division for review a records inventory for each record series.

(2)

For each record series in inventory, the following information is required:

(a)

Name of the agency that created record;

(b)

Record series title;

(c)

Dates of the oldest and most recent records;

(d)

Description of the types of information, data, or documents which includes:

(i)

Physical form or forms, such as letter-size paper, legal-size paper, bound book, audio tape, electronic data, video tape, film, or other medium;

(ii)

Total quantity of materials, stated in terms of number of units, such as cubic feet, reels of film, tapes, gigabytes of data;

(iii)

Estimated annual growth;

(iv)

Current location or locations;

(v)

Index system used for access, if any;

(vi)

Access restrictions, if any, based on laws or regulations (with citations); and

(vii)

Audit requirements, if any.

Records Schedule.

(1)

A Schedule shall be prepared by:

(a)

Inventorying the records;

(b)

Appraising the records;

(c)

Preparing the schedule;

(d)

Obtaining legal authorization for use of the schedule from the State Archivist.

(2)

Schedules shall:

(a)

Provide for periodic transfer to the Archives, at a stated frequency, of records designated to be of permanent value, including electronic records;

(b)

Provide for annual or more frequent transfer to the Archives of master security microform designated as permanent;

(c)

Designate agency publications as permanent and provide for copies to be sent to Archives;

(d)

Define any access restrictions that apply, give legal or regulatory citation for access restrictions, and note when or under what circumstances those restrictions will be lifted; and

(e)

Specify the length of time nonpermanent records will be kept in the agency or, if applicable, stored in a records center, or retained after required audit.

(3)

Schedules containing new record series must be submitted to the Division with records inventories.

Legal Authorization and Implementation of Schedules.

(1)

Before an agency submits to Division a proposed schedule, the schedule shall have been approved in writing by the agency director.

(2)

Three signed copies of any proposed schedule and one copy of the records inventory accompanying each proposed schedule shall be submitted to Division for review.

(3)

Proposed revisions made by Division and approved by the agency shall be incorporated into proposed schedule and signed by the agency director.

(4)

The Division shall assign a control number (schedule number) and forward to Archives all three copies of proposed schedule, as amended or revised, and records inventory.

(5)

Archives shall review proposed schedule and, if the State Archivist approves it as submitted, two copies signed by the State Archivist shall be returned to the Division (one copy for transmittal to the agency). If the State Archivist disapproves the proposed schedule, in whole or in part, the Archives shall return all copies to Division with a statement of reasons for disapproval. The Division then shall request the agency to modify the schedule and resubmit it to the State Archivist for approval.

(6)

Until it has been approved in writing by the State Archivist, a schedule does not constitute legal authorization for the disposal of records.

(7)

At any time, a schedule may be amended or revised by an agency, or at the request of Division or Archives. Reasons for amendments or revisions may include the creation of new record series, changes in record-keeping practices, changes in formats, or reorganization of an agency. To amend or revise a schedule, steps outlined in this chapter shall be followed.

Regulation .08 Form and Format.Link Copy Citation

Records designated by schedule as being permanent are to be considered permanent regardless of the form and format of the records, and whether or not a duplicate exists in some other form or format. All permanent records shall be scheduled for transfer to Archives.

Regulation .09 Custodian Designated.Link Copy Citation

Public officials charged with the statutory or delegated responsibility for administering an agency, and for creating, storing, and maintaining records shall be the custodian of such records. Upon transfer of any and all records to Archives, the State Archivist shall become the custodian.

Regulation .10 Appointment of Records Officers.Link Copy Citation

Each agency shall designate at least one records officer to serve as liaison with Division and with Archives for the purpose of implementing and overseeing a records management program, and coordinating legal disposition, including destruction of obsolete records.

Appointment of agency records officers shall be made by the head of each agency.

Regulation .11 Storage and Protection of Records.Link Copy Citation

All records shall be kept in facilities maintained by the agency responsible for the creation and maintenance of such records, unless the consent of Division is obtained for their transfer or storage elsewhere.

The public official responsible for maintaining an office or offices where records are created or kept shall establish such safeguards against damage, removal, or loss of records as may be required by Archives or Division. Such safeguards shall include notifying all employees of the requirements of this chapter.

Regulation .12 Delivery of Records to Successors.Link Copy Citation

The custodian of records shall, at the expiration of the custodian's term of office, appointment, or employment, deliver custody and control of all records kept or received in the transaction of official business to the custodian's successor, supervisor, or records officer, or to Archives.

Regulation .13 Transfer of Records upon Termination of Agencies.Link Copy Citation

All records which are in or shall come into the possession of any agency shall, upon termination of such agency, be transferred to the custody of Archives, provided that such transfer is consistent with the provision of any such termination.

All records which are in or shall come into the possession of any political subdivision of this State shall, upon termination of such political subdivision, be transferred to the custody of Archives.

Regulation .14 Recovery of Record.Link Copy Citation

Public officials shall notify the Archives of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records that shall come to the agency's attention.

The State Archivist may request the Attorney General to seek appropriate relief.

Regulation .15 Certificate of Records Destruction.Link Copy Citation

When nonpermanent records are destroyed in accordance with the terms of an approved schedule, the agency or Records Center shall submit a certificate of records destruction to Archives. For each record series, the certificate shall contain:

Name of the agency that created the record;

Record series title;

Inclusive dates;

Schedule number or numbers, assigned by Division, authorizing destruction of record series as well as item number from Schedule;

Quantity of material;

Date of destruction;

Method of destruction; and

Signature of agency director, or the director of the Records Management Division of the Department of General Services, or the State Archivist.

Regulation .16 Certified Copies.Link Copy Citation

Archives may issue certified copies of any records in its custody.

Subtitle 18 — State Archives

Chapter 03. Local Archives

Regulation .01 Establishment.Link Copy Citation

To establish a local archives as the repository for the permanently valuable records of the executive and legislative branches of a county or municipal government, the county or municipal government shall submit a request in writing to the State Archivist. The request shall consist of a proposal that meets the standards and requirements set by this chapter and shall be approved in writing by the State Archivist before implementation.

Regulation .02 Collection Policy.Link Copy Citation

A local archives may collect the records of a:

(1)

County executive's office and its departments;

(2)

County council and its departments;

(3)

Board of county commissioners;

(4)

County administrative offices; and

(5)

Municipal government offices.

The State Archives is the official repository for permanent records of the following agencies, whose records may not be deposited in a local archives:

(1)

Circuit courts, clerks of the circuit courts, and their predecessor agencies;

(2)

Registers of wills, orphans courts, and their predecessor agencies;

(3)

District courts and their predecessor agencies;

(4)

State agencies and their predecessor agencies, including but not limited to those:

(a)

That have county or other local offices, and

(b)

Whose functions were administered by county or other local agencies before the formation of the State agency, such as the State Department of Assessments and Taxation, State Administrative Board of Election Laws, and Maryland Department of Health.

Regulation .03 Records Retention and Disposal.Link Copy Citation

A local archives shall follow the requirements of COMAR 14.18.02 governing records retention and disposition schedules, except in reference to the provisions regarding the Records Management Division of the Department of General Services.

Regulation .04 Archival Qualifications.Link Copy Citation

The minimum qualifications for the archivist or archivists responsible for managing the daily operations of a local archives shall include graduation from an accredited:

Four-year college or university, preferably with a degree in history, archival science, library science, or related field and 3 years of full-time, or its equivalent, professional archival experience; or

College or university with a Master's degree in history, archival science, library science, or related field and 2 years of full-time, or its equivalent, professional archival experience.

Regulation .05 Public Access to Records.Link Copy Citation

A local archives shall provide the public with access to government records in accordance with State Government Article, §§10-611—10-628, Annotated Code of Maryland.

To facilitate access, a local archives shall provide a guide to its record holdings or be developing a guide. A copy of all published or unpublished finding aids shall be deposited with the State Archives.

Regulation .06 Copying of Records.Link Copy Citation

Whenever permanent records are microformed or recorded on an equivalent medium, a local archives shall:

(1)

Meet standards of permanence and durability acceptable to the State Archives; and

(2)

Deposit the master security microforms with the State Archives.

The State Archives may require that:

(1)

Records of historical importance be microformed or copied on an equivalent medium at the expense of a local archives; and

(2)

Master security microforms be deposited with the State Archives.

Regulation .07 Preservation and Security of Records.Link Copy Citation

Records in the form of loose papers shall be stored in acid-neutral folders and acid-neutral boxes.

Records shall be handled so as to prevent physical damage to them.

Temperature in the records storage area shall be maintained at 65°F, plus or minus 5°F, at all times.

Relative humidity in the record storage area shall be maintained at 55 percent, plus or minus 5 percent, at all times.

The records storage area shall have the following fire detection and fire extinguishing devices:

(1)

Smoke detector;

(2)

Heat detector;

(3)

Manual fire extinguishers; and

(4)

Sprinklers or halon system as approved by the State Fire Marshal for use in an archival facility.

To protect against theft, vandalism, and physical misuse of records, a local archives shall have a 24-hour security system and adequate research room security, including researcher identification and supervision of researchers by an archivist when records are being used.

Regulation .08 Transfer of Records to the State Archives.Link Copy Citation

A local archives may transfer permanent records to the State Archives. If a local archives ceases operation, the permanent records shall be offered to the State Archives.

Subtitle 18 — State Archives

Chapter 04. Electronic Records

Repealed

Subtitle 18 — State Archives

Chapter 05. Archival Standards for Records on Microfilm

Regulation .01 Purpose.Link Copy Citation

These regulations establish uniform methods for the microfilming of records. The standards in these regulations ensure the economical production and use of microfilm in record keeping to meet legal and archival requirements and preserve the integrity of the original records.

Regulation .02 Scope.Link Copy Citation

These regulations apply to the microfilming of record material by any agency of State, county, or local governments.

With the written approval of the State Archivist, the head of an agency or office may destroy original material that has been photographed, photocopied, or microphotographed if:

(1)

The head of the agency or office offers the original material to the Archives, but the Archives declines to accept;

(2)

The copy is made in a manner that meets the standard of quality of the Archives for permanent photographic records;

(3)

The copy is placed in an adequately accessible container; and

(4)

Provisions are made:

(a)

For the preservation, examination, and use of the copy in a manner that the Archives approves, and

(b)

For a record that a statute otherwise expressly requires to be kept permanently, for the copy to be available, on request, in the same manner as the original material.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Agency” means any unit of State, county, or local government.

(2)

“Archives” means the State Archives.

(3)

“Division” means the Records Management Division of the Department of General Services.

(4)

“Office” means a part of an agency.

(5)

“Record” means documentary material in any form or format including paper, microform, electronic record, or other medium, that is:

(a)

Created by an agency or office; or

(b)

Received by an agency or office in connection with the transaction of public business.

Regulation .04 Microfilm Standards.Link Copy Citation

Microfilm shall be of the type suitable for archival quality. Archival quality or permanent film is defined as any film that is equal to or better than silver-gelatin film, as specified in the “American National Standard for Imaging Media (Film)—Silver-Gelatin Type—Specifications for Stability (ANSI/NAPM IT9.1-1992)” and in the “American National Standard for Photography—Determination of Regional Thiosulfate and Other Related Chemicals in Processed Photographic Materials—Methods Using Iodine—Amylose, Methylene Blue and Silver Sulfide (ANSI/NAPM IT9.17-1993)”, which are incorporated by reference. Diazo or vesicular film are not acceptable as archival quality microfilm.

If an agency is microfilming its own records, it shall be the responsibility of the head of each agency or office to ensure that microfilm equipment is cleaned and maintained according to manufacturer's specifications or accepted industry practice, or both.

Microfilm Processing Requirements.

(1)

For the production of archival quality or permanent film, microfilm shall be processed as described in this section.

(2)

Permanent text records shall be microfilmed at a reduction ratio not greater than 24X.

(3)

Permanent graphic records shall be microfilmed at a reduction ratio not greater than 36X.

(4)

Each film roll shall contain not less than 18 inches of film leader, and 18 inches of film trailer.

(5)

Microfilm Density.

(a)

Optimum background densities of microfilm images are dependent upon the quality of the documents filmed.

(b)

For permanent records, density on negative copies will be between 0.95 and 1.2.

(c)

For nonpermanent records, the ultimate density criterion is that the microfilm be legible for its intended use (reading, copying, or production of hard copy), and that all images on a roll can be printed, as much as is practicable, at the same printing exposure.

(d)

The following classification indicates the maximum limits of density:

(i)

Density not higher than 1.4 is required for high quality printed books, periodicals, and dense typing;

(ii)

Density not higher than 1.3 is required for fine line originals, letters typed with a worn ribbon, pencil writing with a soft lead, and documents with small printing;

(iii)

Density not lower than 1.0 is required for pencil drawings, faded printing, graph paper with pale fine colored lines, and very small printing such as footnotes;

(iv)

Density not lower than 0.8 is required for very weak pencil manuscripts and drawings, and poorly printed, faint, or faded documents; and

(v)

Readings beyond these densities are unacceptable.

(6)

Resolution of the completed microfilm may not be less than 100 lines per millimeter, as determined by inspection of a resolution test chart photographed on each roll of film.

(7)

Residual thiosulfate concentration shall be less than 1 microgram per square centimeter as proved by subsequent testing of the processed film. At regular intervals agencies shall send samples of processed film to the Division's Microfilm Laboratory for methylene blue testing. Samples are to be processed within 1 week before testing if accurate results are to be obtained.

The following identification targets, presented in the order in which they are to appear, shall be used on each roll of microfilm:

(1)

Resolution test target for rotary camera applications derives from the “Standard for Information and Image Management—Practice for Operational Procedures/Inspection and Quality Control of First-Generation Silver Microfilm of Documents, Rotary Camera Test Chart (ANSI/AIIM MS 23-1991)”, which is incorporated by reference, or for planetary camera applications “Photographic Microcopy Target (NBS 1010a)”, which is incorporated by reference;

(2)

A title target for each volume of records to be filmed shall include the agency name and the record title and volume identification, both identifiable without the use of a magnifier or viewer;

(3)

A certification target signed by authorized agency personnel;

(4)

Certificate of Camera Operator Target (RM-4); and

(5)

The appropriate test chart.

During filming, if any document is suspected of not having been filmed correctly, follow that image with a correction target, followed by the document again.

After exposure, each roll of microfilm is developed and inspected to insure completeness and legibility of every image. A light box inspection alone is not acceptable.

Illegible or missing records shall be microfilmed again as retakes, according to the following procedure:

(1)

Allow 18 inches of blank leader at the beginning of the retakes for each individual volume;

(2)

Photograph a start of retake section target;

(3)

Microfilm the documents that were illegible or missing in the same order in which they would have appeared on the original roll if they had been available;

(4)

Microfilm an end of retake section target;

(5)

Allow 18 inches of blank trailer at the end of each section of retakes; and

(6)

After processing, inspection, and approval, splice retake images onto the beginning of the original roll of microfilm that bears the illegible images or lacks the documents contained on the retake roll.

Precautions shall be taken in the handling and storage of original camera microfilm. These precautions include, but are not limited to, the following:

(1)

Always wear cotton gloves when handling film to prevent fingerprints or dirt on the microfilm images;

(2)

Never use tape, paper clips, rubber bands, staples, etc., to splice or hold microfilm on rolls or any other microform;

(3)

Do not place microfilm on reels that corrode or emit toxic elements that destroy microfilm; and

(4)

Do not store microfilm within 4 inches of the floor because storage under improper conditions of temperature and humidity drastically shortens the useful life of microfilm;

(5)

Recommended standards for temperature and humidity for the storage of microfilm are as follows:

(a)

Short-term (under 10 years) storage temperature may not exceed 75°F and relative humidity may not exceed 60 percent, and

(b)

Permanent or archival storage temperature may not exceed 70°F and relative humidity may not exceed 40 percent.

Archival microfilm of records scheduled for permanent retention shall be transferred periodically to the Archives. This microfilm shall be the silver-gelatin master negative.

Regulation .05 Agency Responsibility.Link Copy Citation

When paper records are to be microfilmed, and the microfilm is scheduled for permanent retention, the paper records may not be destroyed until the microfilming of those records and the subsequent processing and inspection of the film has been completed in compliance with the standards in Regulation .04G and H of this chapter, nor until the State Archivist has approved the destruction of those records. Permission to destroy record material shall be obtained by filing a Proposal and Certificate of Records Destruction (form DGS-550-9) with the Archives. This permission shall be received before any records destruction can take place.

It is the policy of the Division not to store paper records in the State Records Center after those records have been microfilmed. The State Records Center will hold the paper records until the microfilm has been inspected by agency personnel. Once the quality of the microfilm has been assured, the paper records shall be returned to the agency of record or disposed of in accordance with State Government Article, §10-642, Annotated Code of Maryland.

The head of each agency shall ensure that the standards in this chapter are made a part of any contract for microfilming services into which an agency may enter.

Subtitle 21 — Maryland Food Center Authority

Chapter 01. General

Regulation .01 Scope.Link Copy Citation

These regulations describe policies, procedures, and authorizations for the operations of the Maryland Food Center Authority.

Regulation .02 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Act” means the Maryland Food Center Authority Act, Article 41, §§13-101—13-121, Annotated Code of Maryland.

(2)

"Authority" means the Maryland Food Center Authority.

(3)

“Board of Directors” means the members of the Authority as described in Article 41, §13-103(b), Annotated Code of Maryland.

(4)

“Executive Director” means the Executive Director of the Maryland Food Center Authority as appointed by the Board of Directors.

(5)

“Project” means the market, the park, and other food or agriculturally related real estate developments undertaken by the Authority to further the Authority's purposes, including any ancillary or appurtenant facilities.

Subtitle 21 — Maryland Food Center Authority

Chapter 02. Public Information Requests

Regulation .01 General.Link Copy Citation

These regulations set out the procedures for filing requests with the Maryland Food Center Authority for the inspection or copying of records under State Government Article, § 10-611--10-630, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

Terms appearing in the Public Information Act shall have the meanings defined there and, in addition, the meaning used in these regulations.

Terms Defined.

(1)

“Applicant” means a person or agency requesting disclosure of public records.

(2)

“Custodian” or “official custodian” means the Executive Director of the Authority, who is responsible for the maintenance, care, and keeping of public records of the Authority.

(3)

“Public Information Act” means State Government Article, §§10-611—10-630, Annotated Code of Maryland.

(4)

Public Records.

(a)

“Public records” means any paper, correspondence, form, book, photograph, photostat, film, microfilm, computerized record, sound recording, map, drawing, or other written document regardless of physical form or characteristics.

(b)

“Public records” includes all copies that have been made by the Authority or received by the Authority in connection with the transaction of public business and includes the salaries of all employees of the Authority.

(5)

“Working day”, for purposes of this chapter, means each day between the hours of 9 a.m. and 4 p.m. except Saturdays, Sundays, and holidays.

Regulation .03 Requests for Records.Link Copy Citation

A person may request to inspect or copy any public record that is in the custody and control of the Authority and which, under the provisions of the Public Information Act, the Authority is required to make available to the public.

Requests for public records shall:

(1)

Be made in writing;

(2)

Be addressed to the official custodian;

(3)

Contain the applicant's name and address; and

(4)

Reasonably identify by brief description the specific record sought.

Regulation .04 Response to Request.Link Copy Citation

If the custodian decides to grant a written request for inspection, the custodian shall produce the record, or a copy, for inspection within a reasonable time not to exceed 30 days from the date of receipt of the request.

If the custodian decides to deny the request, the custodian shall do so within 30 days of receipt of the written request and, immediately upon deciding to deny the request, shall notify the applicant of the denial. Any reasonably severable portion of a record shall be provided after deletion of those portions which may be withheld from disclosure. Within 10 working days of the denial, the custodian shall give the applicant a written statement that gives the reasons and legal authority for the denial and contains a notice of the remedies for review of the denial.

If a requested public record is not in the custody or control of the person to whom the written application is made, that person shall, within 10 working days of the receipt of the request, notify the applicant. If the person knows the name of the custodian of the record or the location or possible location of the record, this information shall also be given to the applicant.

With the consent of the applicant, any time limit imposed by §§A—C of this regulation may be extended for an additional period not to exceed 30 days.

Regulation .05 Notification of Persons Who May be Affected by Disclosure.Link Copy Citation

The custodian, unless prohibited by law, may notify an individual who could be adversely affected by:

(1)

A disclosure of a record to the applicant who has made a request for inspection; or

(2)

The copying of a record.

In cases of permissive disclosure, the custodian may consider the views of the person before deciding whether to disclose the record to the public.

Regulation .06 Review of Denial.Link Copy Citation

If the written request is denied by the custodian, the applicant may, within 30 days after receipt of denial, request an administrative hearing on the denial.

If a hearing is requested by the applicant the hearing shall be conducted by a hearing officer designated by the Executive Director. After the hearing the hearing officer shall prepare a recommended decision which shall be submitted to the Executive Director.

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

The applicant may file an action for judicial enforcement under State Government Article, §10-623, without exhausting the administrative remedy of §A of this regulation.

Regulation .07 Disclosure Against Public Interest.Link Copy Citation

If, in the opinion of the Executive Director, disclosure of any public record which is otherwise required to be disclosed under the Public Information Act will do substantial injury to the public interest, the Executive Director may:

(1)

Temporarily deny the request in writing; and

(2)

Apply within 10 working days of the denial to the appropriate circuit court for an order permitting the Executive Director to continue to deny or restrict disclosure.

Notice of the application filed with the circuit court shall be served upon the applicant in the same manner provided for service of process by the Maryland Rules of Procedure.

Regulation .08 Fees.Link Copy Citation

The Authority may charge reasonable fees as determined from time to time. As of July 1, 1991 fees to be charged under this chapter are in accordance with the following fee schedule:

(1)

Copies. The fee for each copy is 15 cents per page when reproduction can be made by a photocopying machine within the Authority. When records are not amenable to photocopying (for example, punch cards, magnetic tapes, large documents, and microfilm), the fee for reproducing the record may be based on the actual cost of reproduction.

(2)

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

(3)

Searching or Record Preparation. There will be a $10 per hour charge for every hour or part of it over 2 hours needed to search for and prepare a public record.

(4)

Exception to Fee. A charge may not be made when the amount of the fee is $10 or less.

Notwithstanding §A of this regulation, if any fees for copies, printouts, photographs, or certified copies of any record are specifically prescribed by law other than the Public Information Act or this regulation the specific fee contained in that law shall determine the amount charged for that record.

If the custodian is unable to copy a record within the Authority, the custodian shall make arrangements for the reproduction of the record at public or private facilities outside the Authority. The custodian shall either collect from the applicant a fee which is sufficient to pay the actual cost of reproduction or direct the applicant to pay the cost of reproduction directly to the facility making the copy.

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

Upon request the custodian may waive or reduce any fee charged under this regulation if:

(1)

The applicant asks for a waiver; and

(2)

After consideration of the ability of the applicant to pay the fee and other relevant factors, the custodian determines that the waiver will be in the public interest.

If the applicant requests that copies be mailed or delivered to the applicant, the custodian may charge the applicant for the cost of postage or delivery to the applicant.

Regulation .09 Time of Inspection.Link Copy Citation

An applicant may inspect any public record which it has been determined that the applicant is entitled to inspect during any suitable working day.

Regulation .10 Place of Inspection.Link Copy Citation

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

Subtitle 21 — Maryland Food Center Authority

Chapter 03. Petition for Adoption of Regulations

Regulation .01 General.Link Copy Citation

These regulations are promulgated under State Government Article, § 10-101--10-129, Annotated Code of Maryland, for the purpose of establishing procedures by which the public may petition the Maryland Food Center Authority for the adoption of regulations.

Regulation .02 Who May File.Link Copy Citation

Any interested person may file a petition with the Executive Director requesting the promulgation, amendment, or repeal of any regulation.

Regulation .03 Form.Link Copy Citation

The petition shall be in writing and shall contain:

A clear, concise statement of the regulation, amendment, or repeal which is sought;

Reasons in support of the proposed regulation change;

References to the authority of the Authority to take the action which is requested; and

The name, address, and telephone number of the petitioner.

Regulation .04 Where Filed.Link Copy Citation

The petition shall be filed with the Executive Director for the Executive Director's consideration and disposition.

The time period for response to a petition begins when the petition is received by the Executive Director.

Regulation .05 Disposition.Link Copy Citation

Within 60 days after receipt of the petition, the Executive Director shall either deny the petition in writing, stating the reasons for the denial, or initiate the procedures for adoption of the regulation as submitted or with appropriate modifications as determined by the Executive Director to be in the best interest of the Authority.

Regulation .06 Agency File.Link Copy Citation

The Authority shall maintain a file of petitions submitted and the responses which shall be available for public inspection to the extent permitted by law.

Subtitle 21 — Maryland Food Center Authority

Chapter 04. Petition for Declaratory Rulings

Regulation .01 General.Link Copy Citation

These regulations are promulgated under State Government Article, Title 10, Subtitle 3, Annotated Code of Maryland, for the purpose of establishing procedures by which the public may petition the Maryland Food Center Authority for a declaratory ruling.

Regulation .02 Who May File.Link Copy Citation

An interested person may file a petition for declaratory ruling with respect to the manner in which the Authority will apply a regulation or order of the Authority, or a statute that the Authority enforces, to a person or property on the facts set forth in the petition.

Regulation .03 Filing.Link Copy Citation

A petitioner shall file a petition within 30 days of notice from the Authority of the manner in which the Authority intends to apply a regulation, order, or statute.

A petition shall be filed with the Executive Director for consideration and disposition by the Authority, or by the Executive Director if the duty is delegated by the Authority to the Executive Director.

Regulation .04 Form.Link Copy Citation

A petition for a declaratory ruling shall be in writing and shall:

Contain a detailed statement of the facts on which the petition is based;

Cite all regulations and statutes involved;

Evaluate whether and in what manner the relevant regulations apply to the petition under the facts contained in the petition;

Contain the name, address, and telephone number of the petitioner; and

Contain a statement by the petitioner, under oath, that the facts contained in the petition are true.

Regulation .05 Consideration and Disposition.Link Copy Citation

The Executive Director has the duty to consider and dispose of petitions received with respect to:

(1)

Waivers made by managers of Authority project operations;

(2)

Implementation of agreements and arrangements that have been approved or authorized by the Board of Directors; and

(3)

Implementation of contracts for goods and services that are within a budget that has been approved by the Board of Directors.

The Board of Directors may delegate to the Executive Director the duty to consider and dispose of other particular petitions or categories of petitions for declaratory rulings.

Petitions respecting matters under §§A and B of this regulation that are received by the Executive Director in accordance with Regulation .03 of this chapter shall be acknowledged by the Executive Director within 30 days. The Executive Director:

(1)

May require a presentation on the petition and additional submissions, consultations, or reports in the discretion of the Executive Director; and

(2)

Shall issue a declaratory ruling within 45 days of receipt of final submissions, if any, requested under §C(1) of this regulation.

Consideration by the Board of Directors.

(1)

Petitions respecting matters not delegated to the Executive Director shall be referred to the Board of Directors.

(2)

Petitions received in accordance with Regulation .03 of this chapter shall be presented to the Board of Directors at the first meeting that is scheduled to take place at least 45 days after receipt of the petition.

(3)

The Board of Directors may require a presentation on the petition, and additional submissions, consultations, or reports, in its discretion.

A declaratory ruling issued by the Authority, or by the Executive Director if so delegated, is binding upon the Authority and the petitioner, on the facts set forth in the petition. Declaratory rulings issued shall be in writing and shall state the reasons for the decision. A copy of the declaratory ruling shall be delivered to the petitioner.

Regulation .06 Appeal of Declaratory Ruling.Link Copy Citation

A declaratory ruling issued by the Executive Director may be appealed to the Board of Directors in writing within 10 days of the ruling, and shall be referred to the Board of Directors in accordance with Regulation .05D.

A declaratory ruling by the Board of Directors may be appealed to a circuit court in accordance with State Government Article, §10-305, Annotated Code of Maryland.

Regulation .07 Agency File.Link Copy Citation

The Authority shall maintain a file of all petitions submitted and the declaratory rulings issued. This file shall be available for public inspection to the extent permitted by law.

Subtitle 21 — Maryland Food Center Authority

Chapter 05. Acquisition of Real Property

Regulation .01 General.Link Copy Citation

The Authority may acquire real property and interests in real property for any of the Authority's corporate purposes on the terms and conditions that it considers appropriate.

Regulation .02 Definitions.Link Copy Citation

In this chapter, terms appearing in the Act shall have the meanings defined there.

Regulation .03 Authorization of the Executive Director Regarding Acquisitions.Link Copy Citation

At the direction of the Board of Directors or on the Executive Director's own initiative the Executive Director may conduct preliminary negotiations or investigations relating to the acquisition of real property or interests in real property.

In connection with negotiations and acquisitions, the Executive Director, after consultation with the Board of Directors or at the direction of the Board of Directors, may obtain appraisals, surveys, engineering and architectural studies, title insurance, and any other items and services the Executive Director considers appropriate under the circumstances.

Upon approval of an acquisition as set forth in Regulation .05 of this chapter, the Executive Director shall have the power on behalf of the Authority to execute all documents and do all things necessary and convenient to accomplish the purposes of the approved transaction.

The Executive Director is authorized to exercise remedies for default under agreements that have been approved in accordance with Regulation .05 of this chapter.

Regulation .04 Review.Link Copy Citation

Proposed construction of real estate development by the Authority shall be submitted for review to the Legislative Policy Committee of the General Assembly of Maryland and to the Maryland Department of Fiscal Services.

Regulation .05 Approvals.Link Copy Citation

A proposed acquisition of real property or interest in real property shall be submitted for approval to the Board of Directors. If approved by the Board of Directors, the proposed acquisition shall be submitted for approval to the State Board of Public Works.

Subtitle 21 — Maryland Food Center Authority

Chapter 06. Sale or Lease of Real Property

Regulation .01 General.Link Copy Citation

The Authority may sell or lease real property and interests in real property.

Regulation .02 Definition.Link Copy Citation

In this chapter, the following term has the meaning indicated.

Term Defined. “Project” means the market, the park, and other food or agriculturally related real estate developments undertaken by the Authority to further the Authority's purposes, including any ancillary or appurtenant facilities.

Regulation .03 Market Value.Link Copy Citation

Sales. Real property or interest in real property may not be sold by the Authority unless the purchaser pays an amount at least equal to the full appraised value of the real property or interest in real property as determined by the Authority.

Leases. Real property or interest in real property may not be leased by the Authority to any lessee unless the lessee pays an amount equal to the reasonable rental value of the real property or interest in real property as determined by the Authority.

Regulation .04 Evaluation of Prospective Tenant or Purchaser.Link Copy Citation

The Authority may require a potential tenant or purchaser of an interest in real property to provide the Authority with information relating to the potential tenant or purchaser's experience and financial stability, including but not limited to, audited financial statements, bank statements, and tax returns.

If two or more potential tenants or purchasers seek a particular property which the Authority has available for sale or lease, the Authority may evaluate and determine, in its sole discretion, which transaction will be in the best interest of the Authority, taking into account such factors as:

(1)

Which potential tenant or purchaser will afford the greatest opportunity for success;

(2)

Which potential tenant or purchaser will have the greatest positive effect on a project of the Authority;

(3)

The nature of the product or service the potential tenant or purchaser intends to provide;

(4)

The economic return to the Authority; or

(5)

Other matters the Authority considers relevant in carrying out its purposes.

Regulation .05 Development Plans and Restrictive Covenants.Link Copy Citation

The Authority may adopt development plans which designate parcels of real property to be developed for particular uses, and may revise the plans from time to time.

The Authority may restrict interests in real property that it conveys and may do all things necessary and convenient to carry out the powers expressly granted by the Act.

Regulation .06 No Brokerage Fees.Link Copy Citation

The Authority may not be required to pay real estate commission costs, or any other similar brokerage fees in connection with its conveyance of real property or interests in real property.

Regulation .07 Authorization of Executive Director Regarding Sales and Leases.Link Copy Citation

The Executive Director, in relation to the conveyance of interests in real property, may:

(1)

Initiate or receive offers;

(2)

Obtain and evaluate relevant information;

(3)

Conduct negotiations; and

(4)

Make recommendations to the Board of Directors.

Upon approval of a sale or lease as set forth in Regulation .08 of this chapter, the Executive Director shall have the power to execute, on behalf of the Authority, all documents necessary or convenient relating to the approved transaction.

The Executive Director is authorized to exercise remedies for default under agreements that have been approved in accordance with Regulation .08 of this chapter.

Regulation .08 Approvals.Link Copy Citation

A proposed sale or lease of real property shall be submitted for approval to the Board of Directors. If approved by the Board of Directors, it shall be submitted for approval to the State Board of Public Works.

Subtitle 21 — Maryland Food Center Authority

Chapter 07. Project Operations

Regulation .01 General.Link Copy Citation

The Authority may manage directly or may engage the services of others to manage project facilities.

Regulation .02 Definitions.Link Copy Citation

Terms appearing in the Act shall have the meanings defined there and, in addition, the meanings used in these regulations.

Terms Defined.

(1)

“Customer” means any purchaser of goods or services at the market, park, or other project.

(2)

“Project” means the market, the park, and other food or agriculturally related real estate developments undertaken by the Authority to further the Authority's corporate purposes, including any ancillary facilities.

(3)

“Supplier” means a wholesale distributor or other business which provides tenants with a commodity for resale.

(4)

“Tenant” means any lessee of the Authority who operates a business in a market or other project facility.

Regulation .03 Management Rules.Link Copy Citation

In accordance with the applicable laws and ordinances of the jurisdictions in which project facilities are located, the Authority may from time to time establish reasonable rules of operation for project facilities, giving reasonable notice of these rules, and posting them in a conspicuous location at the project facility.

The rules may concern:

(1)

Use of streets, driveways, docking slips, and parking areas;

(2)

Hours and days of operation;

(3)

Reasonable fee schedules which describe fees or charges to be paid by suppliers, customers, tenants, and other users of project facilities;

(4)

Safety and welfare of persons and protection of property; and

(5)

Other matters which pertain to the management of project operations.

Sanctions. The rules established under this section may include reasonable sanctions. Sanctions may:

(1)

Deny use of and access to project facilities;

(2)

Impose fees or charges; and

(3)

Impose other reasonable restrictions that the Authority may consider proper or necessary for the safe and efficient management of project operations.

Regulation .04 Authorization of the Executive Director Regarding Project Operations.Link Copy Citation

The Executive Director has primary responsibility for management of project operations.

The Executive Director may:

(1)

With the approval of the Board of Directors, engage the services of others to manage one or more project facilities, or to perform particular services; and

(2)

Exercise remedies for default under agreements relating to the provision of goods or services to the Authority.

The Executive Director may delegate to other employees of the Authority duties relating to:

(1)

Personnel management;

(2)

Procurement matters;

(3)

On-site project management; and

(4)

Such other duties as the Executive Director considers appropriate.

Subtitle 21 — Maryland Food Center Authority

Chapter 08. Personnel

Regulation .01 Independent Appointment.Link Copy Citation

The Authority may appoint and dismiss officers, agents, and employees and fix their compensation.

Employment by the Authority is not governed by Article 64A, Annotated Code of Maryland.

Regulation .02 Authorization of the Executive Director.Link Copy Citation

The Executive Director shall make employment decisions in the best interest of the Authority and shall consider operational and budgetary requirements of the Authority in making the decisions.

The Executive Director may adopt and may revise, from time to time, guidelines for the administration of personnel management.

Subtitle 21 — Maryland Food Center Authority

Chapter 09. Procurement

Regulation .01 General.Link Copy Citation

The Authority may contract for goods and services.

Regulation .02 Procedures.Link Copy Citation

Except for Title 14, Subtitle 3, the provisions of the State Finance and Procurement Article, Division II, Annotated Code of Maryland, and regulations under the State Finance and Procurement Article, Division II, do not apply to the procurement procedures of the Authority.

The Authority may elect, at its discretion, to incorporate into its bid documents and contract documents, provisions similar to those customarily found in State contracts under the State Finance and Procurement Article, Annotated Code of Maryland, for similar goods and services, or other provisions that the Authority considers to be in its best interests.

Contracts by the Authority for construction of facilities of a project shall be made only after solicitation of sealed bids, except for construction on land that has been either leased or sold by the Authority to a private entity or entities.

The Executive Director may, without further approval by the Board of Directors, contract for goods and services that are within a budget that has been approved by the Board of Directors. The Executive Director may exercise remedies for default relating to the agreements.

Regulation .03 Procurement Officer.Link Copy Citation

The Executive Director shall designate a procurement officer for any procurement anticipated to cost $10,000 or more.

The procurement officer may, in the best interests of the Authority:

(1)

Waive any solicitation requirement;

(2)

Amend or revise solicitation documents; or

(3)

Reject any or all bids.

Regulation .04 Disputes.Link Copy Citation

The Executive Director shall designate an appeals officer for any procurement anticipated to cost $10,000 or more.

Bidders shall submit in writing to the procurement officer any questions, comments, or objections regarding the solicitation documents within the time period stated in the solicitation documents. In the absence of any stated time period in the solicitation documents, written comments, questions, or objections shall be received by the procurement officer not later than 5 business days before the scheduled bid opening.

In the absence of a stated time in the contract documents, contractors shall file a written notice of a claim with the procurement officer within 15 days after the basis for the claim is known or should have been known, whichever is earlier.

Appeal from a decision of the procurement officer shall be submitted in writing to the appeals officer not later than 10 days after the decision of the procurement officer.

Regulation .05 Exception for Urgent Action.Link Copy Citation

Except for Regulation .02C of this chapter and except to the extent expressly required by the Act, procedures adopted under this chapter do not apply to procurement of goods or services in cases where a determination has been made by the Executive Director that urgent action is required. The Executive Director, in these cases, may authorize expeditious procurement of goods or services by such means as the Executive Director considers to be in the best interests of the Authority.

Regulation .06 Termination for Convenience.Link Copy Citation

The Authority may terminate contracts, in whole or in part, without showing cause upon giving written notice to the contractor. In these cases, the Authority shall pay reasonable costs associated with the contract that the contractor has incurred up to the date of termination. The contractor may not be reimbursed, however, for any anticipated profits which have not been earned up to the date of termination.

Regulation .07 Performance and Payment Bonds.Link Copy Citation

The Authority may require performance bonds and payment bonds in such amounts, in such forms, and under such circumstances as the procurement officer may determine to be in the best interests of the Authority.

Subtitle 21 — Maryland Food Center Authority

Chapter 10. Waiver

Regulation .01 Waiver of Regulations.Link Copy Citation

The Authority may waive any of the regulations set forth in this subtitle in a particular instance if:

It has been determined that application of the regulation in a particular instance will be inequitable; and

Waiver of the regulation will not be inconsistent with the Act.

Subtitle 22 — Commission on Criminal Sentencing Policy

Chapter 01. General Regulations

Regulation .01 Scope.Link Copy Citation

The Maryland sentencing guidelines apply to criminal cases prosecuted in a circuit court. The following sentencing matters handled by judges in a circuit court are excluded from guidelines coverage:

(1)

Prayers for jury trial from District Court, unless a PSI is ordered;

(2)

Appeals from District Court, unless a PSI is ordered;

(3)

Crimes which carry no possible penalty of incarceration;

(4)

Public local laws and municipal ordinances;

(5)

Sentencing hearings in response to a violation of probation;

(6)

Criminal nonsupport and criminal contempt; and

(7)

Cases adjudicated in a juvenile court.

Under Criminal Procedure Article, §6-211(b), Annotated Code of Maryland, the sentencing guidelines are voluntary and may not be construed to require a court to sentence a defendant as prescribed by this chapter.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Adjudication” includes a:

(a)

Finding of guilt by a judge or jury;

(b)

Plea of guilt by the offender;

(c)

Plea of nolo contendere (no contest) by the offender;

(d)

Sentence to probation before judgment (PBJ) pursuant to Criminal Procedure Article, §6-220(b) or 6-220(c), Annotated Code of Maryland; or

(e)

Finding of guilt by a general or special court-martial, if the elements of the offense constitute an offense under Maryland law and do not require the defendant’s service in a military force.

(2)

“Adjudication as delinquent” means subsequent to a disposition hearing, a finding that a child has committed a delinquent act and is in need of or requires treatment, guidance, or rehabilitation, pursuant to the definitions and procedures set forth in Courts and Judicial Proceedings Article, §§3-8A-01 and 3-8A-19, Annotated Code of Maryland.

(3)

“Cell” means the intersection of the offense score (or seriousness category) and the offender score on a two-variable guideline matrix.

(4)

Corrections Options.

(a)

“Corrections options” means:

(i)

Home detention;

(ii)

A corrections options program established under law which requires the individual to participate in home detention, inpatient/residential treatment, or other similar programs involving terms and conditions that constitute the equivalent of confinement;

(iii)

Inpatient drug or alcohol counseling under Health General Article, Title 8, Subtitle 5, Annotated Code of Maryland;

(iv)

Participation in a problem-solving court, including a drug court, mental health court, family/dependency court, veterans court, or other problem-solving court as defined by the Administrative Office of the Courts Office of Problem Solving Courts;

(v)

A sentence, with required substance abuse treatment, for the possession, administration, obtainment, etc., of controlled dangerous substances (CDS) currently outlined in Criminal Law Article, §5-601(c), Annotated Code of Maryland, and pursuant to Criminal Law Article, §5-601(e)(3), Annotated Code of Maryland;

(vi)

Work release; or

(vii)

Weekend (or other discontinuous) incarceration.

(b)

“Corrections options” includes programs established by the Department of Public Safety and Correctional Services (DPSCS) and/or local correctional agencies, if the program meets the Commission’s criteria, as described in §B(4)(a) of this regulation.

(5)

Departure.

(a)

“Departure” means a judicially imposed sentence that falls outside of the recommended sentencing guidelines range.

(b)

“Departure” does not include any sentence that complies with at least one of the requirements that deems a sentence to be within the guidelines as set forth in Regulation .17 of this chapter.

(6)

“Drug offense” means an offense involving controlled dangerous substances or paraphernalia.

(7)

“Economic loss” means for all offenses involving theft and related crimes under Criminal Law Article, Title 7, or fraud and related crimes under Criminal Law Article, Title 8, Annotated Code of Maryland, the amount of restitution ordered by a circuit court judge or, if not ordered, the full amount of restitution that could have been ordered.

(8)

“Feigned weapon” means that an individual intentionally created the false impression that there is an actual weapon present, including a finger used to simulate a gun, a written note stating that there is a dangerous weapon present, or a verbal statement that there is a dangerous weapon present.

(9)

“Finding of a delinquent act” means a finding of facts sustained at a juvenile adjudicatory hearing, pursuant to the definitions and procedures set forth in Courts and Judicial Proceedings Article, §§3-8A-01 and 3-8A-18, Annotated Code of Maryland.

(10)

Guidelines Offense.

(a)

“Guidelines offense” means an offense prosecuted in a circuit court.

(b)

“Guidelines offense” includes the following types of cases:

(i)

New trials ordered by appellate courts; and

(ii)

Reconsiderations/modifications and three-judge panel reviews involving a crime of violence, as defined in Criminal Law Article, §14-101, Annotated Code of Maryland, if an adjustment was made to the active, original sentence. Guidelines-eligible reconsiderations/modifications include sentence adjustments imposed pursuant to Maryland Rule 4-345 or a Health-General Article, §8-507, Annotated Code of Maryland, order.

(c)

“Guidelines offense” does not include the following types of cases:

(i)

Prayers for jury trial from District Court, unless a PSI is ordered;

(ii)

Appeals from District Court, unless a PSI is ordered;

(iii)

Offenses which carry no possible penalty of incarceration;

(iv)

Public local laws and municipal ordinances;

(v)

Sentencing hearings in response to a violation of probation;

(vi)

Criminal nonsupport and criminal contempt; and

(vii)

Cases adjudicated in a juvenile court.

(11)

“Guidelines range” means the recommended sentencing range for offenders who fall within a particular cell of the person, drug, and property offense sentencing matrices.

(12)

“Judge” means:

(a)

The trial judge who imposes or alters a sentence; or

(b)

A panel of trial judges who alter a sentence.

(13)

“MSCCSP binding plea agreement” means a plea agreement that:

(a)

Is presented to the court in agreement by an attorney for the government and the defendants attorney, or the defendant when proceeding pro se, that a court has approved relating to a particular sentence and disposition;

(b)

Includes agreement to a specific amount of active time (if any), not merely a sentence cap or range;

(c)

The court has the discretion to accept or reject; and

(d)

Is binding on the court under Maryland Rule 4-243(c) if the court accepts the plea.

(14)

“Multiple criminal events” means more than one criminal transaction committed over a period of time. Multiple criminal events being sentenced together may have occurred on the same or different dates. Offenses which occur on different dates are almost always multiple criminal events.

(15)

“Offender score” means a summary score ranging from 0 to 9 which:

(a)

Measures an offender's prior criminal history; and

(b)

Is calculated for use in the person, drug, and property offense sentencing matrices.

(16)

“Offense score” means a summary score ranging from 1 to 15 which:

(a)

Measures the seriousness of a person offense; and

(b)

Is calculated for use in the person offense sentencing matrix.

(17)

“Person offense” means:

(a)

An offense involving confrontation between the offender and the victim, including offenses with bodily harm or the threat of bodily harm to a victim; or

(b)

A weapons offense.

(18)

“Property offense” means an offense where property is unlawfully damaged or taken.

(19)

“PSI” means a presentence investigation prepared in accordance with Correctional Services Article, §6-112, Annotated Code of Maryland.

(20)

“Sentencing event” means a sentencing disposition or hearing for an individual defendant conducted in front of one judge on the same day.

(21)

“Sentencing guidelines worksheet” means the form:

(a)

Issued by the Commission on Criminal Sentencing Policy; and

(b)

Used to determine the recommended sentence outcome and to record sentencing data.

(22)

“Seriousness category” means an offense ranking ranging from I to VII, where I designates the most serious criminal offenses and VII designates the least serious criminal offenses.

(23)

“Single criminal event” means one or more crimes committed in the course of the same transaction.

(24)

“Special vulnerability of victim” means cases in which the relative status of the victim tends to render the actions of the perpetrator more serious. A vulnerable victim is anyone:

(a)

Younger than 11 years old;

(b)

65 years old or older; or

(c)

Having a temporary or permanent physical or mental disability, including an individual who is physically or mentally limited in a material way. Examples of a temporary physical or mental limitation include, but are not limited to, instances when the offender knew or should have known the victim was pregnant, unconscious, asleep, or intoxicated.

(25)

“Victim injury” means physical or psychological injury to the crime victim, the cause of which is directly linked to the conduct of the defendant in the commission of the offense.

(26)

“Weapon presence” means the presence of an article or device which reasonably appears capable of causing injury or the presence of an article that could result in conviction under Criminal Law Article, §4-101, Annotated Code of Maryland.

(27)

“White collar offense” means a property offense, identified as an illegal act or series of illegal acts committed by other than physical means and by concealment or guile to:

(a)

Obtain money or property;

(b)

Avoid payment or loss of money or property; or

(c)

Obtain business or professional advantage.

Regulation .03 Sentencing Guidelines Worksheet.Link Copy Citation

The sentencing guidelines worksheet issued by the Commission on Criminal Sentencing Policy shall be used to calculate the sentencing guidelines.

The sentencing guidelines and offense seriousness categories in effect at the time of sentencing shall be used to calculate the guidelines. If it is determined that the guidelines are different than what they would have been if calculated using the sentencing guidelines and offense seriousness categories in effect on the date the instant offense was committed, the State's Attorney or defense counsel may bring this to the attention of the judge as a consideration for departure from the guidelines.

Single Criminal Event.

(1)

The sentencing guidelines worksheet shall be used for up to three offenses from a single criminal event.

(2)

If there are more than three offenses from a single criminal event, additional worksheets shall be used as needed.

Multiple Criminal Events.

(1)

When two or more adjudications result from separate criminal transactions over a period of time, each criminal transaction is considered a separate event.

(2)

The individual completing the worksheet shall use at least one worksheet for each event.

(3)

In determining whether multiple crimes are committed in the course of the same transaction, the person filling out the guidelines worksheet shall consider whether the crimes:

(a)

Are committed close in time, in an uninterrupted course of conduct;

(b)

Occur in the same location; and

(c)

Are similar in nature or intertwined (for example, whether they share a common scheme or purpose).

Sentencing Event.

(1)

One set of sentencing guidelines shall be completed for each sentencing event.

(2)

Multiple criminal events (as often indicated by multiple unique case numbers) sentenced by the same judge on the same day constitute one sentencing event, and only one set of guidelines worksheets shall be completed for all of the counts in the sentencing event.

(3)

The offender score includes any adult adjudication prior to the current sentence date and any finding of a delinquent act (i.e., findings of facts sustained at an adjudicatory hearing) within 5 years prior to the date of the most recent instant offense (unless the defense or State can show that a finding of a delinquent act did not result in the youth's adjudication as delinquent at a juvenile disposition hearing, in which case the finding of a delinquent act shall not be scored as a part of the juvenile record) and, with the possible exception of part A of the offender score (relationship to the criminal justice system), shall be the same for each offense in the sentencing event.

(4)

The overall sentence across all included offenses shall be compared to the overall guidelines for the sentencing event to determine if the sentence is a departure from the guidelines.

Sentencing Guidelines Completion.

(1)

Before the judge imposes the sentence, an individual shall complete the worksheet down to the section labeled “Actual Sentence” and include each offense for which the offender is to be sentenced.

(2)

If the judge orders a PSI, an agent of the Division of Parole and Probation shall complete each worksheet.

(3)

If the judge does not order a PSI, the judge may complete the worksheet personally or delegate the task to counsel or the judge's staff.

(4)

Regardless of who completes the worksheet, the court shall review the worksheet to confirm that the guidelines reflected on the worksheet were considered in the respective case.

Presentencing Distribution of Sentencing Guidelines Worksheets.

(1)

The individual who completes the worksheet shall forward a copy of each completed worksheet to both the State and the defense so that they will have an opportunity to review the information provided.

(2)

The State and the defense shall bring any disagreements between them to the judge's attention before sentencing.

(3)

Changes in the worksheet may be made only by, or with the approval of, the judge.

Regulation .04 Sentencing Guidelines Sentence.Link Copy Citation

Sentence Range. Suspended time is not considered in determining whether the sentence falls within the recommended sentence range.

Offender Already Under Sentence.

(1)

If an offender is already serving one or more sentences, the time remaining to be served may be considered in determining whether the sentence or sentences are within the recommended guidelines range.

(2)

The judge shall indicate whether the new sentence is consecutive to or concurrent with the existing sentence.

Length of Probation. Within statutory limits, the length of any probation imposed is within the discretion of the judge.

Regulation .05 Sentences Outside the Guidelines.Link Copy Citation

The judge shall document on the guidelines worksheet the reason or reasons for imposing a sentence outside of the recommended guidelines range.

Common reasons for departure under the guidelines range include, but are not limited to, the following:

(1)

The parties reached a plea agreement that called for a reduced sentence;

(2)

The offender had a minor role in the offense;

(3)

The offender is or was suffering from a mental or physical condition that reduces culpability for the offense;

(4)

The offender’s age/health;

(5)

The offender is amenable to probation or other community supervision;

(6)

The offender made restorative efforts after the offense;

(7)

The offender’s criminal history is less severe than represented by offender score;

(8)

The offender's commitment to substance abuse treatment or other therapeutic program; or

(9)

Recommendation of the State's attorney or Division of Parole and Probation.

Common reasons for departure over the guidelines range include, but are not limited to, the following:

(1)

The offender had a major role in the offense;

(2)

The level of harm was excessive;

(3)

Special circumstances of the victim;

(4)

The offender exploited a position of trust;

(5)

The offender’s criminal history is more serious than represented by offender score;

(6)

The parties reached a plea agreement that called for an increased sentence;

(7)

The vicious or heinous nature of the conduct; or

(8)

Recommendation of the State's attorney or Division of Parole and Probation.

Regulation .06 Guidelines Worksheet Distribution.Link Copy Citation

Worksheet Completion. The judge, the State, and the defense shall receive copies of the worksheets before sentencing. When an agent of the Division of Parole and Probation fills in a worksheet, the agent shall send the judge the first four copies, together with the PSI and the Maryland Sentencing Guidelines Criteria for Prior Record form issued by the Commission on Criminal Sentencing Policy.

Worksheet Completion. At sentencing, the judge shall enter the actual sentence and any changes to the worksheet including changes for any counts merged at sentencing.

Worksheet Distribution. After sentencing, the clerk shall distribute copies according to individual court practice. The Maryland Sentencing Guidelines Criteria for Prior Record form shall accompany the worksheets sent to the Commission on Criminal Sentencing Policy. If the court orders both incarceration and probation, the clerk shall forward a copy of the worksheet to the appropriate probation office. The clerk shall forward a copy of the worksheet to the agency that has been ordered to retain custody of the defendant. An agency receiving an inmate eligible for parole shall duplicate its worksheet and forward a copy of the worksheet to the Parole Commission.

Regulation .07 Case Information.Link Copy Citation

The top section of the sentencing guidelines worksheet contains:

(1)

The offender's name, State Identification (SID) number, sex, race, ethnicity, and birth date;

(2)

Jurisdiction where the case was tried;

(3)

Whether or not a PSI was available;

(4)

Dates of offense and sentencing;

(5)

Number of offenses and criminal events at the sentencing being reported;

(6)

The number of the worksheet and criminal event;

(7)

Disposition type, modification to COV sentences, and representation;

(8)

The title of the instant offense and its seriousness category (I—VII), Maryland State Criminal Charge Code (commonly known as a “CJIS” code), and Annotated Code of Maryland article and section number or common law reference;

(9)

Statutory maximum and mandatory minimum penalties;

(10)

The case or docket number; and

(11)

Whether or not victim-related court costs were imposed.

Jurisdiction Code. The individual completing the worksheet shall use the following numeric codes for the jurisdiction in which the defendant was tried on the guidelines worksheet:

(1)

Allegany County = 1;

(2)

Anne Arundel County = 2;

(3)

Baltimore City = 24;

(4)

Baltimore County = 3;

(5)

Calvert County = 4;

(6)

Caroline County = 5;

(7)

Carroll County = 6;

(8)

Cecil County = 7;

(9)

Charles County = 8;

(10)

Dorchester County = 9;

(11)

Frederick County = 10;

(12)

Garrett County = 11;

(13)

Harford County = 12;

(14)

Howard County = 13;

(15)

Kent County = 14;

(16)

Montgomery County = 15;

(17)

Prince George's County = 16;

(18)

Queen Anne's County = 17;

(19)

St. Mary's County = 18;

(20)

Somerset County = 19;

(21)

Talbot County = 20;

(22)

Washington County = 21;

(23)

Wicomico County = 22;

(24)

Worcester County = 23.

Offenses.

(1)

The individual completing the worksheet shall record the total number of offenses for which a judge may impose a sentence in the space provided on the worksheet.

(2)

Offenses considered as merged may not be placed on the worksheet and may not be considered in any of the worksheet computations.

Number of Criminal Events. The individual completing the worksheet shall write the total number of criminal events for which a defendant is being sentenced in the space for the number of criminal events at the sentencing.

Page Numbering of Worksheets.

(1)

Multiple worksheets may be required for a single sentencing event. The individual completing the worksheets shall number each worksheet consecutively in the space provided for worksheet number.

(2)

If a sentencing event consists of more than one criminal event, the individual completing the worksheets shall maintain a separate count of worksheets for each criminal event.

(3)

If a sentencing event consists of more than one criminal event, the individual completing the worksheets shall number the criminal events chronologically by date of offense.

Offense Title. The individual completing the worksheet shall write the offense titles and their corresponding Annotated Code of Maryland references or a reference to the common law in the space provided.

Signatures. The judge and the individual or individuals completing the worksheet shall sign at the bottom of the worksheet in the space provided.

Disposition Type.

(1)

The disposition type refers to the nature and circumstances of the adjudication and sentencing.

(2)

The individual completing the worksheet shall indicate on the worksheet whether the disposition resulted from:

(a)

An MSCCSP binding plea agreement;

(b)

Another plea with agreement;

(c)

A plea without agreement from the prosecutor or judge regarding the terms of the plea;

(d)

A court trial; or

(e)

A trial by jury.

(3)

The judge shall ensure that the disposition type box is marked.

Reconsideration or Review. The individual completing the worksheet shall indicate on the worksheet whether the sentence was a reconsideration for a crime of violence, as defined in Criminal Law Article, §14-101, Annotated Code of Maryland, a three-judge panel review, or neither.

Representation. In the box labeled Representation, the individual completing the worksheet shall indicate the type of legal representation the defendant received in the case.

Victim Information. The individual completing the worksheet shall provide the victim information requested in the designated space on the worksheet. The information requested includes:

(1)

Whether there was a victim in this offense;

(2)

Whether the victim participated in the sentencing process;

(3)

Whether the victim filed a Crime Victim Notification and Demand for Rights form;

(4)

Whether the victim was notified of a plea agreement;

(5)

Whether the victim was notified of and present at the sentencing;

(6)

Whether there was a written or an oral Victim Impact Statement (VIS);

(7)

Whether the victim or State requested that the defendant have no contact with the victim; and

(8)

Whether the judge ordered that the defendant have no contact with the victim.

Annotated Code of Maryland, Article and Section.

(1)

The individual completing the worksheet shall identify the Annotated Code of Maryland reference for each offense. The reference shall include the name or number of the article, the section number, and any subsection letters or numbers. If the substantive offense and the penalty for the offense are in separate sections or subsections, they shall both be referenced.

(2)

“Common Law” shall be written in this space if the source of the offense is the common law. Some common law offenses have penalty provisions in the Annotated Code of Maryland. In these cases, the Code reference shall also be included.

CJIS Code. The individual completing the worksheet shall record in the designated space the CJIS code that corresponds to the offense. The CJIS codes can be found in COMAR 14.22.02.02. If there are multiple CJIS codes for a listed offense and it is not known which code corresponds to the specific offense conduct, the space can be left blank.

Statutory Maximum and Mandatory Minimum Penalties.

(1)

The maximum penalty prescribed for each offense shall be recorded in the designated space on the worksheet.

(2)

If the offense carries a nonsuspendable mandatory minimum penalty, that penalty shall be recorded in the designated space on the worksheet.

Economic Loss. In the area labeled “Actual Sentence”, the individual completing the worksheet shall record in the designated space the dollar amount of the economic loss or mark “unknown amount” for all offenses involving theft and related crimes under Criminal Law Article, Title 7, or fraud and related crimes under Criminal Law Article, Title 8, Annotated Code of Maryland.

Record of Announcement. The court shall make a record of the statement in open court required under Criminal Procedure Article, §6-217, Annotated Code of Maryland, of the minimum time the defendant must serve before becoming eligible for parole.

Regulation .08 Guidelines Scoring.Link Copy Citation

For person offenses, the individual completing the worksheet shall compute an offense score and an offender score for each offense to be sentenced.

For drug and property offenses, the individual completing the worksheet shall compute the offender score and shall use the assigned offense seriousness category.

Seriousness Category of the Offense.

(1)

Unless placed in a different category or specifically addressed by separate statute, the individual completing the worksheet shall consider a conspiracy, attempt, or solicitation in the same seriousness category as the substantive offense.

(2)

For conspiracy to commit a lawful act by unlawful means, the seriousness category and offense type classification shall be the same as the most serious unlawful means by which the lawful act was to be accomplished. If there is a question as to the seriousness category or offense type classification for the conspiracy to commit a lawful act by unlawful means, that question shall be brought to the attention of the judge at sentencing.

(3)

Accessoryship.

(a)

If the accessory after the fact has a penalty of 5 years or greater under Criminal Law Article, §1-301, Annotated Code of Maryland, a seriousness category V shall be assigned, unless the underlying offense has a seriousness category of less than V, in which case the accessory after the fact shall be assigned the same seriousness category as the underlying offense.

(b)

If the accessory after the fact has a penalty of less than 5 years under Criminal Law Article, §1-301, Annotated Code of Maryland, the seriousness category shall be the same category as the underlying offense.

(4)

For conspiracy, attempt, solicitation, or accessoryship, the individual completing the worksheet shall specify the substantive illegal activity involved, and the substantive offense’s Annotated Code of Maryland article and section number, if any.

(5)

If a Maryland offense has not been assigned a seriousness category and the offense has a maximum penalty of 1 year or less, the offense shall be assigned the lowest seriousness category (VII).

(6)

If a Maryland offense has not been assigned a seriousness category and the offense has a maximum penalty greater than 1 year, the individual completing the worksheet shall use the closest analogous offense and the sentencing judge and the parties shall be notified.

Regulation .09 Offense Score.Link Copy Citation

Computation of Offense Score. The individual completing the worksheet shall derive the offense score for each offense by totaling the points given for certain factors of that offense. A column of offense scores is provided on the worksheet for each of the three possible offenses within a single criminal event. A judge may include factors known to the judge even if they are not within the scope of the offense, such as weapon presence in a robbery offense or victim injury in an offense involving a handgun violation.

Elements of the Offense Score.

(1)

The offense score consists of four elements.

(2)

Seriousness Category of the Offense.

(a)

The individual completing the worksheet shall assign points based on the seriousness category of the offense. COMAR 14.22.02 contains a list of Maryland criminal offenses and their assigned seriousness categories.

(b)

The individual completing the worksheet shall assign the number of points that correspond to the seriousness category of each offense on the guidelines worksheet.

(3)

Victim Injury.

(a)

Victim injury, whether physical or psychological, shall be based on reasonable proof. Physical injury shall be more than minimal. Physical injuries such as lasting muscle damage or amputation are permanent. Proof of psychological injury shall be based on confirmed medical diagnosis or psychological counseling or treatment, or other forms of reasonable proof. Rape crisis hotlines, clergy conferences, educational counseling, and other similar services are considered psychological counseling or treatment. Permanent psychological injury shall be based on proof of a substantial impairment likely to be of an extended or continuous duration. Offenses involving photographic or video evidence of child pornography shall be scored as permanent victim injury.

(b)

The individual completing the worksheet shall assign a score of 0 if there was no victim injury.

(c)

The individual completing the worksheet shall assign a score of 1 if victim injury occurred and the injury was not permanent.

(d)

The individual completing the worksheet shall assign a score of 2 if victim injury occurred and the injury was permanent or resulted in the death of the victim.

(e)

The victim injury component of the offense score shall be completed for each offense to be sentenced.

(4)

Weapon Presence.

(a)

The individual completing the worksheet shall assign a score of 0 if no weapon was present.

(b)

The individual completing the worksheet shall assign a score of 1 if a weapon other than a firearm was present.

(c)

The individual completing the worksheet shall assign a score of 2 if a firearm or explosive material was present.

(d)

The individual completing the worksheet shall complete the weapon presence component of the offense score for each offense to be sentenced. The individual completing the worksheet shall apply the following rules:

(i)

Explosive material (as defined in Criminal Law Article, §4–501, Annotated Code of Maryland) is considered the same as a firearm;

(ii)

An unloaded firearm is considered the same as a loaded firearm;

(iii)

Weapons other than firearms include incendiary and toxic materials (as defined in Criminal Law Article, §4–501, Annotated Code of Maryland), knives, tire irons, and clubs;

(iv)

Carbon dioxide (CO2) guns (including pellet guns) and starter pistols are also scored as weapons other than firearms and receive one point;

(v)

Except if deliberately used as a weapon, automobiles are not included as weapons and shall receive a weapon presence score of zero;

(vi)

Unless the offender is a professional in some form of self-defense, parts of the body, such as hands or feet, are not included as weapons;

(vii)

If a weapon was feigned but no weapon was actually present, the score shall be 1 (weapon other than firearm);

(viii)

A feigned weapon shall be scored 1 point when an individual intentionally creates the false impression that there is an actual weapon present, including a finger used to simulate a gun, a written note stating that there is a dangerous weapon present, or a verbal statement that there is a dangerous weapon present; and

(ix)

Any applicable guidelines points for weapon presence shall be given to an accessory before the fact, but not to an accessory after the fact.

(5)

Special Vulnerability of Victim. The individual completing the worksheet shall assign a score of 0 if the victim is not defined as a vulnerable victim. The individual completing the worksheet shall assign a score of 1 if the victim is defined as a vulnerable victim. The individual completing the worksheet shall complete the Special Vulnerability of Victim component of the offense score for each offense to be sentenced.

Total Offense Score. To obtain an offense score, the individual completing the worksheet shall add the points assigned to each element of the offense score for each person offense for which the defendant is to be sentenced. The maximum score is 15 and the minimum score is 1.

Regulation .10 Computation of the Offender Score.Link Copy Citation

Computation of the Offender Score. The individual completing the worksheet shall derive the offender score by totaling the points represented by the offender's prior criminal history. Any prior criminal adjudications, as defined in COMAR 14.22.01.02B(1), shall be included. With the exception of the juvenile delinquency component of the offender score, the offender score refers only to the defendant's adult involvement with the criminal justice system. A prior adjudication of not criminally responsible (NCR) or not guilty by reason of insanity may not be included when calculating the offender score.

Four Components of the Offender Score.

(1)

Relationship to the Criminal Justice System When Instant Offense Occurred.

(a)

If the offender was in the criminal justice system as the result of an adjudication as an adult when the instant offense occurred, the individual completing the worksheet shall assign a score of 1.

(b)

The offender was in the criminal justice system if the offender was on parole, on probation, incarcerated, on work release, on mandatory supervision, was an escapee, or had a comparable status at the time the offense was committed.

(c)

An offender is not considered to be in the criminal justice system if the offender was on unsupervised probation for an offense not punishable by imprisonment.

(d)

Relationship to the criminal justice system may differ across offenses in multiple offense sentencing events. If there is more than one instant offense and the offender was in the criminal justice system at the time one or more offenses occurred, but not in the criminal justice system at the time additional offense(s) in the sentencing event occurred, the person completing the sentencing guidelines worksheet shall assign a score of 1 to those offenses that were committed while the offender was in the criminal justice system. The person completing the sentencing guidelines worksheet shall assign a score of zero to those offenses that were committed while the offender was not in the criminal justice system.

(2)

Juvenile Delinquency.

(a)

The individual completing the worksheet shall count only one finding of a delinquent act (i.e., finding of facts sustained at an adjudicatory hearing) for a single adjudicatory hearing. If multiple findings of a delinquent act relate to a single adjudicatory hearing, the individual completing the worksheet shall count only one finding of a delinquent act.

(b)

When the defense or State can show that a finding of a delinquent act did not result in the youth’s adjudication as delinquent at a juvenile disposition hearing, the finding of a delinquent act shall not be scored as a part of the juvenile record.

(c)

The juvenile delinquency record may not include adjudications based on acts that are no longer crimes.

(d)

The individual completing the worksheet shall treat an incarcerable traffic offense in which the court finds a juvenile involved as part of his or her juvenile record.

(e)

The individual completing the worksheet shall assign a score of 0 if an offender is 23 years or older by the date of the most recent instant offense. The individual completing the worksheet shall assign a score of 0 if an offender has zero findings of a delinquent act within 5 years of the date of the most recent instant offense.

(f)

The individual completing the worksheet shall assign a score of 1 if an offender:

(i)

Is younger than 23 years old on the date of the most recent instant offense; and

(ii)

Has one or two findings of a delinquent act within 5 years of the date of the most recent instant offense.

(g)

The individual completing the worksheet shall assign a score of 2 if an offender:

(i)

Is younger than 23 years old on the date of the most recent instant offense; and

(ii)

Has three or more findings of a delinquent act within 5 years of the date of the most recent instant offense.

(3)

Prior Adult Criminal Record.

(a)

In General.

(i)

Except as noted in this paragraph, the prior adult criminal record includes all adjudications preceding the current sentencing event, whether the offense was committed before, during, or after the instant offense(s). The prior adult criminal record shall not include: adjudications that were expunged from the record or proven by the defense to have been eligible for expungement as a matter of right prior to the date of offense pursuant to Subtitle 1 (Expungement of Police and Court Records) of Title 10 (Criminal Records) of the Criminal Procedure Article, Annotated Code of Maryland; violations of public local laws; municipal infractions; contempt; criminal nonsupport; adjudications based on acts that are no longer crimes (e.g., cannabis possession); non-incarcerable traffic offenses; military adjudications imposed by an Article 15 proceeding or summary court-martial; findings of guilt by general or special courts-martial, if the elements of the offense require the defendant’s service in a military force, including but not limited to desertion, absence without leave (AWOL), and conduct unbecoming an officer and a gentleman, or do not constitute an offense under Maryland law; or more than one adjudication arising from a single criminal event.

(ii)

The sentencing guidelines and offense table in effect at the time of the current sentencing event shall be used to determine the correct seriousness category for each adjudication included in the calculation of the prior adult criminal record.

(iii)

If a Maryland offense has not been assigned a seriousness category and the offense has a maximum penalty of 1 year or less, the offense shall be assigned the lowest seriousness category (VII).

(iv)

If a Maryland offense has not been assigned a seriousness category (and the offense has a maximum penalty of more than one year) or has been repealed from the Annotated Code of Maryland, but the act on which the repealed offense is based is still a crime, the individual completing the worksheet shall use the closest analogous offense and the sentencing judge and the parties shall be notified.

(b)

Criteria.

(i)

The individual completing the worksheet shall use the instructions and table below to determine whether a defendant's prior criminal adult record is minor, moderate, or major. If the defendant has no prior adult criminal record, the individual completing the worksheet shall assign a score of 0. If the defendant has a minor adult criminal record, the individual completing the worksheet shall assign a score of 1. If the defendant has a moderate criminal record, the individual completing the worksheet shall assign a score of 3. If the defendant has a major criminal record, the individual completing the worksheet shall assign a score of 5.

(ii)

The individual completing the worksheet shall count the number of prior adjudications according to the seriousness categories. If prior multiple adjudications relate to a single criminal event, the individual completing the worksheet shall score only the offense with the highest seriousness category. The prior adult criminal record shall score no more than one adjudication stemming from a single criminal event.

(iii)

Taking the number of adjudications in the most serious category of offenses, the individual completing the worksheet shall refer to the table below and locate the block containing the number of adjudications for that seriousness category.

(iv)

The individual completing the worksheet shall use the criteria in the identified block to classify the record as Minor, Moderate, or Major.

(v)

Criteria Matrix.

(c)

Different Criminal Events Sentenced Together. If multiple offenses from different criminal events are being sentenced together at this sentencing event, the offender's criminal record includes any adjudication before the current sentencing and is the same for each offense being sentenced at this time.

(d)

Adjudications Out of Jurisdiction. If an offender has an out of jurisdiction adjudication, excluding military adjudications (see §B(3)(e) of this regulation for instructions for scoring military adjudications), the individual completing the worksheet shall match the offense as closely as possible to the closest analogous Maryland offense. If no Maryland analogous offense exists, the individual completing the worksheet shall count the offense in the lowest seriousness category (VII), and shall inform the judge and parties. If the out of jurisdiction adjudication is based on act that is not a criminal violation in Maryland (e.g., cannabis possession), then the out of jurisdiction adjudication shall be excluded from the prior adult criminal record. If there is a question as to the analogous guidelines offense for an out-of-State adjudication, that question shall be brought to the attention of the judge at sentencing.

(e)

Military Adjudications. If an offender has a finding of guilt by a general or special court-martial, the military adjudication shall be matched as closely as possible to the closest analogous Maryland offense. If a military adjudication has no equivalent in Maryland law or requires as an element of the offense the defendant’s service in a military force, including but not limited to desertion, absence without leave (AWOL), and conduct unbecoming an officer and a gentleman, the offense shall be excluded from the adult prior criminal record. If there is a question as to the analogous guidelines offense for a military adjudication, that question shall be brought to the attention of the judge at sentencing.

(f)

Theft-Type Offenses. Theft adjudications, such as larceny, larceny by trick, or larceny after trust, that took place before the enactment of the comprehensive theft statute in 1978 are considered misdemeanor theft if they were misdemeanors and felony theft if they were felonies.

(g)

Criminal Record Decay Factor. If an offender has lived in the community for at least 10 years prior to the instant offense without criminal justice system involvement resulting from an adjudication or a plea of nolo contendere, the criminal record shall be reduced by one level: from Major to Moderate, from Moderate to Minor, or from Minor to None. An offender was in the criminal justice system if the offender was on parole, on probation, incarcerated, on work release, on mandatory supervision, was an escapee, or had a comparable status. An offender is not considered to be in the criminal justice system if the offender was on unsupervised probation for an offense not punishable by imprisonment.

(h)

Conspiracies, Attempts, Solicitations, and Accessoryships.

(i)

The individual completing the worksheet shall place conspiracies, attempts, and solicitations in the same seriousness category as the substantive offense unless placed in a different category or specifically addressed by separate statute.

(ii)

(iii)

If accessory after the fact has a penalty of 5 years or greater under Criminal Law Article, §1-301, Annotated Code of Maryland, a seriousness category V shall be assigned, unless the underlying offense has a seriousness category of less than V, in which case the accessory after the fact shall be assigned the same seriousness category as the underlying offense.

(iv)

If accessory after the fact has a penalty of less than 5 years under Criminal Law Article, §1-301, Annotated Code of Maryland, the seriousness category shall be the same category as the underlying offense.

(4)

Prior Adult Parole/Probation Violations.

(a)

The individual completing the worksheet shall assign a score of 0 if the offender has never been on adult parole, probation, or equivalent supervisory status, or has successfully completed previous periods of supervision as an adult.

(b)

The individual completing the worksheet shall assign a score of 1 if the offender was ever found by a court to have violated parole, probation, or equivalent supervisory status, or if the offender has ever received an adjudication for an offense while on parole, probation, or equivalent supervisory status, unless the adjudication arose from the offense or offenses of this sentencing event. The individual completing the worksheet may not assign a point simply because the offender was on parole, probation, or equivalent supervisory status at the time of the instant offense.

Total Offender Score. To obtain the total offender score, the individual completing the worksheet shall add the points assigned to each element of the offender score. The maximum offender score is 9 and the minimum score is 0.

Regulation .11 Determining the Guidelines Sentence.Link Copy Citation

Guidelines Range. After the offense and offender scores have been calculated for each offense, the individual completing the worksheet shall use the appropriate matrix — person, drug, or property — to determine the guidelines range. In multiple offense cases, the individual completing the worksheet shall determine the overall guidelines range after calculating guidelines for the individual offenses.

Actual Sentence. At the time of sentencing, the judge shall enter the actual sentence on the worksheet. Complete sentencing information for each offense includes credit for time served, suspended time, length of probation, fine, restitution, and community service. If at any time a sentence is altered, a judge shall issue a revised worksheet and direct that the worksheet be distributed in the same manner as an original worksheet.

Person Offenses.

(1)

To find the recommended guidelines sentence for a person offense, the individual completing the worksheet shall use the sentencing matrix for offenses against persons. The guideline ranges are in a grid format with the offense score on the vertical axis and the offender score on the horizontal axis. The guidelines range for any given offense is in the cell where the two scores intersect.

(2)

Sentencing Matrix for Offenses Against Persons.

Drug Offenses.

(1)

To find the recommended guidelines sentence for a drug offense, the individual completing the worksheet shall use the sentencing matrix for drug offenses. The guideline range for a particular instant offense is in the cell opposite the seriousness category for that offense and under the applicable offender score.

(2)

Sentencing Matrix for Drug Offenses.

Property Offenses.

(1)

To find the recommended guidelines sentence for a property offense, the individual completing the worksheet shall use the sentencing matrix for property offenses. The guidelines range for a particular offense is in the cell opposite the seriousness category for that offense and under the applicable offender score.

(2)

Sentencing Matrix for Property Offenses.

Regulation .12 Multiple Offense Scoring.Link Copy Citation

Single Criminal Event, Not More Than One Seriousness Category I or II Offense.

(1)

The individual completing the worksheet shall calculate the guidelines range for each offense.

(2)

The individual completing the worksheet shall determine the overall guideline range by:

(a)

Identifying the highest of the lower guidelines limit of all the offenses; and

(b)

Identifying the greater of:

(i)

The highest of the upper guidelines limits;

(ii)

If there are separate offenses involving different victims, adding or “stacking” the highest of the upper guidelines limit for each offense with a unique victim. Only one offense per distinct victim may be used to calculate the overall guidelines range. Pursuant to Criminal Law Article, §10-627, Annotated Code of Maryland, each animal harmed in violation of Criminal Law Article, Title 10, Subtitle 6, Annotated Code of Maryland, shall be considered a victim for the purposes of applying the multiple victims stacking rule; or

(iii)

If the sentence for one of the offenses is statutorily required to run consecutive to the sentence for another offense, adding the upper limit of the guidelines range for the offense whose sentence is required to run consecutive to another offense to the upper limit of the guidelines range for the eligible other offense with the highest upper guidelines limit.

Single Criminal Event, Two or More Seriousness Category I or II Offenses.

(1)

The individual completing the worksheet shall calculate the guidelines range for each offense.

(2)

The individual completing the worksheet shall determine the overall guidelines range by adding the guidelines ranges for each offense in Seriousness Category I or II.

(3)

Any combinations of sentences imposed, concurrent or consecutive, are within the guidelines when the net time to be served (that is, the initial sentence minus suspended sentence) falls within the overall guideline range.

Multiple Criminal Events, One Offense in Each Event.

(1)

The individual completing the worksheet shall arrange the offenses in chronological order beginning with the one committed first.

(2)

The individual completing the worksheet shall calculate the guideline range for each event’s offenses. With the possible exception of part A (relationship to the criminal justice system), the offender score calculated for the first event is the same for all succeeding events, as long as they are being sentenced at the same time.

(3)

The individual completing the worksheet shall determine the overall guidelines range by adding the ranges for each event.

(4)

Multiple Criminal Events With Multiple Offenses Within One or More Event or Events.

(1)

The individual completing the worksheet shall arrange the events in chronological order, beginning with the offense or offenses committed in the first event.

(2)

The individual completing the worksheet shall calculate the guidelines range for each offense in the first event.

(3)

The individual completing the worksheet shall determine the overall guidelines range for the first criminal event as if there were only one event, but may not enter it on the worksheet.

(4)

The individual completing the worksheet shall repeat the instruction of §D(2) and (3) of this regulation for each succeeding criminal event. With the possible exception of part A (relationship to the criminal justice system), the offender score calculated for the first event is the same for all succeeding events, as long as they are being sentenced at the same time.

(5)

After determining the overall guidelines range for each criminal event, the individual completing the worksheet shall add the ranges to determine the overall guidelines range for the entire case.

(6)

Regulation .13 Presentence Detention.Link Copy Citation

When a defendant has been incarcerated before sentencing, the judge shall indicate the detention under “Actual Sentence”. The judge shall indicate either the number of days credit for time served or the date on which the sentence is to begin.

Regulation .14 Mandatory Sentences.Link Copy Citation

Statutory Maximums. If the guidelines sentence range exceeds the statutory maximum for a given offense, the statutory maximum is the upper limit of the guidelines range.

Mandatory Minimums. If the guidelines range is below the nonsuspendable mandatory minimum, that minimum is the lower limit of the guidelines range.

First Degree Murder. The adjusted guidelines range for first degree murder is always a term of “life to life” and should replace the calculated guidelines range.

Mandatory Consecutive Sentences. When there is a criminal event with multiple offenses, no more than one seriousness category I or II offense, and the sentence for one of the offenses is statutorily required to run consecutive to the sentence for another offense in the same criminal event, the person completing the sentencing guidelines worksheet shall add the upper limit of the guidelines range for the offense whose sentence is required to run consecutive to another offense to the upper limit of the guidelines range for the eligible other offense to obtain the upper limit of the overall guidelines range. Whenever the sentence for an offense is statutorily required to run consecutive to the sentence for more than one other offense in the criminal event, the person filling out the worksheet shall add the upper limit of the guidelines range for that offense to the upper limit of the guidelines range for the eligible offense with the highest upper guidelines limit. When there is a criminal event with multiple offenses with mandatory consecutive sentences, the upper limit of the overall guidelines range shall equal the sum of the upper limits of the one pair of offenses whose sum is the greatest.

Regulation .15 Subsequent Offenses.Link Copy Citation

In General. Enhanced punishment law for subsequent offenses takes precedence over guidelines ranges if not otherwise provided for in these regulations. If sentencing is pursuant to an enhanced punishment statute, the individual completing the worksheet shall specify the statute.

Subsequent Drug Offense. When the statutory penalty for a drug offense is doubled under Criminal Law Article, §5-905, Annotated Code of Maryland, the guidelines range for that offense is also doubled. If the upper limit of the calculated guidelines range exceeds the doubled statutory maximum for the offense, the doubled statutory maximum is the upper limit of the guidelines range. Likewise, if the lower limit of the calculated guidelines range exceeds the doubled statutory maximum for the offense, the doubled statutory maximum is the lower and upper limit of the guidelines range.

Subsequent Crime of Violence. When a non-suspendable mandatory minimum sentence for a crime of violence has been invoked pursuant to Criminal Law Article, §14-101, Annotated Code of Maryland, that mandatory minimum takes precedence over the lower limit and, possibly, the upper limit of the guidelines range, if the mandatory minimum exceeds the calculated lower or upper limit of the range. In this scenario, the lower limit of the range (and possibly the upper limit of the range) is replaced by the mandatory minimum.

Subsequent Violation of Use of a Firearm or Assault Weapon in the Commission of a Felony or Crime of Violence. When an individual is being sentenced for multiple violations, including contemporaneous violations, of Criminal Law Article, §4-204, Annotated Code of Maryland (use of a firearm in the commission of a crime of violence or any felony) or Criminal Law Article, §4-306, Annotated Code of Maryland (use of an assault weapon in the commission of a felony or crime of violence), the guidelines for all but the first violation of each offense shall be calculated pursuant to Criminal Law Article, §4-204(c)(2), Annotated Code of Maryland, or Criminal Law Article, §4-306(b)(3), Annotated Code of Maryland, respectively, both of which provide penalties for subsequent violations.

Other Subsequent Offenses. When an enhanced penalty for any other subsequent offense has been invoked, providing for an enhanced statutory maximum and/or mandatory minimum, the guidelines shall be calculated according to the rules set forth in these regulations with respect to the offense’s statutory maximum and/or any applicable mandatory minimum.

Regulation .16 Maryland Sentencing Guidelines Manual.Link Copy Citation

The individual completing the worksheet shall use the sentencing guidelines worksheet issued by the Commission on Criminal Sentencing Policy and may refer to the Maryland Sentencing Guidelines Manual for additional instruction and for case examples.

Regulation .17 Sentences Deemed to Be Within Guidelines.Link Copy Citation

Notwithstanding the actual guidelines range, the Commission on Criminal Sentencing Policy shall deem a sentence within the guidelines range if a judge:

Approved an MSCCSP binding plea agreement and sentence agreed to by both the defendant and by the State;

Sentenced a defendant to a period of pre-sentence incarceration time with no additional post-sentence incarceration time and the length of credited pre-sentence incarceration exceeds the upper guidelines range for the case; or

Imposed a sentence of corrections options if the defendant’s:

(1)

Initial sentence plus any suspended sentence falls within or above the overall guidelines range; and

(2)

Current sentence or sentences and any pending charges do not include a violation of:

(a)

A crime of violence under Criminal Law Article, §14-101, Annotated Code of Maryland;

(b)

Sexual child abuse under Criminal Law Article, §3-602, Annotated Code of Maryland;

(c)

Escape; or

(d)

A law of the United States or of any other state or the District of Columbia similar to §C(2)(a)—(c) of this regulation.

Subtitle 22 — Commission on Criminal Sentencing Policy

Chapter 02. Criminal Offenses and Seriousness Categories

Regulation .01 List of Offense Headings.Link Copy Citation

Abuse and Other Offensive Conduct

Accessory After the Fact

Alcoholic Beverages

Animals, Crimes Against

Arson and Burning

Assault and Other Bodily Woundings

Assault Weapons

Assisted Suicide

Bad Check

Boating Offenses

Bribery

Burglary and Related Crimes

Cannabis License or Registration

CDS and Paraphernalia

CDS — Registration

Cemeteries and Funerary Objects, Crimes Involving

Commercial Fraud, Other

Conspiracy

Consumer Protection Laws

Counterfeiting

Credit Card Crimes

Crimes Against the Person, Generally

Criminal Organizations

Deceased Human Body, Crimes Involving

Destructive Devices

Disturbing the Peace, Disorderly Conduct, and Related Crimes

Election Offenses

Estates, Crimes Against

Extortion and Other Threats

False Advertising and Related Crimes

False Statements, Other

Forensic Genealogy, Crimes Involving

Fraud, Financial Crimes Against Vulnerable Adults

Fraud, Miscellaneous

Fraud, Telecommunication Service Providers

Gambling, General Provisions

Handguns — In General

Harboring, Escape, and Contraband

Hate Crimes

Home Improvement, Crimes Involving

Human Relations, Crimes Involving

Human Trafficking

Identity Fraud

Influencing or Intimidating Judicial Process

Interference with or Misuse of Government Operations

Kidnapping and Related Crimes

Labor Trafficking

Lotteries

Machine Guns

Malicious Destruction and Related Crimes

Manslaughter and Related Crimes

Marriage, Crimes Against

Maryland Credit Services Businesses Act

Motor Vehicle Offenses

Murder

Nudity and Related Sexual Displays

Obscene Matter

Perjury

Prescription Drugs and Other Substances

Pretrial Release, Crimes Involving

Prostitution and Related Crimes

Protected Individuals, Protected Information

Public Fraud

Public Health and Safety, Crimes Against

Railroads, Crimes Involving

Robbery

Sabotage and Related Crimes

School Security

Securities Fraud and Related Crimes

Sexual Crimes

Stalking and Harassment

Statewide DNA Data Base System, Crimes Involving

Stored Wire and Electronic Communications Access, Crimes Involving

Surveillance & Other Crimes Against Privacy

Telecommunications and Electronics, Crimes Involving

Theft, Crimes Involving

Threat of Mass Violence

Trespass

Unlawful Use of Goods

Weapons Crimes-In General

Workers’ Compensation, Crimes Involving

Regulation .02 Seriousness Categories.Link Copy Citation

	Offense Literal	CJIS Code	Source	Felony or Misd.	Max Term	Min Term	Offense Type	Seriousness Category	Fine
1	Abuse and Other Offensive Conduct Child Abuse—physical, 1^st degree with death, victim at least 13 years old	1-1108	CR, §3-601(b)(2)(ii)	Felony	40Y ♦		Person	II
1-1	Abuse and Other Offensive Conduct Child Abuse—physical, 1^st degree with death, victim younger than 13 years old	1-1109	CR, §3-601(b)(2)(iii)	Felony	LIFE ♦		Person	I
1-2	Abuse and Other Offensive Conduct Child Abuse—physical, previous conviction for child abuse		CR, §3-601(c)(1)	Felony	25Y ♦♦		Person	II
1-3	Abuse and Other Offensive Conduct Child Abuse—physical, with death, previous conviction for child abuse		CR, §3-601(c)(2)	Felony	LIFE ♦		Person	I
2	Abuse and Other Offensive Conduct Child Abuse—physical, 1^st degree	1-0334	CR, §3-601(b)(2)(i)	Felony	25Y ♦		Person	II
2-1	Abuse and Other Offensive Conduct Child Abuse—physical, 2^nd degree	1-0173 1-3802	CR, §3-601(d)	Felony	15Y		Person	IV
3	Abuse and Other Offensive Conduct Child Abuse—sexual	1-0322 1-0922	CR, §3-602(b)	Felony	25Y ♦♦		Person	II
4	Abuse and Other Offensive Conduct Abuse, neglect of vulnerable adult by custodian, 1^st degree	1-1138 2-1138	CR, §3-604	Felony	10Y		Person	IV	$10,000
4-1	Abuse and Other Offensive Conduct Abuse, neglect of vulnerable adult by custodian, 2^nd degree	1-0466 2-0350	CR, §3-605	Misd.	5Y		Person	V	$5,000
4-2	Abuse and Other Offensive Conduct Child neglect	1-1614	CR, §3-602.1	Misd.	5Y		Person	VI	$5,000
4-3	Abuse and Other Offensive Conduct Knowingly fail to provide the required notice or make the required written report of suspected abuse or neglect of a child	1-1725	CR, §3-602.2	Misd.	3Y		Person	VI	$10,000
4-4	Abuse and Other Offensive Conduct Commit crime of violence in the presence of a minor		CR, §3-601.1	Misd.	5Y		Person	VI
4-5	Abuse and Other Offensive Conduct Commit a crime of violence against another person when the person knows or believes that the other person is pregnant	1-1733	CR, §14-104	Felony	10Y		Person	IV
5	Abuse and Other Offensive Conduct Sell, barter, trade, etc., a child for money, property, etc.	1-1719	CR, §3-603	Felony	5Y		Person	V	$10,000
5-1	Abuse and Other Offensive Conduct Prevent or interfere with the making of a report of suspected child abuse or neglect	1-0734	FL, §5-705.2 (penalty)	Misd.	5Y		Person	V	$10,000
5-2	Abuse and Other Offensive Conduct Confine unattended child	1-0005	FL, §5-801	Misd.	30D		Person	VII	$500
6	Abuse and Other Offensive Conduct Contributing to a child being delinquent or in need of supervision	2-0238	CJ, §3-8A-30	Misd.	3Y		Person	VI	$2,500
6-1	Abuse and Other Offensive Conduct Contributing to a child in need of assistance	1-0844	CJ, §3-828	Misd.	3Y		Person	VI	$2,500
6-2	Abuse and Other Offensive Conduct Failure to report disappearance of a minor	1-1002	CR, §3-608	Misd.	3Y		Person	VI
6-3	Abuse and Other Offensive Conduct Failure to report death of a minor	1-1003	CR, §3-609	Misd.	3Y		Person	VI
7	Abuse and Other Offensive Conduct Interfering with rights of developmentally disabled individual	1-1608	HG, §7-1102	Misd.	2Y		Person	VII	$5,000
8 Vacant
8-1	Accessory after the Fact Accessory after the fact to 1^st degree mu362rder	1-0774	CR, §1-301(b)(1)	Felony	10Y		Person	V
8-2	Accessory after the Fact Accessory after the fact to 2^nd degree murder	1-0776	CR, §1-301(b)(2)	Felony	10Y		Person	V
9	Accessory after the Fact Accessory after the fact to a felony	1-1480	CR, §1-301(a)	Felony	Lesser of 5Y or max. term penalty for the underlying offense		Person, Drug, Property	Lesser of V or the category for the underlying offense
9-1	Alcoholic Beverages Intoxicated and endanger safety of person or property; or intoxicated or drink alcoholic beverage in public place and cause public disturbance	1-1661 1-1662	AB, §6-320	Misd.	90D		Person	VII	$100
9-2	Alcoholic Beverages County-specific provisions concerning giving, serving, dispensing, keeping, or allowing alcoholic beverages without license; bottle clubs; places of public entertainment-Anne Arundel, Baltimore, Calvert, Caroline, Charles, Dorchester, Frederick, Kent, Prince George’s, Queen Anne’s, Somerset, Talbot, Wicomico, or Worcester Counties, or Baltimore City		AB, §11-2502 AB, §12-2501 AB, §13-2501 AB, §14-2501 AB, §15-2501 AB, §18-2501 AB, §19-2501 AB, §20-2501 AB, §24-2501 AB, §26-2501 AB, §27-2501 AB, §29-2501 AB, §30-2501 AB, §32-2501 AB, §33-2501	Misd.	2Y		Property	VII	$10,000
9-3	Alcoholic Beverages Selling or providing alcoholic beverages to an individual under the age of 21 in Washington County, 3^rd or subsequent offense		AB, §31-2702	Misd.	2Y		Property	VII	$1,000
9-4	Animals, Crimes Against Animal cruelty	1-0500 1-0501 1-0503	CR, §10-604	Misd.	90D		Property	VII	$1,000
9-5	Animals, Crimes Against Abuse or neglect of an animal that results in the death of or need to euthanize a domestic animal or livestock	1-0316	CR, §10-604.1	Misd.	1Y		Property	VII	$5,000
9-6	Animals, Crimes Against Aggravated animal cruelty	1-0505 1-0508	CR, §10-606	Felony	3Y		Property	VI	$5,000
10	Animals, Crimes Against Use dog in dogfight or for baiting; arrange dogfight; possess, own, etc. dog for dogfight or baiting; allow dogfight or baiting on premises	1-0506 1-0510 1-0511 1-0652	CR, §10-607	Felony	3Y		Property	VI	$5,000
11	Animals, Crimes Against Use or allow use of bird for cockfight; possess implement of cockfighting; arrange or conduct cockfight; possess bird for cockfight; allow premises to be used for cockfight	1-0507 1-0512 1-0513 1-0514 1-0515	CR, §10-608	Felony	3Y		Property	VI	$5,000
11-1	Animals, Crimes Against Attending a dogfight or cockfight	1-0597 1-0598	CR, §10-605	Misd.	1Y		Property	VII	$2,500
12	Animals, Crimes Against Interfering with an equine	1-1676 1-1677	CR, §10-620	Misd.	1Y		Property	VII	$1,000
12-1	Animals, Crimes Against Hunting via an internet connection		NR, §10-426(c)	Misd.	1Y		Property	VII	$10,000
12-2	Animals, Crimes Against Unlawful capture of over $20,000 worth of striped bass	1-1076	CR, §10-626(c)(2)	Misd.	1Y		Property	VII	$1,000
12-3	Animals, Crimes Against Willfully and maliciously interfere with the use of a service animal	1-1076	CR, §10-626(c)(2)	Misd.	1Y		Property	VII	$4,000
12-4	Animals, Crimes Against Willfully and maliciously kill or injure a service animal	1-1074	CR, §10-626(c)(1)	Misd.	2Y		Property	VI	$2,500
13	Arson and Burning Arson—dwelling or occupied structure (arson 1^st degree)	1-6500	CR, §6-102(a)	Felony	30Y ♦		Person	III	$50,000
14	Arson and Burning Arson—Other structure (arson, 2^nd degree)	1-6501	CR, §6-103(a)	Felony	20Y		Property	IV	$30,000
14-1	Arson and Burning Malicious or fraudulent burning resulting in the death of or serious physical injury to a firefighter	1-2227	CR, §6-112	Felony	10Y		Person	IV
15	Arson and Burning Arson—threat of	1-6505	CR, §6-107(a)	Misd.	10Y		Property	V	$10,000
16	Arson and Burning Burning personal property of another, $1,000 or more (malicious burning 1^st degree)	1-6502	CR, §6-104(b)	Felony	5Y		Property	VI	$5,000
17	Arson and Burning Burning property with intent to defraud	1-6504	CR, §6-106(a)	Misd.	5Y		Property	VI	$5,000
18	Arson and Burning Burn personal property of another less than $1,000 (malicious burning, 2^nd degree)	1-6503	CR, §6-105(b)	Misd.	18M		Property	VII	$500
19	Arson and Burning Arson—trash bin	2-2003	CR, §6-108(a)	Misd.	30D		Property	VII	$500
20	Assault and Other Bodily Woundings Poisoning—attempted	2-0999	CR, §3-213	Felony	10Y	2Y	Person	II
21	Assault and Other Bodily Woundings Poisoning—contaminating water, food, etc.	1-0319 3-0999	CR, §3-214	Felony	20Y		Person	II
22	Assault and other Bodily Woundings Assault, 1^st degree	1-1420	CR, §3-202	Felony	25Y ♦		Person	III
23 Vacant
24	Assault and Other Bodily Woundings Assault, 2^nd degree	1-1415	CR, §3-203	Misd.	10Y		Person	V	$2,500
25	Assault and Other Bodily Woundings Female genital mutilation—perform or consent to	1-0965 1-0970	HG, §20-601 HG, §20-603	Felony	5Y		Person	V	$5,000
25-1	Assault and Other Bodily Woundings Willfully expose others to infectious disease	1-0285	HG, §18-601	Misd.	1Y		Person	VII	$500
25-2 Vacant
25-3 Vacant
25-4	Assault and Other Bodily Woundings Knowingly and willfully causing another to ingest bodily fluid	1-0321	CR, §3-215	Misd.	10Y		Person	V	$2,500
25-5	Assault and Other Bodily Woundings Failure to comply with or violation of protective order, 1^st offense	2-0254	FL, §4-509(a)(1)	Misd.	90D		Person	VII	$1,000
25-6	Assault and Other Bodily Woundings Failure to comply with or violation of protective order, subsequent	2-0354	FL, §4-509(a)(2)	Misd.	1Y		Person	VII	$2,500
25-7	Assault and Other Bodily Woundings Failure to comply with or violation of peace order, 1^st offense	2-0105	CJ, §3-1508(a)(1)	Misd.	90D		Person	VII	$1,000
25-8	Assault and Other Bodily Woundings Failure to comply with or violation of peace order, subsequent	2-0105	CJ, §3-1508(a)(2)	Misd.	1Y		Person	VII	$2,500
25-9	Assault and Other Bodily Woundings Failure to comply with an extreme risk protective order, 1^st offense	1-1446	PS, §5-610(a)(1)	Misd.	90D		Person	VII	$1,000
25-10	Assault and Other Bodily Woundings Failure to comply with an extreme risk protective order, subsequent	1-1447	PS, §5-610(a)(2)	Misd.	1Y		Person	VII	$2,500
26	Assault and Other Bodily Woundings Reckless endangerment	1-1425 1-1430 (from car)	CR, §3-204(a)	Misd.	5Y		Person	V	$5,000
26-1	Assault and Other Bodily Woundings Criminally negligent life-threatening injury by motor vehicle or vessel	1-1094	CR, §3-212.1(e)	Misd.	1Y		Person	VII	$5,000
27	Assault and Other Bodily Woundings Cause a life threatening injury by motor vehicle or vessel while under the influence of alcohol, 1^st offense	1-0765	CR, §3-211(c)(3)(i)	Misd.	3Y		Person	VI	$5,000
27-1	Assault and Other Bodily Woundings Cause a life threatening injury by motor vehicle or vessel while under the influence of alcohol, subsequent		CR, §3-211(c)(3)(ii)	Misd.	5Y		Person	V	$10,000
28	Assault and Other Bodily Woundings Cause a life threatening injury by motor vehicle or vessel while impaired by alcohol, 1^st offense	1-0770	CR, §3-211(d)(3)(i)	Misd.	2Y		Person	VI	$3,000
28-1	Assault and Other Bodily Woundings Cause a life threatening injury by motor vehicle or vessel while impaired by alcohol, subsequent		CR, §3-211(d)(3)(ii)	Misd.	5Y		Person	V	$10,000
29	Assault and Other Bodily Woundings Cause a life-threatening injury by motor vehicle or vessel while impaired by drugs, 1^st offense	1-0775	CR, §3-211(e)(3)(i)	Misd.	2Y		Person	VI	$3,000
29-1	Assault and Other Bodily Woundings Cause a life-threatening injury by motor vehicle or vessel while impaired by drugs, subsequent		CR, §3-211(e)(3)(ii)	Misd.	5Y		Person	V	$10,000
29-2	Assault and Other Bodily Woundings Cause a life-threatening injury by motor vehicle or vessel while impaired by a controlled dangerous substance, 1^st offense	1-1640	CR, §3-211(f)(4)(i)	Misd.	3Y		Person	VI	$5,000
30	Assault and Other Bodily Woundings Cause a life-threatening injury by motor vehicle or vessel while impaired by a controlled dangerous substance, subsequent		CR, §3-211(f)(4)(ii)	Misd.	5Y		Person	V	$10,000
30-1	Assault and Other Bodily Woundings Assault on law enforcement officer, parole or probation agent, or first responder, 2^nd degree	1-1416	CR, §3-203(c)	Felony	10Y		Person	V	$5,000
30-2	Assault and Other Bodily Woundings Assault by incarcerated individual on employee or other incarcerated individual of State, local, or sheriff's office correctional facility, 1^st degree	1-1435	CR, §3-210	Felony	25Y ♦		Person	III
30-3	Assault and Other Bodily Woundings Assault by incarcerated individual on employee or other incarcerated individual of State, local, or sheriff's office correctional facility, 2^nd degree	1-1440	CR, §3-210	Misd.	10Y		Person	V	$2,500
30-4	Assault and Other Bodily Woundings Incarcerated individual causing correctional employee or sheriff to come in contact with bodily fluid	1-0222	CR, §3-205	Misd.	10Y		Person	V	$2,500
30-5	Assault and Other Bodily Woundings Intentional violation by a police officer of use of force standards resulting in serious physical injury or death to a person	1-1095	PS, §3-524(i)(2)	Misd.	10Y		Person	IV
31	Assault Weapons Use of assault weapon, rapid fire activator, or magazine with a capacity of more than 10 rounds in the commission of a felony or crime of violence, subsequent	3-5260	CR, §4-306(b)(3)	Misd.	20Y	10Y	Person	III
32	Assault Weapons Use of assault weapon, rapid fire activator, or magazine with a capacity of more than 10 rounds in the commission of a felony or crime of violence, 1^st offense	3-5260	CR, §4-306(b)(2)	Misd.	20Y	MM*= 5Y	Person	III
33	Assault Weapons Unlawfully possess, sell, offer to sell, etc., an assault weapon; manufacture, sell, offer to sell, etc., a detachable magazine with a capacity of more than 10 rounds; manufacture, possess, sell, etc., a rapid fire activator	3-5250 3-5255 1-1448	CR, §4-303(a) CR, §4-305(b) CR, §4-305.1(a) CR, §4-306(a) (penalty)	Misd.	3Y		Person	VI	$5,000
34	Assisted Suicide Coercion; provide means; participation	2-0175 2-0180 2-0185	CR, §3-102 CR, §3-104	Felony	1Y		Person	VII	$10,000
35	Bad Check Felony bad check, $100,000 or greater	1-1164 1-1168 1-1172 1-1176 1-1180	CR, §8-103 CR, §8-106(a)(3)	Felony	20Y		Property	III	$25,000
35-1	Bad Check Felony bad check, at least $25,000 but less than $100,000	1-1165 1-1169 1-1173 1-1177 1-1181	CR, §8-103 CR, §8-106(a)(2)	Felony	10Y		Property	V	$15,000
35-2	Bad Check Felony bad check, at least $1,500 but less than $25,000	1-1166 1-1170 1-1174 1-1178 1-1182	CR, §8-103 CR, §8-106(a)(1)	Felony	5Y		Property	VI	$10,000
35-3	Bad Check Multiple bad checks within a 30-day period, each at least $1,500 but less than $25,000 and totaling at least $1,500 but less than $25,000	1-1162 1-1163	CR, §8-103 CR, §8-106(b)	Felony	5Y		Property	VI	$10,000
36	Bad Check Misdemeanor bad check, at least $100 but less than $1,500	1-1167 1-1171 1-1175 1-1179 1-1184	CR, §8-103 CR, §8-106(c)	Misd.	1Y		Property	VII	$500
36-1	Bad Check Misdemeanor bad check, less than $100	1-1141 1-1142 1-1143 1-1144 1-1240	CR, §8-103 CR, §8-106(d)	Misd.	90D		Property	VII	$500
36-2	Boating Offenses Operate a vessel while under the influence of alcohol, 1^st offense	6-8000	NR, §8-738(e)(1)(i)(1)	Misd.	1Y		Person	VII	$1,000
36-3	Boating Offenses Operate a vessel while under the influence of alcohol, 2^nd offense	6-8000	NR, §8-738(e)(1)(i)(2)	Misd.	2Y		Person	VI	$2,000
36-4	Boating Offenses Operate a vessel while under the influence of alcohol, 3^rd or subsequent offense	6-8000	NR, §8-738(e)(1)(i)(3)	Misd.	3Y		Person	V	$3,000
36-5	Boating Offenses Operate a vessel while prohibited from operating a vessel under NR, §8-738(e)(3)(i), 1^st offense		NR, §8-738.3(c)(1)	Misd.	1Y		Property	VII	$1,000
36-6	Boating Offenses Operate a vessel while prohibited from operating a vessel under NR, §8-738(e)(3)(i), 2^nd offense		NR, §8-738.3(c)(2)	Misd.	2Y		Property	VI	$2,000
36-7	Boating Offenses Operate a vessel while prohibited from operating a vessel under NR, §8-738(e)(3)(i), 3^rd or subsequent offense		NR, §8-738.3(c)(3)	Misd.	3Y		Property	V	$3,000
36-8	Boating Offenses Failure to render all practical and necessary assistance to persons affected by a vessel collision, accident, or other casualty; failure to provide operator’s information		NR, §8-724(b)	Misd.	2M		Person	VII	$500
36-9	Boating Offenses Failure to immediately stop a vessel involved in a collision, accident, or other casualty that results in bodily injury to another person		NR, §8-724(a)(3)(ii)(1)	Misd.	1Y		Person	VII	$3,000
36-10	Boating Offenses Failure to immediately stop a vessel involved in a collision, accident, or other casualty that results in the death of another person		NR, §8-724(a)(3)(ii)(2)	Misd.	5Y		Person	V	$5,000
36-11	Boating Offenses Failure to immediately stop a vessel involved in a collision, accident, or other casualty when the person knew or reasonably should have known that serious bodily injury to another person might occur and serious bodily injury actually occurred		NR, §8-724(a)(3)(iii)(1)	Felony	5Y		Person	V	$5,000
36-12	Boating Offenses Failure to immediately stop a vessel involved in a collision, accident, or other casualty when the person knew or reasonably should have known that the death of another person might occur and death actually occurred		NR, §8-724(3)(iii)(2)	Felony	10Y		Person	IV	$10,000
37	Bribery Bribery to or by public officer	1-1678 1-1683	CR, §9-201	Misd.	12Y	2Y	Property	V	$5,000—$25,000
38	Bribery Bribe juror or acceptance of bribe by juror	2-5100 2-5110	CR, §9-202	Misd.	6Y	18M	Property	VI
39	Bribery Person or persons who bribe or attempt to bribe a participant, etc., in athletic contest	1-5100	CR, §9-204	Misd.	3Y	6M	Property	VI	$100— $5,000
40	Bribery Bribery—athletic contestant accepts bribe	2-5103	CR, §9-205	Misd.	3Y		Property	VII	$5,000
41	Burglary and Related Crimes Burglary, 1^st degree	2-3000	CR, §6-202(c)	Felony	20Y ♦		Property	III
41-1	Burglary and Related Crimes Home invasion	1-1338	CR, §6-202(d)	Felony	25Y ♦		Person	III
42	Burglary and Related Crimes Burglary, with explosives	2-3060	CR, §6-207	Felony	20Y ♦		Property	III
43	Burglary and Related Crimes Burglary, 2^nd degree	2-3010	CR, §6-203(c)(1)	Felony	15Y ♦		Property	IV
44	Burglary and Related Crimes Burglary, 2^nd degree, steal or take firearm	2-3015	CR,§6-203(c)(2)	Felony	20Y ♦		Property	IV	$10,000
45	Burglary and Related Crimes Burglary, 3^rd degree	2-3020	CR, §6-204	Felony	10Y ♦		Property	IV
46	Burglary and Related Crimes Breaking and entering —research facility	2-3070	CR, §6-208	Felony	5Y		Property	VI	$5,000
47	Burglary and Related Crimes Breaking and entering—motor vehicle (rogue and vagabond)	2-3080 2-3090	CR, §6-206	Misd.	3Y		Property	VII
48	Burglary and Related Crimes Burglary, 4^th degree	1-1130 2-3030 2-3040 2-3045 2-3050	CR, §6-205	Misd.	3Y		Property	VII
48-1	Cannabis License or Registration Use of straw ownership to apply for or hold a cannabis license or registration		AB, §36-1103	Misd.	1Y		Property	VII	$2,500
48-2	CDS and Paraphernalia Manufacture, distribute, dispense, or possess certain Schedule I through V non-narcotics, large amounts as specified in CR, §5-612, non-cannabis	1-0879 1-0880 1-0881	CR, §5-612(c)(1)	Felony	5Y	MM*=5Y	Drug	IV	$100,000
48-3	CDS and Paraphernalia Manufacture, distribute, dispense, or possess certain Schedule I or II controlled dangerous substances, large amounts as specified in CR, §5-612	1-0879 1-0880 1-0881	CR, §5-612(c)(1)	Felony	20Y	MM*=5Y	Drug	IIIB	$100,000
48-4	CDS and Paraphernalia Manufacture, distribute, dispense, or possess 50 pounds or more of cannabis	1-2216 1-2217 1-2218	CR, §5-612(c)(2)	Misd.	10Y		Drug	IV	$50,000
49	CDS and Paraphernalia Drug kingpin—non-cannabis	1-0488	CR, §5-613(b)(1)	Felony	40Y	MM*= 20Y	Drug	II	$1,000,000
49-1	CDS and Paraphernalia Drug kingpin—cannabis	1-2219	CR, §5-613(b)(2)	Felony	20Y		Drug	IIIB	$100,000
50	CDS and Paraphernalia Controlled dangerous substance importation into State, non-cannabis	3-3550	CR, §5-614(a)	Felony	25Y		Drug	IIIC	$50,000
50-1	CDS and Paraphernalia Controlled dangerous substance importation into State, cannabis (45 kilograms or more)	3-3550	CR, §5-614(a)	Felony	25Y		Drug	IIIA	$50,000
51	CDS and Paraphernalia Bringing minor into State to violate drug laws	1-0489	CR, §5-628(a)(2)	Felony	20Y		Drug	IIIB	$20,000
52	CDS and Paraphernalia Unlawfully distribute, PWID, manufacture, possess production equipment, distribute counterfeit, PWID counterfeit, possess counterfeiting equipment, keep common nuisance, possess false prescription—narcotics and hallucinogenics (e.g., PCP, heroin, cocaine, LSD, oxycodone, fentanyl, and methadone)	1-1118 1-1119 1-1120 1-1121 1-1122 1-1123 1-1124 1-1125 1-1126 1-1127 1-1128 1-1129 1-1131 1-1132 1-1133 1-1556 1-1557 1-1558	CR, §5-602(a) CR, §5-603(a) CR, §5-604 CR, §5-605 CR, §5-606 CR, §5-608(a) CR, §5-609(a) (penalty)	Felony	20Y		Drug	IIIB	$15,000
53	CDS and Paraphernalia Unlawfully distribute, PWID, manufacture, possess production equipment, distribute counterfeit, PWID counterfeit, possess counterfeiting equipment, keep common nuisance, possess false prescription—narcotics and hallucinogenics (e.g., PCP, heroin, cocaine, LSD, oxycodone, fentanyl, and methadone), subsequent		CR, §5-602(a) CR, §5-603(a) CR, §5-604 CR, §5-605 CR, §5-606 CR, §5-608(b) CR, §5-609(b) CR, §5-608(c) CR, §5-609(c) CR, §5-608(d) CR, §5-609(d) (penalty)	Felony	20Y 25Y 40Y		Drug	IIIB IIIB IIIC	$15,000 $25,000 $25,000
53-1	CDS and Paraphernalia Knowingly violated CR, §5-602 with a mixture of heroin and fentanyl or any analogue of fentanyl; or fentanyl or any analogue of fentanyl	1-0908	CR, §5-608.1	Felony	10Y		Drug	IIIC
54 Vacant
54-1	CDS and Paraphernalia Unlawfully distribute, PWID, manufacture, possess production equipment, distribute counterfeit, PWID counterfeit, possess counterfeiting equipment, keep common nuisance, possess false prescription—MDMA (methylenedioxymethamphetamine), 750 grams or more	1-1127 1-1128 1-1129 1-1131 1-1132 1-1133 1-1556 1-1557 1-1558	CR, §5-602(a) CR, §5-603(a) CR, §5-604 CR, §5-605 CR, §5-606 CR, §5-609(a) (penalty)	Felony	20Y		Drug	IIIA	$15,000
54-2	CDS and Paraphernalia Unlawfully distribute, PWID, manufacture, possess production equipment, distribute counterfeit, PWID counterfeit, possess counterfeiting equipment, keep common nuisance, possess false prescription—MDMA (methylenedioxymethamphetamine), 750 grams or more, subsequent		CR, §5-602(a) CR, §5-603(a) CR, §5-604 CR, §5-605 CR, §5-606 CR, §5-609(b) CR, §5-609(c) CR, §5-609(d)	Felony	20Y 25Y 40Y		Drug	IIIA IIIA IIIB	$15,000 $25,000 $25,000
55	CDS and Paraphernalia Manufacture, distribute, or dispense controlled dangerous substances near schools or on school vehicles, 1^st offense	1-0483 1-0484	CR, §5-627	Felony	20Y		Drug	IIIB	$20,000
55-1	CDS and Paraphernalia Manufacture, distribute, or dispense controlled dangerous substances near schools or on school vehicles, subsequent	1-0483 1-0484	CR, §5-627	Felony	40Y	MM*= 5Y	Drug	IIIC	$40,000
56	CDS and Paraphernalia Using minors for manufacture, delivery, or distribution of controlled dangerous substances	1-5409	CR, §5-628(a)(1)	Felony	20Y		Drug	IIIB	$20,000
57	CDS and Paraphernalia Controlled dangerous substance importation into State, cannabis (5 to less than 45 kilos)	1-0730	CR, §5-614(b)	Felony	10Y		Drug	IV	$10,000
58	CDS and Paraphernalia Distribution—distribution of non-controlled substance as controlled dangerous substance	1-0246	CR, §5-617	Felony	5Y		Drug	IV	$15,000
58-1	CDS and Paraphernalia Distribute, possess, manufacture, or use cannabis diverted from a qualifying patient, caregiver, licensed grower, or licensed dispensary		HG, §13-3313	Felony	5Y		Drug	IV	$10,000
58-2	CDS and Paraphernalia Unlawfully PWID, manufacture, possess production equipment—cannabis	1-1692 1-1693 1-1694	CR, §5-602(b)(1) CR, §5-603(b) CR, §5-607(a)(2) (penalty)	Misd.	3Y		Drug	V	$5,000
58-3	CDS and Paraphernalia Unlawfully distribute, distribute counterfeit, PWID counterfeit, possess counterfeiting equipment, keep common nuisance, possess false prescription—cannabis	1-0234 1-0235 1-0236 1-0238 1-0239 1-0728 2-3550	CR, §5-602(a)(1) CR, §5-604 CR, §5-605 CR, §5-606 CR, §5-607(a)(1) (penalty)	Felony	10Y		Drug	IV	$10,000
59	CDS and Paraphernalia Unlawfully distribute, PWID, manufacture, possess production equipment, distribute counterfeit, PWID counterfeit, possess counterfeiting equipment, keep common nuisance, possess false prescription—Schedules I through V non-narcotics (e.g., amphetamines, methamphetamine, synthetic marijuana, diazepam, MDMA under 750 grams, and Valium) and buprenorphine	1-0233 1-0234 1-0235 1-0236 1-0237 1-0238 1-0239 1-0660 1-0728 2-3550	CR, §5-602(a) CR, §5-603(a) CR, §5-604 CR, §5-605 CR, §5-606 CR, §5-607(a)(1) (penalty)	Felony	5Y		Drug	IV	$15,000
60	CDS and Paraphernalia Cannabis cultivation in violation of requirements provided in CR, §5-601.2	1-1734	CR, §5-601.2	Misd.	3Y		Drug	V	$5,000
61 Vacant
62	CDS and Paraphernalia Paraphernalia—deliver drug paraphernalia to minor by adult who is 3 or more years older	7-3550	CR, §5-619(d)(4)	Misd.	8Y		Drug	IV	$15,000
63	CDS and Paraphernalia Receive, acquire, give, sell, transfer, etc., proceeds knowing that the proceeds are derived from a CDS offense, 1^st offense	1-0673 1-0675	CR, §5-623(c)(1)	Felony	5Y		Drug	V	Greater of $250,000 or twice the value of the proceeds
64	CDS and Paraphernalia Receive, acquire, give, sell, transfer, etc., proceeds knowing that the proceeds are derived from a CDS offense, subsequent	1-0673 1-0675	CR, §5-623(c)(2)	Felony	10Y		Drug	IV	Greater of $500,000 or 5 times the value of the proceeds
65	CDS and Paraphernalia Paraphernalia—distribute controlled paraphernalia—non-cannabis, subsequent	1-2214 1-2215	CR, §5-620(d)(2)	Misd.	1Y		Drug	VII	$1,000
66	CDS and Paraphernalia Paraphernalia—deliver or sell, or manufacture or possess with intent to deliver or sell, drug paraphernalia, subsequent	1-2213	CR, §5-619(d)(2)(ii)	Misd.	1Y		Drug	VII	$1,000
66-1	CDS and Paraphernalia Paraphernalia—deliver or sell, or manufacture or possess with intent to deliver or sell, drug paraphernalia, previous conviction for deliver drug paraphernalia to minor by adult who is 3 or more years older		CR, §5-619(d)(3)	Misd.	2Y		Drug	VII	$2,000
67	CDS and Paraphernalia Paraphernalia—use or possess with intent to use drug paraphernalia—non-cannabis, subsequent	1-2212	CR, §5-619(c)(2)(ii)	Misd.	1Y		Drug	VII	$1,000
68	CDS and Paraphernalia Paraphernalia—unlawfully advertise with the purpose to promote the sale and delivery of drug paraphernalia, subsequent	9-0092	CR, §5-619(e)(2)(ii)	Misd.	2Y		Drug	VII	$2,000
69	CDS and Paraphernalia Possession—unlawful possession or administering to another, obtaining, etc., substance by fraud, forgery, misrepresentation, etc.; affixing forged labels; altering etc., label—cannabis	1-1559 1-1560 1-1561 1-1562 1-1563 1-1564	CR, §5-601(c)(2)(i)	Misd.	6M		Drug	VII	$1,000
69-1	CDS and Paraphernalia Possession—unlawful possession or administering to another; obtaining, etc., substance by fraud, forgery, misrepresentation, etc.; affixing forged labels; altering etc., label—non-cannabis, 1^st offense	1-1110 1-1111 1-1112 1-1113 1-1114 1-1115 1-1117	CR, §5-601(c)(1)(i)	Misd.	1Y		Drug	VII	$5,000
69-2	CDS and Paraphernalia Possession—unlawful possession or administering to another; obtaining, etc., substance by fraud, forgery, misrepresentation, etc.; affixing forged labels; altering etc., label—non-cannabis, 2^nd or 3^rd offense		CR, §5-601(c)(1)(ii)	Misd.	18M		Drug	VII	$5,000
69-3	CDS and Paraphernalia Possession—unlawful possession or administering to another; obtaining, etc., substance by fraud, forgery, misrepresentation, etc.; affixing forged labels; altering etc., label—non-cannabis, 4^th or subsequent offense		CR, §5-601(c)(1)(iii)	Misd.	2Y		Drug	VII	$5,000
70	CDS and Paraphernalia Possession—unsolicited mailing of certain drugs, controlled dangerous substances, medicines, etc.	1-0025	CR, §5-703	Misd.	6M		Drug	VII	$500
71	CDS and Paraphernalia Possession/purchase of non-CDS believed to be a controlled dangerous substance	1-0691	CR, §5-618(a)	Misd.	1Y		Drug	VII	$500
71-1	CDS and Paraphernalia Distribute, sell, expose for sale, or advertise for sale a tianeptine product		HG, §21-2D-02	Misd.	90D		Drug	VII	$5,000
71-2	CDS and Paraphernalia Preparation, distribution, or sale of kratom products to an individual under 21; without proper label disclosures; or that contain certain other substances		HG, §21-2E-02(f)	Misd.	90D		Drug	VII	$5,000
71-3	CDS and Paraphernalia Prepare, distribute, sell, or expose for sale phenibut product without required disclosures; not recognized by the FDA; adulterated or contaminated with a dangerous substance; or to an individual under the age of 21 years		HG, §21-2F-02(f)	Misd.	90D		Drug	VII	$5,000
72	CDS—Registration CDS—deliver as a registrant a CDS of Schedule I/II without an order form	9-3550	CR, §5-904(a)	Felony	10Y		Drug	IV	$100,000
73	CDS—Registration CDS registration—use fictitious, etc. registration number; distribute without an order form	1-0263	CR, §5-903(a)	Felony	10Y		Drug	IV	$100,000
74	CDS—Registration Manufacture CDS which was not authorized by registration	8-3550	CR, §5-902(b)	Misd.	2Y		Drug	VII	$100,000
75	CDS—Registration CDS Registration—unlawful acts	1-0258 1-0259 1-0260 1-0261 1-0262 1-1445 1-3550	CR, §5-902(a)	Misd.	2Y		Drug	VII	$100,000
76	Cemeteries and Funerary Objects, Crimes Involving Removal or attempted removal of human remains from a burial site	3-3932	CR, §10-402(a)	Misd.	5Y		Property	VI	$10,000
77	Cemeteries and Funerary Objects, Crimes Involving Destruction of funerary objects/structures placed in a cemetery	3-3942	CR, §10-404(a)	Misd.	5Y		Property	VI	$10,000
78	Cemeteries and Funerary Objects, Crimes Involving Destruction of graveyard plants	3-3946	CR, §10-404(b)	Misd.	2Y		Property	VII	$500
79	Cemeteries and Funerary Objects, Crimes Involving Disorderly conduct in cemetery	3-3947	CR, §10-404(c)	Misd.	2Y		Property	VII	$500
79-1	Cemeteries and Funerary Objects, Crimes Involving Committing, or aiding or abetting another to commit, certain destructive acts to human remains with the intent to conceal a crime	1-2225 1-2226	CR, §10-405	Felony	5Y		Property	VI
80	Commercial Fraud, Other False statement or false entry in records with the intent to deceive a person authorized to examine the affairs of the bank, trust company, or savings bank	1-5581	FI, §5-803(b)	Felony	10Y		Property	V	$5,000
80-1	Commercial Fraud, Other Providing an unlicensed loan	1-0049	FI, §11-203.1(a) FI, §11-222 (penalty)	Misd.	3Y		Property	VI	$5,000
81	Commercial Fraud, Other Misappropriation, fraudulent conversion, or any fraudulent act in the course of engaging in the mortgage lending business	2-0946	FI, §11-523(c)	Felony	15Y		Property	V	$100,000
82	Commercial Fraud, Other Fraudulent Insurance Acts—Violation of §27-407 or any other provision of §§27-403, 27-404, 27-405, 27-406, 27-406.1, 27-407, 27-407.1, or 27-407.2 where the value of the fraud is $300 or greater	1-0625 1-0898 1-0902 1-0942 3-0120 3-0125 3-0126 3-0130 3-0150 3-0160 3-0180	IN, §27-408(a)(1) (penalty)	Felony	15Y		Property	V	$10,000
82-1	Commercial Fraud, Other Fraudulent Insurance Acts—Violation of §27-407 or any other provision of §§27-403, 27-404, 27-405, 27-406, 27-406.1, 27-407, 27-407.1, or 27-407.2 where the value of the fraud is less than $300	1-0899 1-0901 3-0127 3-0135 3-0140 3-0145 3-0155 3-0165 3-0185	IN, §27-408(a)(2) (penalty)	Misd.	18M		Property	VII	$10,000
83	Commercial Fraud, Other Fail to obtain and maintain a corporate surety bond or irrevocable letter of credit or to hold sums of money in an escrow account	1-0727	RP, §10-305(a)	Felony	15Y		Property	V	$10,000
84	Commercial Fraud, Other Sales of property, Custom Home Protection Act-willful failure to obtain and maintain a corporate surety bond or to hold sums of money in escrow account; willful failure to make disclosure; willful commission of a breach of trust provided in §10-502	1-0123 1-0987 1-1512	RP, §10-507(b)(2)	Felony	15Y		Property	V	$10,000
84-1	Commercial Fraud, Other Sales of property, Custom Home Protection Act—any other conduct that fails to comply with RP, Title 10, Subtitle 5	1-1507	RP, §10-507(b)(3)	Misd.	1Y		Property	VII	$1,000
84-2	Commercial Fraud, Other Commission of mortgage fraud	1-1319	RP, §7-407(a)	Felony	10Y		Property	V	$5,000
84-3	Commercial Fraud, Other Commission of mortgage fraud involving victim who is a vulnerable adult under CR, §3-604	1-1320	RP, §7-407(b)	Felony	15Y		Property	V	$15,000
84-4	Commercial Fraud, Other Commission of mortgage fraud, engaging in a pattern of mortgage fraud	1-1321	RP, §7-407(c)	Felony	20Y		Property	IV	$100,000
84-5	Commercial Fraud, Other Failure of foreclosure consultant to obtain a real estate broker's license		RP, §7-318.1(a) RP, §7-321 (penalty)	Misd.	3Y		Property	VI	$10,000
84-6	Commercial Fraud, Other Violation of any provision of Business Occupations and Professions Article, Title 17, by foreclosure consultant		RP, §7-318.1(b) RP, §7-321 (penalty)	Misd.	3Y		Property	VI	$10,000
84-7	Commercial Fraud, Other Other violation of any provision of Protection of Homeowners in Foreclosure Act, Real Property Article, Title 7, Subtitle 3		RP, §7-321 (penalty)	Misd.	3Y		Property	VI	$10,000
84-8	Commercial Fraud, Other Violation of certain provisions of the Maryland Real Estate Brokers Act, 1^st offense	1-0450 1-0498 1-0499 2-0605 2-0606	BO, §17-613(a) (penalty)	Misd.	1Y		Property	VII	$5,000
84-9	Commercial Fraud, Other Violation of certain provisions of the Maryland Real Estate Brokers Act, 2^nd offense		BO, §17-613(d)(1) (penalty)	Misd.	2Y		Property	VII	$15,000
84-10	Commercial Fraud, Other Violation of certain provisions of the Maryland Real Estate Brokers Act, 3^rd or subsequent offense		BO, §17-613(d)(2) (penalty)	Misd.	3Y		Property	VI	$25,000
84-11	Commercial Fraud, Other Violation of any provisions of Maryland Mortgage Assistance Relief Services Act	1-1424	RP, §7-509 (penalty)	Misd.	3Y		Property	VI	$10,000
84-12	Commercial Fraud, Other Violation of any provision of Business Regulation Article, Title 5, Subtitle 6, 1^st offense	1-0980 1-0981	BR, §5-610(a)(1), (b)(1) (penalty)	Misd.	1Y		Property	VII	$5,000
84-13	Commercial Fraud, Other Violation of any provision of Business Regulation Article, Title 5, Subtitle 6, 2^nd offense	1-0980 1-0981	BR, §5-610(a)(2), (b)(2) (penalty)	Misd.	2Y		Property	VII	$10,000
84-14	Commercial Fraud, Other Violation of any provision of Business Regulation Article, Title 5, Subtitle 6, 3^rd or subsequent offense	1-0980 1-0981	BR, §5-610(a)(3), (b)(3) (penalty)	Misd.	3Y		Property	VI	$20,000
84-15	Commercial Fraud, Other Misappropriation or fraudulent conversion of perpetual care trust funds in excess of $100	1-0982	BR, §5-610(c)	Felony	10Y		Property	V	$25,000
84-16	Commercial Fraud, Other Violation of any provision of Business Regulation Article, Title 5, Subtitle 9, 1^st offense	1-0731 1-0986	BR, §5-904(1) (penalty)	Misd.	1Y		Property	VII	$5,000
84-17	Commercial Fraud, Other Violation of any provision of Business Regulation Article, Title 5, Subtitle 9, 2^nd offense		BR, §5-904(2) (penalty)	Misd.	2Y		Property	VII	$10,000
84-18	Commercial Fraud, Other Violation of any provision of Business Regulation Article, Title 5, Subtitle 9, 3^rd or subsequent offense		BR, §5-904(3) (penalty)	Misd.	3Y		Property	VI	$15,000
84-19	Commercial Fraud, Other Failure to deposit money received under or in connection with preneed burial contract, 1^st offense	1-0983 1-0984	BR, §5-712(b)(1)(i), (b)(2)(i)	Misd.	1Y		Property	VII	$10,000
84-20	Commercial Fraud, Other Failure to deposit money received under or in connection with preneed burial contract, 2^nd offense	1-0983 1-0984	BR, §5-712(b)(1)(ii), (b)(2)(ii)	Misd.	2Y		Property	VII	$15,000
84-21	Commercial Fraud, Other Failure to deposit money received under or in connection with preneed burial contract, 3^rd or subsequent offense	1-0983 1-0984	BR, §5-712(b)(1)(iii), (b)(2)(iii)	Misd.	3Y		Property	VI	$20,000
84-22	Commercial Fraud, Other Misappropriation or fraudulent conversion of preneed trust funds in excess of $100	1-0985	BR, §5-712(c)	Felony	10Y		Property	V	$25,000
84-23	Commercial Fraud, Other Violations of law relating to returnable containers and returnable textiles, 1^st offense		BR, §19-304	Misd.	1Y		Property	VII	$1,000
84-24	Commercial Fraud, Other Violations of law relating to returnable containers and returnable textiles, subsequent		BR, §19-304	Misd.	3Y		Property	VII	$2,500
84-25	Commercial Fraud, Other Violations of law relating to plastic secondary packaging, 1^st offense	1-0877 1-0878	BR, §19-308(e)(1)	Misd.	1Y		Property	VII	$1,000
84-26	Commercial Fraud, Other Violations of law relating to plastic secondary packaging, subsequent		BR, §19-308(e)(2)	Misd.	3Y		Property	VII	$2,500
85	Commercial Fraud, Other Fraud—breach of trust	1-2602	CR, §8-406(a)	Misd.	10Y	1Y	Property	VI	$500- $5,000
86	Commercial Fraud, Other Fraud—convert to own use the property of partner, make entries of a partnership transaction	2-2701 3-2607	CR, §8-401(a)	Misd.	10Y		Property	VI	$5,000
87	Commercial Fraud, Other Fraud, misrepresentation by corporate officer	4-2607	CR, §8-402(a)	Misd.	3Y	6M	Property	VI	$1,000-$10,000
88	Commercial Fraud, Other False or misleading statement or omission of material fact in sale of business opportunity	1-0871	BR, §14-127(b)	Felony	5Y		Property	VI	$10,000
89	Commercial Fraud, Other Offer or sale of franchise without registration	2-0633	BR, §14-228	Felony	5Y		Property	VI	$10,000
90	Commercial Fraud, Other Untrue statements or omissions of material fact in connection with an offer to sell or sale of a franchise	1-0870	BR, §14-229(b)	Felony	5Y		Property	VI	$10,000
91	Commercial Fraud, Other False or misleading statement or omission in prospectus or amendment	2-0634	BR, §14-230	Felony	5Y		Property	VI	$10,000
92	Commercial Fraud, Other Untrue statements or omissions of material fact in applications, notices, or reports in sale of franchise	2-0635	BR, §14-231	Felony	5Y		Property	VI	$10,000
93	Commercial Fraud, Other Failure to notify Commissioner of material change in sale of franchise	2-0636	BR, §14-232	Felony	5Y		Property	VI	$10,000
94 Vacant
95	Commercial Fraud, Other Fraud—pyramid, promotional scheme	6-2600	CR, §8-404(b)	Misd.	1Y		Property	VII	$10,000
96 Vacant
97 Vacant
98	Commercial Fraud, Other Unlawful subleasing of motor vehicle	2-0615	CR, §8-408(b)	Misd.	3Y		Property	VII	$5,000
98-1	Commercial Fraud, Other Operation of an assisted living program without a license, 1^st offense	1-0557	HG, §19-1809(a)(2)(i)	Felony	5Y		Property	VII	$10,000
98-2	Commercial Fraud, Other Operation of an assisted living program without a license, subsequent		HG, §19-1809(a)(2)(ii)	Felony	5Y		Property	VI	$20,000
98-3	Commercial Fraud, Other Fraudulently obtaining motor vehicle accident report		TR, §20-110(e)(1)	Felony	15Y		Property	V	$10,000
98-4	Commercial Fraud, Other Improper disclosure of motor vehicle accident report by law enforcement agent		TR, §20-110(e)(2)	Felony	15Y		Property	V	$10,000
99	Conspiracy Conspiracy to commit a lawful act by unlawful means		Common Law	Misd.	LIFE		Person Drug Property	Same seriousness category as most serious unlawful means
100	Counterfeiting Counterfeiting public seal	1-0663	CR, §8-607	Misd.	10Y	2Y	Property	V
101	Counterfeiting Counterfeiting United States currency with intent to defraud	1-0067 1-0069	CR, §8-604	Felony	10Y		Property	V	$10,000
102	Counterfeiting Counterfeiting of private instruments or documents	1-2502	CR, §8-601(c)(1)	Felony	10Y		Property	V	$1,000
102-1	Counterfeiting Possession of counterfeit private instruments or documents	1-1502	CR, §8-601(c)(2)	Misd.	3Y		Property	VII	$1,000
102-2	Counterfeiting Counterfeiting of private instruments or documents, not covered by CR, §8-601 or another statute	6-1313	Common Law	Misd.	LIFE		Property	V
103	Counterfeiting Counterfeiting of public documents	1-2500 1-2504	CR, §8-605	Felony	10Y	2Y	Property	V
103-1	Counterfeiting Counterfeiting of public documents, not covered by CR, §8-605 or another statute	6-1313	Common Law	Misd.	LIFE		Property	V
104	Counterfeiting Counterfeiting of orders for money or goods	1-2501 2-2510 2-2520	CR, §8-609	Felony	10Y	2Y	Property	V
104-1	Counterfeiting Trademark counterfeiting, less than $1,500	1-1386	CR, §8-611(d)	Misd.	1Y		Property	VII	$1,000
105	Counterfeiting Trademark counterfeiting, $1,500 or greater	1-1385	CR, §8-611(c)	Felony	10Y		Property	V	$10,000
106	Counterfeiting Issuing counterfeit private instruments or documents	1-2513	CR, §8-602	Felony	10Y		Property	V	$1,000
106-1	Counterfeiting Issuing counterfeit private instruments or documents, not covered by CR, §8-602 or another statute		Common Law	Misd.	LIFE		Property	V
107	Counterfeiting Counterfeiting stamp of Comptroller	1-2603	CR, §8-608	Misd.	10Y	2Y	Property	V
108 Vacant
109	Counterfeiting Making false entries in public records and related crimes	2-2504 3-2504 5-2504	CR, §8-606	Misd.	3Y		Property	VII	$1,000
110	Counterfeiting Forging, falsifying, or counterfeiting signature of judge, court officer, or court employee	1-1698 1-1699	CR, §8-606.1	Misd.	5Y		Property	VI	$10,000
111 Vacant
112	Counterfeiting Possessing or issuing counterfeit United States currency	1-0494	CR, §8-604.1	Misd.	3Y		Property	VII	$1,000
113	Counterfeiting Possessing counterfeit title to motor vehicle	2-0035	CR, §8-603	Misd.	3Y		Property	VII	$1,000
113-1	Counterfeiting Counterfeiting prescription	1-0180 2-0262 2-2502 2-2530	CR, §8-610	Misd.	2Y		Property	VI
114	Counterfeiting Counterfeiting and issuing of tokens	3-2502 3-2510	CR, §8-612	Misd.	1Y		Property	VII
114-1	Credit Card Crimes Felony credit card crimes, $100,000 or greater	1-1188 1-1189 1-1193 1-1197 1-1351 1-1355	CR, §8-206(c)(1)(iii) CR, §8-207(b)(1)(iii) CR, §8-209(b)(1)(iii)	Felony	20Y		Property	III	$25,000
114-2	Credit Card Crimes Felony credit card crimes, at least $25,000 but less than $100,000	1-1187 1-1190 1-1194 1-1198 1-1352 1-1356	CR, §8-206(c)(1)(ii) CR, §8-207(b)(1)(ii) CR, §8-209(b)(1)(ii)	Felony	10Y		Property	V	$15,000
114-3	Credit Card Crimes Felony credit card crimes, at least $1,500 but less than $25,000	1-1186 1-1191 1-1196 1-1350 1-1354 1-1357	CR, §8-206(c)(1)(i) CR, §8-207(b)(1)(i) CR, §8-209(b)(1)(i)	Felony	5Y		Property	VI	$10,000
114-4	Credit Card Crimes Misdemeanor credit card crimes, at least $100 but less than $1,500	1-1185 1-1192 1-1195 1-1199 1-1353 1-1358	CR, §8-206(c)(2) CR, §8-207(b)(2) CR, §8-209(b)(2)	Misd.	1Y		Property	VII	$500
115	Credit Card Crimes Misdemeanor credit card crimes, less than $100	1-0581 1-0582 1-0583 1-0584 1-0585 1-0586	CR, §8-206(c)(3) CR, §8-207(b)(3) CR, §8-209(b)(3)	Misd.	90D		Property	VII	$500
115-1	Credit Card Crimes Possess incomplete credit card or knowingly possess machinery, plates, etc. to reproduce credit cards	1-0199 1-0200	CR, §8-208	Felony	15Y		Property	V	$1,000
116	Credit Card Crimes Unlawfully use or disclose credit card number or other payment device number or holder's signature	2-0550 2-0560	CR, §8-214 CR, §8-216 (penalty)	Felony	15Y		Property	V	$1,000
116-1	Credit Card Crimes Make or cause to be made a false written statement with respect to identity to procure the issuance of a credit card	1-2607	CR, §8-203	Misd.	18M		Property	VII	$500
116-2	Credit Card Crimes Steal credit card, receive stolen or lost credit card, or sell or buy credit card	1-2399 2-2803 1-2899 1-2605 1-2803	CR, §8-204	Misd.	18M		Property	VII	$500
117	Credit Card Crimes Falsely make or emboss credit card, transfer or possess falsely made or embossed credit card, or sign credit card with intent to defraud	1-0196 1-0198 1-0903	CR, §8-205	Felony	15Y		Property	V	$1,000
118	Credit Card Crimes Publish or cause to be published the number or code of a telephone credit card with intent to defraud	2-2605	CR, §8-210	Misd.	1Y		Property	VII	$500
119	Crimes Against the Person, Generally Administered controlled dangerous substance before committing crime of violence	2-0710	CR, §5-624(b)	Misd.	1Y		Person	VII	$2,500
119-1	Criminal Organizations Use of or threat of force to coerce participation or prevent leaving organization	1-1391	CR, §9-802	Misd.	2Y		Person	VII	$10,000
119-2	Criminal Organizations Use of or threat of force to coerce participation or prevent leaving organization in school or within 1,000 feet of school property	1-1392	CR, §9-803	Misd.	4Y		Person	VI	$20,000
119-3	Criminal Organizations Participate as member of criminal organization in commission of crime; in receipt and use or investment, of proceeds of $10,000 or more from underlying crime in the acquisition of real property or establishment or operation of any enterprise; in acquisition or maintenance of any interest or control of any enterprise or property through an underlying crime	1-1394 1-1395 1-1419 1-1421 1-1422 1-1423	CR, §9-804(f)(1)(i)	Felony	15Y		Person	One category more serious than most serious underlying offense. If no conviction on underlying offense, category=IV	$1,000,000
119-4	Criminal Organizations Participate as member of criminal organization in commission of crime—resulting in death of victim	1-1417 1-1418	CR, §9-804(f)(1)(ii)	Felony	25Y		Person	One category more serious than most serious underlying offense. If no conviction on underlying offense, category=III	$5,000,000
119-5	Criminal Organizations Organize, supervise, finance, or manage a criminal organization	1-1393	CR, §9-805	Felony	20Y		Person	III	$1,000,000
119-6	Deceased Human Body, Crimes Involving Unauthorized burial or disposal of body; unauthorized use or disposal of soil remains	1-0932	HG, §5-514	Misd.	1Y		Person	VII	$5,000
120	Destructive Devices Explosives—possession without license with intention to use in violation of various statutes	2-0393	PS, §11-114(b) PS, §11-116(a) (penalty)	Felony	20Y		Person	III	$10,000
121	Destructive Devices Explosives—sale without license with intention to use in violation of various statutes	1-0022	PS, §11-114(c) PS, §11-116(b) (penalty)	Felony	20Y		Person	III	$10,000
122	Destructive Devices Firearm, explosive on aircraft	2-5203	TR, §5-1008	Felony	10Y		Person	III
123	Destructive Devices Manufacture, transport, possess, control, store, sell, distribute, or use a destructive device	1-0720	CR, §4-503(a)(1)	Felony	25Y		Person	III	$250,000
124	Destructive Devices Possess explosive, incendiary, or toxic material with the intent to create a destructive device	1-0725	CR, §4-503(a)(2)	Felony	25Y		Person	III	$250,000
125	Destructive Devices Explosives—unlawful manufacture or dealing without license	1-0907	PS, §11-114(a)	Misd.	5Y		Person	VI	$5,000
125-1	Destructive Devices Explosives—possession without license	1-1603	PS, §11-114(b)	Misd.	5Y		Person	VI	$5,000
125-2	Destructive Devices Explosives—sale without license		PS, §11-114(c)	Misd.	5Y		Person	VI	$5,000
125-3	Destructive Devices Explosives—owner of operation that uses explosives dealing without license		PS, §11-114(d)	Misd.	5Y		Person	VI	$5,000
126	Destructive Devices Explosives—employee possession without license		PS, §11-114(e)	Misd.	5Y		Person	VI	$5,000
127	Destructive Devices Explosives—violate explosives regulation		PS, §11-114(f)	Misd.	5Y		Person	VI	$5,000
127-1	Disturbing the Peace, Disorderly Conduct, and Related Crimes Disturbing the peace, disorderly conduct in public place	2-0045 2-0050 2-0055 2-0060 2-0065	CR, §10-201	Misd.	60D		Person	VII	$500
127-2	Disturbing the Peace, Disorderly Conduct, and Related Crimes Keeping a disorderly house	5-5311	CR, §10-202	Misd.	6M	10D	Person Drug Property	VII	$50—$300
127-3	Disturbing the Peace, Disorderly Conduct, and Related Crimes Affray	3-5399	Common Law	Misd.	LIFE		Person	VI
128	Disturbing the Peace, Disorderly Conduct, and Related Crimes Rioting	3-1314	Common law	Misd.	LIFE		Person	IV
129	Disturbing the Peace, Disorderly Conduct, and Related Crimes Desecrate flag to incite or produce an imminent breach of the peace	1-0671	CR, §10-704	Misd.	1Y		Property	VII	$1,000
129-1	Disturbing the Peace, Disorderly Conduct, and Related Crimes Willfully violate order given by Governor in time of emergency		PS, §14-114	Misd.	1Y		Person	VII	$5,000
129-2	Disturbing the Peace, Disorderly Conduct, and Related Crimes Willfully and knowingly fail to comply with order in time of investigation of communicable disease	1-0969	HG, §18-907	Misd.	1Y		Person	VII	$3,000
130	Election Offenses False reports by election judge or election official	1-1529 2-0381	EL, §16-601	Felony	10Y	1Y	Property	V
131	Election Offenses Defacing or removing election records related to voting	2-0382	EL, §16-701	Felony	10Y	1Y	Property	V
132	Election Offenses Tampering with electronic voting system	1-0785	EL, §16-804	Felony	10Y		Property	V	$50,000
133	Election Offenses Voting by person convicted of a felony and currently serving a court-ordered sentence of imprisonment	2-0374	EL, §16-202	Felony	5Y	1Y	Property	VI
134	Election Offenses Tampering with election records	2-0377	EL, §16-302	Felony	5Y	1Y	Property	VI
135	Election Offenses Adding or deleting votes	2-0378	EL, §16-304	Felony	5Y	1Y	Property	VI
135-1	Election Offenses Voting offenses	1-1501	EL, §16-201	Misd.	5Y		Property	VII	$5,000
135-2	Election Offenses Voter registration offenses	2-0372	EL, §16-101	Misd.	5Y		Property	VII	$1,000
135-3	Election Offenses Neglect of official duties by election official or official of political party	2-0376	EL, §16-301	Misd.	3Y	30D	Property	VII	$50-$1,000
136	Election Offenses Destruction of voting equipment	1-1532	EL, §16-801	Felony	3Y		Property	VI	$10,000
136-1	Election Offenses Tampering with voting equipment	1-0783	EL, §16-802	Felony	3Y		Property	VI	$10,000
136-2	Election Offenses Removal or destruction of equipment or supplies	1-0784	EL, §16-803	Felony	3Y		Property	VI	$10,000
136-3	Election Offenses Falsely or fraudulently making, defacing, or destroying a certificate of candidacy or nomination	2-0385	EL, §16-901	Misd.	3Y		Property	VI	$100-$1,000
136-4	Election Offenses Unlawful actions by an election judge		EL, §16-303	Misd.	2Y	3M	Property	VII
136-5	Election Offenses Violate any provision of Election Law Article, Title 9 (Voting), Subtitle 3 (Absentee Voting)		EL, §9-312	Misd.	2Y		Property	VII	$1,000
136-6	Election Offenses Give, receive, etc., any valuable thing to influence vote, etc.	1-0924	EL, §13-602	Misd.	1Y		Property	VII	$1,000
136-7	Election Offenses Publish, distribute, etc., campaign material that violates authority line requirements in EL, §13-401	1-1551	EL, §13-401 EL, §13-602 (penalty)	Misd.	1Y		Property	VII	$1,000
136-8	Election Offenses Threaten election official or immediate family member of election official	1-1804 1-1805	EL, §16-904	Misd.	3Y		Person	V	$2,500
136-9	Election Offenses Interference with performance of official duties by election official, an individual present at polling place, or canvass of votes	1-1484	EL, §16-205	Misd.	1Y	3M	Person	V	$50-$1,000
136-10	Election Offenses Interference with performance of official duties by election official, an individual present at polling place, or canvass of votes	1-1484	EL, §16-205	Misd.	1Y	3M	Property	VI	$50-$1,000
137	Estates, Crimes Against Destroy or conceal will	2-2700	CR, §8-702	Misd.	15Y	18M	Property	V
137-1	Estates, Crimes Against Embezzle, alter will or record	1-2700	CR, §8-701	Misd.	7Y	3Y	Property	VI
138	Extortion and Other Threats Felony Extortion—by anyone, $100,000 or greater	1-1207 1-1213	CR, §3-701(c)(3)	Felony	25Y		Property	II	$25,000
138-1	Extortion and Other Threats Felony Extortion—by anyone, at least $10,000 but less than $100,000	1-1206 1-1211	CR, §3-701(c)(2)	Felony	15Y		Property	IV	$15,000
138-2	Extortion and Other Threats Felony Extortion—by anyone, at least $1,000 but less than $10,000	1-1204 1-1210	CR, §3-701(c)(1)	Felony	10Y		Property	V	$10,000
138-3	Extortion and Other Threats Misdemeanor Extortion—by anyone, less than $1,000	1-1209 1-1286	CR, §3-701(d)	Misd.	18M		Property	VII	$1,000
139	Extortion and Other Threats Felony Extortion—by State or local officer, $100,000 or greater	1-1217	CR, §3-702(e)	Felony	25Y		Property	II	$25,000
139-1	Extortion and Other Threats Felony Extortion—by State or local officer, at least $10,000 but less than $100,000	1-1216	CR, §3-702(d)	Felony	15Y		Property	IV	$15,000
139-2	Extortion and Other Threats Felony Extortion—by State or local officer, at least $1,000 but less than $10,000	1-1215	CR, §3-702(c)	Felony	10Y		Property	V	$10,000
139-3	Extortion and Other Threats Misdemeanor Extortion—by State or local officer, less than $1,000	1-1214	CR, §3-702(f)	Misd.	18M		Property	VII	$500
140	Extortion and Other Threats Extortion—sending, etc. a threatening letter, etc.	1-1705 1-1706 1-1707 2-5130 2-5140	CR, §3-706	Felony	10Y		Property	V	$10,000
141	Extortion and Other Threats Extortion—threatening verbally	1-1702 1-1703 1-1704 2-2104 2-2106	CR, §3-705	Felony	10Y		Property	V	$10,000
142	Extortion and Other Threats Threaten to take the life, kidnap, or cause physical injury to State or local official, deputy or assistant State's Attorney, or assistant Public Defender	1-0477 1-0478	CR, §3-708	Misd.	3Y		Person	V	$2,500
143	Extortion and Other Threats Extortion—by false accusation	1-1701 3-2104 3-2105	CR, §3-704	Misd.	10Y		Property	V	$10,000
144	Extortion and Other Threats Extortion—by State or local officer or employee against another employee	4-2100	CR, §3-703(a)	Felony	5Y		Property	VI	$5,000
144-1	Extortion and Other Threats Sextortion—causing another to engage in sexual activity or in a visual representation of sexual activity by threating behavior	1-1452 1-1453	CR, §3-709	Misd.	10Y		Person	V	$10,000
145	False Advertising and Related Crimes False and fraudulent advertising		CL, §14-2902	Misd.	1Y		Property	VII	$1,000
146	False Advertising and Related Crimes Bait and switch	5-2607	CL, §14-2903	Misd.	1Y		Property	VII	$500
146-1	False Statements, Other False statement—to Department of Housing and Community Development, in document required under or to influence action on a Rental Housing Program loan		HS, §4-411	Misd.	5Y		Property	VII	$50,000
146-2	False Statements, Other False statement—to Department of Housing and Community Development, in document required under or to influence action on an Energy-Efficient Homes Construction Loan Program loan		HS, §4-2005	Misd.	5Y		Property	VII	$50,000
146-3	False Statements, Other False statement—in loan application under the Local Land Trust Revolving Loan program		NR, §3-215(h)	Misd.	5Y		Property	VII	$50,000
147	False Statements, Other False Statement—rumor as to bomb	1-5300	CR, §9-504(b)	Felony	10Y		Property	V	$10,000
147-1	False Statements, Other False Statement—manufacture, possess, transport, or place a phony destructive device	2-5215	CR, §9-505	Felony	10Y		Property	V	$10,000
147-2	False Statements, Other False Statement—of an emergency or crime with reckless disregard of causing bodily harm to an individual	1-1781	CR, §9-501.1(c)(1)	Misd.	3Y		Person	VII	$2,000
147-3	False Statements, Other False Statement—of an emergency or crime resulting in serious physical injury or death to a person	1-1782	CR, §9-501.1(c)(2)	Felony	10Y		Person	V	$20,000
148	False Statements, Other Fraud—failure to provide or providing false information willfully or with intent to evade taxes	1-0828	TG, §13-1024(a)	Misd.	18M		Property	VI	$5,000
149	False Statements, Other Fraud—willful failure to file income tax return	1-0831	TG, §13-1001(d)	Misd.	5Y		Property	VI	$10,000
150	False Statements, Other Fraud—willful failure to withhold income tax		TG, §13-1007(b)	Misd.	5Y		Property	VI	$10,000
151	False Statements, Other Fraud—willful preparation of false income tax return	1-0751	TG, §13-1004	Misd.	5Y		Property	VI	$10,000
151-1	False Statements, Other File false lien or encumbrance or make false statement on lien or encumbrance, 1^st offense	1-0651	CR, §3-808(b)(1)	Misd.	1Y		Property	VII	$10,000
151-2	False Statements, Other File false lien or encumbrance or make false statement on lien or encumbrance, subsequent		CR, §3-808(b)(1)	Misd.	5Y		Property	VI	$10,000
152	False Statements, Other False statement—on application for funds for Maryland higher education commission	2-5099	CR, §9-506(a)	Misd.	1Y		Property	VII	$5,000
153	False Statements, Other False Statement—to official or agencies of State or its subdivisions	1-5099	CR, §9-503(a)	Misd.	6M		Property	VII	$500
154	False Statements, Other False Statement—to peace or police officers	1-0207 1-0690 1-4803	CR, §9-501(a) CR, §9-502(a)	Misd.	6M		Property	VII	$500
154-1	Forensic Genealogy, Crimes Involving Willfully fail to destroy genetic genealogy information, forensic genetic genealogical (FGG) profiles, or DNA samples that are required to be destroyed in accordance with CP, §17-102(h)	1-1078	CP, §17-102(j)(2)	Misd.	1Y		Property	VII	$1,000
154-2	Forensic Genealogy, Crimes Involving Disclose genetic genealogy data, forensic genetic genealogical (FGG) profiles, or DNA samples not authorized by a court order in the course of a forensic genetic genealogical DNA analysis and search (FGGS), or in the course of any criminal proceeding that arises from an FGGS	1-1077	CP, §17-102(i)(2)	Misd.	5Y		Property	V	$5,000
154-3	Fraud, Financial Crimes Against Vulnerable Adults Obtain property of vulnerable adult or an individual at least 68 years old by deception, intimidation, or undue influence, $100,000 or greater	1-1390	CR, §8-801(c)(1)(iii)	Felony	20Y		Property	III	$25,000
154-4	Fraud, Financial Crimes Against Vulnerable Adults Obtain property of vulnerable adult or an individual at least 68 years old by deception, intimidation, or undue influence, at least $25,000 but less than $100,000	1-1389	CR, §8-801(c)(1)(ii)	Felony	10Y		Property	V	$15,000
154-5	Fraud, Financial Crimes Against Vulnerable Adults Obtain property of vulnerable adult or an individual at least 68 years old by deception, intimidation, or undue influence, at least $1,500 but less than $25,000	1-1388	CR, §8-801(c)(1)(i)	Felony	5Y		Property	VI	$10,000
154-6	Fraud, Financial Crimes Against Vulnerable Adults Obtain property of vulnerable adult or an individual at least 68 years old by deception, intimidation, or undue influence, less than $1,500	1-1387	CR, §8-801(c)(2)	Misd.	1Y		Property	VII	$500
155	Fraud, Miscellaneous Fraud—misuse by lawyer	1-1775	BO, §10-306, BO, §10-606 (b)	Misd.	5Y		Property	V
156 Vacant
157	Fraud, Miscellaneous Fraud—failure to deliver receipts for stored grain	1-5507 6-2610	CR, §7-116	Misd.	10Y	1Y	Property	VI	$500- $5,000
158	Fraud, Miscellaneous Fraudulent actions related to cable TV for payment or offer of pay	2-0290 2-0291 2-0292 2-0293 2-0294 2-0295 4-0248	CR, §7-303(c)	Misd.	5Y		Property	VI	$5,000
159	Fraud, Miscellaneous Out-of-State unlicensed sellers of alcohol	1-1668	AB, §6-327	Felony	2Y		Property	VI	$1,000
159-1	Fraud, Miscellaneous Violate certain provisions of Health Occupations Article, Title 8 (Nurses), Subtitle 7 (Prohibited Acts; Penalties)	1-1151 1-1152 1-1153 1-1154 1-1155 1-1156 1-1157 1-1158	HO, §8-710 (penalty)	Misd.	5Y		Person	VI	$10,000
159-2	Fraud, Miscellaneous Violate any provision of Health Occupations Article, Title 19 (Social Workers), Subtitle 4 (Prohibited Acts; Penalties)	1-0888 1-0889 1-0890	HO, §19-407 (penalty)	Misd.	2Y		Person	VII	$5,000
159-3	Fraud, Miscellaneous Practicing medicine without a license or misrepresentation as practitioner of medicine	1-0891 1-1375	HO, §14-601 HO, §14-602 HO, §14-606(a)(4) (penalty)	Felony	5Y		Person	VI	$10,000
159-4	Fraud, Miscellaneous Practicing respiratory care without a license	2-0987	HO, §§14-5A-20 — 14-5A-22 HO, §14-5A-23(a) (penalty)	Misd.	1Y		Person	VII	$1,000
159-5	Fraud, Miscellaneous Practicing radiation therapy, nuclear medicine technology, radiography, or radiology assistance without a license		HO, §§14-5B-17 — 14-5B-18 HO, §14-5B-19(a) (penalty)	Misd.	1Y		Person	VII	$1,000
159-6	Fraud, Miscellaneous Practicing polysomnography without a license		HO, §§14-5C-20 — 14-5C-22 HO, §14-5C-23(a) (penalty)	Misd.	1Y		Property	VII	$1,000
159-7	Fraud, Miscellaneous Practicing athletic training without a license		HO, §14-5D-17 HO, §14-5D-18(a) (penalty)	Misd.	1Y		Person	VII	$1,000
159-8	Fraud, Miscellaneous Practicing perfusion without a license		HO, §§14-5E-20 — 14-5E-22 HO, §14-5E-23(a) (penalty)	Misd.	1Y		Person	VII	$1,000
159-9	Fraud, Miscellaneous Practicing naturopathic medicine without a license		HO, §14-5F-29(a) HO, §14-5F-30 HO, §14-5F-29(b) (penalty)	Felony	5Y		Person	VI	$10,000
159-10	Fraud, Miscellaneous Practicing genetic counseling without a license		HO, §§14-5G-23 — 14-5G-25 HO, §14-5G-27(a) (penalty)	Misd.	1Y		Person	VII	$1,000
159-11	Fraud, Miscellaneous Practicing dentistry without a license or misrepresentation as practitioner of dentistry, 1^st offense	1-1680 1-1681	HO, §4-601(a) HO, §4-602 HO, §4-606(a)(1)(i) (penalty)	Felony	1Y		Person	VII	$5,000
159-12	Fraud, Miscellaneous Practicing dentistry without a license or misrepresentation as practitioner of dentistry, subsequent		HO, §4-601(a) HO, §4-602 HO, §4-606(a)(1)(ii) (penalty)	Felony	5Y		Person	VI	$20,000 per day
159-13	Fraud, Miscellaneous Conducting unauthorized dental laboratory work or advertising a dental appliance without a dental license	1-1682	HO, §4-503(c) HO, §4-606(c) (penalty)	Felony	2Y		Property	VII	$2,000 per day
159-14	Fraud, Miscellaneous Aiding or abetting the unauthorized practice of massage therapy in violation of HO, §6–501(b), 1^st offense	1-1834	HO, §6-504(b)(1) (penalty)	Felony	1Y		Person	VII	$5,000 per day
159-15	Fraud, Miscellaneous Aiding or abetting the unauthorized practice of massage therapy in violation of HO, §6–501(b), subsequent	1-1834	HO, §6-504(b)(2) (penalty)	Felony	5Y		Person	VI	$20,000 per day
160	Fraud, Miscellaneous Fraud—falsely representing self as lawyer	2-0592	BO, §10-602 BO, §10-606 (penalty)	Misd.	1Y		Person	VII	$5,000
160-1	Fraud, Miscellaneous Impersonating a law enforcement officer	1-0604 1-1769	PS, §3-502	Misd.	2Y		Person	VII	$2,000
160-2	Fraud, Miscellaneous Altering the results of a drug or alcohol screening test, 1^st offense	1-0284	CR, §10-111	Misd.	1Y		Property	VI	$1,000
160-3	Fraud, Miscellaneous Altering the results of a drug or alcohol screening test, subsequent	1-0284	CR, §10-111	Misd.	3Y		Property	V	$5,000
160-4	Fraud, Miscellaneous Violation of Maryland Food, Drug, and Cosmetic Act, 1^st offense	1-0537 1-0538 1-0539 1-0540 2-0959 2-0960 2-0961 2-0962 2-0963 2-0964 2-0965 2-0966 2-0967 2-0968	HG, §21-1215(b)(1) (penalty)	Misd.	1Y		Property	VII	$10,000
161	Fraud, Miscellaneous Violation of Maryland Food, Drug, and Cosmetic Act, subsequent		HG, §21-1215(b)(2) (penalty)	Misd.	3Y		Property	VI	$25,000
162	Fraud, Miscellaneous Fraudulently substituting wood alcohol for grain alcohol while in the business of making, manufacturing, etc. drugs, medicines, medicinal or chemical preparations		CR, §8-802(b)	Misd.	1Y		Property	VII	$100- $500
162-1 Vacant
163 Vacant
163-1	Fraud, Miscellaneous Possession of unstamped cigarettes or other tobacco products on which tobacco tax has not been paid, more than 30 cartons	1-7510	TG, §13-1014(a)(3)	Misd.	1Y		Property	VII	$1,000
164	Fraud, Miscellaneous Willful transportation of unstamped cigarettes or other tobacco products on which tobacco tax has not been paid	1-0796	TG, §13-1015	Felony	2Y		Property	VII	Mandatory $150/carton for a first offense, or $300/carton for a subsequent offense
164-1	Fraud—Telecommunication Service Providers Telecom devices and telecom theft	1-0590	CR, §7-315	Misd.	3Y		Property	VI	$2,500
164-2	Fraud—Telecommunication Service Providers Telecom devices and telecom theft, over 100 devices	1-0591	CR, §7-315	Felony	10Y		Property	IV	$10,000
165 Vacant
166	Gambling—General Provisions Rent place for gambling	2-3921	CR, §12-104(a)	Misd.	1Y	6M	Property	VII	$500
167	Gambling—General Provisions Fix horse race	1-0433	CR, §12-109(a)	Misd.	3Y		Property	VII	$5,000
168	Gambling—General Provisions Make or sell a book or pool on the result of a race, etc.; establish, keep, etc., a building, vessel, or place for the purpose of betting, etc.; receive, become the depository of, etc., money to be bet, etc.	1-1710 1-1711	CR, §12-102(b)	Misd.	6M		Property	VII	$5,000
169	Gambling—General Provisions Gambling—keeping gaming table or place	1-3908 1-3921	CR, §12-104(a)	Misd.	1Y	6M	Property	VII	$500
170	Gambling—General Provisions Owner/occupier of building knowingly permits gaming table to be kept	2-3908	CR, §12-104(a)	Misd.	1Y	6M	Property	VII	$500
171	Gambling—General Provisions Fraud—enter horse in a race under a name other than that assigned and registered; racing horse under a false or unregistered name	1-0231	CR, § 8-904	Misd.	3Y		Property	VII	$5,000
172 Vacant
173	Gambling—General Provisions Off-shore gambling	6-2620	CR, §12-105(b)	Misd.	1Y		Property	VII	$200- $1,000
174	Gambling—General Provisions Keep, etc. slot machine unlawfully	3-3908	CR, §12-302(a)	Misd.	1Y		Property	VII	$1,000
175 Vacant
176 Vacant
176-1	Handguns—In General Handgun—unlawful wearing, carrying, etc., 1^st weapon offense, generally	1-1783 1-1785	CR, §4-203(c)(2)(i)	Misd.	5Y	30D	Person	VI	$250-$2,500
177	Handguns—In General Handgun—unlawful wearing, carrying, etc., 2^nd weapon offense, generally	1-1787 1-1788	CR, §4-203(c)(3)(i)1	Misd.	10Y	1Y	Person	III
177-1	Handguns—In General Handgun—unlawful wearing, carrying, etc., more than two prior weapon offenses, generally	1-1789 1-1790	CR, §4-203(c)(4)(i)1	Misd.	10Y	3Y	Person	III
177-2	Handguns—In General Handgun—unlawful wearing, carrying, etc., on school property, 1^st weapon offense	1-1783 1-1785	CR, §4-203(c)(2)(ii)	Misd.	5Y	90D	Person	VI	$250-$2,500
178	Handguns—In General Handgun—unlawful wearing, carrying, etc., on school property,2^nd weapon offense		CR, §4-203(c)(3)(i)2	Misd.	10Y	3Y	Person	III
179 Vacant
180	Handguns—In General Handgun—unlawful wearing, carrying, etc., on school property, more than two prior weapon offenses		CR, §4-203(c)(4)(i)2A	Misd.	10Y	5Y	Person	III
180-1	Handguns—In General Handgun—unlawful wearing, carrying, etc., a loaded handgun, 1^st weapon offense	1-1784 1-1786	CR, §4-203(c)(2)(i)	Misd.	5Y	30D	Person	VI	$250-$2,500
180-2	Handguns—In General Handgun—unlawful wearing, carrying, etc., a loaded handgun, 2^nd weapon offense	1-1456 1-1457	CR, §4-203(c)(3)(ii)2	Misd.	10Y	MM*=1Y	Person	III
180-3	Handguns—In General Handgun—unlawful wearing, carrying, etc., a loaded handgun, more than two prior weapon offenses	1-1458 1-1459	CR, §4-203(c)(4)(ii)2	Misd.	10Y	MM*=3Y	Person	III
181	Handguns—In General Handgun—unlawful wearing, carrying, etc., with deliberate purpose to injure or kill, more than two prior weapon offenses		CR, §4-203(c)(4)(i)2B	Misd.	10Y	5Y	Person	III
182	Handguns—In General Handgun—unlawful wearing, carrying, etc., under influence	6-5210	PS, §5-314	Misd.	1Y		Person	VII	$1,000
183 Vacant
184 Vacant
185 Vacant
186	Handguns—In General Sale of a handgun manufactured on or before 12/31/02 with no external safety lock	2-2020	PS, §5-132 PS, §5-144 (penalty)	Misd.	5Y		Person	VI	$10,000
187	Handguns—In General Fail to return revoked handgun permit	6-5211	PS, §5-313	Misd.	1Y		Person	VII	$100- $1,000
188	Handguns—In General Manufacture for distribution or sale a handgun that is not included on the handgun roster	1-2222	PS, §5-406(c)(1)	Felony	5Y		Person	VI	$10,000
189	Handguns—In General Sell or offer to sell a handgun that is not included on the handgun roster	1-2223	PS, §5-406(c)(2)	Felony	5Y		Person	VI	$2,500
190	Harboring, Escape, and Contraband Operate unmanned aircraft over a correctional facility to photograph or record images of facility without authorization	1-1836	CS, §8-804	Misd.	3Y		Property	VI	$1,000
191	Harboring, Escape, and Contraband Contraband—deliver contraband using an unmanned aircraft	1-1837	CR, §9-417.1	Misd.	3Y		Property	VI	$1,000
192	Harboring, Escape, and Contraband Contraband—deliver, possess, with intent to deliver, conceal, receive weapon	2-1035 2-1040 2-1045 2-1055	CR, §9-414	Felony	10Y		Person	IV	$5,000
193	Harboring, Escape, and Contraband Contraband—deliver, possess, with intent to deliver, conceal, receive contraband to effect an escape	2-1060 2-1065 2-1070 2-1075	CR, §9-413	Felony	10Y		Person	IV	$5,000
194	Harboring, Escape, and Contraband Escape, 1^st degree	1-0615 2-1010	CR, §9-404	Felony	10Y		Person	IV	$20,000
195	Harboring, Escape, and Contraband Escape, 2^nd degree	1-0766 2-1020 2-1025 2-1030	CR, §9-405	Misd.	3Y		Person	VI	$5,000
196	Harboring, Escape, and Contraband Resisting or interfering with arrest	1-0600	CR, §9-408	Misd.	3Y		Person	VI	$5,000
197	Harboring, Escape, and Contraband Contraband—deliver, possess with intent to deliver, knowingly possess contraband	1-1835 2-1080 2-1085	CR, §9-412	Misd.	3Y		Property	VI	$1,000
198	Harboring, Escape, and Contraband Deliver, possess with intent to deliver, receive alcoholic beverage	1-0724 2-1090 2-1092	CR, §9-415	Misd.	3Y		Property	VI	$1,000
199	Harboring, Escape, and Contraband Deliver, possess with intent to deliver, receive controlled dangerous substance	1-0718 2-1095 2-1097	CR, §9-416	Misd.	3Y		Property	VI	$1,000
199-1	Harboring, Escape, and Contraband Possess, possess with intent to deliver, receive telecommunication device or accessory	1-1327 1-1328 1-1329 1-1330	CR, §9-417	Misd.	5Y		Property	VI	$3,000
200	Harboring, Escape, and Contraband Harbor fleeing felon	1-4904	CR, §9-402	Misd.	1Y		Person	VII	$1,000
201	Harboring, Escape, and Contraband Harbor felon/fugitive	1-0232	CR, §9-402	Misd.	1Y		Person	VII	$1,000
202	Harboring, Escape, and Contraband Harboring—prison escapee	2-4904	CR, §9-403	Misd.	1Y		Person	VII	$1,000
203	Harboring, Escape, and Contraband Violate Home Detention Program		CS, §3-409	Misd.	1Y		Person	VII
204	Hate Crimes Crimes against, or threatening to commit crimes against, persons, groups, or property motivated either in whole or substantial part by race, color, religious beliefs, sexual orientation, gender, gender identity, disability, national origin, or homelessness—resulting in death		CR, §10-304(2)(ii) CR, §10-306(b)(2) (penalty)	Felony	20Y		Person	III	$20,000
205	Hate Crimes Crimes against, or threatening to commit crimes against, persons, groups, or property motivated either in whole or substantial part by race, color, religious beliefs, sexual orientation, gender, gender identity, disability, national origin, or homelessness—involving separate felony		CR, §10-304(2)(i) CR, §10-306(b)(1) (penalty)	Felony	10Y		Person	IV	$10,000
205-1	Hate Crimes Damage property of religious entity	1-0435	CR, §10-302 CR, §10-306(a) (penalty)	Misd.	3Y		Person	V	$5,000
205-2	Hate Crimes Obstruct exercise of religious belief	1-0436	CR, §10-303 CR, §10-306(a) (penalty)	Misd.	3Y		Person	V	$5,000
205-3	Hate Crimes Crimes against, or threatening to commit crimes against, persons, groups, or property motivated either in whole or substantial part by race, color, religious beliefs, sexual orientation, gender, gender identity, disability, national origin, or homelessness	1-0437	CR, §10-304(l) CR, §10-306(a) (penalty)	Misd.	3Y		Person	V	$5,000
205-4	Hate Crimes Damage to associated building	2-0251 2-0252	CR, §10-305 CR, §10-306(a) (penalty)	Misd.	3Y		Person	V	$5,000
205-5	Hate Crimes Use of an item or a symbol to threaten or intimidate	1-1675	CR, §10-305.1 CR, §10-306(a) (penalty)	Misd.	3Y		Person	V	$5,000
205-6	Home Improvement, Crimes Involving Act as contractor or sell a home improvement without a license, 1^st offense	1-1597 1-1598	BR, §8-601	Misd.	6M		Property	VII	$1,000
205-7	Home Improvement, Crimes Involving Act as contractor or sell a home improvement without a license, subsequent	2-0256 2-0257 2-0275	BR, §8-601	Misd.	2Y		Property	VII	$5,000
205-8	Home Improvement, Crimes Involving Abandon or fail to perform contract	2-0258 2-0259	BR, §8-605 BR, §8-623 (penalty)	Misd.	6M		Property	VII	$1,000
205-9	Human Relations, Crimes Involving Injury, intimidation, or interference with protected housing activities because of a person’s race, color, religion, sex, disability, marital status, familial status, sexual orientation, gender identity, national origin, or source of income		SG, §20-1103(c)(1)	Misd.	1Y		Person	VII	$1,000
205-10	Human Relations, Crimes Involving Injury, intimidation, or interference with protected housing activities because of a person’s race, color, religion, sex, disability, marital status, familial status, sexual orientation, gender identity, national origin, or source of income—resulting in bodily injury		SG, §20-1103(c)(2)	Misd.	10Y		Person	IV	$10,000
205-11	Human Relations, Crimes Involving Injury, intimidation, or interference with protected housing activities because of a person’s race, color, religion, sex, disability, marital status, familial status, sexual orientation, gender identity, national origin, or source of income—resulting in death		SG, §20-1103(c)(3)	Misd.	LIFE		Person	II
205-12	Human Trafficking Sex trafficking, misdemeanor	1-0752 1-0757 1-0759 1-0762 1-1080 1-1082 1-1083	CR, §3-1102(c)(1)	Misd.	10Y		Person	III	$5,000
205-13	Human Trafficking Sex trafficking, felony	1-0754 1-0756 1-0758 1-0761 1-0786 1-0787 1-0788 1-0789	CR, §3-1102(c)(2)	Felony	25Y♦		Person	II	$15,000
206	Human Trafficking Forced marriage	1-1726 1-1727 1-1728 1-1729	CR, §3-1103	Felony	25Y♦		Person	II	$15,000
206-1	Identity Fraud Possess, obtain personally identifying information or willfully assume the identity of another, benefit $100,000 or greater	1-1359 1-1366 1-1370	CR, §8-301(b), (c) CR, §8-301(g)(1)(iii) (penalty)	Felony	20Y		Property	III	$25,000
206-2	Identity Fraud Possess, obtain personally identifying information or willfully assume the identity of another, benefit at least $25,000 but less than $100,000	1-1360 1-1367 1-1371	CR, §8-301(b), (c) CR, §8-301(g)(1)(ii) (penalty)	Felony	10Y		Property	V	$15,000
206-3	Identity Fraud Possess, obtain personally identifying information or willfully assume the identity of another, benefit at least $1,500 but less than $25,000	1-1361 1-1368 1-1372	CR, §8-301(b), (c) CR, §8-301(g)(1)(i) (penalty)	Felony	5Y		Property	VI	$10,000
206-4	Identity Fraud Possess, obtain personally identifying information or willfully assume the identity of another, benefit at least $100 but less than $1,500	1-1362 1-1369 1-1373	CR, §8-301(b), (c) CR, §8-301(g)(2) (penalty)	Misd.	1Y		Property	VII	$500
206-5	Identity Fraud Use a re-encoder or skimming device for purpose of identity theft, benefit $100,000 or greater	1-1374 1-1379	CR, §8-301(d) CR, §8-301(g)(1)(iii) (penalty)	Felony	20Y		Property	III	$25,000
206-6	Identity Fraud Use a re-encoder or skimming device for purpose of identity theft, benefit at least $25,000 but less than $100,000	1-1376 1-1380	CR, §8-301(d) CR, §8-301(g)(1)(ii) (penalty)	Felony	10Y		Property	V	$15,000
207	Identity Fraud Use a re-encoder or skimming device for purpose of identity theft, benefit at least $1,500 but less than $25,000	1-1377 1-1381	CR, §8-301(d) CR, §8-301(g)(1)(i) (penalty)	Felony	5Y		Property	VI	$10,000
207-1	Identity Fraud Use a re-encoder or skimming device for purpose of identity theft, benefit at least $100 but less than $1,500	1-1378 1-1382	CR, §8-301(d) CR, §8-301(g)(2) (penalty)	Misd.	1Y		Property	VII	$500
207-2	Identity Fraud Intent to manufacture, distribute, or dispense personally identifying information	1-0921	CR, §8-301(g)(3)	Felony	10Y		Property	V	$25,000
207-3	Identity Fraud Falsely represent self as another person	1-1364 1-1384	CR, §8-301(c)(1), (f) CR, §8-301(g)(4) (penalty)	Misd.	1Y		Property	VII	$500
207-4	Identity Fraud Use an interactive computer service to disclose personal identifying information of an individual in order to annoy, threaten, embarrass, or harass	1-1363	CR, §8-301(b-1) CR, §8-301(g)(4) (penalty)	Misd.	1Y		Property	VII	$500
207-6	Identity Fraud Possess, obtain, or help another obtain a re-encoder or skimming device for purpose of identity theft	1-1383	CR, §8-301(e) CR, §8-301(g)(4) (penalty)	Misd.	1Y		Property	VII	$500
208	Identity Fraud Sell etc. false ID	1-0432 1-1434	CR, §8-302(b)	Misd.	2Y		Property	VII	$2,000
209	Identity Fraud Possess/use false government ID; display government ID of another	1-1432 1-1433	CR, §8-303	Misd.	6M		Property	VII	$500
209 -1 Vacant
209 -2	Influencing or Intimidating Judicial Process Induce false testimony or avoidance of a subpoena related to felony violation of Title 5 offense or crime of violence	1-0355 1-0655	CR, §9-302(c)(2)	Felony	20Y		Person	III
210	Influencing or Intimidating Judicial Process Induce false testimony (witness or victim intimidation)	1-1565 1-1566	CR, §9-302(c)(1)	Misd.	10Y		Person	IV	$5,000
211	Influencing or Intimidating Judicial Process Influence, intimidate, or impede a juror, witness, or court officer	1-1571 1-1572	CR, §9-305(c)(1)	Misd.	10Y		Person	IV	$5,000
212	Influencing or Intimidating Judicial Process Obstructing justice	2-5006	CR, §9-306(a)	Misd.	5Y		Person	V	$10,000
213	Influencing or Intimidating Judicial Process Retaliation for testimony, reporting a crime, performance of juror’s or officer of the court’s duties	1-1567 1-1568 1-1569 1-1570 1-1573 1-1575	CR, §9-303(c)(1)	Misd.	10Y		Person	IV	$5,000
214 Vacant
215 Vacant
215-1	Influencing or Intimidating Judicial Process Retaliation for testimony, reporting a crime, performance of juror’s or officer of the court’s duties, related to felony violation of Title 5 offense or crime of violence	1-0357 1-0887 1-1574 1-1576	CR, §9-303(c)(2)	Felony	20Y		Person	III
215-2	Influencing or Intimidating Judicial Process Intimidating or corrupting jurors in connection with a Title 5 offense or crime of violence	1-0359 1-0363	CR, §9-305(c)(2)	Felony	20Y		Person	III
215-3	Influencing or Intimidating Judicial Process Tampering with or fabricating physical evidence	1-1332 1-1333 1-1334	CR, §9-307	Misd.	3Y		Person	V	$5,000
216	Interference with or Misuse of Government Operations Malfeasance, misconduct in office	1-0157 2-0645	Common law	Misd.	LIFE		Person Drug Property	IV
217	Interference with or Misuse of Government Operations False alarms, fire ambulance or rescue squad calls	1-0208 1-5308	CR, §9-604(a)	Misd.	5Y		Property	V	$5,000
218	Interference with or Misuse of Government Operations Hinder police officer	1-0043	Common law	Misd.	LIFE		Person	VI
219	Interference with or Misuse of Government Operations Interference, obstruction or false representation of fire or emergency services personnel	1-0165 2-0249 4-5397 4-5398 4-5399	PS, §6-602 PS, §7-402	Misd.	3Y		Person	VII
220	Kidnapping and Related Crimes Child younger than 16 years old	4-1005	CR, §3-503(a)(2)	Felony	30Y ♦		Person	II
221	Kidnapping and Related Crimes Kidnapping—generally	3-1005	CR, §3-502(a)	Felony	30Y ♦		Person	II
222	Kidnapping and Related Crimes False imprisonment by incarcerated individual	3-5730	CS, §8-801	Felony	30Y		Person	II
223	Kidnapping and Related Crimes Abduction—child younger than 12 years old	1-1005 1-0163	CR, §3-503(a)(1)	Felony	20Y ♦		Person	III
224	Kidnapping and Related Crimes False imprisonment	1-0042	Common law	Misd.	LIFE		Person	V
225	Kidnapping and Related Crimes Abduction—child younger than16 years old by relative in State	1-0364 1-0365 1-0366 2-1005	FL, §9-304 FL, §9-307(a) (penalty)	Misd.	30D		Person	VII	$250
226	Kidnapping and Related Crimes Abduction—child younger than 16 years old by relative outside State 30 days or less	1-0736 1-0737 1-0738 1-0739	FL, §9-305(a) FL, §9-307(b) (penalty)	Felony	1Y		Person	VII	$1,000
227	Kidnapping and Related Crimes Abduction—child younger than16 years old by relative outside State more than 30 days	1-0746 1-0747 1-0748 1-0749	FL, §9-305(a) FL, §9-307(c) (penalty)	Felony	3Y		Person	VI	$2,500
227-1	Kidnapping and Related Crimes Abduction—International parental kidnapping	1-0906	FL, §9-305(b) FL, §9-307(d) (penalty)	Felony	5Y		Person	V	$5,000
227-2	Labor Trafficking Take, place, etc., another by force, fraud, or coercion to provide services or labor; benefit from services or labor induced by force, fraud, or coercion; aid or conspire with another to commit these offenses	1-1721 1-1722 1-1723 1-1724	CR, §3-1202	Felony	25Y		Person	II	$15,000
228	Lotteries Lottery offenses, subsequent	1-0286 1-0287 1-3915 2-3918 4-3921 5-3921	CR, §12-210	Misd.	5Y		Property	VI	$5,000
229	Lotteries Lotteries—hold lottery or sell lottery device	1-3918 2-3925 2-3930	CR, §12-203	Misd.	12M	3M	Property	VII	$200- $1,000
230	Lotteries Lotteries—importing lottery device or possession of lottery records or money	1-0286 1-0287 2-3918	CR, §12-205	Misd.	1Y		Property	VII	$1,000
231	Lotteries Lotteries—keep place for selling lottery device or allow property to be used for selling lottery device	4-3921 5-3921	CR, §12-204	Misd.	1Y		Property	VII	$1,000
232	Lotteries Prohibited acts relating to State lottery	1-0114 2-1173	SG, §9-124	Misd.	3Y		Property	VII	$2,500
233 Vacant
234	Machine Guns Weapons—possession or use of a machine gun in commission of a crime of violence	2-5299	CR, §4-404	Felony	20Y		Person	III
235	Machine Guns Possess, use a machine gun for an aggressive purpose	1-1314	CR, §4-405	Misd.	10Y		Person	IV
236	Malicious Destruction and Related Crimes Throwing missiles into occupied vehicle or instrumentality of public transportation	1-2903	CR, §6-302(a)	Misd.	1Y		Person	VII	$500
237	Malicious Destruction and Related Crimes Destruction of property, less than $1,000	3-4025	CR, §6-301(c)	Misd.	60D		Property	VII	$500
238	Malicious Destruction and Related Crimes Destruction of property, $1,000 or greater	3-4030 3-4035	CR, §6-301(b)	Misd.	3Y		Property	VII	$2,500
239	Malicious Destruction and Related Crimes Serial numbers, removing, etc.	1-0291 2-2800	CR, §6-306(a)	Misd.	18M		Property	VII	$500
239-1	Malicious Destruction and Related Crimes Sell or possess stolen serial number or vehicle identification plate, etc.	2-2810 2-2820	CR, §6-307	Misd.	18M		Property	VII	$500
240	Manslaughter and Related Crimes Manslaughter—voluntary	1-0910	CR, §2-207	Felony	10Y ♦		Person	IV	$500
241	Manslaughter and Related Crimes Manslaughter—involuntary	1-0911	CR, §2-207	Felony	10Y		Person	IV	$500
242	Manslaughter and Related Crimes Manslaughter—by vehicle or vessel, 1^st offense	1-0909	CR, §2-209(d)(1)	Felony	10Y		Person	IV	$5,000
242-1	Manslaughter and Related Crimes Manslaughter—by vehicle or vessel, subsequent		CR, §2-209(d)(2)	Felony	15Y		Person	III	$10,000
242-2	Manslaughter and Related Crimes Criminally negligent manslaughter by vehicle or vessel, 1^st offense	1-1611	CR, §2-210(f)(1)	Misd.	3Y		Person	VII	$5,000
242-3	Manslaughter and Related Crimes Criminally negligent manslaughter by vehicle or vessel, subsequent		CR, §2-210(f)(2)	Felony	5Y		Person	V	$10,000
243	Manslaughter and Related Crimes Negligent homicide by motor vehicle or vessel while under the influence of alcohol, 1^st offense	1-0900	CR, §2-503(c)(1)	Felony	5Y		Person	V	$5,000
243-1	Manslaughter and Related Crimes Negligent homicide by motor vehicle or vessel while under the influence of alcohol, subsequent		CR, §2-503(c)(2)	Felony	10Y		Person	IV	$10,000
243-2	Manslaughter and Related Crimes Negligent homicide by motor vehicle or vessel while impaired by alcohol, 1^st offense	1-0693	CR, §2-504(c)(1)	Felony	3Y		Person	VI	$5,000
243-3	Manslaughter and Related Crimes Negligent homicide by motor vehicle or vessel while impaired by alcohol, subsequent		CR, §2-504(c)(2)	Felony	5Y		Person	V	$10,000
243-4	Manslaughter and Related Crimes Negligent homicide by motor vehicle or vessel while impaired by drugs, 1^st offense	1-1720	CR, §2-505(c)(1)	Felony	5Y		Person	V	$5,000
243-5	Manslaughter and Related Crimes Negligent homicide by motor vehicle or vessel while impaired by drugs, subsequent		CR, §2-505(c)(2)	Felony	10Y		Person	IV	$10,000
243-6	Manslaughter and Related Crimes Negligent homicide by motor vehicle or vessel while impaired by CDS, 1^st offense	1-1436	CR, §2-506(c)(1)	Felony	5Y		Person	V	$5,000
244	Manslaughter and Related Crimes Negligent homicide by motor vehicle or vessel while impaired by CDS, subsequent		CR, §2-506(c)(2)	Felony	10Y		Person	IV	$10,000
244-1	Marriage, Crimes Against Bigamy	1-3804	CR, §10-502(b)	Misd.	9Y		Person	VI
244-2	Maryland Credit Services Businesses Act Violation of any provision of Maryland Credit Services Businesses Act		CL, §14-1915 (penalty)	Misd.	3Y		Property	VI	$5,000
244-3	Motor Vehicle Offense Reckless driving		TR, §21-901.1(c)(1)	Misd.	60D		Person	VII	$1,000
244-4	Motor Vehicle Offense Driving while impaired by alcohol, 1^st offense		TR, §21-902(b)(1)(ii)(1)	Misd.	2M		Person	VII	$500
244-5	Motor Vehicle Offense Driving while impaired by alcohol, 2^nd offense		TR, §21-902(b)(1)(ii)(2)	Misd.	1Y		Person	VII	$500
244-6	Motor Vehicle Offense Driving while impaired by alcohol, 3^rd offense		TR, §21-902(b)(1), (h)	Misd.	5Y		Person	V	$5,000
244-7	Motor Vehicle Offense Driving while impaired by alcohol, 4^th or subsequent offense, or previous conviction for negligent homicide or injury by motor vehicle or vessel while under the influence or impaired		TR, §21-902(b)(1), (i)	Misd.	10Y		Person	IV	$10,000
245	Motor Vehicle Offense Driving while impaired by alcohol, while transporting a minor, 1^st offense		TR, §21-902(b)(2)(ii)(1)	Misd.	1Y		Person	VII	$1,200
245-1	Motor Vehicle Offense Driving while impaired by alcohol, while transporting a minor, 2^nd offense		TR, §21-902(b)(2)(ii)(2)	Misd.	2Y		Person	VI	$2,400
245-2	Motor Vehicle Offense Driving while impaired by alcohol, while transporting a minor, 3^rd offense		TR, §21-902(b)(2), (h)	Misd.	5Y		Person	V	$5,000
245-3	Motor Vehicle Offense Driving while impaired by alcohol, while transporting a minor, 4^th or subsequent offense, or previous conviction for negligent homicide or injury by motor vehicle or vessel while under the influence or impaired		TR, §21-902(b)(2), (i)	Misd.	10Y		Person	VI	$10,000
245-4	Motor Vehicle Offense Driving while impaired by drugs or drugs and alcohol, 1^st offense		TR, §21-902(c)(1)(ii)(1)	Misd.	2M		Person	VII	$500
245-5	Motor Vehicle Offense Driving while impaired by drugs or drugs and alcohol, 2^nd offense		TR, §21-902(c)(1)(ii)(2)	Misd.	1Y		Person	VII	$500
245-6	Motor Vehicle Offense Driving while impaired by drugs or drugs and alcohol, 3^rd offense		TR, §21-902(c)(1), (h)	Misd.	5Y		Person	V	$5,000
245-7	Motor Vehicle Offense Driving while impaired by drugs or drugs and alcohol, 4^th or subsequent offense, or previous conviction for negligent homicide or injury by motor vehicle or vessel while under the influence or impaired		TR, §21-902(c)(1), (i)	Misd.	10Y		Person	IV	$10,000
245-8	Motor Vehicle Offense Driving while impaired by drugs or drugs and alcohol, while transporting a minor, 1^st offense		TR, §21-902(c)(2)(ii)(1)	Misd.	1Y		Person	VII	$1,200
245-9	Motor Vehicle Offense Driving while impaired by drugs or drugs and alcohol, while transporting a minor, 2^nd offense		TR, §21-902(c)(2)(ii)(2)	Misd.	2Y		Person	VI	$2,400
245-10	Motor Vehicle Offense Driving while impaired by drugs or drugs and alcohol, while transporting a minor, 3^rd offense		TR, §21-902(c)(2), (h)	Misd.	5Y		Person	V	$5,000
245-11	Motor Vehicle Offense Driving while impaired by drugs or drugs and alcohol, while transporting a minor, 4^th or subsequent offense, or previous conviction for negligent homicide or injury by motor vehicle or vessel while under the influence or impaired		TR, §21-902(c)(2), (i)	Misd.	10Y		Person	IV	$10,000
245-12	Motor Vehicle Offense Driving while impaired by controlled dangerous substance, 1^st offense		TR, §21-902(d)(1)(ii)(1)	Misd.	1Y		Person	VII	$1,200
245-13	Motor Vehicle Offense Driving while impaired by controlled dangerous substance, 2^nd offense		TR, §21-902(d)(1)(ii)(2), (f)(3)(i)	Misd.	2Y	Within 5 years of prior conviction—MM 5 days	Person	VI	$2,400
245-14	Motor Vehicle Offense Driving while impaired by controlled dangerous substance, 3^rd offense		TR, §21-902(d)(1), (f)(3)(ii), (h)	Misd.	5Y	Within 5 years of prior conviction—MM 10 days	Person	V	$5,000
245-15	Motor Vehicle Offense Driving while impaired by controlled dangerous substance, 4^th or subsequent offense, or previous conviction for negligent homicide or injury by motor vehicle or vessel while under the influence or impaired		TR, §21-902(d)(1), (f)(3)(ii), (i)	Misd.	10Y	Within 5 years of prior conviction—MM 10 days	Person	IV	$10,000
245-16	Motor Vehicle Offense Driving while impaired by controlled dangerous substance, while transporting a minor, 1^st offense		TR, §21-902(d)(2)(ii)(1)	Misd.	2Y		Person	VI	$2,000
245-17	Motor Vehicle Offense Driving while impaired by controlled dangerous substance, while transporting a minor, 2^nd offense		TR, §21-902(d)(2)(ii)(2), (f)(3)(i)	Misd.	3Y	Within 5 years of prior conviction—MM 5 days	Person	V	$3,000
245-18	Motor Vehicle Offense Driving while impaired by controlled dangerous substance, while transporting a minor, 3^rd offense		TR, §21-902(d)(2), (f)(3)(ii), (h)	Misd.	5Y	Within 5 years of prior conviction—MM 10 days	Person	V	$5,000
245-19	Motor Vehicle Offense Driving while impaired by controlled dangerous substance, while transporting a minor, 4^th or subsequent offense, or previous conviction for negligent homicide or injury by motor vehicle or vessel while under the influence or impaired		TR, §21-902(d)(2), (f)(3)(ii), (i)	Misd.	10Y	Within 5 years of prior conviction—MM 10 days	Person	IV	$10,000
245-20	Motor Vehicle Offense Driving while under the influence of alcohol, 1^st offense		TR, §21-902(a)(1)(iii)(1)	Misd.	1Y		Person	VII	$1,200
245-21	Motor Vehicle Offense Driving while under the influence of alcohol, 2^nd offense		TR, §21-902(a)(1)(iii)(2), (f)(2)(i)	Misd.	2Y	Within 5 years of prior conviction—MM 5 days	Person	VI	$2,400
245-22	Motor Vehicle Offense Driving while under the influence of alcohol, 3^rd offense		TR, §21-902(a)(1), (f)(2)(ii), (h)	Misd.	5Y	Within 5 years of prior conviction—MM 10 days	Person	V	$5,000
245-23	Motor Vehicle Offense Driving while under the influence of alcohol, 4^th or subsequent offense, or previous conviction for negligent homicide or injury by motor vehicle or vessel while under the influence or impaired		TR, §21-902(a)(1), (f)(2)(ii), (i)	Misd.	10Y	Within 5 years of prior conviction—MM 10 days	Person	IV	$10,000
245-24	Motor Vehicle Offense Driving while under the influence of alcohol, while transporting a minor, 1^st offense		TR, §21-902(a)(2)(ii)(1)	Misd.	2Y		Person	VI	$2,000
245-25	Motor Vehicle Offense Driving while under the influence of alcohol, while transporting a minor, 2^nd offense		TR, §21-902(a)(2)(ii)(2), (f)(2)(i)	Misd.	3Y	Within 5 years of prior conviction—MM 5 days	Person	V	$3,000
245-26	Motor Vehicle Offense Driving while under the influence of alcohol, while transporting a minor, 3^rd offense		TR, §21-902(a)(2), (f)(2)(ii), (h)	Misd.	5Y	Within 5 years of prior conviction—MM 10 days	Person	V	$5,000
245-27	Motor Vehicle Offense Driving while under the influence of alcohol, while transporting a minor, 4^th or subsequent offense, or previous conviction for negligent homicide or injury by motor vehicle or vessel while under the influence or impaired		TR, §21-902(a)(2), (f)(2)(ii), (i)	Misd.	10Y	Within 5 years of prior conviction—MM 10 days	Person	IV	$10,000
246	Motor Vehicle Offense Fleeing or eluding police, 1^st offense		TR, §21-904(f)(1)(i)	Misd.	1Y		Person	VII	$1,000
247	Motor Vehicle Offense Fleeing or eluding police, subsequent		TR, §21-904(f)(1)(ii)	Misd.	2Y		Person	VI	$1,000
248	Motor Vehicle Offense Fleeing or eluding police that results in bodily injury to another person		TR, §21-904(d)(1), (f)(2)	Misd.	3Y		Person	V	$5,000
249	Motor Vehicle Offense Fleeing or eluding police that results in death of another person		TR, §21-904(f)(3)	Misd.	10Y		Person	IV	$5,000
250	Motor Vehicle Offense Fleeing or eluding police attempting to apprehend driver for commission of crime of violence		TR, §21-904(e), (f)(2)	Misd.	3Y		Person	V	$5,000
250-1	Motor Vehicle Offense Driver failing to remain at scene of accident that results only in damage to attended vehicle or property		TR, §20-103	Misd.	2M		Property	VII	$500
250-2	Motor Vehicle Offense Failure of driver involved in accident with unattended vehicle or property to notify the driver, owner, or person in charge of the damaged vehicle or property		TR, §20-105	Misd.	2M		Property	VII	$500
250-3	Motor Vehicle Offense Driver failing to render reasonable assistance to person injured in an accident		TR, §20-104	Misd.	2M		Person	VII	$500
251	Motor Vehicle Offense Driver failing to remain at scene of accident that results in bodily injury to another person		TR, §20-102(c)(2)(i)	Misd.	1Y		Person	VII	$3,000
252	Motor Vehicle Offense Driver failing to remain at scene of accident that results in death of another person		TR, §20-102(c)(2)(ii)	Misd.	5Y		Person	V	$5,000
253	Motor Vehicle Offense Driver failing to remain at scene of accident with knowledge of serious bodily injury to another person		TR, §20-102(c)(3)(i)	Felony	5Y		Person	V	$5,000
254	Motor Vehicle Offense Driver failing to remain at scene of accident with knowledge of death of another person		TR, §20-102(c)(3)(ii)	Felony	10Y		Person	IV	$10,000
254-1	Motor Vehicle Offense Commit or engage another to commit a violation of motor vehicle law for the purpose of recording the violation without permission		TR, §21-1126	Misd.	1Y		Person	VII	$1,000
254-2	Motor Vehicle Offense Use of text messaging device or handheld telephone while driving that causes an accident resulting in death or serious bodily injury		TR, §21-1124.3	Misd.	1Y		Person	VII	$5,000
255	Motor Vehicle Offense Violation of ignition interlock system participation requirements, 1^st offense		TR, §16-113(l)(2)(i)	Misd.	1Y		Property	VII	$1,000
256	Motor Vehicle Offense Violation of ignition interlock system participation requirements, subsequent		TR, §16-113(l)(2)(ii)	Misd.	2Y		Property	VI	$1,000
256-1	Motor Vehicle Offense Driving without having been issued a license, 1^st offense		TR, §16-101(c)(1)	Misd.	60D		Property	VII	$500
257	Motor Vehicle Offense Driving without having been issued a license, subsequent		TR, §16-101(c)(2)	Misd.	1Y		Property	VII	$500
258	Motor Vehicle Offense Driving while license is refused, canceled, suspended, or revoked, 1^st offense		TR, §16-303(k)(1)(i)	Misd.	1Y		Property	VII	$1,000
258-1	Motor Vehicle Offense Driving while license is refused, canceled, suspended, or revoked, subsequent offense within 3 years of prior conviction		TR, §16-303(k)(1)(ii)	Misd.	2Y		Property	VI	$1,000
259	Motor Vehicle Offense Driving commercial motor vehicle while license is refused, canceled, suspended, or revoked		TR, §16-808(d)(1)	Misd.	5Y		Property	VI	$10,000
260	Motor Vehicle Offense Driver of commercial vehicle not in possession of license, 1^st offense		TR, §16-808(d)(2)(i)	Misd.	6M		Property	VII	$1,000
261	Motor Vehicle Offense Driver of commercial vehicle not in possession of license, 2^nd offense		TR, §16-808(d)(2)(ii)	Misd.	1Y		Property	VII	$2,000
262	Motor Vehicle Offense Driver of commercial vehicle not in possession of license, 3^rd or subsequent offense		TR, §16-808(d)(2)(iii)	Misd.	2Y		Property	VI	$3,000
263	Motor Vehicle Offense Obtaining commercial driver's license by misrepresentation		TR, §16-813.1	Misd.	5Y		Property	VI	$10,000
264	Motor Vehicle Offense Providing false evidence of required security, 1^st offense	1-1298	TR, §17-110(b)(1)	Misd.	1Y		Property	VII	$1,000
265	Motor Vehicle Offense Providing false evidence of required security, subsequent		TR, §17-110(b)(2)	Misd.	2Y		Property	VI	$1,000
266	Motor Vehicle Offense Drive vehicle or permit another to drive vehicle knowing that vehicle is not covered by the required security, 1^st offense		TR, §17-107(d)(1)	Misd.	1Y		Property	VII	$1,000
267	Motor Vehicle Offense Drive vehicle or permit another to drive vehicle knowing that vehicle is not covered by the required security, subsequent		TR, §17-107(d)(2)	Misd.	2Y		Property	VI	$1,000
267-1	Motor Vehicle Offense Knowingly sell, offer, install, reinstall, import, misrepresent, etc., a counterfeit, nonfunctional, or no airbag		TR, §22-419	Misd.	5Y		Property	VI	$5,000
268	Motor Vehicle Offense Possession of motor vehicle master key		TR, §14-103	Misd.	1Y		Property	VII	$500
268-1	Motor Vehicle Offense Conduct the business of a vehicle dealer without a license		TR, §15-302	Misd.	1Y		Property	VII	$5,000
268-2	Motor Vehicle Offense Conduct the business of an automotive dismantler and recycler or a scrap processor without a license, subsequent		TR, §15-502(e)(2)	Misd.	1Y		Property	VII	$2,000
268-3	Motor Vehicle Offense Act as a vehicle salesman without a license, subsequent		TR, §15-402(c)(2)	Misd.	1Y		Property	VII	$2,000
268-4	Motor Vehicle Offense Transportation of hazardous materials, subsequent		TR, §21-1411(d)(2)	Misd.	1Y		Property	VII	$2,000
269 Vacant
270 Vacant
271 Vacant
272 Vacant
273 Vacant
274 Vacant
275 Vacant
276	Murder 1^st degree	1-0990	CR, §2-201	Felony	LIFE ♦	LIFE	Person	I
277 Vacant
278 Vacant
279 Vacant
280	Murder 1^st degree, attempted	2-0910	CR, §2-205	Felony	LIFE ♦		Person	II
280-1	Murder 1^st degree, conspiracy	1C0990	Common law	Misd.	LIFE		Person	I
281	Murder 1^st degree, solicitation	1S0990	Common law	Misd.	LIFE		Person	II
282	Murder 2^nd degree	1-1107	CR, §2-204	Felony	40Y ♦		Person	II
283	Murder 2^nd degree, attempted	2-0920	CR, §2-206	Felony	30Y ♦		Person	III
284	Nudity and Related Sexual Displays Indecent exposure	1-3605	CR, §11-107(d)(1)	Misd.	3Y		Person	VI	$1,000
284-1	Nudity and Related Sexual Displays Indecent exposure of an incarcerated individual to correctional officer	2-1133	CS, § 8-803	Misd.	3Y		Person	VI	$1,000
284-2	Nudity and Related Sexual Displays Indecent exposure when person knows or should know that a minor is present	1-1807	CR, §11-107(d)(2)	Misd.	5Y		Person	V	$10,000
285	Obscene Matter Child pornography, 1^st offense	1-0298 1-0299 1-0300 1-0315 2-3799	CR, §11-207(b)(1)	Felony	10Y		Person	IV	$25,000
286	Obscene Matter Child pornography-subsequent	1-0298 1-0299 1-0300 1-0315 2-3799	CR, §11-207(b)(2)	Felony	20Y		Person	III	$50,000
287	Obscene Matter Sending or bringing into State for sale or distribution, publishing, etc., subsequent	1-3705 1-0294 1-0295 1-0296	CR, §11-202(b)(2)	Misd.	3Y		Person	VI	$5,000
288	Obscene Matter Obscene performances in Anne Arundel, Charles, Howard, Somerset, Wicomico, Worcester counties, subsequent		CR, §11-204(c)(2)	Misd.	3Y		Person	VI	$5,000
289	Obscene Matter Sale or display of certain items to persons younger than 18 years old, subsequent	1-3799 1-0297	CR, §11-203(d)(2)	Misd.	3Y		Person	VI	$5,000
290	Obscene Matter Possess, retain, access, or view visual representations of persons younger than 16 years old engaged in certain sexual acts, subsequent	1-1756 1-1796	CR, §11-208(c)(2)	Felony	10Y		Person	IV	$10,000
291	Obscene Matter Requiring acceptance of obscene matter as condition to sale, etc.; denial of franchise, etc., for failure to accept obscene matter, subsequent		CR, §11-206(b)(2)	Misd.	3Y		Person	VI	$5,000
292	Obscene Matter Hire minor to distribute obscene material	3-3799	CR, §11-209(a)	Misd.	1Y		Person	VII	$1,000
293	Obscene Matter Sending or bringing into State for sale or distribution, publishing, etc., 1^stoffense	1-3705 1-0294 1-0295 1-0296	CR, §11-202(b)(1)	Misd.	1Y		Person	VII	$1,000
294	Obscene Matter Obscene performances in Anne Arundel, Charles, Howard, Somerset, Wicomico, Worcester counties, 1^st offense		CR, §11-204(c)(1)	Misd.	1Y		Person	VII	$1,000
295	Obscene Matter Sale or display of certain items to persons younger than 18 years old, 1^st offense	1-0297 1-0635 1-3799	CR, §11-203(d)(1)	Misd.	1Y		Person	VII	$1,000
296	Obscene Matter Possess, retain, access, or view visual representations of persons younger than 16 years old engaged in certain sexual acts, 1^st offense	1-1756 1-1796	CR, §11-208(c)(1)	Misd.	5Y		Person	V	$2,500
297	Obscene Matter Requiring acceptance of obscene matter as condition to sale, etc.; denial of franchise, etc., for failure to accept obscene matter, 1^st offense		CR, §11-206(b)(1)	Misd.	1Y		Person	VII	$1,000
298	Obscene Matter Obscene advertising, 1^st offense	1-0562	CR, §11-205(b)(1)	Misd.	1Y		Property	VII	$1,000
299	Obscene Matter Obscene advertising, subsequent		CR, §11-205(b)(2)	Misd.	3Y		Property	VII	$5,000
300	Perjury Perjury—subornation of perjury	1-5004	CR, §9-102	Misd.	10Y		Person	IV
301	Perjury Perjury—willfully filing false tax returns	2-1180	TG, §13-1002 CR, §9-101 (penalty)	Misd.	10Y		Property	IV
301-1	Perjury Perjury—willfully make a false, fraudulent, or misleading statement under oath in a campaign finance report; submit a campaign finance report on behalf of another person without their consent	1-0996	EL, §14-109(c) CR, §9-101 (penalty)	Misd.	10Y		Property	IV
301-2	Perjury Perjury—willfully make a false, fraudulent, or misleading statement under oath in a statement filed by a person providing compensation to a lobbyist; make an electronic submission of a statement required by GP, §5-716 on behalf of another person without their consent		GP, §5-716(n) CR, §9-101 (penalty)	Misd.	10Y		Property	IV
302	Perjury Perjury	1-0307 1-0308 1-0309 1-0310 1-5003	CR, §9-101(a)	Misd.	10Y		Property	IV
303	Perjury Perjury—affirmation to two contradictory statements	2-5003	CR, §9-101(c)	Misd.	10Y		Property	IV
304	Prescription Drugs and Other Substances Harmful substances—distribution; possession with intent to distribute; instruction in the unlawful inhaling; or distribution of butane can to minor	1-0272 1-0273 1-0735 1-3500	CR, §5-709	Misd.	18M		Drug	VII	$1,000
305	Prescription Drugs and Other Substances Harmful substances—smelling or inhaling harmful substances	1-5599	CR, §5-708(b)	Misd.	6M		Drug	VII	$500
306	Prescription Drugs and Other Substances Possession—compounding or selling different drug, controlled dangerous substance, medicine, etc.	1-0018	CR, §5-702	Misd.	12M	1M	Drug	VII	$100-$500
307	Prescription Drugs and Other Substances Possession—prescription drugs—manufacture, distribute, etc.; obtain by fraud, etc., forgery, etc., label property, destruction	1-0010 1-0264 1-0265 1-0266 1-0267 1-0268 1-0269 1-0270 1-0271	CR, §5-701(d)	Misd.	2Y		Drug	VII	$1,000
307-1	Pretrial Release, Crimes Involving Failure to appear in connection with a felony	1-1474	CP, §5-211(c)(1)	Misd.	5Y		Person	V	$5,000
307-2	Pretrial Release, Crimes Involving Failure to appear in connection with a misdemeanor or for appearance as witness	1-1475	CP, §5-211(c)(2)	Misd.	1Y		Person	VII	$1,000
308	Pretrial Release, Crimes Involving Violate release conditions while charged with committing a sexual crime against a minor, a crime of violence, a crime against a person eligible for relief, or stalking	1-0636 1-1464 1-1465 1-1732	CP, §5-213.1	Misd.	90D		Person	VII
308-1	Prostitution and Related Crimes Abduction—Persuade, entice, secrete, or harbor individual younger than 16 years old for the purpose of committing a sexual crime	1-1336	CR, §11-305	Felony	25Y ♦		Person	II	$5,000
309 Vacant
310 Vacant
311 Vacant
312 Vacant
313 Vacant
313-1	Prostitution and Related Crimes Receive money from the earnings of a person engaged in prostitution	1-1090	CR, §11-304	Misd.	10Y		Person	IV	$10,000
314	Prostitution and Related Crimes Engage in prostitution or assignation; occupy a building for prostitution or assignation	1-1093	CR, §11-303	Misd.	1Y		Person	VII	$500
315	Prostitution and Related Crimes Procure or solicit or offer to procure or solicit prostitution or assignation	1-1730	CR, §11-306	Misd.	1Y		Person	VII	$500
316	Prostitution and Related Crimes Allow a building to be used for prostitution or assignation; allow a person into a building for prostitution or assignation; or keep, set up, etc., a building for prostitution or assignation	1-1731	CR, §11-307	Misd.	1Y		Person	VII	$500
317	Protected Individuals, Protected Information Publish personal information of protected individual knowing that publishing the information poses a threat to protected individual; and its publishing results in assault, harassment, trespass, or malicious destruction of property	1-1833	CJ, §3-2304	Misd.	18M		Person	V	$5,000
318	Public Fraud State health plan fraud, resulting in death	2-2125 2-2165 2-2325 2-2365 2-2990 2-2880 2-2930 2-4125 2-2970	CR, §8-509 CR, §8-510 CR, §8-511 CR, §8-512 CR, §8-513 CR, §8-514 CR, §8-515 CR, §8-516(a) (penalty)	Felony	LIFE		Person	II	$200,000
319	Public Fraud State health plan fraud, resulting in serious injury	2-2120 2-2160 2-2320 2-2360 2-2985 2-2875 2-2925 2-4120 2-2965	CR, §8-509 CR, §8-510 CR, §8-511 CR, §8-512 CR, §8-513 CR, §8-514 CR, §8-515 CR, §8-516(b) (penalty)	Felony	20Y		Person	III	$100,000
320	Public Fraud Perjury—Public Assistance fraud in application	2-2607	CR, §8-504(b), CR, §9-101(penalty)	Misd.	10Y		Property	IV	$1,000
321	Public Fraud Use, with intent to defraud, of a facsimile signature, or any reproduction of it, of any authorized officer; or use with intent to defraud, of a facsimile seal, or any reproduction of it, of the State or of any of its political subdivisions	1-0715	SF, §2-305(b)	Felony	10Y		Property	V	$5,000
322	Public Fraud Violation of Architectural and Engineering Services subtitle	2-1167	SF, §13-322	Felony	10Y		Property	V	$20,000
322-1	Public Fraud State health plan fraud, less than $1,500	2-2110 2-2150 2-2190 2-2350 2-2975 2-2865 2-2910 2-4110 2-2955	CR, §8-509 CR, §8-510 CR, §8-511 CR, §8-512 CR, §8-513 CR, §8-514 CR, §8-515 CR, §8-516(d) (penalty)	Misd.	3Y		Property	VII	$50,000
323	Public Fraud State health plan fraud, $1,500 or greater	2-2115 2-2135 2-2155 2-2195 2-2355 2-2870 2-2920 2-2960 2-2980 2-4115	CR, §8-509 CR, §8-510 CR, §8-511 CR, §8-512 CR, §8-513 CR, §8-514 CR, §8-515 CR, §8-516(c) (penalty)	Felony	5Y		Property	V	$100,000
324	Public Fraud Falsification, concealment, etc., of material facts in connection with a procurement contract	2-1166	SF, §11-205.1(c)	Felony	5Y		Property	VI	$20,000
325	Public Fraud Minority Business Participation—Fraudulently obtain, etc. or hold certification; aid another person in fraudulently obtaining, etc. certification; willfully obstruct, impede, etc., a State official, etc., investigating the qualifications of a business entity that has requested certification; fraud in any minority business enterprise matter under this subtitle	2-1168	SF, §14-308(a)(2)	Felony	5Y		Property	VI	$20,000
326	Public Fraud Sale or purchase of food stamp benefits; or sale or purchase of merchandise with food stamp benefits, $1,000 or more		HU, §5-504(c)	Felony	5Y		Property	VI	$10,000
327	Public Fraud Fraud—Public Assistance fraud, generally (with the exception of Medicaid fraud)	7-2607	CR, §8-503(b)	Misd.	3Y		Property	VII	$1,000
328	Public Fraud Fraud—Falsely obtain legal representation by the Office of the Public Defender	6-2607	CR, §8-521(b)	Misd.	1Y		Property	VII	$1,000
328-1	Public Fraud Fraud—Housing assistance fraud; Making false statements	1-0419	CR, §8-523(b)	Misd.	3Y		Property	VII
329	Public Fraud Sale or purchase of food stamp benefits; or sale or purchase of merchandise with food stamp benefits, less than $1,000	1-1505	HU, §5-504(d)	Misd.	3Y		Property	VII	$1,000
330	Public Fraud Request or obtain info on HIV and/or AIDS under false pretenses or deception		HG, §18-215(f)(1)(i)	Misd.	5Y		Property	V	$100,000
330-1	Public Fraud Request or obtain info on HIV and/or AIDS under false pretenses or deception with intent to sell		HG, §18-215(f)(1)(ii)	Misd.	10Y		Property	IV	$250,000
331	Public Health and Safety, Crimes Against Hazardous substances—unlawfully transport, treat, store, etc., a controlled hazardous substance, knowing the violation endangers others	2-0015	EN, §7-265(d)	Felony	15Y		Person	II	$250,000
332	Public Health and Safety, Crimes Against Hazardous substances—storing, treating, dumping, etc., in other than hazardous substance facility; transporting for treatment, storage, etc. to any place other than hazardous substance facility; falsifying required information; authorizing, directing, etc., any offense listed in this section	1-0012 1-5515 2-0012 2-0013 2-0014 2-0863	EN, §7-265(a)	Felony	5Y		Person	V	$100,000
333	Public Health and Safety, Crimes Against Unlawfully cause or unlawfully dump, deposit, throw, etc., litter greater than 500 lbs. in weight or 216 cubic feet in volume or for commercial purposes	1-0645 1-0646 1-1427	CR, §10-110(f)(2)(iii)	Misd.	5Y		Property	VI	$30,000
333-1	Public Health and Safety, Crimes Against Disposing of scrap tires for monetary or financial gain by any means other than through a licensed scrap tire hauler or by delivering the tires to an approved facility	1-1773	EN, §9-228(f)(2) EN, §9-268.1(a)(2) (penalty)	Misd.	5Y		Property	VI	$25,000
334	Public Health and Safety, Crimes Against Hazardous substances—failure to meet requirement for generators; failure to meet standards for hauler certificate or driver certificate; violations of restrictions on transporting controlled hazardous substances	1-0618	EN, §7-265(b)	Misd.	3Y		Person	VII	$50,000
334-1	Public Health and Safety, Crimes Against Install, alter, or extend water supply systems, sewerage systems, or refuse disposal systems without a permit, etc., 1^st offense	1-0726	EN, §9-204 EN, §9-343(a)(1)(i) (penalty)	Misd.	1Y		Property	VII	$25,000
334-2	Public Health and Safety, Crimes Against Install, alter, or extend water supply systems, sewerage systems, or refuse disposal systems without a permit, etc., subsequent		EN, §9-204 EN, §9-343(a)(1)(ii) (penalty)	Misd.	2Y		Property	VII	$50,000 per day
334-3	Public Health and Safety, Crimes Against Violation of any provision of or failure to perform any duty imposed by a rule, regulation, order, or permit adopted or issued under Environment Article, Title 9, Subtitle 2, 1^st offense		EN, §9-343(a)(1)(i) (penalty)	Misd.	1Y		Property	VII	$25,000
334-4	Public Health and Safety, Crimes Against Violation of any provision of or failure to perform any duty imposed by a rule, regulation, order, or permit adopted or issued under Environment Article, Title 9, Subtitle 2, subsequent		EN, §9-343(a)(1)(ii) (penalty)	Misd.	2Y		Property	VII	$50,000 per day
335	Public Health and Safety, Crimes Against Water pollution—discharge pollutant into State waters, 1^st offense	1-5516	EN, §9-343(a)(1)(i) EN, §9-322 (penalty)	Misd.	1Y		Property	VII	$25,000
336	Public Health and Safety, Crimes Against Water pollution—discharge pollutant into State waters, subsequent		EN, §9-322 EN, §9-343(a)(1)(ii) (penalty)	Misd.	2Y		Property	VII	$50,000 per day
337	Public Health and Safety, Crimes Against Water pollution—false statements in required documents	1-0895	EN, §9-343(b)	Misd.	2Y		Property	VII	$50,000
338	Public Health and Safety, Crimes Against Unlawfully cause or unlawfully dump, deposit, throw, etc., litter, greater than 100 lbs. in weight or 27 cubic feet in volume	1-0643 1-0644 1-1426	CR, §10-110(f)(2)(ii)	Misd.	1Y		Property	VII	$10,000
338-1	Public Health and Safety, Crimes Against Falsifying permits, licenses, etc., to demonstrate compliance with environmental regulatory requirements	1-0554 1-0555	EN, §1-302	Misd.	2Y		Property	VII	$50,000
338-2	Public Health and Safety, Crimes Against Purchase, sell, transfer, or obtain any stem cell material donated in accordance with EC, §10-438 for financial gain or advantage		EC, §10-439	Misd.	3Y		Property	VI	$50,000
338-3	Public Health and Safety, Crimes Against Conducting or attempting to conduct human cloning		EC, §10-440	Felony	10Y		Person	IV	$200,000
338-4	Public Health and Safety, Crimes Against Willfully, maliciously, or with intent, setting on fire, or causing to be set on fire, any woods, brush, grass, grain, or stubble		NR, §5-704(a)	Misd.	5Y	30D	Property	VI	$250-$2,000
339	Railroads, Crimes Involving Obstruct, break, damage, etc., railroad with intent to obstruct, overthrow and direct from the tracks a railroad vehicle	3-5740 3-5750	CR, §6-502(b)	Felony	10Y		Property	V	$5,000
340	Railroads, Crimes Involving Shoot at, throw at a railroad locomotive, motor, tender, car	3-5312	CR, §6-505(b)	Misd.	5Y		Property	VI	$1,000
341	Robbery Carjacking—armed	1-0826	CR, §3-405(c)	Felony	30Y ♦		Person	II
342	Robbery Carjacking—unarmed	1-0825	CR, §3-405(b)	Felony	30Y ♦		Person	III
343	Robbery Robbery	2-0700	CR, §3-402	Felony	15Y ♦		Person	IV
344	Robbery Robbery with a dangerous weapon	2-0705	CR, §3-403(a)(1)	Felony	20Y ♦		Person	III
345	Robbery Robbery by display of written instrument claiming possession of dangerous weapon	2-0705	CR, §3-403(a)(2)	Felony	20Y ♦		Person	III
345-1	Sabotage and Related Crimes Defense related activities—Intentional defective workmanship	1-5520	CR, §9-703	Felony	10Y		Property	IV	$10,000
345-2	Sabotage and Related Crimes Defense related activities—Intentional injury or interference with property	1-5519	CR, §9-702	Felony	10Y		Property	IV	$10,000
345-3	School Security Disturb school operations; molest or threaten to harm an individual on school property, etc.; threaten to harm a school employee at home	1-0070 1-0913 1-1307	ED, §26-101	Misd.	6M		Person	VII	$2,500
345-4	School Security Trespass on school grounds; refuse to leave school grounds; damage or deface school grounds	7-5707 8-5707 9-5707	ED, §26-102	Misd.	6M		Property	VII	$1,000
346	Securities Fraud and Related Crimes Securities fraud and other violations of Maryland Securities Act	1-5574 1-5575 1-5576 2-0670 2-0671	CA, §11-705(a)(1) (penalty)	Misd.	3Y		Property	VII	$50,000
347	Securities Fraud and Related Crimes Use a senior or retiree credential or designation in a way that is misleading in connection with the offer, sale, or purchase of securities, etc.		CA, §11-305 CA, §11-705(a)(2) (penalty)	Misd.	5Y		Property	V	$100,000
348	Sexual Crimes Rape, 1^st degree	1-1812 1-1813 1-1814 1-1815 1-1816	CR, §3-303(d)(1)	Felony	LIFE ♦		Person	I
348-1	Sexual Crimes Rape, 1^st degree, in conjunction with kidnapping child younger than 16 years old	1-1817	CR, §3-303(d)(2)	Felony	LIFE without Parole ♦		Person	I
348-2	Sexual Crimes Rape, 1^st degree, subsequent	1-1812 1-1813 1-1814 1-1815 1-1816 1-1817	CR, §3-303(d)(3)	Felony	LIFE without Parole ♦		Person	I
348-3	Sexual Crimes Rape, 1^st degree, adult offender with victim younger than 13 years old	1-1818	CR, §3-303(d)(4)	Felony	LIFE without Parole ♦	MM*=25Y	Person	I
349	Sexual Crimes Sex Offense, 1^st degree (offense date prior to October 1, 2017)	2-1102	CR, §3-305(d)(1)	Felony	LIFE ♦		Person	I
349-1	Sexual Crimes Sex Offense, 1^st degree, in conjunction with kidnapping child younger than 16 years old (offense date prior to October 1, 2017)	2-1102	CR, §3-305(d)(2)	Felony	LIFE without Parole ♦		Person	I
349-2	Sexual Crimes Sex Offense, 1^st degree, subsequent (offense date prior to October 1, 2017)	2-1102	CR, §3-305(d)(3)	Felony	LIFE without Parole ♦		Person	I
349-3	Sexual Crimes Sex Offense, 1^st degree, adult offender with victim younger than 13 years old (offense date prior to October 1, 2017)	2-1102	CR, §3-305(d)(4)	Felony	LIFE without Parole ♦	MM*=25Y	Person	I
350	Sexual Crimes Attempted rape, 1^st degree	2-1120	CR, §3-309(a)	Felony	LIFE ♦		Person	II
351	Sexual Crimes Attempted sexual offense, 1^st degree (offense date prior to October 1, 2017)	2-1125	CR, §3-311(a)	Felony	LIFE ♦		Person	II
352	Sexual Crimes Rape, 2^nd degree	1-1819 1-1820 1-1821	CR, §3-304(c)(1)	Felony	20Y ♦		Person	II
352-1	Sexual Crimes Rape, 2^nd degree, adult offender with victim younger than 13 years old	1-1822 1-1823	CR, §3-304(c)(2)	Felony	LIFE ♦	MM*=15Y	Person	II
353	Sexual Crimes Sex Offense, 2^nd degree (offense date prior to October 1, 2017)	2-3600	CR, §3-306(c)(1)	Felony	20Y ♦		Person	II
353-1	Sexual Crimes Sex Offense, 2^nd degree, adult offender with victim younger than 13 years old (offense date prior to October 1, 2017)	2-3600	CR, §3-306(c)(2)	Felony	LIFE ♦	MM*=15Y	Person	II
354	Sexual Crimes Attempted rape, 2^nd degree	2-1110	CR, §3-310(a)	Felony	20Y ♦		Person	III
355	Sexual Crimes Attempted sexual offense, 2^nd degree (offense date prior to October 1, 2017)	2-1115	CR, §3-312(a)	Felony	20Y ♦		Person	III
356	Sexual Crimes Incest	1-3604	CR, §3-323	Felony	10Y	1Y	Person	IV
356-1	Sexual Crimes Sex Offense, 3^rd degree (a)(1) employ or display a dangerous weapon, etc.; (a)(2) with substantially cognitively impaired, mentally incapacitated, or physically helpless individual	1-1824 1-1825 1-1826 1-1827 1-1828	CR, §3-307(a)(1) CR, §3-307(a)(2)	Felony	10Y		Person	IV
357	Sexual Crimes Sex Offense, 3^rd degree (a)(3), (a)(4), (a)(5) — age based elements	1-1829 1-1830 1-1831	CR, §3-307(a)(3) CR, §3-307(a)(4) CR, §3-307(a)(5)	Felony	10Y		Person	IV
358	Sexual Crimes Sexual conduct by correctional employee with incarcerated individual	2-1130	CR, §3-314(b)	Misd.	3Y		Person	V	$3,000
359	Sexual Crimes Sexual conduct with juvenile detainee	2-1132	CR, §3-314(c)	Misd.	3Y		Person	V	$3,000
359-1	Sexual Crimes Sexual conduct by court-ordered services provider with person ordered to obtain services	1-1149	CR, §3-314(d)	Misd.	3Y		Person	V	$3,000
359-2	Sexual Crimes Sexual conduct by law enforcement officer with victim, witness, or suspect in an open investigation; with person requesting assistance from or responding to law enforcement officer; or with person in custody of law enforcement officer	1-1462	CR, §3-314(e)	Misd.	3Y		Person	V	$3,000
360	Sexual Crimes Solicit to commit 3^rd degree sex act		Common law	Misd.	LIFE		Person	V
360-1	Sexual Crimes Sexual solicitation of a minor or law enforcement officer posing as a minor, 1^st offense	1-1604	CR, §3-324(d)(1)	Felony	10Y		Person	IV	$25,000
360-2	Sexual Crimes Sexual solicitation of a minor or law enforcement officer posing as a minor, subsequent		CR, §3-324(d)(2)	Felony	20Y		Person	III	$50,000
360-3	Sexual Crimes Use of personal identifying information of an individual to invite another to commit sexual crime	1-1340	CR, §3-325	Felony	20Y		Person	IV	$25,000
361	Sexual Crimes Sex Offender—failing to register and/or providing false information, 1^st offense	1-1477 2-1134	CP, §11-721(b)(1)	Misd.	3Y		Person	VI	$5,000
361-1	Sexual Crimes Sex Offender—failing to register and/or providing false information, subsequent		CP, §11-721(b)(2)	Felony	5Y		Person	V	$10,000
361-2	Sexual Crimes Sex Offender—violation of restriction barring sex offenders from specified locations where children gather and certain school employment	1-1478 1-1479	CP, §11-722	Misd.	5Y		Person	V	$5,000
361-3	Sexual Crimes Willfully and knowingly violating conditions of lifetime sexual offender supervision, 1^st offense	1-0713	CP, §11-724(b)(1)	Misd.	5Y		Person	V	$5,000
361-4	Sexual Crimes Willfully and knowingly violating conditions of lifetime sexual offender supervision, subsequent	1-0713	CP, §11-724(b)(2)	Felony	10Y		Person	IV	$10,000
362 Vacant
363	Sexual Crimes Sex Offense, 4^th degree	1-1623 1-1624 1-1625 1-1626 4-3600	CR, §3-308(d)(1)	Misd.	1Y		Person	VII	$1,000
363-1	Sexual Crimes Continuing course of conduct which includes 3 or more acts involving 1^st, 2^nd, or 3^rd degree sex offense or 1^stor 2^nd degree rape over a period of 90 days or more, with a victim younger than 14 years old	2-1136	CR, §3-315	Felony	30Y ♦		Person	II
363-2	Sexual Crimes Sex Offense, 4^th degree, subsequent	1-1623 1-1624 1-1625 1-1626 4-3600	CR, §3-308(d)(2)	Misd.	3Y		Person	VI	$1,000
364	Sexual Crimes Administered controlled dangerous substance before committing sex offense	2-0715	CR, §5-624(b)	Misd.	1Y		Person	VII	$25,000
364-1	Stalking and Harassment Stalking	1-6525	CR, §3-802	Misd.	5Y		Person	V	$5,000
365	Stalking and Harassment Harassment, 1^st offense	1-0191 1-2210 1-5406	CR, §3-803(d)(1)	Misd.	90D		Person	VII	$500
365-1	Stalking and Harassment Harassment, subsequent	1-0191 1-2210 1-5406	CR, §3-803(d)(2)	Misd.	6M		Person	VII	$1,000
365-2	Stalking and Harassment Aiming laser pointer at aircraft	1-1001	CR, §3-807	Misd.	3Y		Person	VI	$2,500
365-3	Stalking and Harassment Revenge porn	1-1326	CR, §3-809	Misd.	2Y		Person	VII	$5,000
365-4	Statewide DNA Data Base System, Crimes Involving Improper disclosure of DNA information to a person/agency not entitled to receive the information		PS, §2-512(a), (e)	Felony	5Y		Property	V	$5,000
365-5	Statewide DNA Data Base System, Crimes Involving Fraudulent obtainment of DNA information from the Statewide DNA data base/repository		PS, §2-512(b), (e)	Felony	5Y		Property	V	$5,000
366	Statewide DNA Data Base System, Crimes Involving Willfully testing DNA for information not related to identification of individuals		PS, §2-512(c), (e)	Felony	5Y		Property	V	$5,000
366-1	Stored Wire and Electronic Communications Access, Crimes Involving Obtaining, altering, or preventing authorized access to a wire or electronic communication while it is in electronic storage in an electronic communications system, 1^stoffense		CJ, §10-4A-02(b)(1)(i)	Misd.	1Y		Property	VII	$250,000
366-2	Stored Wire and Electronic Communications Access, Crimes Involving Obtaining, altering, or preventing authorized access to a wire or electronic communication while it is in electronic storage in an electronic communications system, subsequent		CJ, §10-4A-02(b)(1)(ii)	Misd.	2Y		Property	VI	$250,000
366-3	Surveillance and Other Crimes Against Privacy Visual and camera surveillance, private place	1-0716 1-0717 1-1759 1-1760 3-5715	CR, §3-902 CR, §3-903	Misd.	1Y		Person	VII	$2,500
367	Surveillance and Other Crimes Against Privacy Wiretapping—breaking and entering, etc., to place, adjust, or remove equipment without a court order	1-5580	CJ, §10-412	Felony	10Y		Property	V
368	Surveillance and Other Crimes Against Privacy Wiretapping—unlawful interception of communications	1-5595 1-5705	CJ, §10-402(a)	Felony	5Y		Property	V	$10,000
369	Surveillance and Other Crimes Against Privacy Divulging contents of communications		CJ, §10-402(e)	Misd.	5Y		Property	VI	$10,000
370	Surveillance and Other Crimes Against Privacy Manufacture, possession, or sale of intercepting device	1-5579	CJ, §10-403(a)	Felony	5Y		Property	VI	$10,000
371	Surveillance and Other Crimes Against Privacy Giving notice of interception of wire, oral, or electronic communications in order to obstruct, impede or prevent such interception	2-0647	CJ, §10-414(b)	Felony	5Y		Property	VI	$10,000
372	Surveillance and Other Crimes Against Privacy Unauthorized disclosure of information obtained or generated by examining licensed persons, etc.		FI, §2-117	Misd.	2Y		Property	VI	$1,000
372-1	Surveillance and Other Crimes Against Privacy Unauthorized disclosure of information obtained or generated by examining banking institutions and credit unions, etc.		FI, §2-117.1	Misd.	2Y		Property	VI	$1,000
373	Telecommunications and Electronics, Crimes Involving Motion Picture Theaters—prohibition against audiovisual recording	1-0336	CR, §7-308(e) CR, §7-309	Misd.	1Y		Property	VII	$2,500
373-1	Telecommunications and Electronics, Crimes Involving Motion Picture Theaters—prohibition against audiovisual recording, subsequent		CR, §7-308(e) CR, §7-309	Misd.	3Y		Property	VI	$10,000
373-2	Telecommunications and Electronics, Crimes Involving Unlawfully access, attempt to access, cause access to, etc., a computer, computer network, etc.; copy, attempt to copy, possess, etc., the contents of all or part of a computer database	1-0914 1-2804	CR, §7-302(d)(1)	Misd.	3Y		Property	VI	$1,000
374	Telecommunications and Electronics, Crimes Involving Unlawfully access, attempt to access, cause access to, etc., a computer, computer network, etc., to cause malfunction, interruption, alteration, damage, etc.; Unlawfully possess, identify, distribute, etc., a valid access code, less than $10,000	1-0470 1-0471 1-0472	CR, §7-302(d)(2)(ii)	Misd.	5Y		Property	V	$5,000
375	Telecommunications and Electronics, Crimes Involving Unlawfully access, attempt to access, cause access to, etc., a computer, computer network, etc., to cause malfunction, interruption, alteration, damage, etc.; Unlawfully possess, identify, distribute, etc., a valid access code, $10,000 or greater	1-0495 1-0496 1-0497	CR, §7-302(d)(2)(i)	Felony	10Y		Property	IV	$10,000
376	Telecommunications and Electronics, Crimes Involving Unauthorized computer access for sabotage of State government, public utilities, other energy infrastructure, health care facilities, or public schools, less than $10,000	1-0638	CR, §7-302(d)(3)(ii)	Misd.	5Y		Property	V	$25,000
376-1	Telecommunications and Electronics, Crimes Involving Unauthorized computer access for sabotage of State government, public utilities, other energy infrastructure, health care facilities, or public schools, $10,000 or greater	1-1085	CR, §7-302(d)(3)(i)	Felony	10Y		Property	IV	$100,000
376-2	Telecommunications and Electronics, Crimes Involving Knowingly possess ransomware with the intent to use the ransomware for the purpose of introduction into the computer, computer network, or computer system of another person without the authorization of the other person	1-1086	CR, §7-302(d)(4)	Misd.	2Y		Property	V	$5,000
376-3	Telecommunications and Electronics, Crimes Involving Taking certain actions with the intent to interrupt or impair the functioning of a public safety answering point	1-2231	CR, §7-302(d)(5)	Felony	5Y		Property	V	$25,000
377	Telecommunications and Electronics, Crimes Involving Use of electronic communication to alarm or seriously annoy another; or to inflict serious emotional distress on a minor or place a minor in fear of death or serious bodily injury; or that has the effect of intimidating or harassing a minor and causing physical injury or serious emotional distress	1-1712 1-1713 1-1714 1-1715 1-1716	CR, §3-805(b)(1)-(5) CR, §3-805(e)(1) (penalty)	Misd.	3Y		Person	VI	$10,000
377-1	Telecommunications and Electronics, Crimes Involving Use of electronic communication to alarm or seriously annoy another, etc., with the intent to induce a minor to commit suicide	1-1717	CR, §3-805(b)(6) CR, §3-805(e)(2) (penalty)	Misd.	10Y		Person	IV	$10,000
378	Telecommunications and Electronics, Crimes Involving Record/sell, etc., unauthorized performance, 1^st offense	1-0330 1-0331 1-0332 3-2602	CR, §7-308 CR, §7-309	Misd.	1Y		Property	VII	$2,500
379	Telecommunications and Electronics, Crimes Involving Record/sell, etc., unauthorized performance, subsequent	1-0330 1-0331 1-0332 3-2602	CR, §7-308 CR, §7-309	Misd.	3Y		Property	VII	$10,000
380	Telecommunications and Electronics, Crimes Involving Telephone, unlawful use of	1-0340 1-0341 1-5309	CR, §3-804(a)	Misd.	3Y		Property	VII	$500
381	Telecommunications and Electronics, Crimes Involving Unauthorized connections, etc.; tampering or interfering with meters, poles, wires, etc.	1-0215 1-0217 1-2608	CR, §6-303	Misd.	6M		Property	VII	$500
381-1	Telecommunications and Electronics, Crimes Involving Obtaining, selling, etc., telephone record without authorization	1-0593	CR, §7-304	Misd.	2Y		Property	VII	$2,000
382	Telecommunications and Electronics, Crimes Involving Manufacture, sell, use, etc., a code grabbing device with the intent for the code to be used in the commission of a crime		CR, §7-301(b)	Misd.	1Y		Property	VII	$1,000
382-1	Telecommunications and Electronics, Crimes Involving Electronic security system blockers	1-1472	CR, §7-301(c)	Misd.	1Y		Property	VII	$1,000
383	Theft, Crimes Involving Felony theft or theft-scheme, $100,000 or greater	1-1134 1-1303	CR, §7-104(g)(1)(iii)	Felony	20Y		Property	III	$25,000
384	Theft, Crimes Involving Felony theft or theft scheme, at least $25,000 but less than $100,000	1-1135 1-1139	CR, §7-104(g)(1)(ii)	Felony	10Y		Property	V	$15,000
384-1	Theft, Crimes Involving Felony theft or theft scheme, at least $1,500 but less than $25,000	1-1136 1-1160	CR, §7-104(g)(1)(i)	Felony	5Y		Property	VI	$10,000
384-2	Theft, Crimes Involving Misdemeanor theft or theft scheme, at least $100 but less than $1,500, 1^st offense	1-1137 1-1161	CR, §7-104(g)(2)(i)(1)	Misd.	6M		Property	VII	$500
384-3	Theft, Crimes Involving Misdemeanor theft or theft scheme, at least $100 but less than $1,500, 2^nd or subsequent offense		CR, §7-104(g)(2)(i)(2)	Misd.	1Y		Property	VII	$500
384-4	Theft, Crimes Involving Misdemeanor theft or theft scheme, less than $1,500, 5^th or subsequent offense		CR, §7-104(g)(4)	Misd.	5Y		Property	VI	$5,000
385	Theft, Crimes Involving Misdemeanor theft or theft scheme, less than $100	1-0521 1-1631	CR, §7-104(g)(3)	Misd.	90D		Property	VII	$500
385-1	Theft, Crimes Involving Organized retail theft, $100,000 or greater	1-2230	CR, §7-104.1(c)(3)	Felony	20Y		Property	III	$25,000
385-2	Theft, Crimes Involving Organized retail theft, at least $25,000 but less than $100,000	1-2229	CR, §7-104.1(c)(2)	Felony	10Y		Property	V	$15,000
385-3	Theft, Crimes Involving Organized retail theft, at least $1,500 but less than $25,000	1-2228	CR, §7-104.1(c)(1)	Felony	5Y		Property	VI	$10,000
386	Theft, Crimes Involving Motor vehicle—unlawful taking	2-0480	CR, §7-105	Felony	5Y		Property	V	$5,000
387	Theft, Crimes Involving Embezzlement, misappropriation by fiduciaries	1-0460 1-2799	CR, §7-113	Misd.	5Y	1Y	Property	V
387-1	Theft, Crimes Involving Defalcation by officer collecting revenue due State or county	2-0365	CR, §7-114	Misd.	5Y	1Y	Property	VI
387-2	Threat of Mass Violence Threatening to commit or cause a crime of violence that would place others at risk	1-1335	CR, §3-1001	Misd.	10Y		Person	V	$10,000
387-3	Trespass Trespass on posted property or private property, 1^st offense	2-2210 2-2220 2-2230	CR, §6-402(b)(1) CR, §6-403(c)(1)	Misd.	3M		Property	VII	$500
387-4	Trespass Trespass on posted property or private property, 2^nd offense within 2 years after first violation		CR, §6-402(b)(2) CR, §6-403(c)(2)	Misd.	6M		Property	VII	$1,000
387-5	Trespass Trespass on posted property or private property, 3^rd and subsequent offense within 2 years after preceding violation		CR, §6-402(b)(3) CR, §6-403(c)(3)	Misd.	1Y		Property	VII	$2,500
388 Vacant
388-1	Trespass Trespass on railroad vehicle		CR, §6-503(c)	Misd.	6M		Property	VII
388-2	Unlawful Use of Goods Unauthorized removal of property	1-1466 1-1467	CR, §7-203	Misd.	4Y	6M	Property	VI	$50—$100
388-3	Unlawful Use of Goods Fraud—abandoning or refusing to return leased motor vehicle	1-0220 1-2405	CR, §7-205(a)	Misd.	1Y		Property	VII	$500
389	Weapons Crimes—In General Possess, use, wear, carry, or transport a firearm in a drug offense, 1^st offense	1-0493 1-0487	CR, §5-621(c)	Felony	20Y	MM*= 5Y	Person	III
390	Weapons Crimes—In General Possess, use, wear, carry, or transport a firearm in a drug offense, subsequent	1-0493 1-0487	CR, §5-621(c)	Felony	20Y	MM*= 10Y	Person	III
391	Weapons Crimes—In General Possess, use, wear, carry, or transport a firearm in a drug offense, 1^st offense (select firearms)	1-0493 1-0487	CR, §5-621(d)	Felony	20Y	MM*= 5Y	Person	III
392	Weapons Crimes—In General Possess, use, wear, carry, or transport a firearm in a drug offense, subsequent (select firearms)	1-0493 1-0487	CR, §5-621(d)	Felony	20Y	MM* = 20Y	Person	III
392-1	Weapons Crimes—In General Unlawful use of firearm in commission of felony or crime of violence, 1^st offense	1-5299	CR, §4-204(c)(1)	Misd.	20Y ♦	MM* = 5Y	Person	III
392-2	Weapons Crimes—In General Unlawful use of firearm in commission of felony or crime of violence, subsequent	1-5299	CR, §4-204(c)(2)	Misd.	20Y ♦	MM* = 5Y	Person	III
392-3	Weapons Crimes—In General Possess or use restricted firearm ammunition in a crime of violence	1-1284	CR, §4-110	Misd.	5Y		Person	V	$5,000
393	Weapons Crimes—In General Carrying or possessing firearm, knife, or deadly weapon on school property, other than handgun	1-5203	CR, §4-102	Misd.	3Y		Person	VI	$1,000
394	Weapons Crimes—In General Wear or carry concealed dangerous weapon; concealed possession of pepper mace by a minor	1-5202	CR, §4-101(c)(1) CR, §4-101(d)(1)	Misd.	3Y		Person	VII	$1,000
395	Weapons Crimes—In General Wear or carry dangerous weapon, mace, or tear gas device openly with intent to injure; openly wear or carry pepper mace by a minor	1-5200 2-5200	CR, §4-101(c)(2) CR, §4-101(d)(1)	Misd.	3Y		Person	VII	$1,000
396	Weapons Crimes—In General Wear or carry dangerous weapon openly or concealed with deliberate intent to kill or injure	1-5202 1-5200 2-5200	CR, §4-101(d)(2)	Misd.	3Y	3Y	Person	VI	$1,000
397	Weapons Crimes—In General Minor carrying dangerous weapon between 1 hour after sunset and 1 hour before sunrise, whether concealed or not (select counties)		CR, §4-101(c)(3)	Misd.	3Y		Person	VII	$1,000
397-1	Weapons Crimes—In General Illegal possession of electronic control device (e.g., stun gun, taser) while committing a separate crime of violence	1-0596	CR, §4-109(e)(2)	Felony	3Y		Person	VI	$5,000
398	Weapons Crimes—In General Possession of firearm at a demonstration in a public place	3-5299	CR, §4-208(b)	Misd.	1Y		Person	VII	$1,000
398-1	Weapons Crimes—In General Wear, carry, or transport a firearm in an area for children or vulnerable individuals, a government or public infrastructure area, or a special purpose area	1-1791 1-1792 1-1793	CR, §4-111	Misd.	1Y		Person	VII	$1,000
398-2	Weapons Crimes—In General Wear, carry, or transport a firearm while entering or trespassing in the dwelling or on the property of another without owner’s consent	1-1794 1-1795	CR, §6-411	Misd.	1Y		Person	VII	$1,000
399	Weapons Crimes—In General Unlawful possession of short-barreled rifle or shotgun	2-5212	PS, §5-203(a)	Misd.	5Y		Person	VI	$5,000
399-1	Weapons Crimes—In General Sell, rent, or transfer a rifle or shotgun by a person who is not a licensee; failure of licensee to comply with State and federal laws that apply to the sale, rental, or transfer of a rifle or shotgun; etc	1-0991	PS, §5-204.1(f)(1)	Misd.	6M		Person	VII	$10,000
399-2	Weapons Crimes—In General Provide false information while conducting a transaction for the sale, rental, or transfer of a rifle or shotgun	1-0992	PS, §5-204.1(f)(2)	Misd.	3Y		Person	VI	$5,000
400	Weapons Crimes—In General Possession of rifle or shotgun by restricted person (convicted of a disqualifying crime, fugitive, habitual drunkard, etc.)	1-0439	PS, §5-205	Misd.	3Y		Person	VI	$1,000
400-1	Weapons Crimes—In General Possession of rifle or shotgun after having been convicted of a crime of violence or select drug crimes	1-1610	PS, §5-206	Felony	15Y		Person	V
400-2	Weapons Crimes—In General Sell, rent, transfer, or loan a rifle or shotgun to restricted person (convicted of a disqualifying crime, fugitive, habitual drunkard, etc.)	1-0993	PS, §5-207	Misd.	5Y		Person	VI	$10,000
400-3	Weapons Crimes—In General Purchase, receive, sell, offer to sell, or transfer an unfinished frame or receiver that has not been imprinted with a serial number in compliance with federal laws and regulations (i.e., a “ghost gun”)	1-2224	PS, §5-703(c)(1)	Felony	5Y		Person	V	$10,000
400-4	Weapons Crimes—In General Possess a firearm that has not been imprinted with a serial number in compliance with federal laws and regulations	1-1686	PS, §5-703(c)(2)	Misd.	2Y		Person	VI	$10,000
401	Weapons Crimes—In General Possess, own, carry, or transport a firearm after conviction of a Title 5 (CDS) offense	1-0692	CR, §5-622(b)	Felony	5Y		Person	VI	$10,000
402	Weapons Crimes—In General Possession of regulated firearm by restricted person (convicted of a disqualifying crime, fugitive, habitual drunkard, etc.)	1-1106	PS, §5-133(b) PS, §5-144 (penalty)	Misd.	5Y		Person	VI	$10,000
403	Weapons Crimes—In General Possession of regulated firearm after having been convicted of a crime of violence or select drug crimes	1-1609	PS, §5-133(c)	Felony	15Y	MM* = 5Y¹	Person	V
404	Weapons Crimes—In General Possession of regulated firearm by person younger than 21 years old	1-5285	PS, §5-133(d) PS, §5-144 (penalty)	Misd.	5Y		Person	VI	$10,000
404-1	Weapons Crimes—In General Possession of ammunition by a restricted person or after having been convicted of a crime of violence or select drug crimes	1-1285	PS, §5-133.1	Misd.	1Y		Person	VII	$1,000
405	Weapons Crimes—In General Sell, rent, or transfer regulated firearm to restricted person (younger than 21 years old, convicted of a disqualifying crime, fugitive, habitual drunkard, etc.)	1-1105	PS, §5-134(b) PS, §5-144 (penalty)	Misd.	5Y		Person	VI	$10,000
406	Weapons Crimes—In General Sell, rent, or transfer regulated firearm ammo to a person younger than 21 years old; or firearm other than regulated firearm, firearm ammo, mace, or another deadly weapon to a minor	1-5270 1-5280	PS, §5-134(d)(1)	Misd.	1Y		Person	VII	$1,000
407	Weapons Crimes—In General Sell, rent, or transfer a regulated firearm before the expiration of 7 days—dealer	1-5230	PS, §5-123 PS, §5-144 (penalty)	Misd.	5Y		Person	VI	$10,000
408	Weapons Crimes—In General Sell, rent, transfer, or purchase a regulated firearm before the expiration of 7 days—person	1-5240	PS, §5-124 PS, §5-144 (penalty)	Misd.	5Y		Person	VI	$10,000
409	Weapons Crimes—In General Sell, rent, or transfer a regulated firearm to an applicant whose application is placed on hold	1-5250	PS, §5-125 PS, §5-144 (penalty)	Misd.	5Y		Person	VI	$10,000
410	Weapons Crimes—In General Possess, sell, transfer, or otherwise dispose of stolen regulated firearm	1-2220	PS, §5-138	Felony	5Y		Person	VI	$10,000
411	Weapons Crimes—In General Transport regulated firearm into State for purpose of unlawfully selling or trafficking	1-2221	PS, §5-140	Felony	10Y		Person	IV	$25,000
412	Weapons Crimes—In General Straw purchase of regulated firearm	1-5220	PS, §5-136(b) PS, §5-144 (penalty)	Misd.	5Y		Person	V	$10,000
413	Weapons Crimes—In General Straw purchase of regulated firearm for minor or person prohibited by law from possessing a regulated firearm	1-5290	PS, §5-141	Misd.	10Y		Person	IV	$25,000
414	Weapons Crimes—In General Multiple purchase of regulated firearms in 30-day period	1-1104	PS, §5-128 PS, §5-129	Misd.	3Y		Person	VI	$5,000
415	Weapons Crimes—In General Sell, rent, or transfer regulated firearms without license	2-5210	PS, §5-106 PS, §5-144 (penalty)	Misd.	5Y		Person	VI	$10,000
415-1	Weapons Crimes—In General Illegal sale, rental, transfer, purchase, possession, or receipt of regulated firearm	1-0642	PS, §5-144	Misd.	5Y		Person	VI	$10,000
416	Weapons Crimes—In General Give false information in application for firearm or dealer's license	1-5210 2-0642	PS, §5-139	Misd.	3Y		Person	VI	$5,000
416-1	Weapons Crimes—In General Failure by licensed firearms dealer to comply with record-keeping and reporting requirements, subsequent		PS, §5-145	Misd.	3Y		Person	VI	$10,000
417	Weapons Crimes—In General Sell, barter, display, or offer to sell or barter switchblade knife/shooting knife	1-5214	CR, §4-105(a)	Misd.	12M		Person	VII	$50-$500
418	Weapons Crimes—In General Disarm law officer	1-1460	CR, §4-103(b)	Felony	10Y		Person	IV	$10,000
419	Weapons Crimes—In General Wear bulletproof armor in the commission of a crime of violence or a drug trafficking crime	1-1450	CR, §4-106	Misd.	5Y		Person	V	$5,000
419-1	Weapons Crimes—In General Use, possess, or purchase bulletproof body armor after being convicted of a crime of violence or a drug trafficking crime	1-1449	CR, §4-107	Misd.	5Y		Person	V	$5,000
420	Weapons Crimes—In General Obliterate, remove, change, or alter manufacturer's identification mark or number on firearm	1-1612	PS, §5-142 PS, §5-144 (penalty)	Misd.	5Y		Person	VI	$10,000
421	Workers’ Compensation, Crimes Involving Affect or attempt to affect payment of compensation, fees, or expenses under Labor and Employment Article, Title 9, by means of a fraudulent representation, $100,000 or greater	1-0937	LE, §9-1106 CR, §7-104(g)(1)(iii) (penalty)	Felony	20Y		Property	III	$25,000

¹ At the time of the offense, if more than 5 years has elapsed since the person completed serving the sentence for the most recent conviction of a crime of violence or select drug crimes (including all imprisonment, mandatory supervision, probation, and parole), the imposition of the mandatory minimum sentence is within the discretion of the court.

MM* = Non-suspendable mandatory minimum penalty

♦ Defined as a violent crime in Correctional Services Article, §7-101, Annotated Code of Maryland. At the time of imposition of a sentence of incarceration for these offenses, Criminal Procedure Article, §6-217, Annotated Code of Maryland indicates the Court shall state in open court the minimum time the defendant must serve before becoming eligible for parole.

♦♦ Defined as a crime of violence only under certain circumstances specified in Criminal Law Article, §14-101, Annotated Code of Maryland.

General Rules:

(a)

If a Maryland offense has not been assigned a seriousness category and the offense has a maximum penalty of 1 year or less, the offense shall be assigned the lowest seriousness category (VII).

(b)

(c)

For Prior Record calculations involving an out of jurisdiction adjudication, the individual completing the worksheet shall match the offense as closely as possible to the closest analogous Maryland offense. If no Maryland analogous offense exists, the individual completing the worksheet shall count the offense in the lowest seriousness category (VII), and shall inform the judge and parties. If the out of jurisdiction adjudication is based on an act that is not a criminal violation in Maryland (e.g., cannabis possession), then the out of jurisdiction adjudication shall be excluded from the prior adult criminal record. If there is a question as to the analogous guidelines offense for an out-of-State adjudication, that question should be brought to the attention of the judge at sentencing.

Subtitle 23 — Alcohol, Tobacco, and Cannabis Commission

Chapter 01. Alcoholic Beverages

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Alcohol and Tobacco Tax and Trade Bureau” means the Tax and Trade Bureau of the United States Department of the Treasury.

(2)

Alcoholic Beverage.

(a)

“Alcoholic beverage” means a spirituous, vinous, malt, or fermented liquor, liquid, or compound that:

(i)

Contains at least one-half of 1 percent of alcohol by volume; and

(ii)

Is suitable for beverage purposes.

(b)

“Alcoholic beverage” includes alcohol, brandy, whiskey, rum, gin, cordial, beer, and wine.

(c)

“Alcoholic beverage” does not include a confectionery food product that contains up to 5 percent of alcohol by volume and is regulated by the Maryland Department of Health under Health-General Article, §21-209, Annotated Code of Maryland.

(3)

“Board of license commissioners”, “local licensing board”, or “liquor control board” means a board of license commissioners or another governmental unit of a jurisdiction that issues alcoholic beverages licenses.

(4)

“Commission” means the Alcohol, Tobacco, and Cannabis Commission.

(5)

“Comptroller” means the Comptroller of Maryland or the Comptroller’s designee.

(6)

“County” means a county of the State of Maryland or Baltimore City.

(7)

“Executive Director” means the Executive Director of the Alcohol, Tobacco, and Cannabis Commission for the State of Maryland or the Executive Director’s designee.

(8)

“License” means an alcoholic beverages license issued or a permit granted under Alcoholic Beverages Article, Annotated Code of Maryland

(9)

“License holder” means a holder of an alcoholic beverages license, including:

(a)

A county liquor control board and a county dispensary; and

(b)

For the delivery and billing purposes of Alcoholic Beverages Article, §2-213 and Title 2, Subtitle 3, Annotated Code of Maryland, a corporation on behalf of which an individual has obtained a license.

(10)

“Sale” means whenever an alcoholic beverage is offered, given, paid for, or bartered for between one or more parties.

Regulation .02 Retail Licensees — Handling of Alcoholic Beverages and Records.Link Copy Citation

Alcoholic Beverages — Tax Payment.

(1)

General. Properly licensed wholesalers and nonresident winery permit holders are a licensed retail dealer's source of supply for alcoholic beverages. A licensed retail dealer may not have in possession, or permit to be kept upon the licensed premises, any alcoholic beverages which have not been purchased from a licensed wholesaler or nonresident winery permit holder unless otherwise acquired under specific authority of Alcoholic Beverages Article or Tax-General Article, Annotated Code of Maryland.

(2)

Licensed retail dealers with proper invoices and adequate records covering their inventory of beer, wine, and distilled spirits may presume that the Maryland alcoholic beverage tax has been paid, if acquired in accordance with the provisions of §A(1) of this regulation.

Records. Records are required to be kept covering the acquisition of all alcoholic beverages received and returned and all payments and credits applicable to them. Licensed retail dealers shall sign a delivery receipt for all alcoholic beverages received. All books, vouchers, invoices, delivery tickets, and other papers shall be kept and maintained upon the licensed premises in a permanent, neat, and accessible manner available for inspection by authorized employees of the Comptroller or Executive Director during all regular business hours. A complete record shall be kept concerning all transactions in warehouse receipts and any alcoholic beverages placed in and received from public storage.

Decanters. Wine and liquor used by on sale licensed retail dealers in serving drinks shall be the wine and liquor received in sealed containers from licensed Maryland wholesalers, licensed manufacturers, or nonresident winery permit holders and shall be poured from those containers in the preparation of drinks on order for immediate consumption.

Sale.

(1)

Alcoholic beverage sales to consumers may not be solicited or consummated away from the licensed retail dealer's premises. A sale or delivery of alcoholic beverages may not be made for resale or to license holders, except to the holder of a Special and Temporary Class C license or as authorized by Alcoholic Beverages Article, Annotated Code of Maryland.

(2)

Alcoholic beverages offered, given, or sold by an unlicensed vendor to a consumer in conjunction with, or as a part of, a service or product paid for by the consumer is a sale requiring a license under Alcoholic Beverages Article, Annotated Code of Maryland.

Delivery. Licensed retailers are authorized to deliver alcoholic beverages off premises only:

(1)

With written approval of the board of license commissioners;

(2)

Within their respective county or city; and

(3)

To individuals 21 years old or older.

Regulation .03 Wine and Distilled Spirits Credit Control.Link Copy Citation

Late Payments.

(1)

An invoice issued by licensed wholesalers, licensed manufacturers, or nonresident winery permit holders shall:

(a)

Accompany each delivery of wine and distilled spirits to licensed retailers;

(b)

Be delivered to licensed retailers on the invoice date, or at the latest, on the next delivery date to the area in which the licensed retailer is located; and

(c)

Be collected for between the date of the invoice and the applicable due date as scheduled by the Executive Director, unless collected at the time of delivery to the licensed retailer.

(2)

All remittances for invoices shall be deposited by the licensed wholesaler, licensed manufacturer, or nonresident winery permit holder not later than the next business day.

(3)

The Executive Director shall issue a release annually to all licensed wholesalers, licensed manufacturers, and nonresident winery permit holders containing the list deadline:

(a)

Purchase dates; and

(b)

Due dates for payments.

(4)

A licensed wholesaler, licensed manufacturer, or nonresident winery permit holder shall report:

(a)

To the Executive Director those licensed retailers who do not pay an indebtedness for wine or distilled spirits on or before the established due date in the manner the Executive Director requires; and

(b)

To the licensed retailer simultaneously with the report filed with the Executive Director.

(5)

The Executive Director shall issue a list to licensed wholesalers, licensed manufacturers, and nonresident winery permit holders which shall:

(a)

Contain the names and addresses of licensed retailers who have been reported to the Executive Director under §A(4) of this regulation; and

(b)

Be issued 2 business days after the due date established by the Executive Director.

(6)

The Executive Director is authorized to issue supplementary lists when deemed necessary.

(7)

A licensed wholesaler, licensed manufacturer, or nonresident winery permit holder may not sell to any licensed retailer whose name appears on a current or supplementary list issued by the Executive Director, except on a C.O.D. basis.

(8)

A licensed wholesaler, licensed manufacturer, or nonresident winery permit holder shall file a clearance report with the Executive Director on the day the indebtedness is paid in full by the licensed retailer.

(9)

A clearance report is not eligible for consideration in the preparation of a subsequent credit control list unless the remittance covering the licensed retailer's indebtedness has been received by the licensed wholesaler, licensed manufacturer, or nonresident winery permit holder by the closing time of the due date. These reports shall be transmitted promptly to the Executive Director.

(10)

The Executive Director shall remove from the credit control list those licensed retailers reported by a licensed wholesaler, licensed manufacturer, or nonresident winery permit holder in cases when the postmark on the envelope that accompanies the remittance is dated at least 2 days before the applicable due date.

(11)

Postdated checks, notes, and other instruments of indebtedness do not constitute payment unless actually convertible into cash not later than the applicable due date or the date received in cases where the check is dated no later than the due date and was mailed in an envelope postmarked not less than 2 days before the applicable due date.

(12)

Immediate action shall be taken and followed through to effect the conversion into cash of a returned check given by a licensed retail dealer in payment of a C.O.D. shipment when the licensed retail dealer's name appears on a current list or supplemental list, in order to avoid extension of undue credit.

(13)

Pickup of Checks.

(a)

Representatives of the licensed wholesaler may not pick up payments from licensed retailers for invoices due for the current list.

(b)

Representatives of licensed wholesalers may pick up payments from licensed retailers who are currently on the over-30-day credit control list issued by the Executive Director.

(14)

Duplicate Checks.

(a)

A licensed wholesaler and a nonresident winery permit holder may accept a duplicate check from a licensed retailer if an affidavit in a manner and form approved by the Executive Director and signed by the licensed retailer accompanies the duplicate check.

(b)

The Executive Director may limit the number of duplicate checks allowed in a calendar year for the purpose of placing or removing a licensed retail account on the over-30-day credit control list.

(15)

A licensed retailer shall be reported to the Executive Director for late payment when the payment is received after 5 p.m. on the due date by the licensed wholesaler, except when a good postmark accompanies the payment pursuant to §A(8) of this regulation.

Returned Checks.

(1)

A check received by a licensed manufacturer, licensed wholesaler, or nonresident winery permit holder which is returned by the bank unpaid is not considered remittance or payment. The amount of the check immediately shall be charged back to the account of the licensed retail dealer who was credited with it.

(2)

A licensed manufacturer, licensed wholesaler, or nonresident winery permit holder receiving a check from a licensed retail dealer returned by the bank unpaid, which has or may have the effect of excluding that licensed retail dealer's name from the next list, or has or may have the effect of removing a licensed retail dealer from the current list, or was in payment of a C.O.D. shipment while that licensed retail dealer's name appeared on a current list, shall immediately make a report of the check to the Executive Director.

(3)

Licensed manufacturers, licensed wholesalers, or nonresident winery permit holders may not accept other than cash in payment of a reported indebtedness or for a C.O.D. shipment from a licensed retail dealer who has within a period of 6 months given either:

(a)

A total of two or more unpaid checks to one or more licensed manufacturers, licensed wholesalers, or nonresident winery permit holders in different list periods; or

(b)

Two or more unpaid checks to one licensed manufacturer, licensed wholesaler, or nonresident winery permit holder during one or more list periods, which:

(i)

Has or may have the effect of removing the licensed retail dealer from the current list,

(ii)

Has or may have the effect of excluding the licensed retail dealer's name from the next list,

(iii)

Was in payment of a C.O.D. shipment while the licensed retail dealer's name appeared on a current list.

General Provisions.

(1)

Information on each periodic list and supplements to it will remain in effect until the next list is issued.

(2)

Failure to file correct reports to the Executive Director as provided in this regulation shall constitute a violation of Alcoholic Beverages Article, Annotated Code of Maryland.

(3)

The Executive Director may also change or extend the due date with notice, under extenuating circumstances.

(4)

Reports shall be made to the Executive Director in a manner provided or approved by the Executive Director.

(5)

Cash as used in this regulation means U.S. Government coins and paper money, bank cashier checks, certified checks, postal and express money orders, checks of disinterested persons, and travelers' checks.

(6)

In order to avoid influence over a licensed retail dealer, licensed manufacturers, licensed wholesalers, and nonresident winery permit holders are required to take definite action toward collection of accounts in arrears in excess of 90 days.

(7)

Sales on a consignment or approval basis are not permitted.

Regulation .04 Standards of Fill.Link Copy Citation

The standard of fill for containers of wine or distilled spirits shall be identical with those of the Alcohol and Tobacco Tax and Trade Bureau.

Beer may not be sold or delivered to a licensed wholesaler or licensed retail dealer for consumption in this State in container sizes of less than 6.33 ounces.

Before a label may be sold and distributed in Maryland, the label shall be approved by the Alcohol and Tobacco Tax and Trade Bureau.

Regulation .05 Uniform Newspaper and Magazine Advertising of Wines and Distilled Spirits.Link Copy Citation

Application. A person engaged in business as a producer, manufacturer, bottler, importer, wholesaler, or retail dealer of distilled spirits or wines, directly or indirectly, or through an affiliate, may not publish or disseminate or cause to be published or disseminated in any newspaper, magazine, or similar publication any advertisement for distilled spirits or wines, unless the advertisement is in conformity with this regulation. These provisions may not apply to the publisher of any newspaper, magazine, or similar publication unless the publisher is engaged in business as a producer, manufacturer, bottler, importer, wholesaler, or retail dealer of distilled spirits or wines, directly or indirectly, or through an affiliate.

For the purpose of this regulation, “advertisement” includes any advertisement of distilled spirits or wines through the medium of newspapers, magazines, or similar publications, except that the term may not include:

(1)

Any label affixed to any container of distilled spirits or wines, or any individual covering, carton, or other wrapper of the container;

(2)

Any editorial or other reading matter in any periodical, publication, or newspaper for the preparation of publication of which no money or other valuable consideration is paid or promised, directly or indirectly, by any person subject to this regulation.

General Requirements and Restrictions in the Advertising of Distilled Spirits and Wines.

(1)

Mandatory Statements.

(a)

Responsible Advertiser. The advertisement shall state the name and address of the producer, manufacturer, bottler, importer, wholesaler, or retail dealer responsible for its publication. The street name and number may be omitted in the address.

(b)

Class, Type, and Distinctive Designation. The advertisement shall contain a conspicuous statement of the class and type, or other designation of the product, corresponding with the complete designation which appears on the brand label of the product as required by federal regulations.

(c)

Alcohol Content. The alcohol content shall be stated in the manner and form in which it appears on the labels of distilled spirits advertised.

(d)

Percentage of Neutral Spirits and Name of Commodity. In the case of distilled spirits (other than cordials, liqueurs, and specialties) produced by blending or rectification, if neutral spirits have been used in the production of it, there shall be stated in the advertisement the percentage of neutral spirits so used and the name of the commodity from which the neutral spirits have been distilled in substantially the manner and form in which these statements appear on the labels of the distilled spirits advertised. In the case of neutral spirits or of gin produced by a process of continuous distillation, there shall be stated in the advertisement the name of the commodity from which the neutral spirits or gin has been distilled substantially in the manner and form in which this statement appears on the labels of the distilled spirits advertised.

(e)

“Line” or “Brand” Advertisements. Where an advertisement does not mention a specific product but merely refers to a class of distilled spirits (such as “whiskey”) and the advertiser markets more than one brand of distilled spirits of that class, or where the advertisement refers to several classes of distilled spirits (such as “whiskey”, “brandy”, “rum”, “gin”, “liqueur”, etc.) marketed under a single brand, the only mandatory information prescribed by this subsection applicable to the advertisement would be the name and address of the responsible advertiser.

(f)

Retail Dealers. Advertisements by retail dealers which merely refer to the availability of distilled spirits or wines in those establishments but which otherwise make no reference to a specific brand of distilled spirits or wines shall be subject only to the “Prohibited Statements” provisions of §C(3).

(2)

Lettering; Conspicuousness of Mandatory Statements. Statements required by this regulation to be stated in any written, printed, or graphic advertisement shall appear in lettering or type of a size, kind, and color sufficient to render them both conspicuous and readily legible. In particular:

(a)

Required information shall be stated against a contrasting background and in type or lettering which is at least the equivalent of eight-point type;

(b)

Required information shall be so stated as to appear to be a part of the advertisement and may not be separated in any manner from the remainder of the advertisement;

(c)

When an advertisement relates to more than one product, the required information shall appear in such manner as to clearly indicate the particular products to which it is applicable;

(d)

Required information may not be buried or concealed in unrequired descriptive matter or decorative designs.

(3)

Prohibited Statements and Representations.

(a)

Restrictions. An advertisement may not contain:

(i)

Any statement that is false or misleading.

(ii)

Any statement that is disparaging of a competitor's products.

(iii)

Any statement, design, device, or representation which is obscene or indecent.

(iv)

Any statement, design, device, or representation of, or relating to, analyses, standards, or tests, irrespective of falsity, which is likely to mislead the consumer.

(v)

Any statement, design, device, or representation of, or relating to, any guaranty, irrespective of falsity, which is likely to mislead the consumer. Nothing in this section shall prohibit the use of any enforceable guaranty in substantially the following form: "We will refund the purchase price to the purchaser if he is in any manner dissatisfied with the contents of this package ---------- Blank to be filled in with the name of the person making guarantee.

(vi)

Any statement that the product is produced, blended, made, bottled, packed, or sold under, or in accordance with, any authorization, law, or regulation of any municipality, county, or State, federal, or foreign government unless the statement is required or specifically authorized by the laws or regulations of that government. If a municipal, county, State, or federal permit number is stated, the permit number may not be accompanied by any additional statement relating to it.

(b)

Statements Inconsistent with Labeling. The advertisement may not contain any statement concerning a brand or lot of distilled spirits or wines that is inconsistent with any statement on the labeling of it.

(c)

Curative and Therapeutic Effects. The advertisement may not contain any statement, design, or device representing that the use of any distilled spirits or wines has curative or therapeutic effects, if the statement is untrue in any particular, or tends to create a misleading impression. Examples of these statements are:

(i)

" ---------- is good for you";

(ii)

“Conducive to well-being”.

(d)

Place of Origin. The advertisement may not represent that the distilled spirits or wines were manufactured in, or imported from, a place or country other than that of their actual origin, or were produced or processed by one who was not in fact the actual producer or processor.

(e)

Flags, Seals, Coats of Arms, Crests, and Other Insignia. An advertisement may not contain any statement, design, device, or pictorial representation of, or relating to, or capable of being construed as relating to the armed forces of the United States, or of the American flag, any State flag, or of any emblem, seal, insignia, or decoration associated with these flags or the armed forces of the United States. An advertisement may not contain any statement, device, design, or pictorial representation of or concerning any flag, seal, coat of arms, crest, or other insignia, likely to lead the consumer to believe falsely that the product has been endorsed, made, used by, produced for, or under the supervision of, or in accordance with the specifications of the government, organization, family, or individual with whom that flag, seal, coat of arms, crest, or insignia is associated.

(f)

Examples of prohibited statements are:

(i)

Reproduction of medals or facsimiles of awards, when no medals or awards have been given or when the medals or awards were not given on a competitive or comparative basis. For example, “Genuine Sherry is made only in Spain”.

(ii)

“Contains no neutral spirits or alcohol” or “This rum will not turn dark in the bottle” or “All good wines are bottled at the winery”.

(iii)

“Analyzed by the Laboratory and found to be pure free from deleterious ingredients”, “Tested and approved”, or “Signed by The Research Institute”.

(4)

Other Prohibited Statements.

(a)

Restrictions. An advertisement for distilled spirits may not contain the words “bond”, “bonded”, “bottled in bond”, “aged in bond”, or phrases containing these or synonymous terms, unless those words or phrases appear upon the labels of the distilled spirits advertised, and are stated in the advertisement in the manner and form in which they appear upon the label.

(b)

Statements of Age. An advertisement for distilled spirits may not contain any statement, design, or device directly or by implication concerning age or maturity of any brand or lot of distilled spirits unless a statement of age appears on the labels of the advertised product. When this statement, design, or device concerning age or maturity is contained in any advertisement, it shall include (in direct conjunction with it and with substantially equal conspicuousness) all parts of the statement concerning age and percentages, if any, which appear on the label. However, an advertisement for any whiskey or brandy, which does not bear a statement of age on the label, or an advertisement for rum which is 4 years old or older, may contain general inconspicuous age, maturity, or other similar representations, such as “Aged in wood”, and “Mellowed in fine oak casks.”

(c)

Restrictions. An advertisement for wine may not contain:

(i)

Any statement of bonded winecellar and bonded winery numbers unless stated in direct conjunction with the name and address of the person operating that winery or storeroom. Statement of bonded winecellar and bonded winery numbers may be made in the following form: “Bonded Winecellar No.--”, “Bonded Winery No.--”, “B.W.C. No.--”, “B.W. No.--”. An additional reference to that statement may not be made, or may any use be made of that statement that may convey the impression that the wine has been made or matured under U.S. Government or any State Government supervision or in accordance with U.S. Government or any State Government specifications or standards.

(ii)

Any statement, design, device, or representation which relates to alcoholic content or which tends to create the impression that a wine is “unfortified” or has been “fortified”, or has intoxicating qualities, or contains distilled spirits (except for a reference to distilled spirits in a statement of composition when the statement is required by this regulation to appear as a part of the designation of the product).

(d)

Statement of Age. A statement of age or representation relative to age (including words or devices in any brand name or mark) may not be made, except that:

(i)

In the case of vintage wine, the year of vintage may be stated if it appears on the label;

(ii)

Truthful references of a general and informative nature relating to methods of production involving storage or aging, such as “This wine has been mellowed in oak casks”, “Stored in small barrels”, or “Matured at regulated temperatures in our cellars” may be made.

(e)

Statement of Bottling Dates. The statement of any bottling date may not be deemed to be a representation relative to age, if the statement appears without undue emphasis in the following form: “Bottled in--” (inserting the year in which the wine was bottled).

(f)

Statement of Miscellaneous Dates. No date, except as provided in C(4)(b) and C(4)(c) with respect to statement of vintage year and bottling date, shall be stated unless, in addition to it, and in direct conjunction with it, in the same size and kind of printing there shall be stated an explanation of the significance of the date. If any date refers to the date of establishment of any business, the date shall be stated without undue emphasis and in direct conjunction with the name of the person to whom it refers.

Regulation .06 Sale and Delivery for Export.Link Copy Citation

A licensee may not sell any alcoholic beverages for export to any person, firm, or corporation unless the person, firm, or corporation is authorized to receive the alcoholic beverages under the laws of the jurisdiction of the ultimate destination.

Regulation .07 Solicitor's Permit.Link Copy Citation

Definitions.

(1)

“Adult” means any person who has reached the age of majority.

(2)

“Representative” means any person employed by or who represents any licensed manufacturer, nonresident dealer, or nonresident winery who contacts Maryland licensed wholesalers or licensed retail dealers for the purpose of selling or offering for sale alcoholic beverages.

(3)

“Salesperson” means any employee of a licensed wholesaler, who sells or attempts to sell alcoholic beverages directly or indirectly to any licensed retail dealer for the account of licensed wholesalers.

(4)

“Solicitor” means any person employed as a representative or salesperson who contacts a licensed wholesaler or licensed retail dealer within this State for the purpose of selling, promoting, or offering for sale alcoholic beverages.

(5)

“Solicitor independent broker” means any person employed by or who represents within this State any licensed manufacturer, nonresident dealer, nonresident winery, or licensed wholesaler for the purpose of selling, promoting, or offering for sale alcoholic beverages by contacting:

(a)

Consumers at a special event for which a temporary or permanent retail license is issued; or

(b)

Consumers at an on-premises promotion as defined in COMAR 14.23.04.01.

(6)

“Solicitor trainee” means any person employed by a licensed manufacturer or licensed wholesaler within this State, or by the holder of a nonresident dealer permit or holder of a nonresident winery permit outside this State, for the purpose of training that individual as a solicitor.

General Procedures.

(1)

A person may not act as a salesperson for a Maryland licensed wholesaler, as a representative for a manufacturer, nonresident dealer, or nonresident winery, or as a solicitor independent broker, unless the person has first applied for and received a solicitor's permit from the Executive Director, except as provided in §B(2) of this regulation.

(2)

A “solicitor trainee” may not be permitted to sell, promote, or offer for sale alcoholic beverages except when accompanied by an individual holder of a valid solicitor's permit representing the same licensed wholesaler, licensed manufacturer, nonresident dealer, or nonresident winery. The training period may not exceed 30 days. After the 30-day training period, the person shall comply with the provisions of §B(1) of this regulation.

(3)

Any adult person, except the holder of a retail license or employees or agents of a licensed retail dealer, may make application to the Executive Director for a solicitor's permit, on forms and in the manner the Executive Director requires. The application shall set forth the name and address of the person, firm, or corporation who employs the applicant or whom the applicant represents, and also the name and address of the applicant. The applicant may not be employed by or represent any person, firm, or corporation whose name does not appear on the application.

(4)

Solicitors' permits shall be kept in possession at all times while engaged in the business of selling or offering for sale alcoholic beverages, and shall be exhibited upon demand by any licensee or authorized employee of the Executive Director.

(5)

Except for a holder of a solicitor's permit which specifically designates the holder as a solicitor independent broker, holders of a solicitor's permit may not contact consumers for the purpose of selling or offering for sale alcoholic beverages. If the person holding the permit is employed as a representative, the person may not be permitted to sell, promote, or offer for sale alcoholic beverages to licensed retail dealers, except for the account of a licensed wholesaler, who is a distributor for the products of the employer of the permittee.

(6)

The holder of a solicitor's permit shall notify the Executive Director of any change of address within 10 days. Failure to do so may subject the solicitor's permit to suspension or revocation by the Executive Director.

(7)

A solicitor shall notify immediately the Executive Director of any change of employment or representation status and shall surrender the solicitor's permit within 5 days for cancellation or amendment. Failure to surrender the permit within the 5 days may make that person ineligible for any other permit for a period of up to 3 years. It shall also be the duty of the employer or principal whose name is specified on the solicitor's application to notify the Executive Director within 5 days of the termination of the employment.

(8)

Correction for change of address, employment, or representation status, or to replace lost or destroyed permits, may be made during the permit year.

(9)

If the holder of a solicitor's permit violates the provisions of Alcoholic Beverages Article, Annotated Code of Maryland, or any regulation promulgated under it, the Executive Director may suspend or revoke the permit, and, in addition, may suspend or revoke the license or permit of the employer or principal of the permittee.

Regulation .08 Wine and Distilled Spirits Distributorship Appointments.Link Copy Citation

Definition. “Supplier” means a licensed manufacturer, nonresident dealer, or wholesaler who sells a brand of wine or distilled spirits to a licensed wholesaler for resale to licensed retailers in Maryland.

A supplier who desires to change the licensed wholesaler it has selected or franchised to distribute a brand of wine or distilled spirits in the State shall provide at least 30 days notice of this intention by registered mail to the licensed wholesaler and the Executive Director.

A licensed wholesaler who desires to discontinue the sale of a brand of wine or distilled spirits shall provide at least 30 days notice of this intention by registered mail to the supplier from whom the product was purchased and to the Executive Director.

If there is evidence that a violation of the law has occurred or that the distribution of a brand or brands of wine or distilled spirits will be adversely affected if the 30-day notice period is followed, the Executive Director may consider any substantial proof that is submitted in writing, and, if circumstances warrant, cause a reduction of this 30-day notice period.

Any brand of wine or distilled spirits affected by the procedure set forth in this regulation which is in the outgoing wholesaler's inventory on or before the conclusion of this notice period shall be purchased and paid for by the supplier or incoming wholesaler at the laid-in cost of the outgoing wholesaler before the incoming wholesaler is allowed to distribute the product in the Maryland market. If a supplier, other than the current brand owner or authorized agent, acquires a brand and wants to designate a wholesaler other than the existing wholesaler, the supplier may not file until the supplier or incoming wholesaler has purchased the inventory of the outgoing wholesaler at the laid-in cost of the outgoing wholesaler.

A supplier may not select, designate, appoint, or franchise more than one licensed wholesaler to sell or distribute a brand of wine or distilled spirits in Maryland for a period of time any longer than the 30-day notice period mentioned above.

This regulation does not apply to a county dispensary acting as a wholesaler.

Regulation .09 Samples of Alcoholic Beverages.Link Copy Citation

Except as provided in §E(6) of this regulation, samples of alcoholic beverages provided under this regulation shall be tax paid at the same rate and in the same manner as required by the Tax-General Article, Title 5, Annotated Code of Maryland.

Permitted Samples.

(1)

A licensed wholesaler may furnish samples or draw from sample accounts for the following purposes:

(a)

To provide a sample of an alcoholic beverage to a licensed retailer;

(b)

To donate alcoholic beverages to a bona fide charitable organization, nonprofit organization, or alcoholic beverage trade association;

(c)

To provide sample alcoholic beverages to bona fide alcoholic beverage experts; and

(d)

To provide alcoholic beverages to officers, officials, and employees of licensed wholesalers for personal and business use.

(2)

A supplier may furnish to a licensed wholesaler up to one case of an alcoholic beverage that is not a product available in the State for evaluation purposes and not for distribution or sampling to licensed retailers.

(3)

A nonresident winery permit holder may furnish samples or draw from sample accounts to provide a sample of an alcoholic beverage to a licensed retailer.

Samples to Licensed Retailers.

(1)

A sample of an alcoholic beverage not stocked or sampled by a licensed retailer during the immediately preceding 12 months may be furnished by a wholesaler representative, supplier representative, or nonresident winery representative when:

(a)

The sample is not in excess of one 200-milliliter container; or

(b)

If the alcoholic beverage is not available in a 200-milliliter container or smaller, then the sample is in one container of the next larger size.

(2)

A licensed wholesaler, supplier representative, or nonresident winery representative shall sign out all samples from the licensed wholesaler's inventory or nonresident winery permit holder's inventory in a manner approved by the Executive Director.

(3)

A representative of the licensed retailer shall sign a receipt for each sample provided.

(4)

A licensed wholesaler, supplier representative, or nonresident winery representative shall account for all samples withdrawn from the licensed wholesaler's inventory or nonresident winery permit holder's inventory within 30 days of sign out by returning to the licensed wholesaler or nonresident winery permit holder:

(a)

Completed retailer receipts; or

(b)

Unused samples.

(5)

A licensed wholesaler, supplier, or nonresident winery permit holder who does not comply with the provisions of this section may be prohibited from drawing future samples for distribution under this regulation.

Samples to Bona Fide Charitable Organizations, Nonprofit Organizations, or Alcoholic Beverage Trade Associations.

(1)

A licensed wholesaler may donate sample alcoholic beverages for use at a bona fide event or function if a temporary or permanent retail license has not been issued or is not required for the event or function.

(2)

Alcoholic beverages supplied may not exceed what is reasonably expected to be used for the specific event or function.

(3)

An officer or official of the charitable organization, nonprofit organization, or alcoholic beverage trade association shall submit a written request to the licensed wholesaler for the product setting forth the particulars of the event and certifying compliance with §D(1) of this regulation.

(4)

A representative of the charitable organization, nonprofit organization, or alcoholic beverage trade association shall sign a receipt for all sample alcoholic beverages received.

Samples to Alcoholic Beverage Experts.

(1)

A licensed wholesaler may provide samples to unlicensed individuals who are recognized for their contributions as alcoholic beverage writers in trade publications, newspapers, magazines, and other publications.

(2)

Before an individual may qualify as an expert under this section, the individual shall submit credentials to, and be approved by, the Executive Director.

(3)

Samples provided by a licensed wholesaler to an expert are for the express purposes of evaluation and analysis and are not for general distribution or consumption. Any samples received and not used for this purpose shall be destroyed.

(4)

A licensed wholesaler may directly provide samples to experts under the following conditions:

(a)

The expert signs a receipt for the product; and

(b)

Not more than three bottles of each brand is provided.

(5)

An expert may pick up samples at the premises of the licensed wholesaler, or the licensed wholesaler may deliver them to another location, including a licensed retail premises, for subsequent pickup if proper records are maintained.

(6)

Instead of receiving tax paid samples through a licensed wholesaler, an alcoholic beverage expert may receive tax-free products from legitimate out-of-State sources if the alcoholic beverage expert has applied for, and received from the Executive Director, a non-beverage permit.

(7)

Samples provided under this section need not originate from a licensed nonresident dealer.

Samples to Officers, Officials, and Employees.

(1)

An individual wholesale licensee may authorize bona fide company officers, officials, and employees to draw samples for personal and business use and not for sale.

(2)

The Executive Director may limit the number of samples drawn under this section if the samples are believed to be excessive or improperly used.

The Executive Director may require a written request for samples of beer, wine, or distilled spirits before delivery under this regulation.

Records and Reports.

(1)

A summary of samples of beer, wine, and distilled spirits distributed during the previous month shall be filed on forms provided by the Comptroller and submitted with the monthly alcoholic beverage tax return to the Comptroller with a copy of the Executive Director.

(2)

A licensed wholesaler or nonresident winery permit holder shall maintain accurate records to support monthly sample reports which shall be available for inspection.

Regulation .10 Sales by Holders of Class E Water Vessel Licenses.Link Copy Citation

Unless prohibited by local law, the holder of a Class E Beer, Wine and Liquor Water Vessel license may sell and serve alcoholic beverages for on-vessel consumption:

(1)

Only to paying passengers who are a part of a bona fide regularly scheduled or chartered tour; and

(2)

While the vessel is:

(a)

Made fast to a wharf, pier, piling, etc.; or

(b)

Underway.

A Class E Water Vessel licensee may not sell or serve any alcoholic beverages to the public at large or to any person who is not a bona fide paying passenger.

Nothing in this regulation shall prevent a local Board of License Commissioners from issuing a temporary or permanent license to a qualifying applicant for use on the vessel while the vessel is made fast to any wharf, pier, piling, etc., in the jurisdiction of the local licensing authority. However, the Statewide Class E License may not be used and shall be relinquished during the term any local license is in effect.

For the purpose of this regulation, the term “paying passengers” means:

(1)

Those persons who directly or indirectly pay a fee for boarding a regularly scheduled or chartered tour on a vessel; and

(2)

Guests of any person described in §D(1) of this regulation.

Regulation .11 Consumer Orders of Alcoholic Beverages.Link Copy Citation

Before an unlicensed individual or entity, other than a licensed retailer, engages in the business of taking orders for alcoholic beverages from Maryland consumers for ultimate sale and delivery by a licensed retail dealer, the individual or entity shall receive an authorization letter from the Executive Director.

In order to receive authorization, an applicant shall submit a detailed plan to the Executive Director:

(1)

Giving the names of all licensees the applicant is representing directly or indirectly; and

(2)

Agreeing to comply with all of the laws and regulations pertaining to alcoholic beverages, and any stipulations or restrictions that may be made a part of the authorization.

An authorization given is valid indefinitely or until revoked or modified by the Executive Director.

Illegal or improper activities engaged in by an individual or entity receiving orders from consumers, with or without a letter of authorization, may subject a licensee represented by the individual or entity as an agent to administrative action.

Alcoholic beverages sold and delivered as a result of a consumer order placed with an individual or entity shall be made through a supplier to a wholesaler to a retail dealer, all of whom shall hold the requisite license or permit.

Regulation .12 Wholesaler Credit Sales of Beer to Worcester County Retailers.Link Copy Citation

Beer Credit Sales.

(1)

A licensed wholesaler may sell beer on credit to retailers in Worcester County if the:

(a)

Licensed retailer has held an alcoholic beverage retail license in Worcester County for a minimum of 2 consecutive years before the sale and delivery; and

(b)

Licensed wholesaler complies with the provisions of this regulation.

(2)

A licensed wholesaler who sells and delivers beer on credit to a retailer in Worcester County shall be paid in full, including any interest charges, for the outstanding invoice not later than the 10th calendar day after the date of delivery.

(3)

A licensed wholesaler who has not received payment in accordance with §A(2) of this regulation shall:

(a)

Immediately discontinue beer sales, credit or otherwise, to that licensed retailer; and

(b)

Notify the Executive Director in writing of the delinquency as soon as possible but not later than 12 noon on the next business day.

Notification.

(1)

Notification of a delinquency under §A(3)(b) of this regulation may be in any form but shall contain at least the following information:

(a)

Name of the licensed wholesaler filing the report;

(b)

Name and trade name of the licensed retailer;

(c)

Full address of the licensed retailer;

(d)

Date and number of the original invoice; and

(e)

Amount of delinquency.

(2)

The Executive Director shall provide all other wholesalers of beer notice in writing of the delinquency report received. The notice shall provide an effective date when all licensed wholesalers are prohibited from making any sale or delivery of beer to that account.

(3)

A licensed wholesaler who has previously reported a delinquency shall notify the Executive Director upon receipt of full payment. The notification time frames are the same as with the original notification. Upon notification from the Executive Director that an account has been cleared, all licensed wholesalers, including the licensed wholesaler who filed the original delinquent report, may resume credit sales and deliveries to that account. Credit sales may be made at the discretion of the licensed wholesaler.

(4)

If a licensed wholesaler becomes aware that a licensed retailer's check has been returned by the bank unpaid, whether or not the check was issued as a payment at the time of delivery or on the licensed retailer's 10-day credit account, and the 10-day period specified in §A(2) of this regulation has expired, the licensed wholesaler shall consider this a nonpayment and immediately report this information to the Executive Director. A licensed wholesaler may elect to redeposit a returned check if it is returned within 10 days of the original invoice date. If a check is returned unpaid a second time, the licensed wholesaler shall immediately file a report with the Executive Director. Notification shall include a statement that the report was based on a returned check.

Beer Credit Prohibition. In accordance with Alcoholic Beverages Article, §33-504(b)(3), Annotated Code of Maryland, a licensed retailer who has been reported on three separate occasions within a single calendar year is prohibited from obtaining beer on credit for a period of 2 years from the date of the third report. For the purpose of this regulation, a specific beer purchase transaction between a licensed wholesaler and a licensed retailer constitutes an occasion. The Executive Director shall notify all licensed wholesalers of any retailers who meet this criterion.

Regulation .13 Family Beer and Wine Facility Permit.Link Copy Citation

Production.

(1)

The gallonage limitation for a consumer to brew beer or ferment wine shall be in accordance with 27 CFR 24.75 and 25.205.

(2)

Beer or wine made by a consumer under contract with the holder of a family beer and wine facility permit shall be for home consumption and the personal use of the consumer.

Sampling.

(1)

The holder of a family beer and wine facility permit is authorized to manufacture beer and wine for the purpose of providing samples on the licensed premises to consumers 21 years old or older who have signed a nonrefundable contract to manufacture beer or wine on the licensed premises.

(2)

The amount of samples provided to individuals shall be limited to the amount specified in Alcoholic Beverages Article, Annotated Code of Maryland.

Records.

(1)

The holder of a family beer and wine facility permit shall maintain on the licensed premises a log book of all beer or wine produced for sampling or equipment testing purposes, and produced by individuals under contract with the permittee.

(2)

Before entering into a contract with an individual, the permittee shall have the individual sign an affidavit, under penalties of perjury, that all beer or wine produced will be for personal use and home consumption only, and will not be for sale to other persons.

Sales. The holder of a family beer and wine facility permit may not offer for sale any alcoholic beverages.

Regulation .14 Statewide Caterer's License.Link Copy Citation

Records. The holder of a Statewide caterer's license shall maintain the following:

(1)

Records pertaining to all purchases and sales of alcoholic beverages;

(2)

Copies of executed catering contracts with persons or entities for events at which alcoholic beverages are provided; and

(3)

Original copies of catering certificates required under §B of this regulation.

Catering Certificates.

(1)

The holder of a Statewide caterer's license shall prepare a three-part certificate on forms provided or approved by the Executive Director for each event where alcoholic beverages are provided and served by the caterer. This form shall include:

(a)

The name and license number of the Statewide caterer;

(b)

The name of the person or entity who has contracted for the catered event;

(c)

The address where the catered event will be conducted;

(d)

The date or dates of the catered event; and

(e)

Other information as may be required by the Executive Director.

(2)

Copies of Certificates.

(a)

The original certificate shall be maintained on the licensed premises of the Statewide caterer.

(b)

The second copy shall be conspicuously posted for the duration of the event on the premises where the event is held.

(c)

The third copy shall be mailed or delivered to the local board of license commissioners in the jurisdiction where the catered event is conducted not later than 5 days preceding the catered event.

Boards of License Commissioners.

(1)

The local board of license commissioners has concurrent jurisdiction with the Executive Director to monitor catered events as authorized by Alcoholic Beverages Article, §2-506, Annotated Code of Maryland.

(2)

If a nonprofit organization or club is providing its own alcoholic beverages at a catered event, and a license is required due to the direct or indirect sale of alcoholic beverages, then the nonprofit organization or club is responsible for:

(a)

Obtaining a temporary alcoholic beverage license from the local board of license commissioners; and

(b)

All alcoholic beverage activities at the catered event.

(3)

If the alcoholic beverages at an event are being provided and served by the holder of a Statewide caterer's license, but there is a direct or indirect sale of alcoholic beverages by the nonprofit organization or club, then the local board of license commissioners may require the nonprofit organization or club to obtain a temporary license in addition to the license of the Statewide caterer.

Regulation .15 Alcohol Awareness Program and Training.Link Copy Citation

Alcohol Awareness Program Provider Requirements. A holder of an alcohol awareness program permit shall:

(1)

Maintain a current alcohol awareness program permit as required under Alcoholic Beverages Article, §2-158, Annotated Code of Maryland;

(2)

Maintain each alcohol awareness program in conformance with Alcoholic Beverages Article, §4-505, Annotated Code of Maryland, as certified by the Executive Director;

(3)

Notify the Executive Director, in writing, of any changes to the program, at least 30 days before implementation, for the Executive Director’s approval;

(4)

Upon approval by the Executive Director under §A(3) of this regulation, notify each alcohol awareness instructor and provide revised program material;

(5)

Notify the Executive Director, in writing, of discontinuance of the program with notice sent simultaneously to each alcohol awareness instructor;

(6)

Submit authorized alcohol awareness instructor permit applications to the Executive Director for approval;

(7)

Provide, at a minimum, 3 hours of alcohol awareness instructional classroom or electronic training of the program approved by the Executive Director;

(8)

Provide a program testing component with a uniform passing score and uniform objectives, which have been preapproved by the Executive Director;

(9)

Unless a delay is caused by a student, issue certificates to students who have successfully completed alcohol awareness training based on lists provided by an alcohol awareness instructor within 30 days of receipt of the notice, which certificates shall include the:

(a)

Program administrator's signature;

(b)

Program name;

(c)

Instructor's name;

(d)

Student's name;

(e)

Issuance date; and

(f)

4 year validation period;

(10)

Notify, in writing, the local alcoholic beverage licensing board in accordance with Alcoholic Beverages Article, §4-505(f)(2), Annotated Code of Maryland, of individuals who have successfully completed the alcohol awareness program, within 5 days after a certificate of completion is sent to the student as required in §A(9) of this regulation; and

(11)

Maintain records for a period of 5 years from the date the certificate was issued, reflecting:

(a)

The student's name;

(b)

The student's address;

(c)

The instructor's name;

(d)

The permit number;

(e)

The certification date; and

(f)

If known:

(i)

The local licensing board; and

(ii)

The licensed retail establishment's name and address.

Upon approval of an alcohol awareness instructor permit application, the Executive Director shall forward the alcohol awareness instructor permit to the program administrator for distribution to the authorized instructors.

Alcohol Awareness Instructor Requirements. A holder of an alcohol awareness instructor permit shall:

(1)

Maintain a current alcohol awareness instructor's permit as required by Alcoholic Beverages Article, §2-158, Annotated Code of Maryland;

(2)

Apply for an alcohol awareness instructor permit through the authorizing alcohol awareness program administrator;

(3)

Provide alcohol awareness training that covers the program as certified by the Executive Director, including the:

(a)

Course content;

(b)

Classroom or electronic hours; and

(c)

Testing component;

(4)

Provide training to persons of an alcohol awareness training program as certified by the Executive Director and authorized by the alcohol awareness training program provider;

(5)

Conduct the testing component in the presence of the student;

(6)

Provide within 10 days of completion of the class, a written list to the alcohol awareness program provider reflecting the:

(a)

Student's name;

(b)

Student's address;

(c)

Dates of classroom or electronic training; and

(d)

Licensed retail establishment's name and address, if known; and

(7)

Maintain records of all alcohol awareness training classes and certifications for a period of 5 years.

Before an alcohol awareness instructor administers the test under §C(5) of this regulation, a student shall satisfactorily prove the student's identity to the instructor by means of a government issued photo identification.

Type of Program Presentations. Programs may be presented in a classroom, individual, or electronic format. Testing shall be provided by the instructor face-to-face with the student or through an electronic platform that is certified by the Executive Director, as required under §C(5) of this regulation.

Responsibility. An alcohol awareness program provider shall have primary responsibility for the conduct and performance of each holder of an alcohol awareness instructor permit who provides instructions for the respective provider's alcohol awareness program.

Regulation .16 Come to Rest.Link Copy Citation

Definitions.

(1)

“Come to rest” means that the alcoholic beverages are physically unloaded from the transporter, truck, or other common carrier onto the floor, loading dock, or other part of the wholesaler's licensed premises.

(2)

“Licensed location” means the physical address of the licensed premises stated on the application.

(3)

Except as otherwise specified in Alcoholic Beverages Article, Annotated Code of Maryland, “licensed premises” means the physical location for which the license is issued, including any buildings or grounds identified and made part of the premises for purposes of the license application, and including additional licensed locations.

(4)

“Warehouseman” means a person who is an employee of the wholesaler and listed on the regular salary list or payroll of the wholesaler.

Application Requirement. The Licensed Location shall be the same as that stated on the application for the Basic Permit under the Federal Alcohol Administration Act as required by the Alcohol and Tobacco Tax and Trade Bureau of the Department of Treasury.

Except for deliveries to the holder of a Class E, F, or G license, deliveries made under an Individual Storage Permit do not meet the come to rest requirements under this regulation.

Come to Rest Compliance Requirement. The person driving the delivery vehicle and delivering the alcoholic beverage shall record the delivery location, date, and time and have it verified, by signature, upon delivery by the warehouseman. The warehouseman shall record the loading location, date, and time the alcoholic beverages are placed in a vehicle for delivery to a retailer and also shall record the identification information of the delivery vehicle. The driver of the retail delivery vehicle shall verify, by signature, the information recorded by the warehouseman upon loading of the alcoholic beverages.

Regulation .17 Nonresident Dealer Permit and Resident Dealer Permit Invoices.Link Copy Citation

The holder of a nonresident dealer permit or resident dealer permit shall:

(1)

Obtain a separate permit for each location under which alcoholic beverages are invoiced to Maryland wholesalers or retailers; and

(2)

Include on each invoice the business name as stated on the permit application.

Alcoholic beverages shipped to a Maryland wholesaler by the holder of a nonresident dealer permit or resident dealer permit may originate from a location other than the location on the permit as long as the invoice includes the permit name and address.

Regulation .18 Public Storage or Transportation Permit.Link Copy Citation

A public storage permit authorizes the holder to operate a warehouse for the storage of alcoholic beverages of licensees or authorized permit holders.

A public transportation permit authorizes the holder to transport alcoholic beverages into, within, or out of this State for licensees or authorized permit holders.

A Public Transportation Permit may be applied for by:

(1)

A person engaged in the business of transporting alcoholic beverages for licensees into, within, and out of this State; or

(2)

A licensed wholesaler in order to transport alcoholic beverages to retailers for another licensed wholesaler when there is a written delivery agreement between the wholesalers stating that there will be:

(a)

No warehousing of the alcoholic beverages being transported;

(b)

No unreasonable delay in transporting the alcoholic beverages;

(c)

Segregation of the alcoholic beverages from the alcoholic beverages being transported under the transporter's own wholesaler license;

(d)

A separate invoice for the alcoholic beverages being transported under the public transportation permit; and

(e)

Delivery of the alcoholic beverages without performance of any other service, such as solicitation, shelf management, product rotation, or any other acts that under Alcoholic Beverages Article, Annotated Code of Maryland, and the regulations may be legally performed by a licensed manufacturer, wholesaler, or permit holder.

A written delivery agreement that stipulates that the sale and delivery of alcoholic beverages shall be from the licensed premises of a wholesaler meets the requirements of §C(2) of this regulation.

When transporting alcoholic beverages under a public transportation permit, the holder shall possess the following:

(1)

A valid public transportation permit; and

(2)

A valid vehicle identification card for each vehicle, issued by the Executive Director pursuant to Alcoholic Beverages Article, §§2-218 or 2-119, Annotated Code of Maryland, which card shall include the vehicle's make, model, vehicle identification number, state of registration, and tag number.

Before accepting delivery, a licensed wholesaler shall verify that the transporter delivering the alcoholic beverages has in its possession the documentation required under §E of this regulation.

Regulation .19 Brand Size, Special Pack, Gift Packaging, and Labeling.Link Copy Citation

Definitions.

(1)

“Depletion allowance” means an allowance offered by a supplier which is:

(a)

For a given brand and size;

(b)

For a specific duration;

(c)

For a given amount per case;

(d)

Based upon sales from existing wholesaler inventories; and

(e)

Not conditioned upon purchases by a wholesaler.

(2)

“Private label” means any label that is owned by a licensed retail dealer, or is bottled and labeled exclusively for sale to a licensed retail dealer.

(3)

“Restricted or confined label” means any label of wine or distilled spirits, domestic or imported, other than private labels and those labels available for sale to licensed retail dealers generally.

(4)

“Self-imports” means any alcoholic beverages which are purchased and imported by a licensed wholesaler when the alcoholic beverages are invoiced by the foreign supplier direct to the Maryland licensed wholesaler.

(5)

“Special pack” or “gift pack” means a carton or package which:

(a)

Contains:

(i)

More than one brand of wine or distilled spirits, or

(ii)

One brand of wine or distilled spirits and one nonalcoholic item; and

(b)

Is intended for ultimate sale to the consumer.

(6)

“Wholesaler” means a person who purchases from a nonresident dealer, or self-imports from a foreign source, any alcoholic beverages for sale to other licensed wholesalers or licensed retail dealers, and includes a county liquor control board and a county wholesale dispensary.

Special Pack or Gift Pack Requirements.

(1)

Size of Containers. Only one size of an alcoholic beverage container shall be represented within a special pack.

(2)

Containers in Carton. The total number of containers in a carton shall be in conformance with the provisions of §C of this regulation.

(3)

Nonalcoholic Items. Nonalcoholic items shall be restricted to those items which are physically packaged with the special pack and which are intended for ultimate purchase by the consumer. Signs, placards, devices, and graphic displays bearing advertising or other forms of advertising may not be included in special packs.

(4)

Consumer Oriented. A special pack shall be:

(a)

Entirely consumer oriented; and

(b)

Configured and packaged to show that it is intended for ultimate sale to the consumer.

(5)

Handling and Package Costs. The cost of special packaging materials and additional labor costs to assemble the special pack may be added to the price of the special pack if it is reported on a special pack price analysis.

(6)

Brand Identity. Each special pack shall be considered a distinct brand. Each special pack shall be assigned a unique UNIMERC brand code number as described in §B of this regulation.

(7)

Component Pricing. The cost of the special pack is not dependent on the price of any component alcoholic beverage also filed in regular case lots. However, special pack pricing may not be used to circumvent the prohibition on quantity discounts or be tantamount to providing free goods directly to the licensed retailer.

(8)

Approval Process.

(a)

Suppliers and wholesalers shall provide written communication to the Executive Director at least 14 days prior to its distribution, to include the type of alcoholic beverages, quantity amounts, size of containers, and any non-alcoholic items that are included in the special pack.

(b)

The Executive Director reserves the right to request more detailed information, including physical inspection or photograph, if a particular problem or question arises with regard to a specific filing.

Containers in Carton.

(1)

Packages are to be distributed as follows:

(a)

Multiples of 12;

(b)

Half quantities;

(c)

Four 5 liters;

(d)

Four 4 liters;

(e)

Four 3 liters;

(f)

Six 3 liters;

(g)

Six 1¾ liters;

(h)

Eight or 6 1½ liter containers, but not more than one configuration per brand in any 12 consecutive months;

(i)

15, 12, or 9 1-liter containers, but not more than one configuration per brand in any 12 consecutive months;

(j)

15 or 12 750-milliliter containers, but not more than one configuration per brand in any 12 consecutive months; or

(k)

Any legal size packaged and sold as a single container.

(2)

When containers hold less than 12.8 ounces or 378.7 milliliters, the quantity of containers may not be restricted to multiples of 12 but shall be in accordance with the prevailing practice in effect as to size and as to the number of containers in a carton.

Labeling.

(1)

A label that is sold to more than one licensed retail dealer in Maryland may not qualify as a private label, and shall be made available for sale to licensed retail dealers generally.

(2)

Restricted or confined labels are prohibited for sale to licensed retail dealers.

(3)

Terms or conditions of sale, including delivery charges, C.O.D. charges, etc., shall be stated on the invoice covering the sale.

Subtitle 23 — Alcohol, Tobacco, and Cannabis Commission

Chapter 02. Maryland Cigarette Sales Below Cost Act

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Alcohol and Tobacco Tax and Trade Bureau” means the Tax and Trade Bureau of the United States Department of the Treasury.

(2)

“Cigarette” means any size or shaped roll for smoking that is made of tobacco or tobacco mixed with another ingredient and wrapped in paper or in any other material except tobacco.

(3)

“Commission” means the Alcohol, Tobacco, and Cannabis Commission.

(4)

“Comptroller” means the Comptroller of Maryland or the Comptroller’s designee.

(5)

“County” means a county of the State of Maryland or Baltimore City.

(6)

“Executive Director” means the Executive Director of the Alcohol, Tobacco, and Cannabis Commission for the State of Maryland or the Executive Director’s designee.

(7)

“Retailer” means any person engaged in the business of making retail sales of cigarettes within the State at a store, stand, booth, or concession, through vending machines, or otherwise, and only applies to the retail sales of cigarettes portion of the person’s business.

(8)

“Sell” includes advertise, offer to sell, or offer for sale.

(9)

Wholesaler.

(a)

“Wholesaler” means a person who purchases cigarettes directly from a manufacturer and only applies to the wholesale sales of cigarettes portion of the person’s business.

(b)

“Wholesaler” includes a person, who, as a sub-wholesaler:

(i)

Purchases cigarettes from another wholesaler solely for the purpose of bona fide resale to retailers other than those directly or indirectly owned, affiliated, or controlled by the wholesaler; and

(ii)

Services the retailers by maintaining an established place of business for the sale of cigarettes, including warehouse facilities, adequate inventory, proper accounting records, and necessary equipment and vehicles for the storage and distribution of cigarettes.

Regulation .02 Transportation Costs Calculated as Part of the Basic Cost of Cigarettes.Link Copy Citation

Transportation cost is the expense to ship or deliver cigarettes from a premise other than the retail license location to the retailer's location for final sale.

The transportation cost shall be calculated as part of the “basic cost of cigarettes” to the retailer, as provided in Commercial Law Article, § 11-501(e), Annotated Code of Maryland.

Section B of this regulation applies when a retailer receives wholesale discounts as provided in the Commercial Law Article, § 11-503(b).

Regulation .03 Notice That Wholesaler is Unlicensed.Link Copy Citation

A licensee who purchases cigarettes at wholesale for the purpose of resale in Maryland at wholesale or retail as defined in the Maryland Cigarette Sales Below Cost Act, from a person not having a license as provided in Business Regulation Article, §16-210, Annotated Code of Maryland shall be deemed not to have had notice and knowledge the wholesaler was unlicensed, if:

The licensee making the purchase had no actual notice or knowledge that the wholesaler was not licensed;

The licensee making the purchase demanded and received from the unlicensed wholesaler an invoice with each purchase stating affirmatively that the wholesaler was currently licensed; and

The invoice shows the identification number of the license issued by the Executive Director.

Regulation .04 Applications for Cigarette Licenses.Link Copy Citation

Applications for a retailer's cigarette license or licenses shall show the name and address of the place where cigarettes are sold.

Applications for more than one cigarette license shall be accompanied by a list of locations stating names and addresses where cigarettes are sold.

Applications by vending machine operators as defined in Commercial Law Article, §11-501(k), for a vending machine operator's cigarette license shall be accompanied by a list showing:

(1)

Names and addresses where cigarette vending machines are located;

(2)

The number of machines at each location; and

(3)

The address of the established place of business maintained by the applicant for the purchase of cigarettes, including but not limited to, the maintenance of warehousing facilities for the storage and distribution of cigarettes.

Regulation .05 Applications for Cigarette Licenses.Link Copy Citation

Holders of any cigarette license shall keep and maintain available for inspection during business hours, for a period of 2 years, the following:

(1)

All invoices and bills of lading;

(2)

All records covering all purchases and sales of cigarettes; and

(3)

All records of merchandise sold in connection with cigarettes.

The records in §A of this regulation shall be maintained and available for inspection at the license location.

Wholesale Sale of Cigarettes.

(1)

Each sale of cigarettes shall be accompanied by an invoice showing the following:

(a)

The date, name, and address of the seller;

(b)

The name and address of the buyer;

(c)

The quantity and brands sold;

(d)

The price charged for each of the brands of cigarettes covered by the invoices;

(e)

The license number of the cigarette license of the seller; and

(f)

The method of delivery (whether delivered by the seller to the buyer's place of business or picked up by the buyer).

(2)

Licensed wholesalers shall maintain a record of the current retailer's cigarette license numbers of all persons to whom they sell cigarettes at wholesale.

(3)

All cash sales made under the provisions of Commercial Law Article, §11-503(a), shall indicate cash sale on the invoice.

(4)

A sale shall be presumed to have been made on other than a cash basis unless otherwise indicated.

Cigarette Vending Machine Requirements.

(1)

A licensee who sells cigarettes at retail through a vending machine shall display on each machine:

(a)

A label that indicates the licensee's name, address, and telephone number; and

(b)

The label provided by the Comptroller that states the:

(i)

Age requirement for the purchase of cigarettes, and

(ii)

Penalty as provided by Criminal Law Article, §10-107, Annotated Code of Maryland.

(2)

Operators of cigarette vending machines not covered in §D(1)(a) shall display the retailer's cigarette license on the machines they operate.

Other holders of retailer's cigarette licenses shall visibly display the license on the premises where cigarettes are sold.

A person selling cigarettes both at wholesale and at retail as provided in Commercial Law Article, §11-501 (m)(3), shall purchase both a wholesaler's cigarette license and a retailer's cigarette license or retailer's cigarette licenses.

The licensee described in §F shall maintain the following records:

(1)

All purchases in which the licensee received discounts ordinarily allowed to wholesalers by other wholesalers; and

(2)

Records reflecting which of the licensee's sales were wholesale sales.

A vending machine operator holding a cigarette license shall notify the Comptroller within 10 days of the following:

(1)

Discontinuance of a location; or

(2)

Addition of a new location.

Regulation .06 Cost to Wholesaler" Eliminated From Certain Purchases.Link Copy Citation

A person who is a seller at both retail and wholesale as provided in Commercial Law Article, §11-501(m)(3), may:

Purchase cigarettes from another wholesaler eliminating the “cost to the wholesaler” from the price paid for the cigarettes, as provided in Commercial Law Article, §11-503(c), only on those cigarettes purchased that are sold at wholesale; and

Not purchase cigarettes pursuant to the provisions of Commercial Law Article, §11-503(c), which are sold at retail by the seller who is authorized to sell at both retail and wholesale.

Regulation .07 Sales by Manufacturers' Representatives.Link Copy Citation

A manufacturer's representative who sells cigarettes to a retailer may do so only:

As the duly authorized representative of a licensed wholesaler; and

On behalf of that wholesaler.

Regulation .08 Wholesaler's Cost of Doing Business.Link Copy Citation

Cost of Doing Business.

(1)

The cost of doing business is presumed to be 5 percent of the basic cost of cigarettes to the wholesaler.

(2)

Unless approved for a lower cost of doing business or meeting legal competition, as provided by this regulation, a wholesaler may not sell cigarettes to a retailer at less than a 5 percent markup.

(3)

“Cost of doing business” means the wholesaler's cost of doing business in cigarettes as evidenced by the accounting standards and methods regularly employed by the wholesaler in determining costs for purposes of federal income tax reporting for the total operation of the wholesaler's establishment.

(4)

The cost of doing business in cigarettes shall include, without limitation, allocations for:

(a)

Labor, including salaries of executives and officers;

(b)

Rent;

(c)

Depreciation;

(d)

Selling costs;

(e)

Maintenance of equipment;

(f)

Delivery costs;

(g)

Interest payable;

(h)

All types of licenses, taxes, insurance, and advertising; and

(i)

All other direct and indirect costs.

(5)

The cost of doing business shall be expressed as a percentage and applied to the basic cost of cigarettes.

(6)

A wholesaler who wishes to use the actual cost of doing business to the wholesaler pursuant to §A(3)(4) of this regulation rather that the presumptive cost of doing business to the wholesaler pursuant to §A(1)(2) of this regulation shall first establish satisfactory proof of a lesser cost of doing business.

When to File Application. A wholesaler who wishes to be approved for a lower cost of doing business shall submit an application to the Executive Director:

(1)

If not currently approved for a lesser cost, at least 60 days before the desired effective date;

(2)

If currently approved, not later than April 1 annually to be effective with the license year beginning May 1; and

(3)

At other times as may be requested by the Executive Director.

Application to Contain Certain Information.

(1)

An application for permission to sell at less than 5 percent markup shall contain:

(a)

A summary of total income and expenses associated with the licensee's entire business, and a summary of total income and expenses associated with cigarettes on a form to be provided by the Comptroller, and using the information set forth in the most recently filed federal income tax return;

(b)

A certification statement signed by the owner, partner, or responsible corporate officer indicating that the summary of income and expenses as contained on the form required by §C(1)(a) of this regulation is true and accurate;

(c)

A statement signed by a certified public accountant indicating the CPA has reviewed the information provided and that it reasonable reflects the information shown in all material respects;

(d)

A copy of the most recently filed federal income tax return form with all associated schedules and attachments;

(e)

A copy of any filing by the licensee seeking approval from the revenue authority of Delaware, Pennsylvania, New Jersey, or New York for a lower cost of doing business during the 12 months immediately preceding the application;

(f)

A release executed by the owner, partner, or responsible corporate officer authorizing the Comptroller to obtain copies of any documents or data in the possession of any federal, state, or local agency concerning the applicant's request to sell cigarettes at a lower cost of doing business; and

(g)

Any other information requested by the Executive Director as may be necessary to review the application.

(2)

If the wholesaler regularly engages the services of an independent accounting firm, the statement provided under §C(1)(c) of this regulation shall be signed by a CPA associated with that firm.

Review and Determination. The Executive Director shall review and evaluate the information provided by the wholesaler and shall determine he allowable markup. The Executive Director shall notify the wholesaler of the final action on the application, and the specified percentage cost of doing business approved shall remain in effect until the next application and approval or until withdrawn by the Executive Director. If a person with permission to sell at less than a 5 percent markup fails to submit a new application by April 1, then the permission previously given shall be automatically withdrawn on May 1 of the same year.

Meeting Lawful Competition. In order to meet lawful competition, any wholesaler may sell to any customer, or offer to sell to any potential customer, at the lowest markup approved for any wholesaler in the State. The Executive Director shall maintain a current list of the lowest currently approved markup which shall be released to wholesalers upon request.

Remedy. Notwithstanding approval by the Executive Director of a lower cost of doing business, an affected party who claims to be injured may pursue remedies in a court of competent jurisdiction as provided by Commercial Law Article, §11-508, Annotated Code of Maryland.

Subtitle 23 — Alcohol, Tobacco, and Cannabis Commission

Chapter 03. Beer Franchises and Local Alcoholic Beverage Reporting

Regulation .01 Beer Franchises.Link Copy Citation

A beer franchise filing is required to be filed with the Executive Director on the form prescribed by the Executive Director. A beer franchise form shall be filed periodically by:

(1)

A beer nonresident dealer who sells beer to a Maryland wholesaler or county dispensary for distribution in the State;

(2)

A Maryland brewery or microbrewery who sells beer to a Maryland wholesaler for distribution in the State; or

(3)

A Maryland beer wholesaler who self-imports beer for sale in Maryland or subdistributes beer to another Maryland beer wholesaler for sale in Maryland.

When a franchise status changes, a person required to file a beer franchise form under §A of this regulation shall report the change promptly to the Executive Director by filing a replacement beer franchise form or submitting an explanatory letter, or both.

Regulation .02 Reports of Boards of License Commissioners and County Dispensaries.Link Copy Citation

Report of Retail License Activity.

(1)

Each retail alcoholic beverages license-issuing authority shall file on a monthly basis a report with the Executive Director, on forms provided or approved by the Executive Director, listing all retail alcoholic beverages license activity, including issuances, cancellations, transfers, revocations, etc., for the report month. Each issuing authority shall file the monthly report with the Executive Director by the 15th of the month following the report month. Reports are due even if there is no activity.

(2)

Each alcoholic beverages license-issuing authority shall file annually a complete report of all retail alcoholic beverages licenses renewed for the year on forms provided or approved by the Executive Director. This annual report shall be filed by the 15th of the month following the month the licenses are renewed.

(3)

Reports filed by the alcoholic beverages license-issuing authority shall include the names of licensees, entity name and trade name, address, and any other information the Executive Director may require. The Executive Director may adopt a Statewide control number to be used by the alcoholic beverages license-issuing authority when filing reports.

(4)

Each alcoholic beverages license-issuing authority shall file annually a complete report of all revenue derived for the year preceding from retail alcoholic beverages licenses, on forms provided or approved by the Executive Director. This annual report shall be filed by August 15 annually.

Report of Dispensary Activities. Each county dispensary shall file annually a complete report summarizing all dispensary activities for the year on forms provided or approved by the Executive Director. This report shall be filed by August 15 annually and shall include gross profits, expenses, net profits of the dispensary, and any other information relating to the sale of alcoholic beverages that the Executive Director may require.

Subtitle 23 — Alcohol, Tobacco, and Cannabis Commission

Chapter 04. Alcoholic Beverage Trade Practices

Regulation .01 Definitions.Link Copy Citation

In this chapter, the following words have the meanings indicated.

Terms Defined.

(1)

“Advertising sign” means a printed board, poster, placard, or similar material provided by a supplier or licensed wholesaler to promote a particular alcoholic beverage product or supplier.

(2)

“Alcoholic beverage list” means a list or other advertising piece which is provided to a specific licensed retailer or group of licensed retailers and includes:

(a)

Captain's books, table tents, and similar items; and

(b)

A list for wine, spirits, and beer.

(3)

Brand Identifiable Advertising Material.

(a)

“Brand identifiable advertising material” means a distinctive or generic name, trademark, logo, or symbol, identifying the product of a brewery, distillery, rectifier, bottler, manufacturer, vintner, or winery.

(b)

“Brand identifiable advertising material” includes proprietary or contracted logos and symbols.

(c)

“Brand identifiable advertising material” does not include logos, symbols, or other depictions that are not brand related.

(4)

“Brand owner” means a person or entity, including but not limited to a brewery, distillery, rectifier, bottler, manufacturer, vintner, or winery, who has:

(a)

Documented title for a specific brand of alcoholic beverages; and

(b)

If applicable, obtained label approval from the Alcohol and Tobacco Tax and Trade Bureau.

(5)

“Bureau” means the Alcohol and Tobacco Tax Bureau of the Comptroller of the Treasury.

(6)

“Charity or nonprofit group” means an organization which qualifies for an exemption from federal income taxes under Internal Revenue laws and regulations.

(7)

“Commission” means the Alcohol, Tobacco, and Cannabis Commission.

(8)

“Comptroller” means the Comptroller of Maryland or the Comptroller’s designee.

(9)

“Consumer” means an individual of legal age who buys, possesses, keeps, or transports lawfully acquired alcoholic beverages for personal use only and not for sale.

(10)

“Contest” means a competition which is rated or scored by independent judges to determine a winner and when the winner is chosen by some skill, ability, or knowledge.

(11)

“Coupon” means:

(a)

A rebate offer by which a consumer, upon purchase of an alcoholic beverage product, is reimbursed monetarily by the supplier or independent clearinghouse representing the supplier; or

(b)

An offer by which a consumer, with or without consideration, may obtain merchandise, other than alcoholic beverage products, through a supplier or independent clearinghouse.

(12)

Executive Director” means the Executive Director of the Alcohol, Tobacco, and Cannabis Commission for the State of Maryland or the Executive Director’s designee.

(13)

“General advertising” means a printed, spoken, or visual public announcement paid for by a supplier or wholesaler to promote a particular alcoholic beverage product or supplier and does not identify or benefit a particular retailer or group of retailers.

(14)

Licensed Retailer.

(a)

“Licensed retailer” means the alcoholic beverage premises as described by the alcoholic beverage retail license as issued by the respective county or city license issuing authority.

(b)

For the purpose of an arena class alcoholic beverage license, each separate vendor or business entity handling alcoholic beverages is considered a separate licensed retailer.

(15)

“Nonresident dealer” means a person or entity that holds a nonresident dealer permit issued pursuant to Alcoholic Beverages Article, Annotated Code of Maryland.

(16)

“On-premises advertising” means point-of-sale material in the form of a sign, placard, display, or other item provided by a supplier or licensed wholesaler placed on a licensed retailer's premises and intended to promote a particular product or supplier of alcoholic beverages.

(17)

“On-premises promotion” means an activity:

(a)

Intended to promote a brand owner or brand owner's product which is sponsored by a supplier, licensed wholesaler or retailer, or a nonlicensee, including but not limited to a charity, radio station, or third-party promotional agency; and

(b)

Held on the premises of an alcoholic beverage licensed retailer.

(18)

Personalized Material.

(a)

“Personalized material” means any advertising sign, wording, or information which is unique to a retailer or group of retailers.

(b)

“Personalized material” includes but is not limited to:

(i)

The name of the retailer;

(ii)

Product size, packaging, or pricing;

(iii)

Menus; or

(iv)

Information promoting a retailer's event or activity.

(19)

“Representative” means an individual who is employed by or acts as an agent of a brand owner, nonresident dealer permittee, supplier, or licensed wholesaler and includes the holder of a solicitor's permit.

(20)

“Retailer” means a person or entity that holds an alcoholic beverage retail license pursuant to Alcoholic Beverage Article, Annotated Code of Maryland.

(21)

Supplier.

(a)

“Supplier” means a person or entity that sells alcoholic beverages to a licensed wholesaler in Maryland.

(b)

“Supplier” includes a brand owner, nonresident dealer permittee, agent of the brand owner or nonresident dealer permittee, and the holder of a Maryland manufacturer's license.

(22)

“Sweepstakes” means a drawing where the winner is chosen by lottery, matching game pieces, or a game of chance, or similar type of event which does not require any skill, ability, or knowledge in order to be selected.

(23)

“Third party” means an independent advertising or promotional agency, or any other person who is contracted by a supplier or a licensed wholesaler to conduct promotional activities on the premises of an alcoholic beverage licensed retailer.

(24)

Wholesaler.

(a)

“Wholesaler” means a person or entity that holds an alcoholic beverage wholesale license pursuant to Alcoholic Beverages Article, Annotated Code of Maryland.

(b)

“Wholesaler” includes a nonresident winery permit holder.

Regulation .02 General Provisions.Link Copy Citation

A representative may not engage in an activity that is impermissible on the part of the brand owner, nonresident dealer, supplier, or licensed wholesaler. If the representative is found to be acting contrary to this chapter, the representative's license or permit may be subject to suspension or revocation, and the license or permit of the representative's employer may be subject to suspension or revocation.

Trade practice restrictions upon a brand owner, supplier, or licensed wholesaler, which apply to alcoholic beverage products, advertising, or promotions, apply equally to nonalcoholic products if the activity or service could be construed as providing something of value to a licensed retailer or as relieving the licensed retailer of an ordinary business expense.

If a licensee or permittee is deemed to be acting contrary to one or more specific provisions of this chapter, in whole or in part, in addition to other available administrative remedies, including suspension or revocation of a license or permit, the licensee's or permittee's authority to engage in that particular trade practice activity may be temporarily or permanently terminated, without affecting the other aspects of the licensee's or permittee's operation or authority.

This chapter is applicable to all alcoholic beverage trade practice regulations. If there is a specific conflict with previously issued administrative notices or bulletins, these regulations prevail. Otherwise, any prior notice or bulletin on the subject of trade practices remains in effect.

If a general statement conflicts with an exception or qualification applicable to persons or sets of circumstances, the regulation as stated in the exceptions or qualifications prevails over the general provisions insofar as there is any conflict or inconsistency between the two.

Regulation .03 Coupons.Link Copy Citation

In General.

(1)

A coupon may only be provided to the consumer:

(a)

At the point of purchase;

(b)

Through direct mail;

(c)

Through the print media; or

(d)

Via a portable data file that is accessible from the Internet.

(2)

A licensed wholesaler and retailer and their employees and immediate families may not participate in supplier-sponsored coupon promotions.

(3)

A licensed wholesaler and retailer may provide application forms and coupon books to be displayed on retail premises.

(4)

A licensed retailer may promote supplier-sponsored coupons in its advertising.

(5)

A coupon offer shall have a definite expiration date printed on the coupon certificate.

(6)

Multiple coupon offers are permitted.

(7)

Coupons shall have wording stating that only individuals 21 years old or older may redeem coupons.

(8)

Redemption shall require a proof of purchase.

(9)

A monetary coupon offer may not exceed the supplier-to-wholesaler price during the period the coupon offer is in effect.

(10)

A coupon offer shall be submitted to the Executive Director upon request.

(11)

A coupon offer which the supplier considers questionable shall be submitted to the Executive Director for review before its use in Maryland.

Supplier Coupon Records.

(1)

Records Availability.

(a)

A supplier who maintains an office in Maryland shall maintain records available for inspection by the Executive Director.

(b)

A supplier located out-of-State shall make records available to the Executive Director upon request within 48 hours.

(2)

Record Requirements.

(a)

Documentation shall include:

(i)

The method used to distribute the coupon offer;

(ii)

The mailing list used to issue the coupon offer;

(iii)

The date the coupon went into effect; and

(iv)

The date the coupon expires.

(b)

Records shall be preserved for 2 years after the date the coupon expires.

(3)

Records Designation. A supplier shall:

(a)

Designate in writing where the records will be maintained;

(b)

Designate in writing the person responsible for maintaining the records; and

(c)

Inform the Executive Director when the location or person responsible for the records changes.

Regulation .04 Alcoholic Beverage Lists.Link Copy Citation

In General.

(1)

Except as provided in this regulation, a supplier, licensed wholesaler, or person connected with a supplier or licensed wholesaler may not furnish, procure, or otherwise prepare an alcoholic beverage list for a licensed retailer.

(2)

A licensed retailer may prepare and provide the retailer's own alcoholic beverage list if there is not an exclusive arrangement with consideration given by a supplier or licensed wholesaler to the licensed retailer.

(3)

A supplier may procure alcoholic beverage lists for a licensed retailer. The supplier shall charge the licensed retailer fair market value or higher.

(4)

A list sold to a licensed retailer is not limited on the quantity and type of products listed.

(5)

A licensed retailer and licensed wholesaler shall maintain documentation on their respective premises for a period of 2 years for lists sold to a licensed retailer.

Table Tents. Alcoholic Beverages table tents may be personalized if the personalized portion is not more than 1/2 of the overall table tent.

Regulation .05 Tastings.Link Copy Citation

Except as provided in this chapter or Alcoholic Beverages Article, Annotated Code of Maryland, a supplier or licensed wholesaler may not sponsor or participate in an alcoholic beverage tasting on licensed retail premises.

An alcoholic beverage tasting may be given by a supplier or licensed wholesaler only to bona fide members and guests of a:

(1)

Charitable organization;

(2)

Nonprofit group or association;

(3)

Trade association; or

(4)

Group of retailers by invitation.

An alcoholic beverage tasting may be held only:

(1)

On the licensed premises of a licensed wholesaler or supplier;

(2)

On nonlicensed premises; or

(3)

In a private room, not open to the public, which is located on licensed retail premises.

Alcoholic beverages provided for a tasting shall be obtained through the licensed wholesaler's sample account and shown on the wholesaler's monthly tax return if held on:

(1)

The premises of a licensed wholesaler or supplier; or

(2)

Nonlicensed premises.

A tasting may be held on licensed retail premises only if:

(1)

The product is provided by the licensed retailer;

(2)

Representatives of wine and distilled spirits suppliers or licensed wholesalers have a valid solicitor's permit for:

(a)

Guest speakers,

(b)

Experts, or

(c)

Anyone operating under contractual or other agreements with the supplier or licensed wholesaler; and

(3)

Details on the proposed tasting are submitted to the Executive Director as provided by Regulation .12 of this chapter.

“Winemaker” dinners or similar dinners including beer or distilled spirits are permitted on a limited basis when held on licensed retailer's premises and involving participation of a brand owner's, supplier's, or licensed wholesaler's representative pursuant to Regulation .10 of this chapter.

Consumer Tastings. A consumer tasting may be held:

(1)

For the purpose of market survey or analysis:

(a)

On nonlicensed premises,

(b)

By an independent research agency, and

(c)

If the Executive Director has advance notice and has given approval 14 days before conducting the survey;

(2)

By a supplier or licensed wholesaler for nonalcoholic beverage products on licensed retail premises, if the tasting is:

(a)

Spontaneous, and

(b)

Not announced in advance to the licensed retailer or public at large.

Tastings sponsored by a supplier or licensed wholesaler may not be designed or used as an inducement to a licensed retailer.

A supplier and licensed wholesaler who conduct tastings shall retain a file available for inspection on each event for 2 years. The file shall contain:

(1)

Full particulars of each tasting; and

(2)

A list of all persons who attended.

Regulation .06 Relationships with Consumers.Link Copy Citation

In General.

(1)

A consumer's source of supply is a licensed retailer.

(2)

A representative or agent of a supplier or licensed wholesaler may provide to consumers in trivial quantities:

(a)

Nominal advertising items such as matches, pencils, buttons, can openers, recipes, pamphlets, and similar items; and

(b)

Nonapparel items as part of a nonstructured promotional campaign during a spontaneous and isolated visit to licensed retail premises.

(3)

A licensed wholesaler or supplier may furnish samples for use by any bona fide religious, fraternal, civic, veterans, hospital, or charitable organization if it is a nonprofit organization which does not hold an alcoholic beverage retail license.

(4)

A supplier or licensed wholesaler representative may have contact with consumers as permitted by Regulation .12 of this chapter.

Solicitation of Consumers.

(1)

Only an employee of a licensed retailer may directly solicit an order for alcoholic beverages from a consumer.

(2)

A promotion or contact for an order that entails personal solicitation of a consumer away from licensed retailer's premises is prohibited.

(3)

A supplier or licensed wholesaler representative may have casual conversations with consumers away from the licensed retail premises concerning the merits of products if the conversations or discussions are not for the purpose of selling or offering for sale alcoholic beverages to the consumers.

(4)

A solicitor or salesperson may buy a consumer a drink at licensed, on-sale retail premises if:

(a)

The action is spontaneous and without prior notice to either the licensed retailer or consumer;

(b)

The alcoholic beverages are purchased from the licensed retailer at full price; and

(c)

The licensee or competitor licensee is not at the premises conducting a pre-announced or pre-planned promotional activity at the time of the visit (see Regulation .12B(6) of this chapter).

(5)

A supplier or licensed wholesaler may have mailings of advertising materials to consumers as permitted by this chapter.

Regulation .07 Third Parties and Charitable Groups.Link Copy Citation

In General.

(1)

A third party, acting on behalf of a licensed supplier or licensed wholesaler, may not engage in a promotional activity that would not be approved if it were submitted by the licensed supplier or wholesaler.

(2)

A supplier, licensed wholesaler, or third party may not use a charitable or nonprofit organization, a person or entity affiliated with or related to a licensee, or another third party, as a surrogate to circumvent the alcoholic beverage statutes or regulations.

(3)

A charitable group may engage in independent fund-raising activities on licensed retail premises.

(4)

A charitable group may receive a legitimate, non-product donation from a supplier or licensed wholesaler when the charitable group does not possess a retail license.

(5)

A representative of a third party who engages in an approved alcoholic beverage promotional activity on behalf of a supplier or licensed wholesaler shall obtain a Maryland solicitor's permit in accordance with COMAR 14.23.01.07.

Requests for Approval.

(1)

Information pertaining to promotional activities involving the direct or indirect involvement of a supplier or licensed wholesaler shall be submitted in accordance with Regulation .12 of this chapter.

(2)

When a third party is used to submit a proposal on behalf of the licensee, the proposal shall be accompanied by a letter signed by the licensee or, in the case of a corporation, by a corporate officer of the licensee indicating the licensee's:

(a)

Designation of the relationship of the third party; and

(b)

Acceptance of full responsibility for all activities of the third party while acting on behalf of the licensee.

Regulation .08 Sweepstakes and Contests.Link Copy Citation

In General.

(1)

Proposals for conducting a sweepstakes or contest in the State shall be submitted to the Executive Director in time to be approved 14 days before the start of the contest or sweepstakes.

(2)

A supplier or licensed wholesaler may sponsor a sweepstakes or contest in accordance with this chapter.

(3)

A third-party promotional agency may sponsor a sweepstakes or contest if it complies with Regulation .07 of this chapter.

(4)

A sweepstakes or contest may be advertised on radio, in newspapers, or in magazines if the licensed retailers are only referred to in general and not by name.

(5)

A sweepstakes or contest held by a supplier or licensed wholesaler is not limited to a specific licensed retailer or group of licensed retailers.

(6)

Instant winner vouchers shall be randomly placed in alcohol product packages if the licensed retailer has no knowledge of the placement and a record is kept of all parties who redeem a voucher.

(7)

A licensed retailer may not participate in a sweepstakes or contest sponsored by a supplier or licensed wholesaler, or a third party representing a supplier or licensed wholesaler, except to display point-of-sale materials and provide entry blanks.

(8)

A means of entry may be provided on neck hangers, or on or in caps, cap liners, corks, containers, label cartons, cases, or other material obtained by purchasing alcoholic beverages, if an alternative means of entry that does not require a purchase of alcoholic beverages is provided.

General Sweepstakes and Contest Rules.

(1)

Sweepstakes and contest participants shall be of legal drinking age.

(2)

A supplier, licensed wholesaler or retailer, or their families or employees are not eligible to participate or receive prizes.

(3)

A purchase of alcoholic beverages is not required to enter a sweepstakes or contest.

(4)

Contest rules shall state:

(a)

The beginning date and deadline for entry;

(b)

Prizes;

(c)

Chances of winning;

(d)

How winners are chosen; and

(e)

Any other general rules.

Regulation .09 General Advertising.Link Copy Citation

In General.

(1)

Advertising when paid for by the supplier or licensed wholesaler may not identify a particular licensed retailer, the retailer's employees, or the retailer's licensed premises.

(2)

A licensed retailer or group of licensed retailers may not benefit, directly or indirectly, more than licensed retailers in general for advertisements when they are paid for by the supplier or licensed wholesaler.

Cost of Advertising.

(1)

A licensed wholesaler or retailer may not participate, directly or indirectly, in the cost of promoting or advertising wine or distilled spirit products unless the licensed wholesaler or retailer is the brand owner.

(2)

A supplier or brand owner may not undertake any plan or design which directly or indirectly results in the purchase of wine or distilled spirits advertising materials, supplies, or services by a licensed wholesaler or retailer.

Advertising Categories.

(1)

Radio and Television Advertising.

(a)

Advertising of alcoholic beverages on radio or television is permitted if the advertising meets the requirements of the Alcohol and Tobacco Tax and Trade Bureau and the Federal Communications Commission.

(b)

A supplier, nonresident dealer permittee, and licensed wholesaler may not directly or indirectly provide, pay, or credit a licensed retailer with radio or television advertisements.

(c)

A licensed retailer may not use advertising credits or “free spots” that have been accrued by a supplier or licensed wholesaler based upon other contractual agreements.

(d)

A licensed retailer shall pay for radio and television advertising for the purpose of promoting the licensee's general business, location, or any special promotions independently conducted by the licensed retailer.

(2)

Print Advertising.

(a)

General newspaper, magazine, and periodical advertisements of alcoholic beverages are permissible if they comply with the provisions of COMAR 14.23.01.05.

(b)

Restrictions on advertising related to radio and television as stated in this regulation also apply to print advertising.

(3)

Billboards.

(a)

A supplier or licensed beer wholesaler may advertise on a billboard when the advertising is brand-identifiable and of benefit only to licensed retailers in general.

(b)

A licensed retailer may advertise on billboards if the cost is paid by the licensed retailer and the advertising does not promote a particular wine or distilled spirit product.

(4)

Giant Inflatable Balloons, Bottles, Cans, and Mobile Displays.

(a)

A display may be used in parades and other functions if it is not brought to permanent rest in front of a licensed retailer's premises.

(b)

A display is permitted on or near licensed retail premises if it is intended to promote an authorized event being held or sponsored by a supplier, licensed wholesaler, nonprofit organization, or trade association, and is not intended to promote a particular licensed retailer.

Regulation .10 On-Premises Advertising.Link Copy Citation

In General.

(1)

A neon or other sign, poster, placard, device, or graphic display bearing advertising matter, or any other form of advertising, for use in windows or elsewhere on the licensed premises, may be given by a supplier or licensed wholesaler to licensed retailer if:

(a)

The utilitarian value is secondary and only incidental to the value as an advertisement;

(b)

The total value of any single advertising item furnished for use in a licensed retail establishment at any time does not exceed $150 except, however, that a malt beverage sign manufactured by a beer wholesaler and provided to a retailer may not exceed $50; and

(c)

The cost of installation of an item does not exceed that which is usual and customary in that particular locality.

(2)

Generally, the total cost of advertising items for products produced by a given brand owner on the premises of a given licensed retailer may not exceed $600 by a brand owner of wine or distilled spirits.

(3)

Advertising or promotional materials, such as paper cups, matches, brochures, leaflets, circulars, napkins, placemats, calendars, or similar items, may be furnished to licensed retailers if the:

(a)

Advertising is general in nature;

(b)

Advertising does not identify a particular licensed retailer or licensed premises;

(c)

Promotional item is provided in trivial quantities; and

(d)

Promotional item does not relieve the licensed retailer of an ordinary business expense.

(4)

Advertising items, displays, and other promotional materials for nonalcoholic beverage products shall meet the same criteria and be subject to the same limitations as alcohol products if provided by a supplier or licensed wholesaler. To do otherwise could be construed as providing the licensed retailer with something of value contrary to applicable provisions of Alcoholic Beverages Article, Annotated Code of Maryland.

(5)

An alcoholic beverage advertising sign, display, or item on a licensed retailer's premises is subject to confiscation if it is contrary to the provisions of Alcoholic Beverages Article, Annotated Code of Maryland, or any regulation under this subtitle.

(6)

Advertising items may be furnished to licensed retailers in connection with a bona fide promotion as permitted by this regulation.

Distilled Spirits and Wine Advertising.

(1)

An advertisement may not be personalized for a particular licensed retailer or a licensee's retail promotion.

(2)

Advertising material for an activity common to all licensed retailers that is mass produced and contains prominent and permanent material is permissible if:

(a)

A licensed retailer is not identified; and

(b)

The utilitarian value is secondary and only incidental to the value as an advertisement.

Beer Advertising.

(1)

A manufacturer, malt beverage supplier, nonresident dealer permittee, or a licensed wholesaler may not provide newspaper, radio, or television advertisement to a licensed retailer directly or indirectly.

(2)

A sign, display, or other form of advertising shall contain brand identifiable advertising material that is prominent, permanent, and equal to the life and value of the utilitarian character of the advertising item.

(3)

An advertising sign, poster, or point-of-sale material may contain personalized material for a particular licensed retailer if the personalized material is not more than 50 percent of the total dimension of the sign, poster, placard, or other material.

(4)

An advertising sign, poster, or other point-of-sale material which contains personalized material shall contain brand identification which is equal to or greater than the personalized portion of the advertising sign, but in no case shall brand identification constitute less than 1/3 of the total area of the advertising sign.

(5)

If an advertising sign, poster, or other point-of-sale material has no personalized material, the limits and restrictions set forth in §C(3) and (4) of this regulation do not apply.

Retailer and Consumer Advertising Specialties.

(1)

Nonpersonalized items, such as trays, coasters, mats, paper napkins, cups, and similar items that advertise a supplier's brand, are permitted to be given to a licensed retailer in trivial quantities.

(2)

Specialty items may not be provided with a licensed retailer's name or logo placed on the item.

(3)

Retailer advertising specialties do not relieve the licensed retailer of an ordinary business expense.

(4)

Nonpersonalized items in excess of trivial quantities shall be sold to the licensed retailer at fair market value or higher if documentation of the sale is maintained.

(5)

Hats, towels, t-shirts, glassware, and similar items that have manufacturer or supplier advertising shall be sold to licensed retailers at fair market value.

Product Displays.

(1)

A product display includes wine racks, bins, barrels, casks, shelving, and similar items, the primary function of which is to hold, shelve, or display product.

(2)

A product display may not exceed the dollar limitations as described in Alcoholic Beverages Article, §§2-216 and 2-315, Annotated Code of Maryland.

(3)

A display may not contain merchandise contained in a consumer offer program.

(4)

A representative of licensed wine and liquor suppliers or wholesalers may not build displays on a licensed retailer's floor in excess of 15 cases. A display may be built anywhere on the licensed premises but may not be built onto a part of the existing shelving system at the retailer's establishment. A wine and liquor salesperson or merchandiser, or both, may build displays in excess of 15 cases but must make the appropriate charge back to the supplier. A beer salesperson may build displays and is not limited as to quantity if the advertising value of the display exceeds any secondary service provided to the licensed retailer.

(5)

A supplier and wholesaler representative may not use a licensed retailer's fixtures or equipment to build or maintain displays.

(6)

Except as provided in §E(10) of this regulation, when a display has been built, a salesperson or merchandiser may not rebuild the display, and a licensed retailer may not require a salesperson or merchandiser to move the display from one area of the licensed premises to another.

(7)

A salesperson or merchandiser may not use licensed retailer-supplied equipment, supplies, computers, etc. to make or prepare product or other signs at a licensed retail establishment. It is permissible for a supplier or wholesaler representative to place “bottle neckers” on their products if no licensed retailer-supplied equipment or materials are used.

(8)

An advertising item permitted by this regulation used in the display shall have brand identification that is conspicuous and permanent.

(9)

An advertising item with a utilitarian value shall be altered or disabled in a manner as to render it not usable for its normal purpose.

(10)

When a beer or malt beverage product display has been built, a salesperson, merchandiser, or driver may replenish or rebuild the display for purposes of product rotation at the time of a regularly scheduled delivery, merchandisers call, or sales call, subject to the provisions of Alcoholic Beverages Article, Annotated Code of Maryland.

Umbrellas.

(1)

A brand owner may furnish for display and use by a licensed retailer up to a total of 12 umbrellas advertising alcoholic beverages or nonalcoholic beer products, if:

(a)

The total cost of umbrellas does not exceed $600; and

(b)

No single brand is represented by more than six umbrellas.

(2)

Umbrellas permitted under this section shall be displayed on the licensed retailer's premises.

(3)

Umbrellas removed from the licensed retailer's premises may be returned to the brand owner.

Approvals of On-Premises Advertising.

(1)

It is not necessary to submit to the Executive Director for approval point-of-sale advertising items that are used consistent with this chapter.

(2)

The burden of proof that all on-premises advertising items meet the requirements of this chapter rests with the supplier or nonresident dealer permit holders.

(3)

A supplier shall submit for approval to the Executive Director advertising items of a questionable nature to assure they are operating within the provisions of this chapter.

Approval of Advertising and Promotional Contracts.

(1)

Before an alcoholic beverages supplier or malt beverage wholesaler enters into a contract for advertising and promotional services that will occur on the premises of a retail licensee in exchange for a sponsorship fee or other consideration, a copy of the contract, with supporting documentation, shall be submitted to the Executive Director for review.

(2)

A supplier or wholesaler shall receive approval from the Executive Director prior to entering into a contract under §A(1) of this regulation.

Regulation .11 Services to Retailers.Link Copy Citation

In General.

(1)

Except as provided in COMAR 14.23.01 or this chapter, a brand owner, supplier, nonresident dealer permittee, or licensed wholesaler may not provide something of value to a licensed retailer as prohibited by provisions of Alcoholic Beverages Article, Annotated Code of Maryland

(2)

A brand owner, supplier, nonresident dealer permittee, or licensed wholesaler may not provide a service or item of utilitarian value which would relieve a licensed retailer of an ordinary business expense.

(3)

A supplier or licensed wholesaler may not move, stock, rotate, dust, or otherwise alter or disturb a competitor's products on a licensed retailer's premises.

Shelf Management.

(1)

A brand owner, supplier, nonresident dealer permittee, or licensed wholesaler may discuss in general and specific terms with a licensed retailer shelf-management concepts and programs which benefit the licensed retailer in marketing all of the licensed retailer's alcoholic beverage products.

(2)

A supplier or licensed wholesaler may provide, publish, and generally make available data on market sales and analysis.

(3)

A brand owner, supplier, nonresident dealer permittee, or licensed wholesaler may provide and suggest shelf-management plans or schematics which are personalized for a specific licensed retailer or group of licensed retailers.

(4)

Implementation of a suggested shelf-management plan shall be done solely by the licensed retailer.

(5)

A supplier or licensed wholesaler representative may not participate in stocking or rearranging shelves in connection with a shelf-management plan.

Shelf Stocking and Product Rotation.

(1)

A supplier or licensed wholesaler may not stock shelves, price items, or arrange any products including its own, for a licensed retailer except as provided in this chapter.

(2)

A supplier or licensed wholesaler may rotate products, when rotation is performed to ensure product freshness and to take advantage of limited shelf life products.

(3)

Limited rotation does not include any of the following activities:

(a)

Opening of cases;

(b)

Placement of individual bottles on shelves or in coolers;

(c)

Movement of products from one shelf location to another location;

(d)

Rearrangement of alcoholic beverages in a storage or sales area in less than case lots; or

(e)

Shelf management.

(4)

Beer, malt beverage products, wine coolers, and spirit coolers differ somewhat from other alcoholic beverages due to limited shelf life. A driver or salesperson may rotate a licensed wholesaler's own product that is meant to be accessible by the consumer so that the current delivery is placed in the position of being “first in, first out”.

(5)

A supplier or licensed wholesaler that distributes nonalcoholic beverage products, for example, sodas, teas, bottled water, juices, and other items, may stock shelves at a retail licensed premises with those products. This shelf stocking of nonalcoholic beverage products may not include nonalcohol beer or nonalcohol wine products.

A supplier or licensed wholesaler may dust alcoholic beverage products, but the dusting may not be used as a subterfuge for shelf stocking or impermissible rotation.

A supplier or licensed wholesaler may not enter into an agreement, financial or otherwise, with a licensed retailer to assure a certain allocation or positioning of shelf space, including a slotting allowance, for the licensed wholesaler's or supplier's product.

A supplier or licensed wholesaler representative may set up advertising displays on a licensed retailer's premises consistent with the provision of Regulation .10 of this chapter.

Draft Equipment.

(1)

A licensed wholesaler may furnish at no charge to a licensed retailer minimum services to beer or wine draft systems, such as cleaning lines and minor repairs and parts such as washers, nuts, or clamps, and may provide the necessary equipment to take beer from the keg to the stanchion station if the parts and equipment are minimal in cost.

(2)

A licensed wholesaler may provide items such as:

(a)

Nitrogen, CO2, spigots, faucets, coil cooler boxes, drip trays, and similar items for beer draft systems at cost or above; and

(b)

Nitrogen, pumps, mounts, gauges, regulators, standards, and similar items for wine draft systems at cost or above.

(3)

A licensed wholesaler may not give any refrigeration or draft equipment to a licensed retailer. A licensed wholesaler may rent or lease refrigeration or draft equipment to a licensed retailer at fair market value or higher.

(4)

A licensed wholesaler may perform the labor service part of draft system installation or alterations and may repair equipment such as refrigerators or compressors if the licensed wholesaler charges at least fair market value, or higher, for labor and parts.

(5)

A licensed wholesaler representative may be present at a special event where alcoholic beverages are dispensed from rented refrigerated trucks, but may not dispense or provide other assistance before, during, or after the event except to:

(a)

Ensure protection of the licensed wholesaler's equipment; and

(b)

Set up tapes and train licensed retailer's representatives in their use.

Inventories and Deliveries.

(1)

A salesperson may take inventory of the salesperson's company's products for purposes of recommending a purchase order. Orders may not be taken for products not in the licensed wholesaler's inventory.

(2)

A salesperson may not place a licensed retailer's inventory in or on a licensed retailer's computer or other records of the licensed retailer, and a salesperson may not develop a customized product or price list for a particular licensed retailer or group of licensed retailers but may provide a generic diskette which shall be made available to any licensed retailer who requests a generic diskette.

(3)

Locations of Deliveries.

(a)

Except as provided in §H(3)(b) and (c) of this regulation, deliveries of alcoholic beverages shall be made to a central point at a licensed retailer's establishment whether the central point is in the sales area or a particular area designated for storage.

(b)

Deliveries of beer and malt beverage products may be made to multiple locations within the licensed retail establishment.

(c)

Deliveries of alcoholic beverage products may be made to multiple locations within the arena and stadium licensed premises.

(4)

Deliveries shall be made on the invoice date or the next delivery date to that area. If the delivery is not made, the order shall be canceled and a new order prepared with the appropriate price and conditions of sale for the date of the most recent order.

Regulation .12 On-Premises Promotions.Link Copy Citation

Description.

(1)

An on-premises promotion is an activity to promote a brand owner's product that includes:

(a)

Brand owner promotions;

(b)

Charity promotions;

(c)

Radio station promotions; or

(d)

Licensed retailer promotions.

(2)

An on-premises promotion includes tastings:

(a)

That are open to the public and held in conjunction with a reception or dinner; and

(b)

At which a representative of a supplier or licensed wholesaler:

(i)

Is present;

(ii)

Discusses the characteristics and merits of a particular brand or type of alcoholic beverage;

(iii)

Interacts with the attendees; and

(iv)

May pour the representative's own products.

Brand Owner Promotional Activities.

(1)

A brand owner or supplier, third party, or wholesaler acting as a brand owner's agent may sponsor, organize, or participate in up to 24 promotional activities in a calendar year on behalf of the same licensed retailer. The limit is per brand owner or supplier and not per brand.

(2)

An event conducted by or on behalf of a licensed off-premises retailer at a licensed on-premises retail account may not be construed as one of the licensed on-premises retailer's promotions if the licensed on-premises retailer's sole involvement is to cater the event and provide the alcoholic beverages. In these instances, it shall be considered one of the events allotted to the licensed off-premises retailer.

(3)

A brand owner may provide brand identifiable prizes or give-away items to be used at approved on-premises promotions if:

(a)

The total number of cumulative items or prizes for any given promotion does not exceed 50 percent of the maximum capacity of the licensed retailer's premises as determined by the Fire Marshal;

(b)

The unit cost of any one item or prize does not exceed $10;

(c)

A brand owner or agent does not expend more than $150 in incidental expenses for any given promotion;

(d)

All prizes and other incidentals not used in connection with an approved promotional event are removed from the retail licensed premises at the conclusion of the event; and

(e)

Documentation on the expenses is maintained for each event and is available for inspection.

(4)

A brand owner, supplier, or licensed wholesaler may not provide alcoholic beverage products at no cost to a licensed retailer. All products shall be provided and paid for through the normal distribution channels.

(5)

A representative of a brand owner, supplier, or licensed wholesaler may attend and participate in an approved on-premises promotional activity and may spend up to $200 for the purchase of alcoholic beverage products at a licensed retail establishment at the regular price charged by the licensed retailer, including a reasonable and customary tip directed to service staff who are not owners, officers, partners, or named as license holders of the retailer.

(6)

In addition to pre-planned and pre-announced promotions that are permitted, a supplier or licensed wholesaler may make short, spontaneous, and unannounced visits to a licensed retailer's premises for the purpose of promoting a brand owner's product. Brand identifiable items or prizes provided during these visits shall be of nominal value and distributed in trivial quantities. See Regulation .06B(4) of this chapter.

Charity Promotions.

(1)

A charity or nonprofit group which holds a temporary alcoholic beverage license is considered a licensed retailer and is generally subject to all the restrictions and responsibilities of any other licensed retailer regarding trade practices.

(2)

A charity group which does not hold a retail license may receive legitimate donations from suppliers or licensed wholesalers when engaging in legitimate fund raising or other activities.

(3)

Holders of a charity wine auction permit may receive alcohol from other sources as provided in Alcoholic Beverages Article, Annotated Code of Maryland.

Radio Station Promotions.

(1)

Radio stations are considered third parties and are subject to Regulation .07 of this chapter.

(2)

When acting as a third-party agent for a supplier or licensed wholesaler, radio stations may not engage in any promotion on a licensed retailer's premises on behalf of a supplier or licensed wholesaler unless the supplier or licensed wholesaler is authorized by the Executive Director to conduct the promotion.

Retail Promotions.

(1)

A licensed retailer may sponsor promotional activities on the retailer's own premises.

(2)

All expenses related to the promotion which include, but are not limited to, prizes, entertainment, support materials, staff, media advertising, and alcoholic beverages, shall be paid by the licensed retailer.

(3)

Except as otherwise permitted in this chapter, a supplier or licensed wholesaler may not participate at a licensed retailer-sponsored promotion.

(4)

Supplier and licensed wholesaler personnel may be on the premises of a licensed retailer-sponsored promotion for observation purposes only.

(5)

A licensed retailer may not participate in the cost of advertising or promoting a wine or distilled spirits product.

(6)

A licensed retailer may use advertising items including “bar kits” which are purchased from a brand owner or licensed wholesaler as authorized by Regulation .10 of this chapter.

(7)

A supplier or licensed wholesaler may rent to a licensed retailer promotional materials approved by the Executive Director to be used at a licensed retailer-sponsored event if:

(a)

The daily cost of the rental is at least 5 percent of the original value of the materials;

(b)

A minimum daily charge is $20; and

(c)

Both parties to the rental agreement maintain documentation which is available for review by the Executive Director.

Approvals.

(1)

A person or entity who engages in on-premises promotional activities as authorized by §B of this regulation shall file a report on forms provided by the Executive Director.

(2)

A wholesaler or third party may file a promotional activity form on behalf of a brand owner only if they have written authorization to act as a representative of the brand owner and the authorization is provided to the Executive Director.

(3)

The report filed with the Executive Director shall list all proposed events and shall be filed not later than the 20th day of the month preceding the month in which the proposed event will be conducted.

(4)

Regular monthly reports are not acknowledged by the Executive Director.

(5)

A brand owner or supplier, as well as any wholesaler or third party acting as an agent of the brand owner, is responsible for complying with all provisions of this chapter including limitations on the number of events conducted.

(6)

Amended Report. An amended report:

(a)

May be accepted up to 5 days before the planned promotional activity if unusual circumstances warrant; and

(b)

Shall be approved by the Executive Director.

(7)

If an accurate and timely report is not submitted:

(a)

Each promotion shall be submitted to the Executive Director for approval; and

(b)

An acknowledgment must be received from the Executive Director before conducting the event.

Subtitle 23 — Alcohol, Tobacco, and Cannabis Commission

Chapter 05. Fire Safety Performance Standard for Cigarettes

Regulation .01 Certification by the Executive Director.Link Copy Citation

Each written certification submitted to the Executive Director by a manufacturer as required under Business Regulation Article, §16-603(a), Annotated Code of Maryland, shall be submitted under oath in the same manner as prescribed in Business Regulation Article, §1-201(1), Annotated Code of Maryland.

When a certification submitted under Business Regulation Article, §16-603, Annotated Code of Maryland, is approved, the Executive Director shall send written notification of such approval to the manufacturer, including the effective date of the certification and the date upon which such certification shall expire.

Each certification submitted pursuant to Business Regulation Article, §16-602, Annotated Code of Maryland, shall state the date on which the cigarette or cigarettes listed therein were tested, provided that no such date of testing shall predate the date of submission of the certification by more than 36 months.

Regulation .02 Certification to Distributors.Link Copy Citation

If a wholesaler consents, a manufacturer may provide to a wholesaler the copies of the illustration required under Business Regulation Article, §16-605(a), Annotated Code of Maryland, in an electronic format.

If a retailer, subwholesaler, or vending machine operator consents, a wholesaler may provide the copies of the illustration required under Business Regulation Article, §16-605(b), Annotated Code of Maryland, in an electronic format.

Regulation .03 Fire Safety Cigarette Certification List.Link Copy Citation

The Executive Director shall prepare a Fire Safety Cigarette Certification List which list shall identify each cigarette:

(1)

Whose certification has been approved by the Executive Director as meeting the performance standard under Business Regulation Article, §16-602, Annotated Code of Maryland; and

(2)

That is a style of a brand family of a tobacco product manufacturer certified by the Attorney General.

The Fire Safety Cigarette Certification List may be updated by the Executive Director four times a year on the first day of each quarter of the calendar year.

A cigarette shall be removed from the Fire Safety Cigarette Certification List if it:

(1)

Is a style of a brand family of a tobacco product manufacturer that has not been certified by the Attorney General;

(2)

Fails to be recertified in accordance with Business Regulation Article, §16-603(d), Annotated Code of Maryland; or

(3)

May not be sold in the State, because it does not comply with federal law or regulations.

Cigarette Removal from Certification List and Hearings.

(1)

If a cigarette is removed from the Fire Safety Cigarette Certification List by the Executive Director, prompt written notification shall be sent to the manufacturer setting forth the reasons for such action. A manufacturer may request a hearing before the Executive Director within 30 days of receipt of the written notification.

(2)

If a hearing is requested as provided in §D(1) of this regulation, the Executive Director shall give notice and hold the hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

(3)

A cigarette removed from the list is considered to be a noncomplying cigarette subject to the provisions of Business Regulation Article, §16-606, Annotated Code of Maryland, if:

(a)

The manufacturer has not requested a hearing as provided in §D(1) of this regulation; or

(b)

A hearing has been held as provided in §D(2) of this regulation, and a final decision by the Comptroller orders that the cigarette be removed from the list.

Regulation .04 Manufacturer Record Requirements.Link Copy Citation

Each manufacturer shall maintain copies of all tests conducted on all cigarettes for a period of 36 months and shall make copies of such reports available to the Executive Director upon written request.

Regulation .05 Enforcement.Link Copy Citation

Cigarettes seized under Business Regulation Article, §16-610(a), Annotated Code of Maryland, are considered to be noncompliant with the provisions of Business Regulation Article, §16-602, Annotated Code of Maryland, and the retailer, subwholesaler, vending machine operator, or wholesaler in possession of the cigarettes at the time they are seized shall be subject to penalties as provided in Business Regulation Article, §16-608, Annotated Code of Maryland.

A police officer or other authorized personnel may inspect the premises and records of a retailer, subwholesaler, vending machine operator, or wholesaler to determine whether cigarettes in their possession are in violation of Business Regulation Article, Title 16, Subtitle 6, Annotated Code of Maryland.

In addition to a police officer, inspectors employed by the Executive Director, or other persons designated by the Executive Director as authorized under Alcoholic Beverages Article, §1-321, Annotated Code of Maryland, shall be authorized personnel that may act in accordance with the provisions of Business Regulation Article, §16-610, Annotated Code of Maryland.

Subtitle 24 — Office of Planning

Chapter 01. Guidelines for Implementation of the Maryland Environmental Policy Act

Subtitle 24 — Office of Planning

Chapter 02. State Depository of Plans

Subtitle 24 — Office of Planning

Chapter 03. Petitions for Adoption of Regulations; Petitions for Declaratory Rulings

Subtitle 24 — Office of Planning

Chapter 04. State Clearinghouse Procedures for Intergovernmental Review of Federal and State Programs

Subtitle 24 — Office of Planning

Chapter 05. State Clearinghouse Procedures for the Reporting and Processing of Excess and Substantial Changes in State-Owned Real Property and Requests for the Granting of Rights-of-Way and Easements Across State-Owned Real Property

Subtitle 24 — Office of Planning

Chapter 06. Standards for Intervention in Land Use Proceedings

Subtitle 24 — Office of Planning

Chapter 07. Guidelines for the Designation of Areas of Critical State Concern

Subtitle 24 — Office of Planning

Chapter 08. Guidelines for the Certification of County Agricultural Land Preservation Programs

Subtitle 24 — Office of Planning

Chapter 09. Use of State Museum Property

Subtitle 25 — Maryland Stadium Authority

Chapter 01. General

Regulation .01 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

"Authority" means the Maryland Stadium Authority, an independent unit of the Executive Branch of State Government.

(2)

Authority Facility.

(a)

"Authority facility" means:

(i)

The Camden Yards Sports Complex, including Oriole Park at Camden Yards and the Ravens' Stadium;

(ii)

Offices, restaurants, stores, museums, parking facilities, and other facilities located on the Camden Yards Sports Complex; and

(iii)

Facilities located on other Authority property.

(b)

"Authority facility" includes the grounds and walkways surrounding the facilities listed in §B(2)(a) of this regulation and adjacent parking lots or garages owned or controlled by the Authority.

(3)

“Camden Station” means the building known as Camden Station located within the Camden Yards Sports Complex, but does not include the grounds and walkways surrounding it.

(4)

“Demonstration” means a person or gathering of persons at an Authority facility for the purpose of expressing an opinion to observers through use of their speech, signs, or express conduct, excluding any expression or conduct prohibited under COMAR 14.25.02.

(5)

“Director of Facilities Management” means the director of a particular Authority facility.

(6)

“Director of Security Management” means the director of security management for the Authority.

(7)

“Distribution of literature” means the distribution of flyers, leaflets, brochures, pamphlets, books, or any other printed or written material.

(8)

“Emergency” means, as reasonably determined by the Authority or by authorized police or fire officials, an actual or imminent fire, flood, riot, weather, outages of power or public services, terrorism, public disturbance, or other catastrophe that will or is likely to:

(a)

Endanger the health, safety, or welfare of persons at an Authority facility;

(b)

Threaten the destruction, loss, or damage to public or private property located at an Authority facility; or

(c)

Disturb the normal and peaceful conduct of business, sports, or other activities at an Authority facility.

(9)

“Eutaw Way” means the pedestrian area known as Eutaw Way between the playing field and seating bowl of Oriole Park at Camden Yards to the west, the Warehouse to the east, Gate A of Oriole Park to the south, and Gate H of Oriole Park to the north.

(10)

“Event” means any game, concert, ceremony, banquet, party, or other activity or event at an Authority facility.

(11)

“Executive Director” means the Executive Director of the Authority.

(12)

“Free speech activities” include a demonstration, distribution of literature, collection of petition signatures, and other activities protected by the First and Fourteenth Amendments to the Constitution of the United States and Articles 10, 13, and 40 of the Declaration of Rights within the Maryland Constitution, provided, however, that such activities do not include any activity prohibited under COMAR 14.25.02.

(13)

“Performing Arts Center” means the France-Merrick Performing Arts Center, including the Hippodrome Theatre at the France-Merrick Performing Arts Center.

(14)

“Plazas” means and includes the plazas surrounding Oriole Park at Camden Yards and the Ravens’ Stadium, including the breezeway underneath the Warehouse, but does not include the sidewalks directly adjacent to public streets.

(15)

“Smoking” means the burning of a lighted cigarette, cigar, pipe, or any other matter or substance that contains tobacco.

(16)

“Spine” means the pedestrian walkway that provides a connection between Lee Street at its north end and Hamburg Street at its south end and which lies between the parking lots that are designated as Lot B and Lot C.

(17)

“Stadium structures” means and includes the facades, fences, and admission gates that comprise the outer perimeter of the baseball stadium and the football stadium at the Camden Yards Sports Complex.

(18)

“Tailgating” means the preparing, cooking, serving, or consuming of food or beverages before, during, or after an event on an Authority-owned or operated parking lot or open space.

(19)

“Warehouse” means the building known as the Warehouse at Camden Yards within the Camden Yards Sports Complex, but does not include the grounds and walkways surrounding it or the open breezeway underneath it.

(20)

“Working days” means Monday through Friday excepting all legal holidays and all other days on which the Executive Branch of State Government is generally closed.

Subtitle 25 — Maryland Stadium Authority

Chapter 02. Prohibited Activities

Regulation .01 Disturbing the Public Peace and Disorderly Conduct.Link Copy Citation

The following conduct is prohibited at any Authority facility:

(1)

The use of language meant to incite immediate violence or an immediate breach of the peace;

(2)

The description or depiction of erotic or pornographic images or conduct; or

(3)

Lewd or indecent exposure.

An individual at an Authority facility may not:

(1)

Willfully act in a disorderly manner that disturbs the peace of others;

(2)

Engage in, instigate, or encourage the continuation or escalation of a fight or other physical violence; or

(3)

In any way endanger the life, person, property, health, or safety of others by words, actions, or attempts made directly or by aiding or abetting others to do so.

Regulation .02 Commercial Activity.Link Copy Citation

Commercial activity at an Authority facility, including the display of commercial advertising, and the sale of food, beverages, novelties, or tickets, is prohibited, except when conducted by Authority tenants and their employees, licensees, agents, and assignees who have received authorization by the Authority within their leased or assigned areas, or as otherwise authorized by the Authority. This includes the distribution of flyers containing commercial advertising. Flyers may not be placed on vehicles situated on parking lots or garages owned or controlled by the Authority.

Regulation .03 Solicitation.Link Copy Citation

Solicitation for the immediate receipt of money or contributions, commercial solicitation, and the collection of private debts at an Authority facility is prohibited. This prohibition does not apply to tenants or their employees, licensees, agents, delegates, and assignees who have received authorization by the Authority within their leased or assigned areas, or as otherwise authorized by the Authority.

Regulation .04 Obstruction of Traffic.Link Copy Citation

Conduct which obstructs sidewalks, walkways, entrances, corridors, stairways, or parking lots, or which otherwise obstructs or hinders normal pedestrian or vehicular traffic and business, is prohibited. In general, a single person engaged in free speech activities does not impermissibly obstruct a sidewalk, unless that person intentionally moves to obstruct or hinder pedestrians or vehicles attempting to pass by such person.

Sidewalks and other walkways located on Authority property are for use by pedestrian traffic only, and the use of bicycles, roller skates, roller blades, skateboards, motorcycles, or any other form of transportation (other than a wheelchair or other transportation reasonably necessary for a person’s mobility) on those sidewalks is prohibited at all times. On event dates, the use of bicycles, roller skates, roller blades, and skateboards is prohibited on parking lots owned or controlled by the Authority.

Regulation .05 Tailgating.Link Copy Citation

Tailgating may only take place at:

Those times specifically authorized by the Authority during, before, or after events at Authority facilities, with the approval of the Baltimore Orioles, the Baltimore Ravens, or other team or licensee of the Authority facility where an event is being held; and

Locations designated by the Authority within the parking lots owned or controlled by the Authority.

Regulation .06 Weapons.Link Copy Citation

The possession, carrying, or transporting, either openly with the intent to injure a person in an unlawful manner, or concealed, or the use or discharge of, a weapon at an Authority facility is prohibited, including those weapons described in Criminal Law Article, §§4-101 and 4-201, Annotated Code of Maryland, except for official purposes and by authorized personnel. An individual carrying a weapon shall notify the Director of Security for the Authority before entering an Authority facility.

Regulation .07 Controlled or Dangerous Substances.Link Copy Citation

The possession, use, or distribution of a controlled or dangerous substance, or prescription drugs, except those prescribed by a physician and permitted by law, is prohibited.

Regulation .08 Disobeying Authorities and Signs; Entrances and Exits.Link Copy Citation

An individual may not:

Disobey an order of a police officer acting within the scope of the officer's employment;

Disobey, disregard, or fail to comply with any rule or regulation, warning, prohibition, instruction, or direction, whether posted or displayed by sign, notice, bulletin, card, or poster, or when notified or informed as to its existence by a police officer; or

Enter or leave an Authority facility, including any parking lot or garage owned or operated by the Authority, at points not designated as proper entrances or exits.

Regulation .09 Open Containers.Link Copy Citation

The possession, in an open container, or the drinking of any alcoholic beverage at an Authority facility is prohibited, except for the following:

Alcoholic beverages consumed by tenants and their employees, licensees, agents, and assignees within their leased areas who have received authorization by the Authority;

Alcoholic beverages sold by the Authority's designated concessionaire or the tenants' designated concessionaire in accordance with their lease; and

Alcoholic beverages consumed on parking lots owned or controlled by the Authority on those dates and times and at those locations designated by the Authority for tailgating.

Regulation .10 Intoxication.Link Copy Citation

An individual intoxicated by alcoholic beverages or controlled dangerous substances and endangering the safety of that individual or other individuals or property, or disturbing tenants, patrons, or the normal course of Authority business, is not permitted at an Authority facility, and that individual may not operate a vehicle on Authority property.

Regulation .11 Animals.Link Copy Citation

Except as otherwise specifically permitted by this regulation, a person may not bring any animal onto or into an Authority facility.

As used in this regulation, the term “service animal” means and includes:

(1)

A service animal as defined under the Americans with Disabilities Act of 1990 and regulations promulgated thereunder;

(2)

Pursuant to 28 CFR §35.136(i), a miniature horse used by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability, is housebroken, and is under the sufficient control of its handler;

(3)

A service animal as defined in Human Services Article, §7-701, Annotated Code of Maryland, and regulations promulgated thereunder.

Service Animals.

(1)

Individuals with disabilities and the parents of a minor child with a disability are permitted to bring a service animal onto or into an Authority facility.

(2)

Service animal trainers, as defined in Human Services Article, §7-701, Annotated Code of Maryland, and regulations promulgated thereunder, are permitted to bring an animal being trained or raised as a service animal onto or into an Authority facility, provided, however, that an animal being trained as a service animal and accompanied by a service animal trainer may be excluded from an Authority facility if admitting the animal would create a clear danger of a disturbance or physical harm to any individual at the Authority facility.

(3)

No person hosting an event at an Authority facility may require the purchase of a separate ticket or charge any additional amount for the admission of a service animal or an animal being trained or raised as a service animal.

(4)

An individual with a disability or a parent of a minor child with a disability who is accompanied by a service animal may be liable for any damages to the Authority facility caused by the service animal to the extent permitted under Human Services Article, §7-705, Annotated Code of Maryland. The service animal trainer organization that certifies the service animal may be liable for any personal injuries or damages to the premises or facilities caused by the service animal to the extent permitted under Human Services Article, §7-705, Annotated Code of Maryland.

(5)

Nothing in this regulation shall be construed as requiring the Authority to make any physical modification to an Authority facility in order to admit a person accompanied by a service animal or animal being trained or raised as a service animal.

Animals used for governmental security and law enforcement purposes shall be permitted onto and into an Authority facility.

Other animals may be brought onto or into an Authority facility if specifically authorized by the Executive Director, the Director of Security Management, or the Director of Facilities Management for such Authority facility.

Regulation .12 Sleeping.Link Copy Citation

Use of an Authority facility for sleeping or other purposes instead of one's home, a hotel, motel, or other public facility is prohibited.

Regulation .13 Bicycles.Link Copy Citation

Bicycles are parked on Authority property at the owner's risk.

Bicycles shall be parked in designated bicycle parking areas. Bicycle racks are provided.

Bicycles chained to any pole or fixed structure other than a bicycle rack or left unattended at a location other than the designated bicycle racks may be removed by the Authority at the owner’s risk. The Authority may treat any bicycle left chained to any pole or fixed structure other than a bicycle rack or left unattended at a location other than the designated bicycle racks as suspicious and may remove, dispose of, or destroy any such bicycle without liability to the owner thereof.

Regulation .14 Open Fires.Link Copy Citation

Open fires of any kind are not permitted on Authority property, except for fires contained in a customary cooking device on those dates and times and at those locations designated by the Authority for tailgating.

Regulation .15 Refusal to Leave Authority Property Upon Request.Link Copy Citation

Authority property is subject to Criminal Law Article, §6-409, Annotated Code of Maryland. An individual refusing or failing to leave Authority property upon proper request to do so by an authorized agent of the Authority is guilty of a misdemeanor, and upon conviction may be fined not more than $1,000 or imprisoned for not more than 6 months, or both.

Regulation .16 Damage to Property; Responsibility for Damage.Link Copy Citation

An individual may not climb, cut, injure, mutilate, set fire to, deface, displace, remove, or destroy any wall, fence, shelter, seat, statue, or other structure at any Authority facility.

An individual may not cut, destroy, break, prune, set fire to, mutilate, injure, disturb, sever from the ground, or remove any growing thing, including any plant, flower, flower bed, shrub, tree, grass, or any branch, stem, fruit, or leaf.

An individual who injures Authority property in any manner whatsoever is:

(1)

Responsible for the injury or damage; and

(2)

Liable for the cost to have the property restored to its original condition.

Regulation .17 Games.Link Copy Citation

Except for the Authority, its tenants, and licensees, an individual may not throw, cast, catch, kick, play with, or strike any game ball whatsoever or engage in any sport, game, or competition at any Authority facility or on parking lots owned or controlled by the Authority.

Regulation .18 Trespassing on the Playing Field and Interference with Events or Contests.Link Copy Citation

This regulation is in addition to, and not in lieu of, Regulation .15 of this chapter.

In accordance with Criminal Law Article §6-402, Annotated Code of Maryland, at locations which are reasonably visible to persons within the Stadium Structures, the Authority shall place signs that conspicuously prohibit trespass upon the playing field of such Authority facility. Except for the Authority, its authorized tenants, and the Authority’s and such tenants’ licensees, an individual may not trespass upon the playing field at any Authority facility at any time. In accordance with Criminal Law Article, §6-402, Annotated Code of Maryland, a person who violates this regulation is guilty of a misdemeanor and on conviction is subject to:

(1)

For a first violation, imprisonment not exceeding 90 days or a fine not exceeding $500 or both;

(2)

For a second violation occurring within 2 years after the first violation, imprisonment not exceeding 6 months or a fine not exceeding $1,000 or both; and

(3)

For each subsequent violation occurring within 2 years after the preceding violation, imprisonment not exceeding 1 year or a fine not exceeding $2,500 or both.

An individual may not loiter, project objects onto the playing field or seating area, or act in such a manner as to interfere with the players of athletic events or contests in any Authority facility.

Regulation .19 Smoking in Stadiums.Link Copy Citation

Smoking is prohibited by any person located in any of the following areas:

In any spaces within the Stadium structures, whether such spaces are covered or uncovered, walled or exposed, or open or closed to public access; and

Within 25 feet of any entry, outdoor air intake, or operable window of the Stadium Structures at the Camden Yards Sports Complex.

Subtitle 25 — Maryland Stadium Authority

Chapter 03. Free Speech Activities

Regulation .01 Intent.Link Copy Citation

The regulations in this chapter regulate claims of right founded on federal and State law. These regulations do not themselves create, expressly or implied, any rights, privileges, or immunities of speech.

The regulations in this chapter are necessary in order to:

(1)

Ensure that those seeking to exercise their freedom of expression can communicate safely with visitors to Authority facilities;

(2)

Preserve the aesthetic and recreational atmosphere of Authority facilities; and

(3)

Ensure the safe, free, and orderly flow of pedestrians and vehicles at Authority facilities.

Regulation .02 Free Speech Activities Generally.Link Copy Citation

Basic Rule.

(1)

An individual desiring to engage in free speech activities at Authority facilities may do so in proper accordance with these regulations and if the activities do not:

(a)

Constitute commercial activities;

(b)

Constitute solicitation for the immediate receipt of money or contributions; or

(c)

Result in interference with the safety of the public or the operation of Authority facilities, disrupt events at an Authority facility, or impede the flow of either vehicular or pedestrian traffic.

(2)

In general, a single person engaged in free speech activities does not impermissibly obstruct a sidewalk, unless that person intentionally moves to obstruct or hinder pedestrians or vehicles attempting to pass by such person.

Except as otherwise provided in this regulation, the use of musical or other noise-producing instruments, microphones or comparable voice-projecting devices are prohibited at an Authority facility. Subject to applicable noise-control ordinances, a person within the Camden Yards Sports Complex may use a battery-operated handheld megaphone if and when the person is located on a public sidewalk south of Lee Street and north of Hamburg Street (which does not include the Spine).

Except for the Authority, its authorized tenants, and such tenants’ licensees, no person or persons may place or erect any table, display (other than hand-carried signs and placards otherwise permitted), or other stationary object at any location within an Authority facility (including the Plazas and sidewalks). Any person who places or erects a table, display, or other stationary object on Authority property and fails or refuses to remove it upon proper request to do so by an authorized agent of the Authority shall be considered trespassing in violation of COMAR 14.25.02.15. The Authority may treat any table, display, or other stationary object left unattended at an Authority facility as suspicious and may remove, dispose of, or destroy it without liability to the owner thereof.

An individual or group engaging in free speech activities may not engage in any activities prohibited under COMAR 14.25.02.

All free speech activities shall be conducted in a peaceful and orderly manner. A person or group of persons participating in any free speech activities may not:

(1)

Willfully impede or physically grasp at any other persons using or transiting the Authority facility or viewing the memorials in any of the Plazas;

(2)

Attach any objects to any other person’s clothing without that person’s consent;

(3)

Engage in aggressive solicitation (as defined by the Baltimore City Code) or unlawful harassment;

(4)

Engage in disorderly conduct;

(5)

Unless true, represent or imply that the person or group represents, is affiliated with, or is in any way endorsed by the State of Maryland, the Authority, the Baltimore Orioles, the Baltimore Ravens, or any other tenant of an Authority facility;

(6)

Unreasonably disturb tenants or the public in the course of normal business activities, sporting events, entertainment events, or viewing any of the memorials on any of the Plazas.

Any person, organization, or other legal entity engaging in any free speech activities at an Authority facility shall be responsible for any damages to any property directly caused by that person’s, organization’s, or other legal entity’s actions, including, but not limited to, reimbursement of all cleaning and repair costs incurred by the Authority.

A person, organization, or other legal entity engaging in any free speech activities at an Authority facility may not leave unattended any pamphlets, handbills, leaflets, signs, placards, posters, collection boxes or containers, or any other materials. The Authority may treat any materials left unattended anywhere at an Authority facility as suspicious and may remove, dispose of, or destroy any such materials without any liability to the owner thereof.

Any person, organization, or other legal entity engaging in any free speech activities at an Authority facility shall abide by the terms of this chapter, any permit issued pursuant to this chapter, and local, state, and federal law.

Placards and Signs.

(1)

A person at an Authority facility may not carry any placard or sign that:

(a)

Has a height exceeding 36 inches or a width exceeding 24 inches;

(b)

Uses words or images meant to incite immediate violence or an immediate breach of the peace;

(c)

Uses words or images that describe or depict any erotic or pornographic conduct.

(2)

Only hand-carried signs and placards are permitted at an Authority facility. No sign or placard may be appended to, hung on, or rested upon any walkway, structure, or other part of an Authority facility. No sign or placard may be placed on or attached to any post or pole in any part of an Authority facility.

Regulation .03 Areas of Authority Facilities Available for Free Speech Activities.Link Copy Citation

No part of Camden Station, the Warehouse, any Stadium Structure, the Performing Arts Center, or any parking lot or garage owned or operated by the Authority is a public forum.

Eutaw Way is part of the Stadium Structure of Oriole Park at Camden Yards whenever a ticket is required for public access thereto, whenever Gate A and Gate H are closed, or whenever Eutaw Way is otherwise closed to the general public. Eutaw Way shall be considered a Plaza when open to the general public.

The Spine may not be considered a public forum during any parking lot event or during any event taking place on the Spine itself. At all other times, the Spine shall be considered a Plaza.

Plazas and sidewalks shall be available for free speech activities in accordance with the regulations in this chapter, but subject to the prohibitions in COMAR 14.25.02.

Regardless of whether a permit is required under Regulation .04 of this chapter, the Director of Security Management may require that all free speech activities on any Plaza be limited to areas other than those reasonably designated for ingress, egress, and queuing for ingress, egress, or tickets to a Stadium structure, Camden Station, or the Warehouse.

Regulation .04 Permits.Link Copy Citation

A group of ten or more persons desiring to engage in free speech activities on one or more of the Plazas shall first obtain a written permit from the Authority for the proposed activity.

Permits shall be issued on a first-come, first-served basis.

The Authority may charge a uniform fee for reviewing a permit application and granting a permit under this section. Upon request by the applicant, the Authority may waive the fee based upon the ability of the applicant to pay the fee.

Permitting Procedures.

(1)

To obtain a permit, an applicant shall submit a written application to the Authority at least 3 working days before the date requested; provided, however, that if the request arises in response to an event announced less than 5 working days in advance thereof, the written application may be submitted 1 working day prior thereto.

(2)

The application shall be on a form provided by the Authority. The form shall designate the location where it may be filed in person. The form may also designate alternative methods by which the application may be filed, such as a mailing address, facsimile number, email address, or website.

(3)

The application for the permit shall include:

(a)

The full name, mailing address, telephone number, and, if available, email address of the person or organization applying for the permit, and, if a group or organization, the name, address, and telephone number of a designated representative;

(b)

The full name, mailing address, telephone number, and, if available, email address of the person who will supervise and be responsible for the conduct of the proposed activities;

(c)

The date and times of the proposed activity;

(d)

A brief description of the proposed activity, including the method of communication (such as demonstration, distribution of literature, collection of petition signatures, or other activity);

(e)

The number of persons expected to participate; and

(f)

The signature of the applicant.

(4)

The Director of Security Management shall review each application promptly. If the application is incomplete, the Director of Security Management shall make reasonable efforts to inform the applicant. If the application is complete, the Director of Security Management shall forward a copy thereof to the applicable Director of Facilities Management for review and comment.

(5)

The Director of Security Management shall issue the permit unless the Director of Security Management specifically finds that:

(a)

The information contained in the permit application is incomplete or contains a material misrepresentation;

(b)

The proposed activity would substantially interfere with a scheduled event or another free speech activity for which a permit was previously issued;

(c)

An emergency exists;

(d)

The proposed activity would materially interfere with vehicular or pedestrian traffic, including viewing of any memorial on the Plazas;

(e)

The proposed activity would materially interfere with the normal business activities of the Authority or the Authority’s tenants;

(f)

The proposed activity, on its face, would violate any law, ordinance, or regulation of the federal, State, or Baltimore City governments; or

(g)

The proposed activity reasonably appears to present a clear and present danger to the public safety, health, welfare, or good order.

The Director of Security Management may revoke a permit at any time if:

(1)

The actual activity materially differs from the activity proposed in the application and a permit for the actual activity could have been denied;

(2)

The activities or conduct of the permitted person or of the permitted group or any individual member of the group presents a clear and present danger to the public health, welfare, or public safety;

(3)

The activities or conduct of the permitted person or of the permitted group or any individual member of the group violates any applicable law or regulation; or

(4)

An emergency arises.

Appeal of Permit Decisions.

(1)

Any person whose permit request is denied, whether in full or in part, or revoked may appeal the decision to the Executive Director by delivering a written appeal within 5 working days after the decision by the Director of Security Management. The appeal shall state the reasons why the appellant believes the denial or revocation of the permit was in error. The appeal shall also state a mailing address for the appellant and, if the appellant desires service thereby, a facsimile number, email address, or both.

(2)

The Executive Director shall review the initial permit decision or revocation in light of the written appeal. Within 7 working days after receipt of such appeal, the Executive Director shall issue a written decision either affirming the denial or revocation or granting the permit as requested.

(3)

The Executive Director’s decision shall be sent via certified mail to the appellant at the address provided in the appeal, with a copy by fax, email, or both, if provided, and shall be effective upon such service.

(4)

The Executive Director’s decision shall constitute a final decision of the Authority and may be appealed to an appropriate court as provided by law.

Regulation .05 Picketing and Demonstrations.Link Copy Citation

Picketing and demonstrations anywhere on Authority property shall be authorized by the Executive Director in advance.

Those picketing or demonstrating:

(1)

May do so only in areas specified by the Executive Director;

(2)

Shall conduct themselves in a peaceful and orderly manner; and

(3)

May not obstruct the use of Authority facilities by others or interfere with the normal course of Authority business.

Those under the influence of alcohol or drugs may not picket or demonstrate.

The Director of Facilities Management shall approve signs in advance of a specified picket date. Only hand-carried signs are permitted.

Subtitle 25 — Maryland Stadium Authority

Chapter 04. Parking

Regulation .01 Public Parking.Link Copy Citation

Unrestricted public parking is not permitted on Authority property. Parking on Authority property is permitted only in designated parking areas and at designated times. Parking shall be controlled and supervised, and fees shall be collected by the Authority's parking operator.

Regulation .02 Parking Permits.Link Copy Citation

Permits issued by the Authority, its parking operator, or other authorized entity are valid only at the times and in the locations indicated.

Regulation .03 Overnight Storage.Link Copy Citation

A permit or payment of fees does not authorize overnight storage of vehicles. Overnight storage may be permitted with the authorization of the Authority.

Regulation .04 Towing.Link Copy Citation

Vehicles parked in a manner inconsistent with these regulations are subject to towing at the owner's risk and expense.

Subtitle 25 — Maryland Stadium Authority

Chapter 05. Open Meetings

Regulation .01 Public Attendance.Link Copy Citation

The general public is invited to attend and observe an open session of the Authority.

A member of the public attending an open session may not participate in the session, except when:

(1)

The Authority expressly invites public testimony, questions, comments, or other forms of public participation; or

(2)

Public participation is otherwise authorized by law.

Regulation .02 Disruptive Conduct.Link Copy Citation

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

Restoring Order. The presiding officer may:

(1)

Order an individual who persists in conduct prohibited by §A of this regulation, or who has violated any other regulation concerning the conduct of the open session, to be removed from the session, and may request police assistance to restore order; and

(2)

Recess the session while order is restored.

Regulation .03 Recording, Photographing, and Broadcasting of Open Sessions.Link Copy Citation

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

(1)

Record discussions of the Authority at an open session using a tape recorder or other recording device if the device does not create an excessive noise that disturbs members of the Authority or other individuals attending the session; and

(2)

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

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

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

Regulation .04 Recordings Not Part of Record.Link Copy Citation

A recording of an open session made by a member of the public, or a transcript derived from this recording, is not a part of the record of a proceeding of the Authority.

Subtitle 25 — Maryland Stadium Authority

Chapter 06. Public Information Act Requests

Regulation .01 Scope.Link Copy Citation

This chapter applies to the procedures to be followed for requests for the inspection and reproduction of public records under the Public Information Act, State Government Article, §§10-611—10-628, Annotated Code of Maryland, which are maintained by the Maryland Stadium Authority. These procedures are intended to supplement the procedures required by law. If the provisions of this chapter conflict with State Government Article, §§10-611—10-628, Annotated Code of Maryland, the statute controls.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Applicant” means an individual or governmental unit that requests the inspection and reproduction of a public record.

(2)

“Custodian” means the official custodian who is an officer or employee of the Authority and who is responsible for keeping the public record.

(3)

“Public record” means the original or a copy of any documentary material that is made by the Authority or received in connection with the transaction of public business, and is in any form, including:

(a)

A card;

(b)

A computerized record;

(c)

Correspondence;

(d)

A drawing;

(e)

Film or microfilm;

(f)

A form;

(g)

A map;

(h)

A photograph or photostat;

(i)

A recording; or

(j)

A tape.

Regulation .03 Request for Public Record.Link Copy Citation

An applicant may request to inspect or copy public records of the Authority.

An applicant shall submit a request to inspect or copy a public record in writing, unless waived by the custodian in the custodian's discretion.

Regulation .04 Contents of Request.Link Copy Citation

A written request shall:

Contain an applicant's name, address, and phone number;

Be signed by the applicant; and

Identify with reasonable specificity the public record requested.

Regulation .05 Filing a Request.Link Copy Citation

A written request shall be addressed to the custodian of the record by using the custodian's name or title. If the custodian is unknown to the applicant, the request may be addressed to the Executive Director of the Authority, and shall include as much identifying information about the request as possible.

Regulation .06 Response to Request.Link Copy Citation

If the custodian grants a written request for inspection, the custodian shall produce the public record for inspection immediately or within a reasonable period, not to exceed 30 days from the date the custodian receives the request, subject to the requester's payment of any fees required by Regulation .11 of this chapter.

If the custodian denies the written request, the custodian shall do so within 30 days of receipt of the written request. The custodian shall immediately notify the applicant of the denial, and within 10 working days of the denial provide the applicant with a written statement that gives:

(1)

The reasons for the denial;

(2)

The legal authority for the denial; and

(3)

Notice of the remedies available under State Government Article, §§10-611—10-628, Annotated Code of Maryland, for review of denial.

If a requested public record is not in the custody or control of the individual to whom written application is made, the individual shall notify the applicant within 10 working days of the receipt. If the individual knows the name of the custodian of the record or the location or the possible location of the record, this information shall also be given to the applicant.

With the consent of the applicant, any time imposed by the regulations may be extended.

The custodian shall deny inspection of a public record as required under State or federal law, the rules adopted by the Court of Appeals, or an order of a court of record.

The custodian may deny inspection of a public record as permitted under State or federal law.

Regulation .07 Public Records Temporarily Unavailable.Link Copy Citation

If a requested public record is not immediately available for inspection or copying, the custodian shall notify the applicant and set a date and hour within a reasonable time when the record will be available for inspection or copying.

Regulation .08 Public Records Destroyed or Lost.Link Copy Citation

If a requested public record has been destroyed or lost, the custodian shall notify the applicant in writing and inform the applicant of the reasons why the record cannot be produced.

Regulation .09 Review of Denial.Link Copy Citation

If a written request is denied by the custodian for a reason other than that the record is temporarily unavailable, the applicant may request an administrative hearing within 10 working days after receipt of the notice of the denial. The hearing request shall be made in writing to the custodian who denies the request.

Hearing Procedures.

(1)

If an applicant requests a hearing, the hearing shall be conducted by the Executive Director or a designee.

(2)

A hearing is governed by State Government Article, §§10-201—10-217, Annotated Code of Maryland, and COMAR 08.01.04.

(3)

After a hearing, the designee shall prepare a decision for the Executive Director.

(4)

The Executive Director shall issue the final decision of the Authority within 30 days of the receipt of the recommended decision.

(5)

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

If an applicant chooses not to request a hearing under §A of this regulation, the applicant may file an action for judicial review under State Government Article, §10-623, Annotated Code of Maryland. The applicant need not exhaust the administrative remedy in §A of this regulation before filing suit.

Regulation .10 Disclosure Against Public Interest.Link Copy Citation

If the custodian determines that disclosure of any public record that is required to be disclosed under State Government Article, §§10-611—10-628, Annotated Code of Maryland, would cause substantial injury to the public interest, the custodian may temporarily deny the request, and within 10 working days of the denial, petition the appropriate circuit court for an order permitting continued denial or restriction of access. The Authority shall serve a copy of the petition on the applicant as provided for service of process by Courts and Judicial Proceedings Article, §6-301, Annotated Code of Maryland.

Regulation .11 Fees.Link Copy Citation

Fee Schedule for Certifying and Copying a Record.

(1)

Photocopies. The charge for each copy of a document is 25 cents per page if the reproduction is made on a photocopying machine within the Authority's offices. If the public records are not susceptible to photocopying, for example, punch cards, magnetic tapes, drawings, maps, blueprints, microfilm, slides, or photographs, the fee for the copies is based on the actual cost of reproduction, as determined by the custodian.

(2)

Documents More Than 25 Pages. If the public record requested to be reproduced is more than 25 pages, the custodian shall charge a $3.50 per hour photocopying processing fee in addition to the per page fee.

(3)

Certification of Copies. If an applicant requests that a copy of a public record be certified as a true copy, the custodian shall charge an additional fee of $1 per record.

(4)

Computer Printouts. If the Authority is required to provide a computer printout, the charge for the printout includes:

(a)

The computer and peripheral equipment usage;

(b)

Programming; and

(c)

Material costs.

(5)

Search Fees.

(a)

Except as provided in §A(5)(b) of this regulation, the custodian may charge reasonable fees for the search and preparation of public records for inspection and copying, in addition to the cost for reproduction.

(b)

The custodian may not charge search or preparation fees for the first 2 hours of official or employee time that is needed to respond to a request for information.

If the fees for copies, printouts, photographs, or certified copies of a public record are specifically prescribed by a law other than State Government Article, §§10-601—10-628, Annotated Code of Maryland, or this chapter, the prescribed fee shall be charged by the custodian.

If the custodian is unable to copy a public record on a photocopying machine within the Authority's offices, the custodian shall make arrangements for the prompt reproduction of the record at public or private facilities outside the Authority. The custodian shall either collect from the applicant the fee to cover the actual cost of reproduction, or direct the applicant to pay the cost of reproduction directly to the facility making the copy.

Before reproducing a public record, the custodian shall estimate the cost of reproduction, including any search fee, and either:

(1)

Obtain the written agreement of the applicant that the cost shall be paid; or

(2)

Request prepayment of the estimated fee before reproducing the record.

If an applicant requests that copies be mailed or delivered to the applicant, the cost of postage or delivery shall be charged to the applicant.

Regulation .12 Waiver or Reduction of Fees.Link Copy Citation

The custodian may waive or reduce any fee charged under this chapter if the custodian determines that the:

(1)

Item requested is promotional in nature or is routinely distributed to the public;

(2)

Reproduction costs will be nominal; or

(3)

Applicant has demonstrated to the Authority that it is unable to pay for the costs of reproduction.

The decision of the custodian to waive or reduce a fee is within the sole discretion of the custodian, and the decision is final.

Subtitle 25 — Maryland Stadium Authority

Chapter 07. Promulgation of Regulations and Petition for Declaratory Ruling

Regulation .01 Adoption of Regulations.Link Copy Citation

New, amended, or repealed regulations shall be proposed and adopted on a regular or emergency basis, as prescribed by the Administrative Procedure Act, State Government Article, Title 10, Annotated Code of Maryland.

Regulation .02 Procedures.Link Copy Citation

After providing notice, the Authority shall afford interested persons an opportunity to submit written data, views, or argument. If the Authority determines a hearing would be desirable with reference to a proposed regulation, it may afford interested parties the opportunity to submit evidence, subject to cross-examination by other interested parties and the Authority, and to make oral argument.

Regulation .03 Petition for Adoption of Regulations.Link Copy Citation

Who May File. Any interested person may file with the Authority a petition requesting the promulgation, amendment, or repeal of any regulation.

Form. A petition shall be in writing and shall contain the:

(1)

Name, address, and telephone number of the petitioner; and

(2)

Proposed regulation changes and a brief statement of reasons for the changes.

Submission, Consideration, and Disposition. A petition shall be filed with the Authority for its consideration and disposition. The Authority shall mail promptly to each person requesting the promulgation, amendment, or repeal of any regulation, a notice of filing indicating the date of receipt of the petition. Within 60 days of the date of receipt, the Authority shall either deny the petition in writing and state the reasons for its denial, or institute appropriate regulations promulgation procedures in accordance with the Administrative Procedure Act, State Government Article, Title 10, Annotated Code of Maryland, and notify the petitioner in writing of this action.

Regulation .04 Petition for Declaratory Ruling.Link Copy Citation

Who May File. Any interested person may file with the Authority a petition for a declaratory ruling with respect to the applicability of the statutes or any regulation pertaining to the statutes to any person, property, or state of facts.

Form. A petition shall be in writing. It shall contain a detailed statement of the facts underlying the questioned applicability of the regulation or the statutes and shall pose the question of whether or in what manner the stated regulation or the statute applies to the facts contained in the petition. The petition shall also contain the name, address, and the telephone number of the petitioner and a statement by the petitioner, under oath, that the facts set forth in the petition are true to the best of the petitioner's knowledge, information, and belief.

Submission, Consideration, and Disposition. A petition shall be filed with the Authority for its consideration and disposition. The Authority shall mail promptly to each person requesting a declaratory ruling a notice of filing indicating the date of receipt of the petition. The Authority shall consider the petition and may issue the declaratory ruling requested. The Authority shall notify the petitioner in writing within 60 days of the date of receipt of the petition of whatever action it decides to take, and shall state the reasons for its decision.

Subtitle 26 — Maryland Energy Administration

Chapter 01. Jane E. Lawton Conservation Program

Regulation .01 Purpose.Link Copy Citation

This chapter describes the policies and procedures for making loans to and offering credit enhancements that benefit local governments, nonprofits, and eligible businesses from the Jane E. Lawton Conservation Loan Fund.

Regulation .02 Scope.Link Copy Citation

To promote energy efficiency, reduce consumption of fossil fuels, and enhance energy-related economic development and stability in the commercial and industrial, nonprofit, and government sectors, the Jane E. Lawton Conservation Loan Program authorizes the Maryland Energy Administration to:

Make low-interest loans to eligible nonprofit organizations, businesses, and local jurisdictions; and

Enhance the credit of financings offered by eligible banks and other financial institutions to benefit eligible nonprofit organizations, businesses, and local jurisdictions.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means the Jane E. Lawton Conservation Loan Program set forth in State Government Article, Title 9, Subtitle 20A, Annotated Code of Maryland.

(2)

“Administration” means the Maryland Energy Administration.

(3)

“Borrower” means a local jurisdiction, nonprofit organization, or eligible business that applies and qualifies for a loan under the Program.

(4)

“County” means any of the 23 counties of the State, and the Mayor and City Council of Baltimore, and any authorized agency or instrumentality of a county or counties.

(5)

“Credit enhancement” means a financial arrangement designed to improve the accessibility or affordability of a financing.

(6)

“Director” means the Director of the Administration or the Director's designated representative.

(7)

Eligible Business.

(a)

“Eligible business” means a commercial enterprise or business that is in good standing with the State Department of Assessments and Taxation and is:

(i)

Incorporated in the State; or

(ii)

Registered to do business in the State.

(b)

“Eligible business” includes a corporation, association, general partnership, limited partnership, joint general partnership, joint venture, or other form of legal organization.

(8)

“Energy cost savings” means the actual reduction in operating expenses resulting from the installation, operation, and maintenance of a project financed under the Program.

(9)

“Fund” means the Jane E. Lawton Conservation Loan Program Fund.

(10)

“Loan” means an issuance of debt by the Administration to a qualified borrower under the Program.

(11)

“Local jurisdiction” means any county or municipality of the State and includes the board of education or community college of a county.

(12)

“Municipality” means any municipal corporation or State-created special taxing district in Maryland subject to the provisions of Article XI-E of the Maryland Constitution, or any authorized agency or instrumentality of the municipality.

(13)

“Nonprofit organization” means a corporation, foundation, school, hospital, or other legal entity, no part of the net earnings or assets of which inure to the benefit of any private shareholder or individual holding an interest in the entity.

(14)

“Program” means the Jane E. Lawton Conservation Loan Program.

(15)

Project.

(a)

“Project” means one or more improvements or modifications that enhance the energy efficiency and reduce the operating expenses of a structure located in Maryland.

(b)

“Project” does not include improvements or modifications for energy conservation in structures used primarily for religious or fraternal activities.

Regulation .04 Eligibility and Requirements for Loans.Link Copy Citation

A loan under the Program may be made to:

(1)

Eligible local jurisdictions;

(2)

Eligible nonprofit organizations; and

(3)

Eligible businesses.

A borrower for a loan under the Program shall:

(1)

Have the legal capacity and all necessary legal authority to incur the obligations of a loan under the Program;

(2)

Provide a complete application to the Administration before the expiration of any applicable deadlines;

(3)

If the borrower is a business entity, be in good standing with the State Department of Assessments and Taxation and be:

(a)

Incorporated in the State; or

(b)

Registered to do business in the State;

(4)

Pay any fees required by the Administration; and

(5)

Meet any other requirement deemed appropriate by the Administration.

Regulation .05 Permissible Uses for Loan Funds.Link Copy Citation

A loan under the Program may be used to pay for:

(1)

The costs of implementing projects, including the costs of all necessary:

(a)

Technical assessments;

(b)

Studies;

(c)

Surveys;

(d)

Plans and specifications; and

(e)

Start-up, architectural, engineering, and other special services;

(2)

The costs of procuring necessary technology, equipment, licenses, or materials; and

(3)

The costs of construction, rehabilitation, or modification related to a project including the purchase and installation of necessary machinery, equipment, or furnishings.

A loan may be made in conjunction with, or in addition to, financial assistance provided through other State or federal programs.

Regulation .06 Minimum Borrower Obligations.Link Copy Citation

In addition to any other condition or requirement determined to be necessary by the Administration, a borrower shall:

Make a contribution to the project that is of a type and amount acceptable to the Administration;

Document that the anticipated energy savings to the borrower over a defined period after the completion of the project are greater than the total cost of the project to the borrower in a manner that allows the Administration to verify the anticipated energy savings at the time of the application;

Pay an interest rate and any other fees and expenses assessed by the Administration;

Repay the loan and interest in accordance with a schedule set by the Administration;

Execute necessary assurances including a promissory note and other forms of collateral required by the Administration; and

Provide the Administration with a letter of counsel that gives any assurances requested by the Administration.

Regulation .07 Terms and Conditions of Loan.Link Copy Citation

The borrower shall make a contribution to the project, acceptable to the Administration, which may take the form of:

(1)

Cash;

(2)

Payment of certain predevelopment costs such as preliminary architectural site plans, engineering design studies or feasibility studies, or technical assessments necessary to implement the project;

(3)

Contribution of in-kind services acceptable to the Administration; or

(4)

Contribution of equipment, labor, or materials for use in the project.

Security.

(1)

Security or collateral are required for any loan to a nonprofit organization or eligible business.

(2)

When security is required, a loan shall be secured by liens on real property, equipment, or other assets purchased with loan proceeds and any other collateral approved by the lender and the Administration which may include, but are not limited to:

(a)

The personal guarantees of the principals of the applicant;

(b)

Liens on the business assets of the applicant;

(c)

Guarantees of related entities;

(d)

Indemnity deeds of trust on real property owned by the principals of the applicant;

(e)

A cash escrow; or

(f)

Any other form of security or collateral acceptable to the Administration.

(3)

If applicable, the borrower shall make the necessary arrangements and, if necessary, execute a waiver in favor of the Administration with a landlord to facilitate the Administration’s security and collateral.

Repayment.

(1)

The principal and interest of a loan under the Program shall be repaid:

(a)

From energy cost savings realized by the energy conservation project, or other revenues specified by the borrower equal or equivalent to energy cost savings; and

(b)

In accordance with a schedule acceptable to the Administration provided that the date for beginning of the repayment of a loan may not be later than 2 years from closing of the loan.

(2)

In calculating the energy cost savings, the Administration, on a case by case basis, may take a number of factors into consideration, including:

(a)

Actual or anticipated changes to the energy consumption and energy use of a borrower; and

(b)

Whether these changes will produce monetary or other forms of savings to a borrower.

(3)

At the conclusion of each fiscal year, if the energy cost savings resulting from the project do not equal or exceed the expected repayment schedule for the loan, the Administration may upon the petition of a borrower:

(a)

Adjust the terms of repayment with the borrower in such a manner as to assure that the annual payment amount does not exceed the actual energy cost savings resulting from the project; and

(b)

Extend the repayment period for up to 1 additional year beyond the original maturity date, at the discretion of the Program, or a longer period at the discretion of the Director.

Interest Rate. The principal of the loan shall bear interest at a rate determined to be necessary and reasonable for the project, which, at the discretion of the Director, may be as low as zero percent.

In the event of default, the Administration may modify:

(1)

The rate of interest;

(2)

The time or amount of payment; or

(3)

Any other term of the loan in order to ensure repayment and achieve the purposes of the Program.

Template Documents.

(1)

The Administration shall publish a loan agreement, note, and security agreement on its website no later than 30 days following the start of each fiscal year that will serve as the Program documents for that fiscal year.

(2)

The Program documents published under §F(1) of this regulation shall conform to the minimum provisions required under §G of this regulation and include any additional provisions deemed appropriate by the Administration.

(3)

Except as provided in §F(4) of this regulation, the Administration shall utilize the Program documents published under subsection(1) of this section for each loan issued to a borrower under the Program.

(4)

The Administration may grant a modification or amendment to a Program document published under §F(1) of this regulation only upon a determination by the Administration of good cause, which may include a determination by the Administration that:

(a)

A provision of a template document is contrary to law; or

(b)

A modification or amendment is necessary to facilitate the issuance of a loan to an applicant that is otherwise eligible for a loan under the Program.

Document Requirements.

(1)

A loan agreement issued under the Program shall, at a minimum, include:

(a)

A definition of terms;

(b)

Interest rates, fees, and other expenses to be paid by the borrower;

(c)

A disbursement schedule consistent with the schedule proposed by the borrower in its application;

(d)

Conditions precedent and other terms that affect the disbursement and availability and funds;

(e)

Applicable representations, warranties, and covenants;

(f)

Indemnification of the Administration and its employees;

(g)

A requirement to hold the Administration and its employees harmless;

(h)

Default events;

(i)

Contact information;

(j)

A statement of governing law;

(k)

Terms related to confession of judgment; and

(l)

Collection procedures.

(2)

A security agreement issued under the Program shall, at a minimum, include:

(a)

A description of collateral;

(b)

Applicable representations, warranties, and covenants; and

(c)

Default events.

(3)

A note issued under the Program shall, at a minimum, include:

(a)

A definition of terms;

(b)

Interest rates, fees, and other expenses to be paid by the borrower;

(c)

Applicable representations, warranties, and covenants;

(d)

Indemnification of the Administration and its employees;

(e)

A requirement to hold the Administration and its employees harmless;

(f)

Default events;

(g)

A statement of governing law;

(h)

Terms related to confession of judgment;

(i)

Collection procedures; and

(j)

A requirement for notarization.

Insurance.

(1)

The Administration may require a borrower to maintain insurance as described in this section.

(2)

Multi-Peril Insurance. Multi-peril insurance provides fire and extended coverage insurance on the project both during and upon completion of construction, rehabilitation, or modification of a project. The insurance coverage shall include the endorsements that the Administration may require, including:

(a)

Collapse;

(b)

Explosion;

(c)

Loss of rents; and

(d)

Vandalism.

(3)

Liability Insurance. Comprehensive general liability insurance shall be maintained with the endorsements that the Administration may require both during and after construction, rehabilitation, or modification of a project.

(4)

Flood Insurance. If the project is located on real property which is in the 100-year flood plain, as designated by the U.S. Department of Housing and Urban Development, the project shall be covered by a flood plain insurance policy. Before closing of a loan for a project, permits shall be secured from the Maryland Department of Natural Resources and the political subdivision in which the project is located.

(5)

Contractor's Insurance. If a project involves construction, rehabilitation, or modification of a structure or improvements of any kind, the general contractor shall provide insurance coverage for comprehensive public liability, property damage, and Workers' Compensation in the form and amounts required by the Administration.

(6)

Other Insurance. The borrower shall provide at closing of the loan other insurance the Administration may require, including:

(a)

Builder's risk;

(b)

Boiler insurance;

(c)

Comprehensive automobile liability; and

(d)

Broad form Workers' Compensation.

(7)

Terms and Conditions. Insurance coverage shall meet the following minimum requirements plus any additional requirements which may be set by the Administration:

(a)

Insurance shall be provided by:

(i)

Companies or other legal entities that are authorized to transact business in the State, and which are reputable and financially sound, as determined by the Administration; or

(ii)

In the case of local jurisdictions, self-insurance programs that are acceptable to the Administration;

(b)

To the extent applicable, insurance shall be in force upon the closing of the loan;

(c)

To the extent applicable, an insurance policy shall contain a standard lender endorsement attached to or printed in the policy naming the Administration as mortgagee;

(d)

To the extent required by the Administration, the insurance policy shall name the Administration as loss payee and additional insured;

(e)

Insurance shall provide for notification to the Administration before termination; and

(f)

Insurance shall contain terms and coverage satisfactory to the Administration.

Disbursement. Loan proceeds shall be disbursed directly to the borrower upon the terms and conditions set forth in the loan documents.

Regulation .08 Evaluation Criteria.Link Copy Citation

The Administration may take the following factors into consideration in prioritizing loans for any fiscal year:

Type of applicant with local governments, including schools, and nonprofits receiving special priority;

Amount of projected electricity saved, fossil fuels displaced, or renewable energy generated;

The extent to which the loan would leverage other energy investment dollars, including funds from the applicant or other private, local government, or federal financing;

Risk profile of loan, including the length of the payback period, the applicant's ability to repay or provide security or collateral, or both, as required by the Administration;

The availability of insurance;

How the loan interacts with the applicant's broader energy conservation strategy; and

Project readiness.

Regulation .09 Application Process.Link Copy Citation

Application for a Loan.

(1)

An application for a loan shall be:

(a)

Made upon standard forms required by and submitted to the Administration; and

(b)

Submitted only by an eligible borrower in accordance with a schedule developed and publicized by the Administration.

(2)

If the borrower is a:

(a)

Local jurisdiction, the application shall be signed by the local jurisdiction's chief elected officer or, if none, by the governing body to the local jurisdiction;

(b)

Public school, the application shall be approved by the board of education of the county in which the project is located and signed by the superintendent of public schools for the county;

(c)

Institution of higher learning, the application shall be signed by the president of the institution or other authorized official;

(d)

Business entity, the application shall be signed and verified:

(i)

If a corporation, by an officer of the corporation;

(ii)

If another form of business entity, by a person or official with authority to bind the entity to the commitments required; or

(e)

Nonprofit organization, the application shall be signed by the executive director, president, chairman of the board, or other authorized official.

(3)

An application for a loan shall be submitted to the Administration and shall contain:

(a)

Sufficient information and documentation to determine:

(i)

The eligibility of a project in accordance with the criteria set forth in Regulations .04 and .06 of this chapter;

(ii)

Whether the terms and requirements of the loan as set forth in Regulation .07 of this chapter can be met; and

(iii)

For a business or nonprofit organization, sufficient information to allow the Administration to make a determination about the creditworthiness of the borrower and the risk profile of the loan; and

(b)

The following additional information:

(i)

Identification of the business, structure or structures, or equipment which will be the subject of a project, including, as applicable, a brief description of the existing condition of the structure or equipment evidencing a need for the project;

(ii)

The cost of a proposed project and the amount of dollars committed from private and public resources;

(iii)

A project budget identifying all sources and uses of project funds;

(iv)

Proposed terms of the loan, including interest rates and repayment schedules;

(v)

The type of security, if any, to be provided by the borrower;

(vi)

A description of type, amount, and source of the contribution to be made by the borrower;

(vii)

As determined by the Administration, the projected energy cost savings to be achieved in dollars, units of fuel, kilowatt-hours, or British thermal units, and the engineering calculations to support these savings estimates; and

(viii)

The anticipated environmental benefits in the form of reduced emissions or pollution attributable to the proposed project.

Approval Process.

(1)

Upon receipt of all the information required by the Program for an eligible project, the Program shall undertake an analysis of each application based on the criteria specified in Regulation .08 of this chapter.

(2)

Upon completion of its analysis, the Program shall make recommendations to the Director, including any recommended terms and conditions for a project. After receipt of a recommendation from the program, the Director may approve or disapprove the loan and the terms of the loan.

(3)

If the Director approves an application for a loan on the terms recommended by the Program, or other terms that the Director considers proper, the Director shall execute a determination that the loan is authorized by the Act as codified in State Government Article, §§9-20A-01—9-20A-09, Annotated Code of Maryland. The execution of a determination of this type by the Director shall constitute an approval of a loan and authorize issuance of a commitment letter obligating the Administration to provide the loan and setting forth the amount of the loan and the terms and conditions under which it will be made.

(4)

The Director may delegate the responsibilities described in §B(2) and (3) of this regulation, including approval of loans under the Program.

(5)

If the Program determines not to recommend approval of an application for an eligible project, the Program shall issue a written notice of rejection.

Regulation .10 Fees and Charges.Link Copy Citation

The Administration may charge an application and an administrative fee to cover the costs of making, servicing, or settling a loan.

A borrower may withdraw an application at any time before an award of a loan by written notice to the Administration. The borrower may be required to bear any costs incurred by the Administration for items other than Administration processing, including a nonusage fee.

The Administration may return the application and administrative fees paid upon the withdrawal of an application.

Regulation .11 Closing.Link Copy Citation

Time. The closing of an award of a loan shall be scheduled at a time acceptable to the Administration and the Office of the Attorney General.

Place. The closing shall be at the Administration's offices unless otherwise agreed to by the Administration.

Regulation .12 Program Administration.Link Copy Citation

The Director may delegate to any other official or employee of the Administration or the Program the authority to approve loans and credit enhancements under the Program, or to execute or approve any loan documents or other documents governing a loan or credit enhancement, including a commitment.

The Administration may enter into contracts with third parties to make, service, or settle loans under the Program.

The Administration shall reserve 20 percent of the annual amount of funds available under the Program for loans to nonprofit organizations. If sufficient applications for the reserved funds have not been received from nonprofit organizations, those funds may be made available to other loans or credit enhancements under the Program.

Regulation .13 Books and Records.Link Copy Citation

Borrowers, recipients of credit enhancements, contractors, and subcontractors shall maintain books, accounts, and records, and shall file with the Administration financial and other reports, that the Administration may from time to time require.

The books, accounts, and records referenced in §A of this regulation, as well as the administrative personnel, whether full-time or part-time, shall be available for inspection by representatives of the Administration or other agencies of the State during reasonable working hours.

Books, accounts, and records of contractors and subcontractors shall be maintained and made available for inspection for 3 years past the date of termination of the contractual relationship between the contractor and the borrower.

Regulation .14 Nondiscrimination.Link Copy Citation

A borrower or recipient or beneficiary of a credit enhancement may not discriminate against an individual on the basis of race, color, religion, national origin, sex, marital status, physical or mental handicap, or age in any aspect of the program.

A borrower or recipient or beneficiary of a credit enhancement shall comply with all applicable federal, State, and local laws and Administration policies and programs regarding discrimination and equal opportunity in employment, housing, and credit practices including:

(1)

Titles VI and VII of the Civil Rights Act of 1964, as amended;

(2)

Title VIII of the Civil Rights Act of 1968, as amended; and

(3)

The Governor's Code of Fair Practices, as amended.

Covenants implementing these requirements, including affirmative action measures, shall be included in appropriate agreements between the Administration and other parties.

Regulation .15 Drug-Free and Alcohol-Free Policy.Link Copy Citation

As a condition of receipt of a loan from the Program, the Administration may require the borrower or recipient or beneficiary of a credit enhancement to adopt and administer a program to promote a drug-free and alcohol-free workplace in accordance with Executive Order 01.01.1989.18.

Regulation .16 Waiver.Link Copy Citation

The Director may waive or vary provisions of this chapter to the extent that the waiver or variance is consistent with the Act as codified in State Government Article, §§9-20A-01—9-20A-09, Annotated Code of Maryland.

Regulation .17 False Statements or Report.Link Copy Citation

A person may not knowingly make or cause to be made any false statement or report in any document required to be furnished to the Administration by any agreement relating to a loan or credit enhancement.

A person applying for a loan or credit enhancement under the Program may not knowingly make or cause to be made any false statement or report for the purpose of influencing the action of the Administration on an application for a loan or credit enhancement or for the purpose of influencing the action of the Administration affecting a loan or credit enhancement already provided.

A person who violates §A or B of this regulation is guilty of a misdemeanor, and on conviction is subject to a fine not exceeding $50,000 or imprisonment not exceeding 1 year, or both.

Regulation .18 Credit Enhancements.Link Copy Citation

Subject to the requirements of this regulation, the Administration may authorize a credit enhancement to carry out the purpose of the Program under State Government Article, §9-20A-03, Annotated Code of Maryland.

The Administration may authorize a credit enhancement under the Program to a bank or other financial institution to facilitate financing of at least one project of an:

(1)

Eligible local jurisdiction;

(2)

Eligible nonprofit organization; or

(3)

Eligible business.

A bank or other financial institution offering a financing enhanced by a credit enhancement under the Program shall:

(1)

Be in good standing with the State Department of Assessments and Taxation and:

(a)

Incorporated in the State; or

(b)

Registered to do business in the State;

(2)

Have the legal capacity and all necessary legal authority to incur the obligations associated with the credit enhancement under the Program;

(3)

Provide a complete application to the Administration before the expiration of any applicable deadline;

(4)

Satisfy all financial requirements established by the Administration;

(5)

At the discretion of the Administration, pay a reasonable fee to the Administration for the administration of the credit enhancement; and

(6)

Meet any additional requirement deemed appropriate by the Administration.

A beneficiary of a credit enhancement under the Program shall:

(1)

Have the legal capacity and all necessary legal authority to incur the obligations associated with the credit enhancement under the Program;

(2)

Satisfy all financial and credit-related requirements established by the Administration; and

(3)

Meet any additional requirement deemed appropriate by the Administration.

Application and Review Process.

(1)

An eligible local jurisdiction, nonprofit organization, or business may apply to the Administration under the Program to receive a credit enhancement for a financing offered by a bank or other financial institution.

(2)

A bank or other financial institution may apply to the Administration to receive a credit enhancement to benefit an eligible local jurisdiction, nonprofit organization, or business.

(3)

An application for a credit enhancement shall be:

(a)

Made upon standard forms required by and submitted to the Administration; and

(b)

Submitted to the Administration in accordance with a schedule developed and publicized by the Administration.

(4)

If the beneficiary of the credit enhancement is:

(a)

A local jurisdiction, the application shall be signed by the local jurisdiction’s chief elected officer or, if none, by the governing body to the local jurisdiction;

(b)

A public school, the application shall be approved by the board of education of the county in which the project is located and signed by the superintendent of public schools for the county;

(c)

An institution of higher learning, the application shall be signed by the president of the institution or other authorized official;

(d)

A business entity, the application shall be signed and verified:

(i)

If a corporation, by an officer of the corporation; or

(ii)

If another form of business entity, by a person or official with authority to bind the entity to the commitments required; or

(e)

A nonprofit organization, the application shall be signed by the executive director, president, chairman of the board, or other authorized official.

(5)

An application for a credit enhancement shall contain:

(a)

Sufficient information and documentation to determine:

(i)

Whether the terms and requirements of the credit enhancement as determined by the Administration can be met; and

(ii)

For a business or nonprofit organization, sufficient information to allow the Administration to make a determination about the creditworthiness of the borrower and the risk profile of the credit enhancement; and

(b)

The following additional information:

(i)

(ii)

The cost of a proposed project and the amount of dollars committed from private and public resources;

(iii)

A project budget identifying all sources and uses of project funds;

(iv)

Proposed terms of the credit enhancement, including interest rates and repayment schedules;

(v)

The type of security, if any, to be provided by the beneficiary of the credit enhancement;

(vi)

A description of type, amount, and source of the contribution to be made by the beneficiary of the credit enhancement;

(vii)

(viii)

The anticipated environmental benefits in the form of reduced emissions or pollution attributable to the proposed project.

(6)

After receipt of an application for a credit enhancement, the Administration may consider whether to offer a credit enhancement under the Program using the following factors:

(a)

Satisfaction of the requirements under §E(3) of this regulation;

(b)

Estimated energy savings;

(c)

Leverage;

(d)

Risk to the Administration of pecuniary loss;

(e)

The extent to which the credit enhancement helps achieve the purpose of the Program under State Government Article, §9-20A-03, Annotated Code of Maryland; and

(f)

Additional factors deemed appropriate by the Administration related to the:

(i)

Type of credit enhancement proposed;

(ii)

Project;

(iii)

Bank or financial institution; and

(iv)

Beneficiary of the credit enhancement.

Subtitle 26 — Maryland Energy Administration

Chapter 02. Maryland Strategic Energy Investment Program

Regulation .01 Scope.Link Copy Citation

These regulations establish procedures for the administration of a grant under the Strategic Energy Investment Program, established under State Government Article, §9-20B-02, Annotated Code of Maryland, and utilizing funds appropriated from the Strategic Energy Investment Fund under State Government Article, §9-20B-05, Annotated Code of Maryland, where no other law or regulation controls.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Administration” means the Maryland Energy Administration.

(2)

“Applicant” means a person or entity that applies for a grant from the Administration.

(3)

“Application” means a request to receive a grant from the Administration.

(4)

“Competitive funding opportunity” means a funding opportunity for which the Administration considers all complete applications submitted and selects those applications that best meet the criteria in the relevant FOA as determined by the Administration.

(5)

“Complete application” means a timely application that includes all the information required by the FOA.

(6)

“Evaluation criteria” means factors identified in the FOA that the Administration uses to determine which applications submitted in response to a FOA best meet the Administration’s specified purpose.

(7)

“Fund availability” means the presence of monies that the Administration is authorized to expend for a particular purpose, such as the discretionary offering of grants.

(8)

“Funding opportunity announcement” or “FOA” means a notice to the public of a grant funding opportunity available for a specific period and purpose that includes the conditions, criteria, and guidelines developed by the Administration.

(9)

Grant.

(a)

“Grant” means the bestowing of a power, money, privilege, property, or other item of value that may be conditional, although without other consideration, by the Administration upon another party.

(b)

Grant includes a rebate, technical assistance, and the provision of a portion or all a grantee’s matching or cost sharing for a federal grant.

(10)

“Grant agreement” means a written agreement between the Administration and a grantee with respect to a grant.

(11)

“Noncompetitive funding opportunity” means a funding opportunity for which the Administration considers complete applications on a first-come, first-served basis.

(12)

Person.

(a)

“Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, representative of any kind, corporation, partnership, business trust, statutory trust, limited liability company, firm, association, or other nongovernmental entity.

(b)

“Person” includes a not-for-profit corporation, partnership, business trust, statutory trust, limited liability company, firm, or association that is in good standing with the State.

(13)

Project.

(a)

“Project” means an activity or undertaking that is consistent with the requirements of a FOA.

(b)

“Project” includes all activities and requirements specified in the FOA or grant agreement.

(14)

“Rebate” is a noncompetitive funding opportunity for a project that is complete at the time the application is submitted to the Administration.

(15)

“State” means the State of Maryland.

(16)

State Agency.

(a)

“State agency” means any administration, agency, association, authority, board, bureau, college, commission, committee, council, foundation, fund, department, institute, institution, public corporation, service, trust, university, or other unit of the Executive Branch of the State government and includes any subunit within any of these units.

(b)

“State agency” does not include a bicounty or multicounty government agency or political subdivision of the State, including a county, municipality, special tax district, sanitary district, drainage district, soil conservation district, water supply district, or any entity organized under the general corporation laws of the State.

(17)

“Strategic Energy Investment Fund” or “SEIF” has the meaning stated in State Government Article, §9-20B-05, Annotated Code of Maryland.

(18)

“Strategic Energy Investment Program” means the program established and described in State Government Article, Title 9, Subtitle 20B, Annotated Code of Maryland.

Regulation .03 Authority of Administration.Link Copy Citation

The Administration may:

Develop a FOA;

Establish an application process, requirements, and criteria for each FOA;

Receive and evaluate a grant application;

Offer a grant;

Receive and evaluate requests for cost sharing or matching to be used in a proposal for a federal grant;

Offer a grant for all or a portion of a grantee’s cost sharing or matching for a federal grant;

Terminate a grant; or

Require repayment of a grant for noncompliance.

Regulation .04 Funding Opportunity Announcement.Link Copy Citation

The Administration shall publish on its website a FOA for each grant offered by the Administration.

Each initial FOA shall include an application period of at least 30 calendar days.

Each FOA shall explain each of the following when applicable:

(1)

Name and purpose;

(2)

Duration and schedule;

(3)

Requirements;

(4)

Deadlines;

(5)

Anticipated funding amount at the time the FOA is published;

(6)

Designation as a competitive or a noncompetitive grant;

(7)

Evaluation criteria;

(8)

Method for determining a grant amount under the FOA and whether an amount other than the requested amount may be offered;

(9)

The required form and manner in which to submit a complete application;

(10)

Limitations on the offer of a grant, including the amount for an individual grant or the number of grants an applicant may receive;

(11)

Evaluation process; and

(12)

Other information the Administration determines is appropriate.

The Administration may modify a FOA by publishing a notice of the modified provision on its website no less than 10 business days prior to the application deadline and effective date of the modified provision.

Regulation .05 Funding Opportunity Application and Review.Link Copy Citation

The Administration shall review each complete application received using any method described in the FOA.

After review of a complete application, the Administration may take any of the following actions:

(1)

Offer a grant;

(2)

Offer a partial grant;

(3)

Hold the application for further consideration during the same fiscal year;

(4)

Hold the application for further consideration in a succeeding fiscal year; or

(5)

Reject the application.

The Administration may reject an application if:

(1)

The application is not a complete application;

(2)

The application is inconsistent with law;

(3)

For a competitive funding opportunity, the Administration has not selected the application for a grant;

(4)

The Administration determines that sufficient funding is not available; or

(5)

The Director of the Administration determines that offering a grant is not in the best interest of the State.

The Administration shall provide written notice of the action taken under §B of this regulation within 30 days, and, if the application is rejected, the basis for the action taken under §C of this regulation.

For reconsideration of an action by the Administration under §B or C of this regulation, the applicant shall submit a written request to the Administration within 14 business days of receiving the written notice under §D of this regulation.

The written decision by the Director, or the Director’s designee, on the request for reconsideration shall be the final decision of the Administration.

Regulation .06 Grant Evaluation.Link Copy Citation

The Administration may offer a grant for the value it determines is appropriate after considering any requirements and evaluation criteria specified in the FOA, fund availability, or any other factor the Administration determines appropriate.

Regulation .07 Grant to Provide a Cost Sharing or Matching for a Federal Grant.Link Copy Citation

The Administration may offer an applicant all or part of the applicant’s cost sharing or matching for a federal grant if:

(1)

The project is within the scope of this chapter as specified in Regulation .01;

(2)

The project directly benefits the State; and

(3)

The applicant complies with all the requirements for the federal grant.

The Administration shall cancel a grant offer made pursuant to §A of this regulation if the applicant does not receive the federal grant.

The Administration may offer a grant to an applicant that submits an unsolicited request for cost sharing or matching for a federal grant consistent with this regulation.

Regulation .08 Grant Agreements.Link Copy Citation

To be eligible to receive a grant from the Administration, the applicant shall execute a grant agreement provided by the Administration prior to any distribution of funds.

A grant agreement shall, if applicable:

(1)

Identify each party and any authorized representative;

(2)

Describe the project;

(3)

Specify the value of the grant;

(4)

Specify terms of the grant agreement;

(5)

Set forth each requirement for receiving a grant, including any reporting, invoicing, or project compliance verification requirements;

(6)

Specify each condition under which noncompliance may require repayment of a grant;

(7)

Require certification of the applicant’s good standing with the State;

(8)

Provide the Administration or its designee the right to access the project site for verification or any other relevant purpose;

(9)

Provide the right of the Administration to utilize project information for any relevant purpose; and

(10)

Include any other applicable provision required in a State financial agreement.

A grant agreement may contain any additional provision deemed appropriate by the Administration.

For a rebate, a grant application that meets the requirements set forth in §B of this regulation may serve as the grant agreement.

Regulation .09 Applicant Responsibilities.Link Copy Citation

An applicant shall timely provide any information concerning an application, request, or proposal as requested by the Administration.

A person that provides a statement or report in any document required to be furnished to the Administration by any agreement relating to a grant, loan, or other financial assistance is subject to the provisions of State Government Article, §9–20B–11, Annotated Code of Maryland.

Regulation .10 Inter-Agency Agreements.Link Copy Citation

A State agency other than the Administration may submit a funding request to the Administration for a project, activity, or investment designed to advance a purpose of the Strategic Energy Investment Program and intended for implementation in a subsequent fiscal year.

To request funding from the SEIF, a State agency shall submit a written proposal to the Administration, including the following:

(1)

A description of the project, activity, or investment;

(2)

The requested amount of funding in the relevant fiscal year to implement the project, activity, or investment;

(3)

A description of how the proposed project, activity, or investment is consistent with the Strategic Energy Investment Program and will further State policy goals;

(4)

A description of anticipated impacts, how they advance the State’s policy goals, and how the impacts are measured and verified;

(5)

An implementation timeline for the project, activity, or investment; and

(6)

Any other information the Administration requests for the purpose of evaluating the proposal.

In response to such a request from a State agency, the Administration may:

(1)

Review the funding request to determine whether it is consistent with the Strategic Energy Investment Program, the requirements of any existing FOA, or State policy;

(2)

Consider the funding request in the context of any existing or anticipated FOA, fund availability, forecasted revenue, and fund balances; or

(3)

Make recommendations for inclusion of the funding request in the State’s operating budget for a new energy-related project, activity, or investment found to be consistent with State Government Article, Title 9, Subtitle 20B, Annotated Code of Maryland, as well as broader State policy goals.

Each State agency that receives funding from the SEIF under this regulation shall:

(1)

Utilize funding from the SEIF in a manner consistent with a memorandum of understanding executed between the State agency and the Administration; and

(2)

Comply with all reporting requirements as determined by the Administration.

Regulation .11 Unavailability of Funds.Link Copy Citation

Notwithstanding any applicable law or regulation, the Administration may suspend or cancel any FOA, grant, or agreement due to unavailability of funds.

Regulation .12 Waiver.Link Copy Citation

The Director may waive or modify a provision of this chapter that is inconsistent with the Strategic Energy Investment Program or other law or regulation.

Subtitle 26 — Maryland Energy Administration

Chapter 03. Maryland Efficiency Standards

Regulation .01 Purpose.Link Copy Citation

This chapter:

Implements the Maryland Efficiency Standards Act by establishing minimum efficiency standards for certain new products sold or installed in the State; and;

Establishes testing, certification, inspection, and enforcement procedures for ensuring compliance with established standards.

Regulation .02 Incorporation by Reference.Link Copy Citation

In this chapter, the following documents are incorporated by reference:

42 U.S.C. §6294a;

42 U.S.C. §6294b;

10 CFR Part 430, Subpart B, Appendix S; and

10 CFR Part 430, Subpart C.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means the Maryland Efficiency Standards Act.

(2)

“Administration” means the Maryland Energy Administration.

(3)

“Air purifier” means an air cleaner subject to 10 CFR Part 430, Subpart C.

(4)

“Commercial dishwasher” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(5)

“Commercial steam cooker” or “compartment steamer” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(6)

“Covered product” means an item listed in Regulation .04 of this chapter.

(7)

“ENERGY STAR” means the U.S. Environmental Protection Agency program established under 42 U.S.C. §6294a.

(8)

“Faucet” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(9)

“Person” has the meaning stated in State Government Article, §1-101, Annotated Code of Maryland.

(10)

“Portable electric spa” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(11)

“Public lavatory faucet” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(12)

“Replacement aerator” means an aerator that is:

(a)

Designed as a replacement part for a faucet; and

(b)

Packaged and sold separately from a faucet to which it is designed to attach.

(13)

Residential Ventilating Fan.

(a)

“Residential ventilating fan” means a fan designed to:

(i)

Be ceiling mounted, wall mounted, or remotely mounted; and

(ii)

Move air from inside a building to the outdoors.

(b)

“Residential ventilating fan” includes fans commonly used in a bathroom or utility room to expel odors or fumes.

(14)

“Retailer” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(15)

“Showerhead has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(16)

“Spray sprinkler body” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(17)

“Urinal” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(18)

“Water closet” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(19)

“Water cooler” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

(20)

“WaterSense” means the U.S. Environmental Protection Agency program established under 42 U.S.C. §6294b.

(21)

“Widely available in Maryland” has the meaning stated in State Government Article, §9-2006, Annotated Code of Maryland.

Regulation .04 Scope of Application of Standards.Link Copy Citation

This chapter applies to the testing, certification, and enforcement of efficiency standards for the following types of new products sold, offered for sale, or installed in the State:

(1)

Portable electric spas;

(2)

Air purifiers;

(3)

Commercial dishwashers;

(4)

Commercial steam cookers;

(5)

Faucets;

(6)

Residential ventilating fans;

(7)

Showerheads;

(8)

Spray sprinkler bodies;

(9)

Urinals;

(10)

Water closets; and

(11)

Water coolers.

This chapter does not apply to:

(1)

New products manufactured in the State and sold outside the State;

(2)

New products manufactured outside the State and sold at wholesale inside the State for final retail sale and installation outside the State;

(3)

Products installed in mobile manufactured homes at the time of construction;

(4)

Products designed expressly for installation and use in recreational vehicles or marine vessels; or

(5)

Products to be sold at retail that are in stock at the retail establishment before the effective date of any efficiency standard regulation for that item.

Regulation .05 Minimum Efficiency Standards.Link Copy Citation

On or after the date specified in Regulation .06 of this chapter, a person may not sell or install for profit a covered product that does not meet or exceed the corresponding minimum efficiency standards listed in this regulation.

Air purifiers shall comply with federal standards for air cleaners under 10 CFR Part 430, Subpart C.

Commercial dishwashers shall meet the applicable qualification criteria specified in the ENERGY STAR program requirements product specification for commercial dishwashers.

Commercial steam cookers shall meet the requirements specified in the ENERGY STAR program requirements product specification for commercial steam cookers.

Faucets shall meet the following standards when tested in accordance with 10 CFR Part 430, Subpart B, Appendix S, compliance with which shall be verified by using the uniform test method for measuring the water consumption of faucets and showerheads:

(1)

Private lavatory faucets and replacement aerators may not exceed a maximum flow rate of 1.5 gallons per minute at 60 pounds per square inch;

(2)

Residential kitchen faucets and replacement aerators may not exceed a maximum flow rate of 1.8 gallons per minute at 60 pounds per square inch, with optional temporary flow of 2.2 gallons per minute, provided the faucet defaults to a maximum flow rate of 1.8 gallons per minute at 60 pounds per square inch after each use; and

(3)

Public lavatory faucets and replacement aerators may not exceed a maximum flow rate of 0.5 gallons per minute at 60 pounds per square inch.

Portable electric spas shall meet the requirements of the ANSI/APSP/ICC 14-2019.

Residential ventilating fans shall meet the following requirements when tested in accordance with the Home Ventilation Institute’s airflow test procedure stated in Home Ventilation Institute Publication 916:

(1)

In–line residential ventilating fans shall be equipped with a fan motor with an efficiency of at least 2.8 cubic feet per minute per watt; and

(2)

Non–in–line residential ventilating fans shall be equipped with a fan motor with an efficiency of at least 1.4 cubic feet per minute per watt for airflows less than 90 cubic feet per minute and at least 2.8 cubic feet per minute per watt for airflows greater than or equal to 90 cubic feet per minute.

Showerheads may not exceed a maximum flow rate of 2.0 gallons per minute at 80 pounds per square inch when tested in accordance with 10 CFR Part 430, Subpart B, Appendix S, compliance with which shall be verified by using the uniform test method for measuring the water consumption of faucets and showerheads.

Spray sprinkler bodies that are not specifically excluded from the scope of the WaterSense specification for spray sprinkler bodies shall include an integral pressure regulator and meet the water efficiency, performance criteria, and other requirements specified in the WaterSense specification for spray sprinkler bodies.

Urinals shall have a maximum flush volume of 0.5 gallons per flush when tested in accordance with 10 CFR Part 430, Subpart B, Appendix T, compliance with which shall be verified by using the uniform test method for measuring the water consumption of water closets and urinals.

Water closets shall meet the following standards when tested in accordance with 10 CFR Part 430, Subpart B, Appendix T, compliance with which shall be verified by using the uniform test method for measuring the water consumption of water closets and urinals:

(1)

Subject to §K(2) of this regulation, water closets shall have a maximum flush volume of 1.28 gallons per flush; and

(2)

Dual–flush tank–type water closets shall have a maximum dual–flush effective volume of 1.28 gallons per flush.

Water coolers included in the scope of the ENERGY STAR program’s water coolers specification shall have an on mode with no water draw energy consumption that is less than or equal to the following values as measured in accordance with the on mode with no water draw test mode specified in the water coolers specification:

(1)

0.16 kilowatt–hours per day for cold only units and cook and cold units;

(2)

0.87 kilowatt–hours per day for storage type hot and cold units; and

(3)

0.18 kilowatt–hours per day for on-demand hot and cold units.

Regulation .06 Effective Dates for Minimum Efficiency Standards.Link Copy Citation

The effective date for efficiency standards for covered products sold or offered for sale in the State is January 1, 2024.

A covered product that does not meet or exceed the corresponding minimum efficiency standards listed in this regulation may not be installed for profit after January 1, 2025.

Regulation .07 Petition for Delayed Implementation.Link Copy Citation

A Maryland business or consumer may file a request with the Administration to delay the effective date of any standard adopted under this chapter if products conforming to a standard will not be widely available in Maryland by the effective date specified in Regulation .06 of this chapter.

The Administration may limit a delay to identifiable subcategories of any category of covered products.

The request shall:

(1)

Be in writing; and

(2)

State the length of the delayed implementation being requested and the reasons for the proposed delay, including any information the person filing the request relied upon to conclude that the product would not be widely available by the effective date.

Upon receipt of a request, the Administration shall issue a public notice of the proposed delay and solicit comment. The Administration may determine the most effective means to issue the notice and receive comment.

If, after public notice and comment, the Administration determines that the product conforming to the standard will not be widely available in Maryland, the Administration shall issue notice of the delay for implementing the standard in the Maryland Register and any other means the Administration determines is appropriate for the product being subjected to the delay. The Administration may not delay the implementation of any standard by more than 1 year.

Regulation .08 Testing Procedures.Link Copy Citation

A covered product shall be tested in accordance with the requirements of Regulation .05 of this chapter.

Regulation .09 Manufacturers' Certification of New Products.Link Copy Citation

A covered product may not be sold in the State on or after its respective minimum efficiency standard effective date unless:

(1)

The Administration has accepted a certification provided by the manufacturer of the covered product demonstrating the covered product meets or exceeds its respective minimum efficiency standard under Regulation .05 of this chapter; or

(2)

Efficiency of a covered product can be verified by an alternative method, including via the:

(a)

California Energy Commission Modernized Appliance Efficiency Database System;

(b)

Northeast Energy Efficiency Partnerships State Appliance Standards Database;

(c)

Federal ENERGY STAR program;

(d)

Federal WaterSense Program; or

(e)

Use of another official state database or other nationally recognized database.

The certification required under §A(1) of this regulation shall be filed with the Administration stating that each covered product that is sold or offered for sale in Maryland complies with the requirements of the Efficiency Standards Act.

The certification required under §A(1) of this regulation shall:

(1)

Be in a format and in categories specified and made publicly available by the Administration;

(2)

Verify that each product has been tested in accordance with all applicable requirements and specify the standard by which the product has been tested;

(3)

Contain the name, address, telephone number, website address, and email address of the laboratory or other institution where the testing was performed;

(4)

Contain the name, address, telephone number, and email address of the individual to contact concerning the statement; and

(5)

Meet all other applicable requirements.

The Administration may establish, modify, and enforce schedules for the submittal of statements for the orderly processing of submittals.

Regulation .10 Product Verification Testing by the Administration.Link Copy Citation

To ensure compliance with adopted standards, the Administration may test a covered product to verify compliance with its applicable minimum efficiency standard.

If a covered product tested is found to be out of compliance with its applicable minimum efficiency standards, the Administration shall:

(1)

Charge the manufacturer of the product for the cost of product purchase and testing; and

(2)

Make information available to the public on products found to be out of compliance with the standards by appropriate means.

Regulation .11 Labeling.Link Copy Citation

Once a manufacturer has certified a new product as outlined in Regulation .09 of this chapter, a manufacturer may mark, label, or tag the product or packaging as meeting the relevant minimum efficiency level outlined in Regulation .04 of this chapter.

The mark, label, or tag shall consist of the letter “M” within a circle no less than 3/8 inch in diameter.

Regulation .12 Inspection and Enforcement.Link Copy Citation

The Administration may make periodic inspections of distributors and retailers of new products listed in Regulation .04 of this chapter in order to determine compliance with the provisions of this chapter.

Before any inspection, the Administration shall give prior notice to the distributor or retailer.

Inspections shall take place during normal business hours unless the distributor or retailer agrees upon a different time.

The Administration may set up a process for receiving complaints concerning potential violations of Regulation .05 of this chapter.

Regulation .13 Fines for Noncompliance.Link Copy Citation

The Administration may investigate complaints received concerning potential violations of Regulation .05 of this chapter and shall report the results of an investigation to the Attorney General.

A manufacturer, distributor, or retailer of new products listed in Regulation .04 of this chapter that violates any provision of Regulation .05 of this chapter shall be issued a warning by the Administration for a first violation.

Repeat violators are subject to a civil penalty of not more than $250.

Each violation of Regulation .05 of this chapter constitutes a separate offense and each day that a violation continues constitutes a separate offense.

Penalties assessed under this regulation are in addition to costs assessed under Regulation .10B(1) of this chapter.

Subtitle 26 — Maryland Energy Administration

Chapter 04. Clean Energy Grant Program

Subtitle 26 — Maryland Energy Administration

Chapter 05. Geothermal Heat Pump Grant Program

Repealed

Subtitle 26 — Maryland Energy Administration

Chapter 06. Maryland Clean Energy Incentive Tax Credit Program

Subtitle 26 — Maryland Energy Administration

Chapter 07. Maryland Energy Storage Systems Income Tax Credit Program

Regulation .01 Purpose.Link Copy Citation

These regulations implement Maryland's Income Tax Credit — Energy Storage Systems Act by establishing procedures for persons and businesses to apply for tax credits for purchasing and installing a qualifying energy storage system on eligible property in Maryland.

Regulation .02 Scope.Link Copy Citation

The Maryland Income Tax Credit — Energy Storage System Act establishes a program to award tax credits to Individuals and Corporations that purchase and install a qualifying energy storage system on eligible property in Maryland. The Program also establishes limits on eligibility and the amount and duration of the credit Program.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Administration” means the Maryland Energy Administration.

(2)

“Capacity factor” means the ratio of actual energy output compared with the maximum possible energy output over a specified period of time.

(3)

“Commercial property” means nonresidential property with a commercial, industrial, or government use as outlined in the qualifications for the Commercial Clean Energy Grant Program in COMAR 14.26.04.02 and includes multifamily properties.

(4)

“Corporation” has the meaning stated in Tax-General Article, §10-101(c), Annotated Code of Maryland.

(5)

“Energy density” means the amount of energy that can be stored in the given mass of the system.

(6)

“Energy markets” mean wholesale electricity markets hosted by PJM Interconnection.

(7)

“Energy storage duration” means duration at rated power.

(8)

“Energy storage systems income tax credit” means a decrease in income tax liability offered to assist an individual or corporation in installing an energy storage system.

(9)

“Energy storage system power density” means the rate of energy flux per unit of area of the energy storage system.

(10)

“Individual” has the meaning stated in Tax-General Article, §10-101(g), Annotated Code of Maryland.

(11)

“Installation date” means the date when the energy storage system was installed on the property and operational, not when the final permits were completed.

(12)

Residential Property.

(a)

“Residential property” means property, including a single-family home and an individual unit of a multifamily property or mixed use facility, that has the purpose of serving as a primary residence, as outlined in COMAR 14.26.04.02

(b)

“Residential property” includes a property with a home office.

Regulation .04 Qualifying Energy Storage Systems.Link Copy Citation

Qualifying energy storage systems may store the following types of energy for use as electrical energy at a later date or in a process that offsets electricity use at peak times:

(1)

Electrical energy;

(2)

Mechanical energy;

(3)

Chemical energy; or

(4)

Thermal energy.

Qualifying energy storage systems shall maintain certain safety criteria, namely:

(1)

Use equipment certified by a nationally recognized testing laboratory (NRTL);

(2)

Be installed by a licensed electrician, for electrical systems; and

(3)

Be in compliance with all applicable building and fire codes.

Qualifying energy storage systems shall also meet the following:

(1)

Be installed in Maryland; and

(2)

Abide by Maryland regulations regarding interconnection with the electric utility and grid, if applicable.

The Administration may adjust energy storage system qualifications across program years.

Regulation .05 Qualifying Program Participant.Link Copy Citation

Qualifying energy storage program participants may include:

(1)

Residential taxpayers who purchase and install an energy storage system for a residential property which they own; or

(2)

Commercial taxpayers who purchase and install an energy storage system for a commercial property which they own.

Taxpayers that have already claimed an energy storage systems income tax credit as part of this program are ineligible for additional energy storage systems income tax credits for the same taxable year.

Addresses where energy storage systems income tax credits have already been claimed, including multifamily properties, are ineligible for additional energy storage income tax credits from this program.

An energy storage systems income tax credit cannot be claimed for an electric vehicle.

The Administration may adjust program participant qualifications across program years.

Regulation .06 Amount of Tax Credit.Link Copy Citation

An individual or corporation that receives a credit certificate from the Administration may claim a credit against the individual’s or corporation’s State income tax for a specified taxable year in an amount that may not exceed the lessor of:

For a qualifying energy storage system installed:

(1)

On a residential property, $5,000;

(2)

On a commercial property, $75,000; or

(3)

30 percent of the total installed costs of the qualifying energy storage system.

The Administration may bifurcate the annual program budget to allow for a funding allocation for both residential and commercial participants.

Regulation .07 Application Process for a Credit Certification.Link Copy Citation

An individual or corporation interested in qualifying for a credit certification may be asked to provide some or all, at the sole discretion of the Administration, of the following information to the Administration:

(1)

Name, address, email address, and phone number of the applicant's authorized representative;

(2)

Estimated gross income of property owner for a residential participant, or gross revenue for a commercial participant;

(3)

Estimated tax liability;

(4)

Property physical address and proof of ownership of property;

(5)

Description of the qualifying energy storage system being proposed for use at the facility and an explanation of how it offsets electricity when discharging;

(6)

Name and contact information of the developer/installer;

(7)

Whether or not the energy storage system will participate in wholesale energy markets;

(8)

Anticipated cost of the qualifying energy storage system;

(9)

Expected life of the qualifying energy storage system;

(10)

Anticipated in-service date for the qualifying energy storage system;

(11)

Anticipated capacity factor of the qualifying energy storage system;

(12)

Energy storage duration;

(13)

Energy density;

(14)

Energy storage system power density;

(15)

Documentation verifying that the energy storage system has been installed and is operational, which includes copies of local electrical permits, inspection approvals, equipment certified by a nationally recognized testing laboratory, the results of any performance testing, and any other applicable documentation; and

(16)

Any other information the Administration considers necessary to process the application.

The Administration shall issue credit certificates on a first-come, first-served basis once it has determined the application is complete and verifies the information provided by the applicant.

The Administration may bifurcate the application process as necessary into more than one step.

The Administration may not issue a credit certification of more than $75,000 for a commercial property or $5,000 for a residential property, and the Administration may not issue a total amount of credits totaling more than $750,000 in any taxable year.

Regulation .08 Unused Credit.Link Copy Citation

If the credit allowed under this chapter in any taxable year exceeds the State income tax otherwise payable by the individual or corporation for that taxable year, any unused credit may not be claimed for another taxable year.

Regulation .09 Program Termination.Link Copy Citation

The Administration may not issue a certificate for a qualifying energy storage system installed after December 31, 2022.

Subtitle 27 — Maryland Environmental Service

Chapter 01. Designation of Service Regions

Repealed

Subtitle 27 — Maryland Environmental Service

Chapter 02. Human Resources System

Regulation .01 Scope.Link Copy Citation

These regulations apply to an individual who:

(1)

Is hired by the Service after June 30, 1993;

(2)

Was employed by the Service before July 1, 1993, but who is not a member of the State Personnel Management System; and

(3)

Transfers from the State Personnel Management System to the human resources system established by Natural Resources Article, §3-103.1, Annotated Code of Maryland.

These regulations shall apply to the Executive Director, but not to any other member of the Board of Directors.

Regulations .05, .06, .10—.13, .15A—F, .16, .17, .21, .25, and .27 of this chapter do not apply to temporary employees of the Service.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Applicant” means an individual who submits a request to be considered for employment by the Service after the Service announces that it is seeking applicants.

(2)

“Board” means the Board of Directors of the Service.

(3)

“Classification” means the descriptive title assigned to a single position or group of positions that are similar in duties, responsibilities, and minimum qualifications, and have the same pay grade.

(4)

“Demotion” means a change from one position to another position which has a lower maximum pay grade or reduced duties and responsibilities.

(5)

“Director” means the Executive Director of the Maryland Environmental Service.

(6)

Employee.

(a)

“Employee” means an individual who is hired or who transfers to a position under the regulations, policies, and procedures of the Service's human resources system.

(b)

“Employee” includes a contractual employee, a senior management employee, and a temporary employee.

(c)

“Employee” does not include an inmate or patient in a State institution who is employed by the Service.

(7)

“Human resources system” means the Service's personnel system established by this chapter.

(8)

“Leave” means official absence from Service duties and responsibilities.

(9)

“Overtime” means work in excess of 40 hours per week.

(10)

“Performance appraisal” means an evaluation of an employee's work performance based on predefined duties and responsibilities as described in job descriptions and performance planning documents.

(11)

“Physical and mental qualification standards” means job-related physical and mental criteria necessary to perform the essential functions of a specific position.

(12)

“Position” means a set of duties and responsibilities which are or could be performed by a single individual. A position may be either filled or vacant, full-time or part-time.

(13)

“Probation” means a trial work period.

(14)

“Promotion” means a change from one position to another position which has a higher maximum pay grade and increased duties and responsibilities.

(15)

“Service” means the Maryland Environmental Service.

(16)

“Supervisor” means an employee who is authorized to direct or manage another employee's duties, responsibilities, and access to benefits.

(17)

Temporary Employee.

(a)

“Temporary employee” means an individual hired by the Service for a period not to exceed 6 months.

(b)

“Temporary employee” includes a student employee.

Regulation .03 Equal Employment Opportunity.Link Copy Citation

The Service shall have a comprehensive equal employment opportunity/affirmative action program covering all elements of the Service's human resource policies and management practices.

The Service shall implement this chapter in a manner that does not discriminate on the basis of:

(1)

Race;

(2)

Color;

(3)

Age;

(4)

Creed;

(5)

Sex;

(6)

National origin;

(7)

Religious affiliation, belief, or opinion;

(8)

Marital status;

(9)

Physical or mental disability;

(10)

Sexual orientation;

(11)

Ancestry;

(12)

Gender identity; or

(13)

Other factors not related to work performance or job qualifications.

Regulation .04 Organization of Human Resources System.Link Copy Citation

The Service shall have a human resources system. The Human Resources Division of the Service shall administer and manage the human resources system. The Human Resources Division shall maintain records that:

(1)

Document any action affecting the status of an employee; and

(2)

Are required to be maintained by law.

The Board may adopt policies and procedures for administering the human resources system and shall maintain records of the policies and procedures.

Regulation .05 Qualifications and Examinations.Link Copy Citation

The Service shall establish minimum qualifications and selection criteria for an employment position.

Examinations. The Service may require an applicant for employment to participate in an examination of the applicant's job-related qualifications.

Returning Veterans and Reservists. The Service shall employ returning veterans and reservists in accordance with the provisions of State Personnel and Pensions Article, Title 2, Subtitle 7, Annotated Code of Maryland.

Regulation .06 Hiring Employees.Link Copy Citation

Selection Criteria.

(1)

The Service shall select for employment the applicant who best meets the selection criteria established by the Service.

(2)

The Service may hire an individual who does not meet the Service's minimum qualifications or the selection criteria if the:

(a)

Service determines that the individual is more qualified for the employment position than another applicant; or

(b)

Individual is currently employed at a project or facility for which the Service assumes operation or management.

Physical and Mental Examinations.

(1)

An applicant who is selected for employment shall undergo a physical and mental examination. The Service may not require an applicant to undergo a physical and mental examination before being offered employment by the Service. Any offer of employment is contingent upon the applicant meeting the physical and mental qualification standards for the position for which the Service makes the offer of employment.

(2)

Physical and mental qualification standards shall be job-related and consistent with business necessity. The Service shall provide reasonable accommodations to an applicant who does not meet the physical or mental qualification standards, unless the accommodation would impose an undue hardship upon the Service.

(3)

The Service may revoke an offer of employment to an applicant who:

(a)

Does not meet either the physical or mental qualification standards for the employment position; and

(b)

Cannot be reasonably accommodated by the Service without undue hardship upon the Service.

Regulation .07 Probation.Link Copy Citation

An employee of the Service shall serve a probationary period of 6 months from the date the employee is hired.

An employee's probation may be extended for an additional period not to exceed 3 months. The maximum period of probation including extension may not exceed 9 months.

Termination of Probationary Employees.

(1)

The Service may terminate a new employee on probation without cause.

(2)

Except as provided in §C(3) of this regulation, the Service shall notify the employee at least 2 weeks before the effective date of the termination.

(3)

The Service may terminate a new employee on probation without 2 weeks notice if the:

(a)

Service determines that the employee misrepresented any information on the employee's employment application; or

(b)

Termination is due to a breach of discipline or gross incompetence.

Regulation .08 Compensation of Employees.Link Copy Citation

Salaries and Wages.

(1)

The Service shall compensate an employee according to:

(a)

The Service's budget; and

(b)

A salary structure that is developed by the Director and approved by the Board.

(2)

The salary structure in §A(1)(b) of this regulation shall list the complete salary range of classes of positions and may include a pay plan and salary rules.

Incentive Pay. The Director, with the approval of the Board, may establish an incentive pay plan. The Board shall approve all disbursement of incentive pay and shall determine the eligibility of Service employees to participate in an incentive pay plan.

Salary Structure. The Service shall conduct salary reviews periodically and may recommend that the Board adjust the Service salary structure based on these reviews.

Merit Increase Adjustment. Merit increases for individual employees shall be made on the basis of the annual performance appraisal and under guidelines approved by the Board.

Regulation .09 Overtime.Link Copy Citation

The Director, or the Director's designee, may require an employee to work a period of time in excess of the employee's standard workweek or workday, dependent upon workload demands.

The Service shall pay preapproved overtime to employees who are nonexempt under the Fair Labor Standards Act in accordance with the Fair Labor Standards Act, 29 U.S.C. §201 and the provisions of State Personnel and Pensions Article, Title 8, Subtitle 3, Annotated Code of Maryland.

Regulation .10 Benefits.Link Copy Citation

The Board shall establish a benefits plan, which includes reasonable eligibility criteria, for employees. The benefits plan shall be consistent with State Personnel and Pensions Article, §2-511, Annotated Code of Maryland, which allows employees to participate in the State Employee and Retiree Health and Welfare Benefits Program.

Regulation .11 Annual Leave.Link Copy Citation

Amount of Leave Earned.

(1)

From the 1st through the 6th month of employment, an employee may not earn annual leave. Upon completion of the 6th month of service, the Service shall credit an employee with annual leave for the first 6 months on the basis of 1 hour of leave for each 26 hours worked.

(2)

From the beginning of the 1st year of employment through the completion of the 5th year of employment, an employee shall earn annual leave at the rate of 1 hour of leave for each 26 hours worked. An employee who has been employed less than 5 years by the Service may not earn more than 80 hours of annual leave in a calendar year.

(3)

From the beginning of the 6th year of service through the completion of the 10th year of employment, an employee shall earn annual leave at the rate of 11/2 hours of leave for each 26 hours worked. An employee who has been employed less than 10 years by the Service may not earn more than 120 hours of annual leave in a calendar year.

(4)

From the beginning of the 11th year of service through the completion of the 20th year of service, an employee shall earn annual leave at the rate of 2 hours of leave for each 26 hours worked. An employee who has been employed less than 20 years by the Service may not earn more than 160 hours of annual leave in a calendar year.

(5)

From the beginning of the 21st year of service and after that, an employee shall earn annual leave at a rate of 21/2 hours of leave for each 26 hours worked. An employee who has been employed more than 21 years by the Service may not earn more than 200 hours of annual leave a year.

(6)

Under this regulation, the amount of hours an employee has worked includes any hours the employee is on paid leave. An employee may not earn annual leave for hours worked in excess of the employee's standard workweek.

(7)

Under this regulation, an employee's years of employment include all time the employee has been employed by the Service, regardless of any break in employment with the Service.

Accumulated Annual Leave.

(1)

An employee may accumulate unused annual leave and may carry over from one calendar year to the next year up to 75 days or 600 hours of that unused annual leave. Any accumulated and unused annual leave in excess of 75 days or 600 hours, whichever is greater, shall be forfeited at the beginning of the first full pay period of the next calendar year.

(2)

For a part-time employee, annual leave may be accumulated to a maximum determined on the basis of the percentage of 600 hours of annual leave equal to the percentage of employment, and carried into a new calendar year.

Use of Annual Leave. If an employee has sufficient annual leave, then the employee shall make a reasonable effort to use a minimum of 80 hours of annual leave in a calendar year. An employee shall obtain the approval of the employee's supervisor before using annual leave.

The Board may establish the amount of annual leave for which designated classes of employees may be eligible to receive. The amount of annual leave may not be less than the amount of annual leave authorized by §A of this regulation. The Board shall determine the circumstances under which the designated classes of employees may utilize annual leave.

Regulation .12 Sick Leave.Link Copy Citation

Amount of Leave Earned.

(1)

Starting with the first month of service an employee shall earn 1 hour of sick leave for every 37.14 hours worked. An employee may not earn more than 7 days of sick leave in a calendar year.

(2)

An employee may not earn sick leave upon hours worked in excess of the employee's standard workweek.

(3)

Under this regulation the amount of hours an employee has worked shall include any hours the employee is on paid leave.

The Director, with the approval of the Board, may establish an incentive program for employees. The incentive program may include provisions for the Service to reimburse an employee for unused sick leave if the employee's accumulated sick leave is reduced by an amount equal to the reimbursement.

Advanced Sick Leave.

(1)

The Service may advance up to 15 days of sick leave to an employee in any calendar year for a serious disability, ailment, or illness if no other leave with pay is credited to the employee.

(2)

The use of advanced sick leave by an employee constitutes a debt for which payment is enforceable upon the employee's return to work, and continues to be enforceable on the employee's termination of employment with the Service.

(3)

An employee shall repay to the Service advanced sick leave:

(a)

In cash;

(b)

By applying credited annual leave, personal leave, or sick leave of the employee to the amount of advanced leave owed; or

(c)

By reducing the amount of sick leave earned and credited to the employee.

Use of Sick Leave. An employee may use sick leave for the following purposes only:

(1)

Disability or illness of the employee;

(2)

A documented medical appointment for the employee;

(3)

Illness of a member of the employee's immediate family;

(4)

A medical appointment for a member of the employee's immediate family;

(5)

Bereavement leave as described in §I of this regulation; or

(6)

Birth or adoption of employee’s child as describe in §J of this regulation.

Sick leave may be accumulated without limitation. Unless otherwise provided by law, sick leave shall be forfeited upon termination of an employee's employment.

Attendance Control — Occurrences.

(1)

If an employee uses sick leave on 3 or more consecutive days, the employee shall submit to the Service an original health care provider's certificate which authenticates the period of illness and includes a prognosis regarding the employee's ability to return to work. The employee shall ensure that the certificate is signed personally by a licensed or certified medical provider or practitioner.

(2)

In order to prevent abuse of sick leave and to ensure medical attention for an employee, the Service may require an employee to submit a certificate which authenticates a period of illness of 1 day or more and which is signed in accordance with §F(1) of this regulation.

(3)

When an illness of 1 day or more occurs during a period of annual leave or personal leave, the Service shall grant sick leave for the period of illness if the employee submits a certificate to the Service which authenticates the period of illness and which is signed in accordance with §E(1) of this regulation.

Attendance Control — Medical Examinations.

(1)

If an employee is absent from employment due to medical reasons, the Director, or the Director's designee, may require the employee to be medically examined to determine if the employee has:

(a)

An illness which requires the employee to utilize an excessive amount of sick leave; or

(b)

A disability which prevents the employee from the proper performance of the employee's duties.

(2)

A medical practitioner licensed by the State shall conduct the examination at the Service's expense.

The Service shall provide unpaid leave in accordance with the Family and Medical Leave Act of 1993 and Regulation .16 of this chapter.

Bereavement Leave.

(1)

Death of Immediate Family Member.

(a)

An employee may use up to 3 working days of sick leave in the event of the death of one of the following members of the employee's family:

(i)

Spouse;

(ii)

Child or stepchild of the employee;

(iii)

Parent of the employee or the employee's spouse or an individual who took the place of a parent;

(iv)

Sibling of the employee or the employee's spouse;

(v)

Other relative living as a member of the employee's household.

(b)

If travel requiring staying away from home overnight is involved, the employee may use up to 5 working days of sick leave.

(2)

Death of Other Family Members.

(a)

An employee may use 1 working day of sick leave in the event of the death of one of the following relatives of the employee:

(i)

Grandparent or grandchild of the employee or the employee's spouse;

(ii)

Aunt or uncle of the employee or the employee's spouse;

(iii)

Niece or nephew of the employee or the employee's spouse;

(iv)

Brother-in-law or sister-in-law of the employee or the employee's spouse;

(v)

Son-in-law or daughter-in-law of the employee or the employee's spouse;

(b)

The Director may authorize additional use of sick leave if travel away from home overnight is involved.

Birth or Adoption of Employee’s Child. An employee who is primarily responsible for the care and nurturing of a child, with the approval of the Director or designee, may use accrued sick leave to care for the child during the period immediately following:

(1)

The birth of the employee’s child; or

(2)

The placement of the child with the employee for adoption.

Regulation .13 Compensatory Leave.Link Copy Citation

An executive, administrative, or professional employee, whose classification is not on the list of employees approved by the Board as eligible to receive cash overtime payments, may earn compensatory time for work performed:

(1)

At least 1 hour beyond the employee's standard work day; and

(2)

For more than 1 hour in a day that is outside the employee's standard workweek, for example, on a holiday or a weekend.

Total compensatory time earned for the day is equal to the first hour plus any time worked after the first hour.

An employee may not carry into a new fiscal year more than 120 hours of unused compensatory time. If, on June 30, an employee has more than 120 hours of unused accumulated compensatory time, then, on July 1, the Service shall reduce the employee's accumulated unused compensatory leave balance to 120 hours.

A part-time employee may not carry into a new fiscal year more than the number of unused compensatory leave hours which equals the funded percentage of the employee's position multiplied by 120 hours. For example, if a part-time employee works a 60 percent schedule, then the employee may not carry into the new fiscal year more than 72 unused compensatory leave hours (0.60 x 120). If, on June 30 of a year, a part-time employee has more than the permitted carryover amount of accumulated compensatory leave, then, on July 1, the Service shall reduce the employee's accumulated unused compensatory leave to the permitted carryover amount.

An employee's supervisor shall approve compensatory time earned by the employee. Use of compensatory leave is subject to supervisory approval.

Regulation .14 Accident Leave.Link Copy Citation

Amount of Paid Accident Leave. The Service may grant up to 24 hours of paid accident leave to an employee beginning on the first day, or any portion thereof, of absence from work because of an accidental personal injury sustained by the employee in the actual performance of the employee’s job duties, and which is determined to be compensable according to the Maryland Workers’ Compensation Law, Labor and Employment Article, Title 9, Annotated Code of Maryland.

Advanced Accident Leave. The Service may grant additional advance accident leave, of up to 6 months, to an employee while the employee is awaiting a compensable injury decision from the Service’s Workers’ Compensation insurer or a compensable disability decision from the Service’s disability insurer.

Use of Accident Leave.

(1)

The Service shall inform an injured employee or someone on the employee's behalf of the employee's right to file a claim for compensation with the Workers' Compensation Commission.

(2)

If the Workers' Compensation Commission order determines that an employee's injury is not compensable, or in the absence of a Workers' Compensation Commission order, if the Service's Workers' Compensation insurer makes a determination of noncompensability, the Service shall amend the employee's accident leave to leave with pay, or, if the employee does not have leave with pay credited, to leave of absence without pay. The employee shall reimburse the Service for any accident leave received which is not chargeable to leave with pay.

(3)

An employee’s accident leave ends upon the earliest of:

(a)

A physician certifying in writing that the employee is capable of performing the physical tasks required of the employee’s position;

(b)

First receipt by the employee of any compensation from either the Service’s Workers’ Compensation or disability insurer; or

(c)

The end of 6 months or any extension of advance accident leave granted by the Service.

Accident Leave Pay.

(1)

The Service shall pay an employee on accident leave or advanced accident leave at a rate which equals 66.666 percent of the employee's base wage rate.

(2)

An employee is not entitled to receive both accident leave pay and compensation from either the Service's Workers' Compensation or disability insurer. If an employee on accident leave is also compensated by the Service's Workers' Compensation or disability insurer, then the use of accident leave by the employee constitutes a debt for which payment is enforceable upon the employee's return to work, and which continues to be enforceable upon the employee's termination of employment with the Service.

(3)

An employee obligated to repay to the Service accident leave under §D(2) of this regulation shall repay advanced accident leave:

(a)

In cash;

(b)

By applying credited annual leave, personal leave, or sick leave to the amount of accident leave owed; or

(c)

By permitting the Service to deduct the amount from a benefit payment made to the employee from the Service's Workers' Compensation or disability insurer.

Regulation .15 Other Paid Leave.Link Copy Citation

Holiday Leave.

(1)

The holidays of the Service are:

(a)

New Year's Day—January 1;

(b)

Martin Luther King Jr.'s Birthday—Third Monday in January;

(c)

George Washington's Birthday—Third Monday in February;

(d)

Memorial Day—Last Monday in May;

(e)

Independence Day—July 4;

(f)

Labor Day—First Monday in September;

(g)

Veteran's Day—November 11;

(h)

Thanksgiving Day—Fourth Thursday in November; and

(i)

Christmas Day—December 25.

(2)

If a holiday falls on a Sunday, the Monday immediately following is considered and treated as a holiday. If a holiday falls on a Saturday, the Friday immediately preceding the holiday is considered and treated as the holiday.

(3)

Use of Holiday Leave.

(a)

Except for an employee subject to §A(3)(b) or (4) of this regulation, the Service shall grant an employee paid holiday leave on the holidays listed in §A(1) of this regulation.

(b)

An employee who works at a facility which renders a service that is provided continuously on a 7-day-a-week basis:

(i)

Shall be scheduled for an alternative day of paid leave if the employee is required to work on a holiday; and

(ii)

May not carry into a new fiscal year more than 40 hours of unused holiday leave.

(4)

If, on June 30, an employee has more than 40 hours of unused holiday leave, then, on July 1, the beginning of the new fiscal year, the Service shall reduce the employee's accumulated holiday leave balance to 40 hours.

(5)

Part-Time Employees.

(a)

A part-time employee is entitled to prorated holiday leave based on:

(i)

A percentage of the total leave hours resulting from the number of holidays listed in §A(1) of this regulation; and

(ii)

The funded percentage of the part-time position.

(b)

The Service may grant holiday leave to a part-time employee on the dates listed in §A(1) of this regulation, and the Service may assign holidays to ensure that the holidays taken by the part-time employee do not exceed or are not fewer than the funded percentage of the part-time position.

(c)

A part-time employee may not carry into a new fiscal year more than the number of holiday leave hours which equals the funded percentage of the employee's position multiplied by 40 hours. For example, if a part-time employee works a 60 percent schedule, then the employee may not carry into the new fiscal year more than 24 holiday leave hours (0.60 x 40). If, on June 30 of a year, a part-time employee has more than the permitted carryover amount of accumulated unused holiday leave, then, on July 1, the Service shall reduce the employee's accumulated unused holiday leave to the permitted carryover amount.

Repealed.

Personal Leave.

(1)

A full-time employee who is employed with the Service on January 1, or who is hired by the Service in the months of January through June, is credited with 4 days of personal leave at the beginning of the first full pay period of the calendar year.

(2)

A full-time employee who is hired by the Service in the months of July or August is entitled to 2 days of personal leave in the calendar year that the employee is hired.

(3)

A full-time employee who is hired by the Service in the months of September or October is entitled to 1 day of personal leave in the calendar year that the employee is hired.

(4)

A full-time employee who is hired by the Service in the months of November or December is not entitled to any personal leave in the calendar year that the employee is hired.

(5)

At the beginning of the first full pay period of a calendar year, a part-time employee is credited with the percentage of 4 days of personal leave equal to the percentage the part-time position is funded. The limitations on personal leave set forth in §C(1)—(4) of this regulation apply to a part-time employee during the calendar year in which a part-time employee is hired.

(6)

An employee may not accumulate unused personal leave and shall forfeit any unused personal leave at the beginning of the first full pay period of the calendar year and at termination of employment.

(7)

Except in the case of an emergency, an employee shall obtain permission from the employee's supervisor before using personal leave.

Jury Service Leave. An employee who serves as a member of a jury of a court is permitted to be absent from assigned duties without loss of pay. If, after reporting for jury duty, it is determined that the employee's services are not required and the employee is dismissed from jury duty for the day, then, if time reasonably permits, the employee shall report for work. An employee who is called for jury service shall immediately notify the employee's supervisor. When the public interest requires that the employee not be absent from assigned duties, the supervisor may request the appropriate judge to excuse the employee.

Legal Action Leave. An employee who is summoned under a subpoena to appear in a court action by a party other than the Service, before a grand jury, before an administrative agency, or for a deposition, and is neither a party to the action nor a paid witness, may be absent from assigned duties without loss of pay for not more than 1 day. The employee's absence over 1 day may not be paid by the Service unless the employee uses other authorized leave.

Time Off for Religious Observances. In accordance with State Personnel and Pensions Article, Title 9, Subtitle 8, Annotated Code of Maryland, and COMAR 17.04.11.16, the Service shall permit an employee to be absent in order for the employee to participate in religious observances. The Board may adopt written policies that provide for exceptions for the efficient operation of the Service.

Military. An employee who is a member of the organized militia or the Army, Navy, Air Force, or Marine Reserve shall be entitled to a leave of absence for military training for a period of not more than 15 days annually without loss of pay or charge against any leave.

Regulation .16 Family Leave.Link Copy Citation

Family and medical leave may be used in accordance with the provisions of the Family and Medical Leave Act of 1993, as amended, the implementing federal regulations, and the policies and guidelines adopted by the Service.

Regulation .17 Leave Without Pay.Link Copy Citation

The Service may grant leave without pay to an employee if the:

Employee has no credited paid leave; and

The Service determines that the employee's use of leave without pay will not unreasonably disrupt the Service's activities.

Regulation .18 Performance Appraisal.Link Copy Citation

The Service shall establish an employee performance appraisal process. The employee performance appraisal process may include:

(1)

Employee performance planning;

(2)

Interaction between an employee and the employee's supervisor; and

(3)

Review of an employee's performance.

An employee's supervisor shall conduct a performance appraisal of the employee at least once a year. The supervisor shall evaluate the employee on the basis of the employee's performance during the preceding calendar year.

The employee performance appraisal process shall:

(1)

Provide a standard method for evaluating employees;

(2)

Specify performance criteria for types of employment positions;

(3)

Be related to the Service's annual planning process;

(4)

Provide at least two types of supervisory review;

(5)

Allow an employee the opportunity for input in the performance appraisal process; and

(6)

Allow an employee to request training or other developmental assistance to improve performance for the next evaluation period.

Regulation .19 Position Evaluation.Link Copy Citation

The Service shall periodically evaluate each employment position. The evaluation may:

(1)

Document differences among positions;

(2)

Establish a relative value for the position; and

(3)

Compare the compensation level of the employment position with the compensation level of a similar employment position in a similar labor market.

A job evaluation shall include analysis of the following criteria:

(1)

Organizational impact;

(2)

Supervision exercised;

(3)

Internal and external contacts;

(4)

Working conditions; and

(5)

Work requirements.

The Service may use a position evaluation to assign a salary grade to an employment position.

If the Service reduces the salary grade of an employment position to a lower grade in the salary structure, the Service shall provide an incumbent employee in the employment position with a written explanation for the reduction.

Regulation .20 Disciplinary Action.Link Copy Citation

The Service may take disciplinary action for cause against an employee.

The Board shall adopt a disciplinary policy. The disciplinary policy may provide for a:

(1)

Warning to an employee;

(2)

Suspension with or without pay;

(3)

Demotion; and

(4)

Termination of employment.

The Service may terminate for cause an employee's employment with the Service. The Service may not terminate an employee for cause unless the Service first:

(1)

Notifies the employee in writing of the reasons for the Service's termination; and

(2)

Provides the employee a reasonable opportunity to respond to the Service's written reasons.

The Service may terminate an employee in accordance with the terms and conditions of the employee's employment contract.

Regulation .21 Employee Grievances.Link Copy Citation

This regulation does not apply to the following:

(1)

Assistant attorneys general and all other attorneys on the staff of the Attorney General assigned to the Service, including the counsel to the Service;

(2)

Individuals who are subject to collective bargaining agreements which include other grievance procedures; and

(3)

Senior management employees of the Service who report directly to the Director.

In this regulation, a grievance is a cause of complaint not otherwise provided for by law, regulation, or policy, arising between an employee and the Service over the interpretation and application of Service's regulations, rules, or policies.

Grievance Policy.

(1)

The Board shall adopt a grievance policy.

(2)

The grievance policy:

(a)

Shall provide for a multi-step process for resolving an employee's grievance;

(b)

Shall include the opportunity for the employee to submit a written appeal to the Office of Administrative Hearings in accordance with the policy; and

(c)

Shall provide that grievance hearings and related activities be conducted during regular working hours, without loss of pay to the aggrieved employee.

An employee may present a grievance free from interference, coercion, restraint, discrimination, or reprisal.

Regulation .22 Promotion.Link Copy Citation

The Service may promote an employee from one employment position to another. A promotion is not effective until approved by the Director.

Regulation .23 Transfer.Link Copy Citation

An employee may request a transfer to a different Service program or geographic area. The Service shall consider the employee's request in filling a position vacancy in the Service program or geographic area for which the employee has requested a transfer.

The Service may require an employee to accept a transfer only in order to:

(1)

Meet a specific business need;

(2)

Accomplish a bona fide organizational goal;

(3)

Provide reasonable accommodation; or

(4)

Improve operational efficiency.

Regulation .24 Layoffs.Link Copy Citation

The Board shall develop fair and equitable procedures for the layoff of employees.

Regulation .25 Training.Link Copy Citation

Financial Assistance. The Service may offer financial assistance to an employee for the cost of completing:

(1)

An advanced education program at a preauthorized, accredited undergraduate or graduate institution;

(2)

Employee job training or development courses; or

(3)

A high school equivalency program.

Procedure.

(1)

An employee requesting financial assistance for expenses authorized in §A of this regulation shall:

(a)

Make a formal request to the Human Resources Division in advance of registration;

(b)

Provide justification that the courses are relevant to Service needs; and

(c)

Obtain the approval of the employee's group managing director and the Chief of the Human Resources Division.

(2)

The Service may grant an employee financial assistance up to 100 percent of tuition costs, registration fees, lab fees, and required books, not exceeding the annual dollar limit allowed by the Internal Revenue Service.

(3)

The employee shall secure a passing grade of “C” or better for undergraduate college credit courses and a “B” or better for graduate college credit courses. If a letter grade is not awarded, proof of successful completion of the course or certification shall be provided.

An employee who terminates employment with the Service, for any reason, within 1 year of completion of a course for which the Service has provided financial assistance, may be required to reimburse the Service for the entire cost of the assistance provided for a course in which the employee was enrolled during the year.

Regulation .26 Employee Organizations.Link Copy Citation

The Service shall permit continuation of the rights of an employee organization in existence on July 1, 1993, to represent Service employees and to collect dues through a check-off system.

The Director may allow an employee who belongs to an employee organization to use administrative leave to attend approved organization activities up to 5 days per year.

Regulation .27 Transfers to Service Human Resources System.Link Copy Citation

The Service shall permit an employee who is in the State Personnel Management System to transfer to the Service human resources system without a reduction in the employee's current rate of pay.

Accumulated Leave.

(1)

The Service shall:

(a)

Permit an employee who is in the State Personnel Management System and who transfers to the Service human resources system to retain some or all of the employee's accumulated annual leave, sick leave, personal leave, or compensatory leave that is unused as of the date the employee transfers to the Service human resources system; or

(b)

Fairly compensate the employee for the value of the annual leave, sick leave, personal leave, or compensatory leave which the employee may not retain.

(2)

The Service shall determine the amount of compensation due an employee under §B(1)(b) of this regulation by multiplying the number of accumulated, unused annual leave, sick leave, personal leave, and compensatory leave days, as converted from hours, by a sum equal to 1/10 of the employee's final biweekly salary as a member of the State Personnel Management System.

(3)

Leave that is retained by an employee who transfers from the State Personnel Management System to the Service human resources system expires in the same manner as leave expires in COMAR 17.04.11.

Subtitle 27 — Maryland Environmental Service

Chapter 03. Procurement

Regulation .01 Policy.Link Copy Citation

It is the policy of the Maryland Environmental Service to procure supplies, services, and construction in a cost-effective manner consistent with the best interests of the Service, its clients, its vendors, and the general public.

Regulation .02 Scope.Link Copy Citation

This chapter does not apply to the following:

(1)

Reimbursement contracts for which user eligibility and cost are set by law or by rules and regulations;

(2)

Collective bargaining agreements with employee organizations (labor contracts);

(3)

Acquisition of real property or a permanent or temporary interest in real property;

(4)

Contracts with a State agency or a municipality;

(5)

Disposal of real or personal property;

(6)

Procurement for purposes of direct resale or remanufacture and subsequent resale;

(7)

Agreements creating employee-employer relationships;

(8)

A procurement on behalf of a municipality or a client of the Service if the:

(a)

Service estimates that the procurement will exceed $25,000,

(b)

Governing body of the municipality or the client requests the Service to waive its procedures, and

(c)

Board formally assents to waive its procedures; or

(9)

A contract with or by a corporation established under Natural Resources Article, §3-104(y), Annotated Code of Maryland.

Except as provided in Regulation .02A of this chapter, this chapter applies to each expenditure of the Service for the acquisition of services, supplies, construction, or professional services.

Exemptions.

(1)

The Service is generally exempt from State Finance and Procurement Article, Division II, Annotated Code of Maryland, and the regulations adopted under Division II.

(2)

The Service is not exempt from State Finance and Procurement Article, Title 14, Subtitles 3 and 5, and Titles 16 and 17, Annotated Code of Maryland, or the regulations adopted under those statutes.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Award” means the decision by the Service to execute a contract.

(2)

“Bid” means a statement of price, terms of sale, and description of supplies, services, or construction offered by a bidder in response to an invitation for bids.

(3)

“Bidder” means a person who submits a bid to the Service.

(4)

“Board” means the Board of Directors of the Service.

(5)

“Construction” means the process of building, altering, repairing, improving, or demolishing any structure, building, or other improvement to real property.

(6)

“Day” means a calendar day.

(7)

“Determination” means a written procurement decision made by an official or employee of the Service which is based upon written findings.

(8)

“Director” means the Executive Director of the Maryland Environmental Service.

(9)

“Emergency” means a sudden and unexpected occurrence or condition which management of the Service could not reasonably foresee and which requires an action to avoid or to mitigate damage to the environment or to health, safety, or welfare.

(10)

“Invitation for bids” means a document used for soliciting bids.

(11)

“Municipality” has the meaning stated in Natural Resources Article, §3-101(h), Annotated Code of Maryland.

(12)

“Person” has the meaning stated in Natural Resources Article, §3-101(j), Annotated Code of Maryland.

(13)

“Procurement” includes all functions that pertain to the process of buying, purchasing, or otherwise obtaining supplies, services, or construction, or leasing personal property as lessee.

(14)

“Procurement officer” means a person authorized by the Director to administer contracts, or to make written determinations and findings with respect to contracts.

(15)

“Professional services” means services provided by attorneys, engineers, architects, financial advisors, physicians, consultants, land surveyors, appraisers, and accountants.

(16)

Proposal.

(a)

“Proposal” means the response by an offeror to a request for proposals to obtain supplies, services, or construction.

(b)

“Proposal” may include, without limitation, an offeror's price, a description of technical expertise, work experience, and other information requested in the solicitation.

(17)

“Request for proposals” means a document used for soliciting proposals from offerors.

(18)

“Respondent” means a bidder or an offeror.

(19)

“Responsible” means a person who has the capability in all respects to dutifully perform fully the contract requirements, and the integrity and reliability that ensures good faith performance.

(20)

“Responsive” means a bid or offer submitted in response to a solicitation that conforms in all material respects to the requirements contained in the solicitation.

(21)

“Services” means the rendering of time, effort, or work, rather than the furnishing of a specific physical product other than reports incidental to the required performance.

(22)

“Sole source procurement” means a procurement for a requirement that is available from only a single vendor.

(23)

“Solicitation” means an invitation for bids, a request for proposals, or any other method or instrument used to communicate to potential bidders or offerors the Service's procurement needs.

(24)

“Service” means the Maryland Environmental Service.

(25)

“Supplies” means items of purchase which may include office goods, printing, building materials, equipment, parts, motor vehicles, tools, and equipment leases.

Regulation .04 Contract Authority.Link Copy Citation

Contract Approval.

(1)

The Director shall approve contracts of the Service.

(2)

The Director may delegate authority to approve a contract of the Service to a Service employee.

(3)

A contract is approved if:

(a)

The Director signs the contract or otherwise expresses the Director's approval of the contract in writing;

(b)

An employee of the Service described in §A(2) of this regulation signs the contract or otherwise expresses that employee's approval in writing; or

(c)

The Board approves the contract as provided in §C of this regulation.

(4)

A Service employee who has not been delegated approval authority by the Director may not approve a contract. Except as provided in this regulation, a contract is not enforceable against the Service if the contract has not been approved by the Director or a Service employee who has been delegated approval authority by the Director.

(5)

Except as provided in Regulation .06D(1) of this chapter:

(a)

The procurement contracts of the Service shall be in writing; and

(b)

An oral contract purporting to bind the Service is not enforceable against the Service.

The Director shall report to the Board any contract awarded by the Service that is in an amount exceeding $25,000.

Procurement Approval.

(1)

If the Service estimates that a procurement will result in the award of a contract that exceeds $200,000, the Service may obtain the approval of the Board for contract award before distributing a solicitation notice for the procurement.

(2)

The Service shall obtain the approval of the Board before awarding a contract for more than $200,000 if the:

(a)

Procurement was not approved as provided in §C(1) of this regulation; or

(b)

Amount of the contract award exceeds the Service's estimate of the procurement by an amount specified by the Board.

Regulation .05 Determinations.Link Copy Citation

Determinations required by these regulations shall be in writing, signed by the procurement officer, and retained by the Service for not less than 3 years from the date of the determination.

Regulation .06 Source Selection.Link Copy Citation

The Service may use the following procurement methods:

(1)

Competitive sealed bidding;

(2)

Competitive proposals;

(3)

Negotiated award after unsatisfactory competitive sealed bidding;

(4)

Intergovernmental cooperative purchasing;

(5)

Sole source procurement; and

(6)

Emergency source selection.

Prequalification.

(1)

The Service may require that respondents be prequalified before receipt of bids or proposals.

(2)

If the Service determines that respondents shall be prequalified, then the Service shall establish reasonable prequalification criteria. The criteria shall be clearly set forth in a request for qualifications.

(3)

The Service may require that architectural or engineering respondents submit U.S. Government Standard Form 330, Architect/Engineer and Related Services Questionnaire (SF-330), in order to be prequalified.

Notice of Solicitation.

(1)

The Service shall distribute solicitation notices in a reasonable manner sufficient to provide general notice to potential respondents. The Service shall issue solicitation notices in a reasonable time in advance of the date responses are due. The Service may charge reasonable fees for the solicitation documents.

(2)

For a procurement estimated to exceed $25,000, the Service shall publish notice of the solicitation in an appropriate publication at least 10 days before the date bids or proposals are due.

Small Procurement.

(1)

For a procurement estimated to be equal to or less than $5,000, the Service may solicit any number of bids or offers orally, and the Service may enter into either written or oral contracts.

(2)

For a procurement estimated to exceed $5,000 and be less than or equal to $15,000, the Service shall, when practical, obtain two or more verbal bids or offers.

(3)

For a procurement estimated to exceed $15,000 and be less than or equal to $25,000, the Service shall, when practical, obtain two or more written bids or offers.

(4)

In determining whether it is practical to obtain multiple bids or offers the Service may consider factors such as availability of vendors, dollar value of the procurement, cost of administering the procurement, and time available to make the procurement including delivery time.

Regulation .07 Procurement by Competitive Sealed Bidding.Link Copy Citation

Applicability. This regulation applies to any procurement of the Service except as provided in Regulations .06D and .08 — .11 of this chapter.

Invitations for Bids. The Service shall initiate a procurement by competitive sealed bidding by issuing an invitation for bids. The invitation for bids shall include a written bid form based on the specifications, a statement that the bidder agrees to all terms and conditions, provisions and addenda, if any, to the invitation for bids, the time and place of bid opening, and such other information as the Service reasonably considers necessary. The Service may require bidders to submit samples or descriptive literature.

Prebid Conferences. The Service may conduct prebid conferences, and may require that attendance by bidders be mandatory.

Bid Modifications. A bidder may modify or withdraw a bid before bid opening by submitting written notice to the Service. The Service shall return bid security to a bidder if the bidder withdraws its bid in accordance with this regulation.

Late Bids, Late Withdrawals, Late Modifications.

(1)

The Service may not consider a bid, bid withdrawal, or bid modification received after the bid opening time and date, except that the Service may consider a late bid, late withdrawal, or late modification if the delay was substantially caused by the Service. The bidder is solely responsible for timely receipt of its bid.

(2)

A late modification of a successful bid that makes the terms more favorable to the Service may be considered and accepted by the Service at any time before contract award.

Receipt and Opening of Bids.

(1)

The Service shall store bids in a secure location before bid opening.

(2)

The Service may not disclose the identity of any bidder before bid opening.

(3)

An employee of the Service shall open bids publicly, read aloud the bids, and record the bids at the date, time, and place set for bid opening in the bid notice. Opened bids shall be available for public inspection to the extent required by General Provisions, Title 4, Subtitle 2, Annotated Code of Maryland. Proprietary information shall be examined by the procurement officer to determine validity of nondisclosure. The Service may not disclose proprietary information submitted by a bidder, except as required by law. Prices, makes, models, catalog numbers, delivery, and payment terms shall be made available for public inspection.

(4)

After bids have been opened, the Service shall prepare a bid tabulation.

(5)

A bidder shall acknowledge receipt of bid addenda.

Bid Mistakes.

(1)

The procurement officer may waive technicalities or minor irregularities in a bid.

(2)

Before award, a successful bidder may be permitted to withdraw its bid if the bidder presents clear and convincing evidence to the procurement officer that an error has been made, or if an error is obvious from the face of the bid documents.

(3)

If an error and the intended correction of a bid are evident on the face of the bid documents, the bid shall be corrected and may not be withdrawn.

(4)

After contract award, a mistake in a bid may only be corrected if the Service determines that it would be unconscionable not to permit correction. The Service may not allow any change in price.

Bid Evaluation and Award. The contract shall be awarded to the responsible bidder submitting the most favorable responsive bid.

Tie Bids. If responsive tie bids are received from two or more responsible bidders, the Service shall award the contract in the same manner as provided in COMAR 21.05.02.14.

Conditional Bids. The Service shall reject as nonresponsive any conditional bid.

Procurement by Negotiated Award After Unsatisfactory Competitive Sealed Bidding.

(1)

The Service may conduct discussion with bidders if, after bids have been opened:

(a)

All bids are rejected pursuant to Regulation .12 of this chapter;

(b)

All bids submitted result in bid prices in excess of funds available; or

(c)

The procurement officer determines that all prices received are unreasonable as to one or more of the Service's requirements and:

(i)

There are no funds available to permit an award to the responsible bidder submitting the most favorable bid, or

(ii)

A delay resulting from a resolicitation under revised specifications or quantities under competitive sealed bidding would be disadvantageous or not otherwise in the best interest of the Service.

(2)

The Service may request bidders to submit revised bids. The Service may conduct discussions with bidders after revised bids have been submitted if the procurement officer determines that there is a compelling need for further discussions. If there is more than one bidder, then any discussions concerning revised specifications or quantities shall be conducted with all responsible bidders.

Regulation .08 Procurement by Competitive Sealed Proposals.Link Copy Citation

Conditions for Use.

(1)

Competitive sealed proposals is the preferred method for the procurement of professional services.

(2)

For any other use of competitive sealed proposals as a procurement method, the procurement officer shall make a determination that:

(a)

Specifications cannot be prepared to support an award on price alone; or

(b)

Competitive sealed bidding is not practicable, or is not advantageous to the Service.

Request For Proposals.

(1)

A request for proposals shall include:

(a)

The date, time, and place for submission of proposals;

(b)

The proposal requirements, including price proposals;

(c)

The evaluation factors and relative importance of each; and

(d)

A statement of work or scope of services required by the Service.

(2)

A request for proposals may include other information the Service reasonably determines is necessary.

(3)

The Service may conduct preproposal conferences, and may require that attendance by offerors be mandatory.

Receipt of Proposals.

(1)

A proposal, withdrawal, or modification received after the established due date and time at the place designated for receipt of proposals is late and may only be considered in accordance with Regulation .07E of this chapter.

(2)

The Service may not open proposals publicly. The Service may not disclose the contents of a proposal to any person other than a person responsible for evaluating or reviewing the proposal before contract award. Proprietary information shall be examined by the procurement officer to determine validity of nondisclosure. The Service may not disclose proprietary information submitted by an offeror, except as required by law.

(3)

An offeror shall acknowledge receipt of addenda in its proposal.

Proposal Evaluation.

(1)

The Service shall evaluate proposals using the evaluation factors set forth in the request for proposals.

(2)

Technical and price proposals shall be evaluated independently of one another.

(3)

The Service may establish a technical evaluation committee to evaluate proposals and make a recommendation of contract award to the Service. The technical evaluation committee may include members who are not employees of the Service.

Discussions.

(1)

The Service may conduct discussions with qualified offerors. A qualified offeror is an offeror that submits a proposal that is determined by the procurement officer to be reasonably susceptible of being selected for contract award.

(2)

Discussions are held to:

(a)

Ensure full understanding of the Service's requirements and of the offeror's proposal and ability to perform;

(b)

Obtain the best price for the Service; and

(c)

Facilitate arrival at a contract that is most advantageous to the Service, taking into consideration price and other relevant evaluation factors set forth in the request for proposals.

(3)

The Service shall treat qualified offerors fairly and equally with respect to any opportunity for discussions, negotiations, and clarification of proposals.

Best and Final Offers. The procurement officer may permit qualified offerors to revise their initial proposals by submitting best and final offers. The Service may require more than one series of submissions of best and final offers and discussions. If more than one submission of best and final offers is requested, an offeror's immediate previous offer shall be construed as its best and final offer unless the offeror submits a timely notice of withdrawal or another best and final offer.

Contract Award. Upon completion of all discussions and negotiations, the procurement officer shall make a determination recommending award of the contract to the responsible offeror whose proposal is determined to be the most advantageous to the Service. The procurement officer shall promptly notify all offerors of the recommended contract award.

Debriefing of Unsuccessful Offerors.

(1)

When a contract is to be awarded on some basis other than price alone, an unsuccessful offeror may be debriefed upon the offeror's written request submitted to the procurement officer within 10 days after the offeror has knowledge that the contract is to be awarded to another offeror. Debriefings shall be conducted by a procurement official familiar with the rationale for the selection decision and contract award.

(2)

Debriefing shall:

(a)

Be limited to discussion of the unsuccessful offeror's proposal and may not include any discussion of a competing offeror's proposal;

(b)

Be factual and consistent with the evaluation of the unsuccessful offeror's proposal; and

(c)

Provide information on areas in which the unsuccessful offeror's technical proposal was considered weak or deficient.

(3)

Debriefing may not include discussion or dissemination of the thoughts, notes, or rankings of individual members of an evaluation committee, but may include a summary of the procurement officer's rationale for the selection decision and recommended contract award.

(4)

A summary of the debriefing shall be made a part of the contract file.

Regulation .09 Sole Source Procurement.Link Copy Citation

Conditions for Use.

(1)

Sole source procurement is not permissible unless a requirement is available from only a single vendor.

(2)

The determination as to whether a procurement shall be made as a sole source shall be made by the procurement officer, and approved by the Director. The determination and the basis for it shall be in writing. The Service may not award a contract to a sole source before the Director's approval.

Confidential Services. The Service may enter into a sole source contract to retain the confidential services of a contractor:

(1)

To advise the Service in connection with threatened or pending litigation; or

(2)

For appraisal of real property contemplated for acquisition by the Service.

Regulation .10 Emergency Procurement.Link Copy Citation

Application. The procurement officer, with the prior approval of the Director, may award an emergency contract by other than competitive sealed bidding or competitive sealed proposals under Regulation .07 or .08, respectively, of this chapter.

Scope. An emergency procurement is limited to the procurement of those items necessary to avoid or to mitigate damage to the environment or to health, safety, or welfare.

Competition. The Service shall reasonably attempt to obtain such competition as is consistent with meeting the time requirements of the emergency.

Regulation .11 Contract Award.Link Copy Citation

The procurement officer shall determine whether a respondent is responsible.

The procurement officer may find that a respondent is not a responsible bidder or offeror for:

(1)

Unreasonable failure to supply information promptly in connection with a determination of responsibility under this chapter; or

(2)

Any other reason indicating that the respondent does not have the:

(a)

Capability in all respects to perform fully the contract requirement, or

(b)

Integrity and reliability that will ensure good faith performance.

The procurement officer shall determine whether a bid or offer is responsive. A responsive bid or offer contains a definite unqualified offer to perform in accordance with the terms of the solicitation.

Publication of Award. The Service shall publish notice of award of a procurement in eMaryland Marketplace if the Service has previously published notice of solicitation for the same procurement in eMaryland Marketplace, as set forth in Regulation.06C(2) of this chapter.

Regulation .12 Cancellation or Rejection of Solicitations.Link Copy Citation

The Service may cancel a solicitation in whole or in part before opening of bids or proposals when, in the determination of the procurement officer, cancellation is in the best interest of the Service. Bids or proposals shall be returned to the bidders or offerors together with a notice of cancellation.

After opening of bids or proposals, the Service may reject all proposals or bids in whole or in part when, in the determination of the procurement officer, rejection is in the best interest of the agency. Notice of rejection of all bids or proposals shall be sent to all vendors that submitted bids or proposals.

Determination of the reasons for cancellation or rejection shall be made part of the procurement file.

The Service may reject a bid or proposal in whole or in part when it is in the Service's reasonable best interest to do so. Reasons may include, but are not limited to, the following:

(1)

The respondent that submitted the bid or proposal is not responsible;

(2)

The bid or offer is not responsive or the offer is not reasonably susceptible of being selected for award;

(3)

The price is not reasonable; or

(4)

The respondent is debarred or otherwise ineligible for award and the period of debarment or ineligibility has not expired.

Opened bids or proposals shall be retained in the procurement file. Unopened bids or proposals shall be returned to the respondent, or otherwise disposed of by the Service.

Regulation .13 Disputes.Link Copy Citation

Disputes arising in the performance of contracts which are not resolved by agreement of the parties shall be decided in writing by an authorized representative of the Director. The decision of the Director's authorized representative is final and conclusive unless, within 10 calendar days of receipt of its copy of the decision, the contractor delivers a written appeal to the Director. In connection with an appeal, the contractor shall be afforded an opportunity to be heard and to offer binding evidence in support of its position. The decision by the Director is binding upon the contractor, and the contractor shall abide by the decision.

Subtitle 27 — Maryland Environmental Service

Chapter 04. Public Information Act Requests

Regulation .01 General.Link Copy Citation

This chapter establishes procedures for submitting requests to the Maryland Environmental Service for the inspection or copying of public records under General Provisions Article, §§4-101—4-601, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Applicant” has the meaning stated in General Provisions Article, §4-101(b), Annotated Code of Maryland.

(2)

“Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

(3)

“Director” means the Director of the Maryland Environmental Service or the Director's designee.

(4)

“Official custodian” means the Secretary of the Maryland Environmental Service or the Secretary's designee.

(5)

“Person in interest” has the meaning stated in General Provisions Article, §4-101(g), Annotated Code of Maryland.

(6)

“Public Information Act” means General Provisions Article, §§4-101—4-601, Annotated Code of Maryland.

(7)

“Public Information Act Representative” means the person designated by the Service to receive Public Information Act requests and is named on the Service’s website.

(8)

“Public record” has the meaning stated in General Provisions Article, §4-101(j), Annotated Code of Maryland.

(9)

“Service” means the Maryland Environmental Service.

(10)

“Working day” means each day between the hours of 9 a.m. and 4 p.m. except Saturdays, Sundays, and holidays.

Regulation .03 Requests for Records.Link Copy Citation

A person may request to inspect or copy a public record that is in the custody of the Service and which, under the provisions of the Public Information Act, the Service is required to make available to the public.

A request for public records shall:

(1)

Be made in writing;

(2)

Be addressed to the Public Information Act Representative or Official Custodian;

(3)

Contain the applicant's name, address, and phone number; and

(4)

Reasonably identify by brief description the specific public record sought.

Regulation .04 Response to Request.Link Copy Citation

Responses to a request under the Maryland Public Information Act shall be made in accordance with General Provisions Article, §§4-201—4-302, Annotated Code of Maryland.

The custodian shall deny inspection of a public record in accordance with General Provisions Article, §§4-301—4-302, Annotated Code of Maryland.

Regulation .05 Notification of Person in Interest.Link Copy Citation

The custodian, unless otherwise prohibited by law, may notify a person in interest before disclosing the public record. If the custodian denies inspection in accordance with Regulation .04B of this chapter, the custodian may consider the views of the person in interest before granting or denying the request to inspect the public record.

Regulation .06 Review of Denial.Link Copy Citation

Review of the denial may be submitted to the Office of the Public Access Ombudsman in accordance with General Provisions Article, §§4-1B-01—4-1B-04, Annotated Code of Maryland.

Disputes concerning fees charged by the Service under Regulation .08 of this chapter may be submitted to the Public Information Act Compliance Board in accordance with General Provisions Article, §4-1A-05, Annotated Code of Maryland.

An applicant may obtain judicial review in accordance with General Provisions Article, §4-362, Annotated Code of Maryland.

Regulation .07 Disclosure Against Public Interest.Link Copy Citation

If the official custodian believes that inspection of a public record will cause substantial injury to the public interest, the official custodian may deny the Request in accordance with General Provisions Article, §4-343, Annotated Code of Maryland.

Regulation .08 Fees.Link Copy Citation

Fee Schedule.

(1)

The Service may charge reasonable fees for services provided under this chapter, as determined from time to time by a resolution of the Service's Board of Directors. As of April 1, 1996, the fees to be charged under this chapter are listed in this section.

(2)

Copies. The fee for each copy is 25 cents per page for every page in excess of 25 pages if reproduction can be made by a photocopying machine within the Service's headquarters. There is no charge for copying the first 25 total pages. When the public record is not amenable to photocopying (for example, punch cards, magnetic tapes, large documents, and microfilm), the fee for reproducing the public record shall be based on the actual cost of reproduction. If the public records total more than 25 pages, the Service shall charge the applicant for the actual cost of labor expenses incurred by the Service for each employee photocopying the public records, including overhead costs at the Service's standard overhead rate.

(3)

Certification of Copies. The Service shall charge a fee of $5 for each public record certified as a true copy, plus 50 cents per page.

(4)

Search, Review, and Record Preparation Fees. The Service shall charge the applicant for the actual cost of labor expenses, including overhead costs at the Service’s standard overhead rate, incurred by the Service for searching or preparing public records for inspection or copying, including staff and attorney review time. The Service may not charge for any labor expenses for the first 2 hours of official or employee time needed to respond to a request for public records or to search or prepare the public records.

(5)

Exception to Fee. The Service may not charge a fee under this regulation if the total amount of the fee due under the request is $10 or less.

(6)

Returned Check Fee. The Service may charge a fee of not less than $25 for a dishonored check returned to the Service.

Notwithstanding §A of this regulation, if the fees for copies, printouts, photographs, or certified copies of a public record are specifically prescribed by law other than the Public Information Act or this regulation, the specific fee contained in the law shall determine the amount charged for that record.

If the custodian is unable to copy a public record within the Service, the custodian shall make arrangements for the reproduction of the public record at public or private facilities outside the Service. The custodian shall either collect from the applicant a fee which is sufficient to pay the actual cost of reproduction or direct the applicant to pay the cost of reproduction directly to the facility making the copy.

Before searching, assembling, and copying a public record, the custodian shall estimate the cost of copying and obtain the agreement of the applicant that the cost for search, preparation, review, and assembly shall be paid. The custodian may demand prepayment of an estimated fee before copying a public record. If the custodian requires prepayment, then the time limitations in this chapter may not begin until the applicant makes full payment.

If the applicant requests that copies be mailed or delivered to the applicant, the Director may charge the applicant for the cost of postage or delivery to the applicant.

Regulation .09 Waiver or Reduction of Fees.Link Copy Citation

The Official Custodian may waive or reduce any fee charged under this chapter in accordance with General Provisions Article, §4-206(e), Annotated Code of Maryland.

Regulation .10 Time and Location of Inspection.Link Copy Citation

An applicant may inspect a public record, which the custodian has determined the applicant is entitled to inspect, during a working day. Unless the applicant and the custodian otherwise agree, the public record shall be inspected at the Service's headquarters.

Subtitle 28 — Canal Place Preservation and Development Authority

Chapter 01. Open Meetings

Regulation .01 General.Link Copy Citation

This chapter contains procedures regarding the conduct of persons attending open meetings, and the recording and broadcasting of open meetings.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

"Authority" means the Canal Place Preservation and Development Authority.

(2)

“Open session” means any meeting of the Authority required to be open to the public by State Government Article, §§10-501—10-512, Annotated Code of Maryland.

Regulation .03 Public Attendance.Link Copy Citation

At any open session of the Authority, the general public is invited to attend and observe.

Regulation .04 Disruptive Conduct.Link Copy Citation

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

The presiding officer may:

(1)

Order an individual who engages in conduct prohibited by §A of this regulation or who violates any other regulation concerning the conduct of the open session to be removed from the session;

(2)

Request police or other assistance to restore order; and

(3)

Recess the session while order is restored.

Regulation .05 Recording, Photographing, and Broadcasting of Open Sessions.Link Copy Citation

A member of the public, including any representative of the news media, may record discussions of the Authority at an open session by means of a tape recorder or other recording device if the device does not create noise that disturbs members of the Authority or others attending the sessions.

A member of the public, including any representative of the news media, may photograph or videotape the proceedings of the Authority at an open session if the camera:

(1)

Is operated without excessively bright artificial light that disturbs members of the Authority or others attending the session; and

(2)

Does not create noise that disturbs members of the Authority or others attending the session.

A representative of the news media may broadcast or televise the proceedings of the Authority at an open session if the equipment used:

(1)

Is operated without excessively bright artificial light that disturbs members of the Authority or others attending the session; and

(2)

Does not create noise that disturbs members of the Authority or others attending the session.

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

Regulation .06 Recordings Not Part of Record.Link Copy Citation

A recording of an open session made by a member of the public, or any transcript derived from the recording, is not considered a part of the record of any proceeding of the Authority.

Subtitle 28 — Canal Place Preservation and Development Authority

Chapter 02. Public Information Requests

Repealed

Subtitle 28 — Canal Place Preservation and Development Authority

Chapter 03. Petition for Adoption of Regulations

Regulation .01 General.Link Copy Citation

These regulations are promulgated pursuant to State Government Article, §10-122, Annotated Code of Maryland, for the purpose of establishing procedures by which the public may petition the Canal Place Preservation and Development Authority for the adoption of regulations.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

"Authority" means the Canal Place Preservation and Development Authority.

(2)

“Executive Director” means the Executive Director of the Canal Place Preservation and Development Authority or the Executive Director's designee.

Regulation .03 Who May File.Link Copy Citation

Any interested person may file a petition with the Executive Director requesting the promulgation, amendment, or repeal of a regulation.

Regulation .04 Form.Link Copy Citation

The petition shall:

Be in writing;

Contain a clear and concise statement of the regulation, amendment, or repeal which is sought;

Contain a statement of reasons in support of the proposed regulation change; and

Contain the name, address, and telephone number of the petitioner.

Regulation .05 Petition Filed.Link Copy Citation

The petition shall be filed with the Executive Director for the Executive Director's consideration and disposition. The time period for response to a petition begins when the petition is received by the Executive Director.

Regulation .06 Disposition.Link Copy Citation

Regulation .07 Agency File.Link Copy Citation

The Authority shall maintain a file of all petitions submitted and the responses. This file shall be available for public inspection to the extent permitted by law.

Subtitle 28 — Canal Place Preservation and Development Authority

Chapter 04. Petition for Declaratory Rulings

Regulation .01 General.Link Copy Citation

These regulations are promulgated under State Government Article, §10-304, Annotated Code of Maryland, for the purpose of establishing procedures by which the public may petition the Canal Place Preservation and Development Authority for a declaratory ruling.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

"Authority" means the Canal Place Preservation and Development Authority.

(2)

“Executive Director” means the Executive Director of the Canal Place Preservation and Development Authority or the Executive Director's designee.

Regulation .03 Who May File.Link Copy Citation

Any interested person may file a petition for declaratory ruling with respect to the manner in which the Authority would apply a regulation or order of the Authority, or a statute that the Authority enforces, to a person or property on the facts set forth in the petition.

Regulation .04 Where to File.Link Copy Citation

A petition shall be filed with the Executive Director for the Executive Director's consideration and disposition.

Regulation .05 Form.Link Copy Citation

The petition shall:

Be in writing;

Contain a detailed statement of the facts on which the petition is based;

Fully set forth the regulations or statutes involved;

Pose the question of whether, and in what manner, the regulations or statutes apply to the petitioner under the facts contained in the petition;

Contain the name, address, and telephone number of the petitioner; and

Contain a statement by the petitioner, under oath, that the facts contained in the petition are true.

Regulation .06 Consideration and Disposition.Link Copy Citation

The Executive Director shall consider the petition and may issue the declaratory ruling requested. The Executive Director may require argument on the petition. A declaratory ruling is binding upon the Authority and the petitioner, to the extent permitted by law, on the facts alleged. Any declaratory ruling issued shall be in writing and shall state the reasons for the decision. A copy of the declaratory ruling shall be delivered to the petitioner.

Regulation .07 Authority File.Link Copy Citation

The Authority shall maintain a file of all petitions submitted and declaratory rulings issued. This file shall be available for public inspection to the extent permitted by law.

Subtitle 28 — Canal Place Preservation and Development Authority

Chapter 07. State Economic Growth, Resource Protection, and Planning Policy Project Review

Subtitle 28 — Canal Place Preservation and Development Authority

Chapter 08. Procurement

Regulation .01 Policy.Link Copy Citation

It is the policy of the Canal Place Preservation and Development Authority to procure supplies, services, and construction in a cost-effective manner consistent with the best interests of the Authority, its vendors, and the general public.

Regulation .02 Scope and General Provisions.Link Copy Citation

This chapter does not apply to:

(1)

Reimbursement contracts for which user eligibility and cost are set by law or by rules and regulations;

(2)

Collective bargaining agreements with employee organizations (labor contracts);

(3)

Acquisition of real property or a permanent or temporary interest in real property;

(4)

Procurements with an agency or unit of the federal government, a State agency or unit, an agency or unit of a local jurisdiction, or an agency or unit of the government of another state;

(5)

Disposal of real or personal property;

(6)

Procurement for purposes of direct resale or remanufacture and subsequent resale;

(7)

Agreements creating employee-employer relationships;

(8)

An agreement entered into by the Authority to lease real property as lessor; or

(9)

A procurement made on behalf of a local jurisdiction if the:

(a)

Authority estimates that the procurement will exceed $35,000;

(b)

Governing body of the local jurisdiction requests the Authority to waive its procedures; and

(c)

Authority formally assents to waive the Authority's procedures.

Except as provided in §A of this regulation, this chapter applies to each expenditure of the Authority for the acquisition of supplies, services, or construction.

Exemptions.

(1)

The Authority is generally exempt from the provisions of, and the regulation adopted under, State Finance and Procurement Article, Division II, Annotated Code of Maryland.

(2)

The Authority is not exempt from the Minority Business Participation provisions of State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland, or the regulations adopted under those provisions.

Authority to Act.

(1)

Unless otherwise specified in the regulations of this chapter, the Membership of the Authority, the Executive Director, or the Executive Director’s designee may undertake any action, determination, decision, or other exercise of authority that is directed, permitted, or contemplated by the regulations of this chapter.

(2)

The Executive Director may delegate to an employee of the Authority any authority that the regulations of this chapter grant to the Executive Director.

Procurement Records.

(1)

The Authority shall maintain a record for each procurement that includes all solicitations, bids or proposals, determinations, contracts, debriefing records, and other materials pertinent to the procurement.

(2)

The Authority’s record of a procurement shall be available for public inspection as provided for and limited by the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.

(3)

The Authority may not disclose proprietary information submitted to the Authority in response to a solicitation, except as required by law.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

"Authority" means the Canal Place Preservation and Development Authority.

(2)

“Award” means the decision by the Authority to execute a procurement contract.

(3)

“Bid” means a statement of price, terms of sale, and description of supplies, services, or construction offered by a bidder in response to an invitation for bids.

(4)

“Bidder” means a person who submits a bid to the Authority.

(5)

“Construction” means the process of building, altering, repairing, improving, or demolishing any structure, building, or other improvement to real property.

(6)

“County” means any one of the 23 counties of the State and the Mayor and City Council of Baltimore, and any of its agencies or instrumentalities.

(7)

“Day” means a calendar day.

(8)

“Determination” means a written procurement decision made by the Authority.

(9)

“Executive Director” means the Executive Director of the Canal Place Preservation and Development Authority.

(10)

“Invitation for bids” means a document used to solicit bids.

(11)

“Local jurisdiction” means a county or municipality.

(12)

“Membership of the Authority” means the Membership of the Canal Place Preservation and Development Authority, as composed in accordance with Financial Institutions Article, §13-1005(a), Annotated Code of Maryland.

(13)

“Municipality” means a municipal corporation in the State subject to the provisions of Article XI-E of the Maryland Constitution, and any of its agencies or instrumentalities.

(14)

“Offeror” means a person who submits a proposal to the Authority.

(15)

“Person” means an individual, receiver, trustee, guardian, personal representative, corporation, partnership, association, unit of government, or any other entity.

(16)

“Procurement” includes all functions that pertain to the process of purchasing or otherwise obtaining supplies, services, or construction.

(17)

Proposal.

(a)

“Proposal” means the response by an offeror to a request for proposals.

(b)

“Proposal” may include, without limitation, an offeror's price, a description of technical expertise or work experience, and other information requested in the solicitation.

(18)

“Request for proposals” means a document used to solicit proposals.

(19)

“Responsible” means capable in all respects of dutifully performing all requirements contained in a solicitation and having the integrity and reliability to assure good faith performance of the procurement contract.

(20)

“Responsive” means conforming in all material respects to the requirements contained in a solicitation.

(21)

“Services” means the rendering of time, effort, or work, rather than the furnishing of a specific physical product other than reports incidental to the required performance, such as professional services provided by architects, engineers, land surveyors, appraisers, accountants, financial advisors, attorneys, or other professional consultants.

(22)

“Solicitation” means an invitation for bids, a request for proposals, or any other method or instrument used to communicate to potential bidders or offerors a procurement need of the Authority.

(23)

“Supplies” means tangible personal property, printing, or insurance, and related services.

Regulation .04 Contract Approval Authority.Link Copy Citation

Contract Approval. The authority to approve a procurement contract for the Authority, subject to the requirement of §B of this regulation, rests with:

(1)

The Executive Director for a procurement contract that is less than or equal to $50,000; and

(2)

The Membership of the Authority for a procurement contract that exceeds $50,000.

If the Authority estimates that a solicitation will result in the award of a procurement contract that exceeds $50,000, the Membership of the Authority shall approve the solicitation for the procurement before issuance of the solicitation.

A procurement contract is not effective or enforceable against the Authority unless the procurement contract is:

(1)

Approved as authorized under §A of this regulation;

(2)

In writing, except as provided in Regulation .06F of this chapter regarding small procurements; and

(3)

The Executive Director signs the procurement contract or otherwise expresses in writing the Authority’s approval of the procurement contract.

The Executive Director shall report to the Membership of the Authority on any procurement contract approved by the Executive Director as authorized under §A(1) of this regulation that is in an amount exceeding $25,000.

Regulation .05 Determinations.Link Copy Citation

A determination required by this chapter shall be in writing and shall be retained by the Authority for not less than 3 years from the date of the determination.

Regulation .06 Methods of Procurement, Source Selection, and Solicitation.Link Copy Citation

Authorized Methods of Procurement. All procurement contracts entered into by the Authority shall be awarded by one of the following procurement methods:

(1)

Competitive sealed bidding in accordance with Regulation .07 of this chapter;

(2)

Competitive sealed proposals in accordance with Regulation .08 of this chapter;

(3)

Negotiated award after unsatisfactory competitive sealed bidding in accordance with Regulation .07I of this chapter;

(4)

Sole source procurement in accordance with Regulation .09 of this chapter;

(5)

Small procurement in accordance with §F of this regulation; or

(6)

Emergency procurement in accordance with Regulation .10 of this chapter.

Source Selection.

(1)

The Authority may use small procurement for a procurement estimated by the Authority to be less than or equal to $25,000.

(2)

Competitive sealed bidding shall be the preferred method for any procurement estimated by the Authority to exceed $25,000.

(3)

For a procurement estimated by the Authority to exceed $25,000, the Authority may use:

(a)

Competitive sealed proposals if the Authority determines that:

(i)

The procurement does not permit an award based solely on most favorable bid price or most favorable evaluated bid price;

(ii)

Competitive sealed bidding is not practicable; or

(iii)

Competitive sealed bidding is not advantageous to the Authority;

(b)

Negotiated award after unsatisfactory competitive sealed bidding as authorized under Regulation .07I of this chapter;

(c)

Sole source selection as authorized under Regulation .09 of this chapter; or

(d)

Emergency procurement as authorized under Regulation .10 of this chapter.

Prequalification.

(1)

The Authority may require that bidders or offerors be prequalified before submitting bids or proposals.

(2)

If the Authority determines that bidders or offerors shall be prequalified, then the Authority shall establish reasonable prequalification criteria, which shall be clearly set forth in a request for qualifications.

(3)

The Authority may require that architectural or engineering bidders or offerors submit U.S. Government Standard Form 254, Architect/Engineer and Related Services Questionnaire (SF-254), in order to be prequalified.

List of Potential Bidders or Offerors. The Authority is not required to maintain a list of potential bidders or offerors.

Notice of Solicitation.

(1)

For a procurement estimated by the Authority to exceed $50,000, the Authority shall publish a notice of solicitation:

(a)

At least 10 days before the due date identified in the solicitation for receipt of bids or proposals;

(b)

On the Authority’s website; and

(c)

In an appropriate publication.

(2)

For a procurement estimated by the Authority to exceed $25,000, but to be less than or equal to $50,000, the Authority shall publish a notice of solicitation:

(a)

At least 10 days before the due date identified in the solicitation for receipt of bids or proposals;

(b)

On the Authority’s website; and

(c)

If determined necessary by the Authority, by any other reasonable method taking into consideration the nature of the procurement.

(3)

For a procurement estimated by the Authority to exceed $10,000, but to be less than or equal to $25,000, the Authority shall issue a notice of solicitation:

(a)

In a manner reasonably sufficient to provide general notice to potential bidders or offerors; and

(b)

Reasonably in advance of the due date identified in the solicitation for responses to the solicitation.

Small Procurement.

(1)

For a procurement estimated by the Authority to be equal to or less than $10,000, the Authority may:

(a)

Solicit oral bids from any number of bidders; and

(b)

Enter into either a written or an oral procurement contract.

(2)

For a procurement estimated by the Authority to exceed $10,000, but to be less than or equal to $25,000, the Authority shall:

(a)

Solicit bids as required by §E(3) of this regulation; and

(b)

Enter into a written procurement contract.

Regulation .07 Procurement by Competitive Sealed Bidding.Link Copy Citation

Invitations for Bids. The Authority shall initiate a procurement by competitive sealed bidding by issuing an invitation for bids that includes:

(1)

The procurement specifications;

(2)

A bid form;

(3)

A statement to be executed by the bidder that the bidder agrees to all terms, conditions, and provisions of, and any amendments to, the invitation for bids;

(4)

Instructions on bid submission requirements, including the due date and address for bid submission;

(5)

The time and place of bid opening; and

(6)

Any other instructions or information requirements as the Authority considers necessary.

Prebid Conferences. The Authority may conduct prebid conferences and require the attendance of bidders.

Amendments to Initiations for Bids.

(1)

The Authority may amend an invitation for bids by:

(a)

Publishing the amendment in the same manner that the Authority published the invitation for bids; and

(b)

Delivering the amendment to all prospective bidders known by the Authority to have either received the invitation for bids or expressed an interest in the invitation for bids.

(2)

A prospective bidder who receives delivery of an amendment from the Authority shall acknowledge receipt of the amendment.

Bid Modifications and Withdrawal.

(1)

A bidder may modify or withdraw a bid before bid opening by submitting written notice of modification or withdrawal to the Authority.

(2)

The Authority shall return any bid security to a bidder if the bidder withdraws the bidder’s bid in accordance with this section.

Late Bids, Late Withdrawals, Late Modifications.

(1)

The Authority may not consider a bid, bid withdrawal, or bid modification, received by the Authority after bid opening, except that the Authority may consider a late bid, late withdrawal, or late modification, if the delay was substantially caused by the Authority.

(2)

A late modification of a successful bid that makes the terms more favorable to the Authority may be considered and accepted by the Authority at any time before contract award.

Receipt and Opening of Bids.

(1)

The Authority shall store bids and any bid modifications in a secure location before bid opening.

(2)

The Authority may not disclose the identity of any bidder before bid opening.

(3)

Bid opening shall occur at the date, time, and place identified in the invitation for bids.

(4)

At bid opening, an employee of the Authority shall open bids publicly, read the bids aloud, record the bids, and prepare a bid tabulation.

(5)

The Authority shall reject as nonresponsive any conditional bid.

Bid Mistakes.

(1)

The Authority may waive minor or technical irregularities in a bid if waiver is in the Authority’s best interests.

(2)

Before award, a successful bidder may be permitted to withdraw its bid if the bidder presents clear and convincing evidence to the Authority that:

(a)

An error has been made in the bid; and

(b)

The error is such that, had the error not been made, the bid as submitted would not have included the bid price or other material term.

(3)

If an error, and the intended correction of the error, are evident on the face of the bid documents, the bid shall be corrected and may not be withdrawn.

(4)

After award:

(a)

A mistake in a bid may only be corrected if the Authority determines that it would be unconscionable not to permit correction; and

(b)

The Authority may not allow any change in price.

Bid Evaluation and Award.

(1)

The Authority shall award the procurement contract to the responsible bidder who submits the most favorable bid price or most favorable evaluated bid price.

(2)

If responsive tie bids are received from two or more responsible bidders, the Authority shall award the procurement contract in the same manner as provided in COMAR 21.05.02.14.

Procurement by Negotiated Award After Unsatisfactory Competitive Sealed Bidding.

(1)

The Authority may conduct discussions with bidders if, after bids have been opened:

(a)

All bids are rejected under Regulation .12 of this chapter;

(b)

All bids included a bid price in excess of funds available; or

(c)

The Authority determines that all bid prices received are unreasonable as to one or more of the Authority’s requirements and:

(i)

There are no funds available to permit an award to the responsible bidder submitting the most favorable bid; or

(ii)

A delay resulting from a resolicitation of specifications or quantities under competitive sealed bidding would be disadvantageous to, or not otherwise in the best interests of, the Authority.

(2)

If any of the circumstances in §I(1) of this regulation occurs, the Authority may:

(a)

Request that the bidders submit revised bids; and

(b)

Conduct discussions with bidders after revised bids have been submitted if the Authority determines that it is in the best interest of the Authority to do so.

(3)

Any discussions conducted under this section concerning revised specifications or quantities shall be conducted with all responsible bidders.

(4)

The Authority shall award the procurement contract under this section to the responsible bidder who offered the most favorable bid price or most favorable evaluated bid price.

Regulation .08 Procurement by Competitive Sealed Proposals.Link Copy Citation

Request for Proposals. The Authority shall initiate a procurement by competitive sealed proposals by issuing a request for proposals that includes:

(1)

Information concerning proposal submission requirements, including the date, time, and place for submission of proposals;

(2)

Evaluation factors and the relative importance of each;

(3)

A statement of the required scope of work or scope of services and performance schedule; and

(4)

Such other information or requirements as the Authority may determine necessary.

Preproposal Conferences. The Authority may conduct preproposal conferences and require the attendance by offerors.

Amendments to Requests for Proposals.

(1)

The Authority may amend a request for proposals by:

(a)

Publishing the amendment in the same manner that the Authority published the request for proposals; and

(b)

Delivering the amendment to all prospective offerors known by the Authority to have either received the request for proposals or expressed an interest in the request for proposals.

(2)

A prospective offeror who receives delivery of an amendment from the Authority shall acknowledge receipt of the amendment.

Proposal Modification and Withdrawal. An offeror may modify or withdraw a proposal before proposals are due by submitting written notice of modification or withdrawal to the Authority.

Receipt and Opening of Proposals.

(1)

Proposals and modifications of proposals received by the Authority shall be held in a secure place until proposals are due.

(2)

The Authority may open proposals at any time after proposals are due.

(3)

The Authority may not:

(a)

Open proposals publicly; or

(b)

Disclose the contents of a proposal to any person other than a person responsible for evaluating or reviewing the proposal before procurement contract award.

(4)

A proposal, withdrawal of proposal, or modification of proposal, received after proposals are due, is late and may only be considered as provided for bids under Regulation .07E of this chapter.

Proposal Evaluation.

(1)

The Authority shall evaluate proposals:

(a)

Using the evaluation factors set forth in the request for proposals; and

(b)

For a determination of which proposal is most advantageous to the Authority.

(2)

Technical proposals and price proposals shall be evaluated independently.

(3)

The Authority may establish a technical evaluation committee to evaluate proposals and make a recommendation of contract award to the Authority. The technical evaluation committee may include members who are not employees of the Authority.

Discussions.

(1)

As used in this section and in §E of this regulation, a “qualified offeror” is an offeror who submits a proposal in response to a request for proposals that the Authority determines is reasonably susceptible of being selected for award of the procurement contract.

(2)

The Authority may conduct discussions with a qualified offeror to:

(a)

Assure that the offeror has full understanding of the Authority’s requirements;

(b)

Assure that the Authority had full understanding of the offeror’s proposal and ability to perform;

(c)

Negotiate the best price or other contract terms for the Authority; or

(d)

Facilitate a procurement contract that is most advantageous to the Authority, taking into consideration price and other relevant evaluation factors set forth in the request for proposals.

(3)

The Authority shall treat qualified offerors fairly and equally with respect to opportunity for discussions.

Best and Final Offers.

(1)

The Authority may request that each qualified offeror submit a best and final offer if the Authority determines that it is in the Authority’s best interest to do so.

(2)

The Authority may:

(a)

Require more than one series of submissions of best and final offers; and

(b)

Engage in discussions on a best and final offer in accordance with §D of this regulation.

(3)

If the Authority requests more than one submission of best and final offers and an offeror does not submit an offer in response to a request, the offeror’s immediate previous offer shall be considered by the Authority as the offeror’s best and final offer unless the offeror submits a timely notice of withdrawal of that immediate previous offer.

Procurement Contract Award. After completing all discussions and evaluations, the the Authority shall:

(1)

Determine which proposal is most advantageous to the Authority;

(2)

Award the procurement contract based on the determination; and

(3)

After award, promptly notify all unsuccessful offerors.

Debriefing of Unsuccessful Offerors.

(1)

If a procurement contract is awarded on some basis other than price alone, an unsuccessful offeror may, within 10 days of the unsuccessful offeror’s receipt of notification of the award, submit to the Authority a written request for a debriefing from the Authority.

(2)

A debriefing shall:

(a)

Be conducted by an employee of the Authority who is familiar with the Authority’s evaluation and determination on the procurement;

(b)

Be limited to discussion of the unsuccessful offeror’s proposal and the Authority’s evaluation of the proposal;

(c)

Be factual and consistent with the evaluation of the unsuccessful offeror’s proposal; and

(d)

Provide information on areas in which the Authority considered the unsuccessful offeror’s technical proposal to be weak, deficient, or less competitive.

(3)

A debriefing may not include:

(a)

Discussion of a competing offeror’s proposal; or

(b)

Discussion or dissemination of the thoughts, notes, or rankings of individual members of an evaluation committee.

Regulation .09 Sole Source Procurement.Link Copy Citation

Applicability. The Authority may award a procurement contract to a sole source without competition:

(1)

When a requirement is available from only a single source or vendor; or

(2)

To retain confidential services:

(a)

To advise the Authority in connection with threatened or pending litigation; or

(b)

For the appraisal of real property contemplated for acquisition by the Authority.

Determination. A determination to make a procurement by sole source without competition shall be made by the Executive Director based on a finding that a sole source procurement is in the Authority’s best interest.

Regulation .10 Emergency Procurement.Link Copy Citation

Applicability. The Authority may award a contract by emergency procurement when:

(1)

There occurs a sudden and unexpected event or condition that the Authority did not reasonably foresee; and

(2)

Due to the constraints of time, procurement by other than competitive sealed bidding or competitive sealed proposals is necessary to avoid or mitigate damage to the environment or to public health, safety, or welfare.

Determination. The determination to make an emergency procurement shall be made by the Executive Director.

Contract Award. When making an award by emergency procurement, the Authority shall:

(1)

Reasonably attempt to obtain competitive bids or proposals consistent with meeting the time requirements of the emergency; and

(2)

Make the award that is most advantageous to the Authority considering the circumstances of the emergency.

Regulation .11 Contract Award and Formation.Link Copy Citation

The Authority shall award a procurement contract only to an offeror or bidder who is responsible and responsive, as determined by the Executive Director.

The Executive Director may determine that a bidder or offeror is not responsible if the Executive Director finds that the bidder or offeror:

(1)

Unreasonably failed to promptly supply information requested by the Authority in connection with a determination of responsibility; or

(2)

Does not have the:

(a)

Capability in all respects to perform fully the procurement contract requirements; or

(b)

Integrity and reliability that will ensure good faith performance.

A procurement contract shall be:

(1)

In a form acceptable to the Authority; and

(2)

Approved for legal sufficiency by an assistant attorney general of the State.

For a procurement contract that exceeds $10,000, the contract shall contain the provisions required by COMAR 21.07.01—21.07.03, as may be amended or deleted by the Authority as it considers necessary to further the business of the Authority.

Regulation .12 Cancellation of Solicitations and Rejection of Bids and Proposals.Link Copy Citation

The Authority may cancel a solicitation in whole or in part before opening of bids or proposals when, in the determination of the Executive Director, cancellation is in the best interests of the Authority. Bids or proposals shall be returned to the bidders or offerors together with a notice of cancellation.

After opening of bids or proposals, the Authority may reject all bids or proposals when, in the determination of the Executive Director, rejection is in the best interests of the Authority. Notice of rejection of all bids or proposals shall be sent to all vendors who submitted bids or proposals.

The Authority may reject a bid or proposal in whole or in part when it is in the Authority’s best interest to do so and for reasons that may include, but are not limited to, a determination that:

(1)

The bidder or offeror is not responsible;

(2)

The bid or proposal is not responsive;

(3)

The proposal is not reasonably susceptible to being selected for award;

(4)

A bid or proposal price or other term is not reasonable; or

(5)

The bidder or offeror is debarred or otherwise ineligible for award and the period of debarment or ineligibility has not expired.

Regulation .13 Disputes.Link Copy Citation

A dispute that arises in the performance of a procurement contract which is not resolved by agreement of the parties shall be decided in writing by the Executive Director. The decision of the Executive Director is final and conclusive unless, within 10 calendar days of receipt of a copy of the decision, the contractor delivers a written appeal to the Executive Director. In connection with an appeal, the contractor shall be given an opportunity to be heard and to offer evidence in support of the contractor’s position. The decision by the Executive Director binds the contractor, and the contractor shall abide by the decision.

Regulation .14 Minority Business Enterprise Policies.Link Copy Citation

The Authority shall comply with the provisions of State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland, and regulations adopted under those provisions.

Subtitle 28 — Canal Place Preservation and Development Authority

Chapter 09. Parking of Vehicles on Canal Place Preservation and Development Authority Property

Regulation .01 Scope.Link Copy Citation

This chapter:

Governs the parking of motor vehicles on Canal Place Preservation and Development Authority property, the towing and impoundment of motor vehicles improperly parked or abandoned on Authority property, and the sale and final disposition by the Authority of impounded or removed motor vehicles; and

Establishes qualifications for designated parking control officers, including prerequisites of character, training, experience, education, and standards for the performance of duties.

Regulation .02 Intent.Link Copy Citation

This chapter is intended to enable the Authority to regulate and control the parking of motor vehicles upon Authority property.

Motor vehicles improperly parked and abandoned upon Authority property:

(1)

Constitute a public nuisance contrary to the general health, safety, and welfare of the public;

(2)

Deny Canal Place patrons the right to fully use and enjoy the services and benefits offered and made available to the general public by the Authority; and

(3)

Deny Authority employees the ability to:

(a)

Preserve and maintain the orderly control and use of Authority facilities, and

(b)

Prevent congestion and traffic hazards resulting from unauthorized use of Authority property by motor vehicle operators.

Regulation .03 Incorporation by Reference.Link Copy Citation

Transportation Article, Title 26, Subtitle 3, Annotated Code of Maryland, is incorporated by reference.

Regulation .04 Application.Link Copy Citation

This chapter applies to all motor vehicles on Authority property.

Regulation .05 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Abandoned” means a motor vehicle that:

(a)

Is inoperable and left unattended on Authority property for more than 48 hours;

(b)

Has remained illegally on Authority property for more than 48 hours; or

(c)

Has remained on Authority property for more than 48 hours, and is:

(i)

Not displaying currently valid registration plates, or

(ii)

Displaying registration plates of another vehicle.

(2)

"Authority" means the Canal Place Preservation and Development Authority.

(3)

"Authority property" means all property owned or under the control of the Authority.

(4)

“Authorized” means acting under a written permit, contract, or other evidence of right issued by the Authority.

(5)

“Bus” means a motor vehicle that is:

(a)

Designed to carry more than 10 passengers;

(b)

Used to carry people; and

(c)

Operated by public or private carrier.

(6)

“Canal Place patron” means an individual on Authority property for the purpose of authorized use of Authority property, including:

(a)

Authority employees and agents;

(b)

Tenants and their employees and agents; and

(c)

Members of the general public.

(7)

“Director” means the Executive Director of the Authority.

(8)

“Disabled parking areas” means those designated parking areas on Authority property upon which Canal Place patrons may park motor vehicles bearing either:

(a)

A valid handicapped license plate; or

(b)

Other valid evidence that the user of the motor vehicle is handicapped as provided under Maryland law.

(9)

“Law enforcement officer” means:

(a)

A member of the:

(i)

Maryland State Police, or

(ii)

City of Cumberland Police; or

(b)

An officer designated as a parking control officer.

(10)

Motor Vehicle.

(a)

“Motor vehicle” means a device in, upon, or by which an individual or property may be propelled, moved, or drawn upon land.

(b)

“Motor vehicle” includes a vehicle towed by another motor vehicle, except:

(i)

A device moved by human or animal power; and

(ii)

Aircraft and devices moved exclusively upon stationary rails or tracks.

(11)

“Motor vehicle operator” means an individual who is in actual physical control of a motor vehicle.

(12)

Motor Vehicle Owner or Owner.

(a)

“Motor vehicle owner” means a person who holds the legal title to a motor vehicle.

(b)

“Motor vehicle owner” or “owner” includes a secured party indicated on the motor vehicle title.

(13)

“Parking” means the standing or parking of a motor vehicle, attended or unattended, upon Authority property.

(14)

“Parking control officer” means an Authority employee, or security personnel under contract with the Authority, authorized by the Director to issue a citation under this chapter.

(15)

“Parking lot” means an area designated for parking on Authority property, including public, employee, and tenant areas.

(16)

Person.

(a)

“Person” means an individual, firm, partnership, corporation, company, association, or joint stock association.

(b)

“Person” includes a trustee, receiver, assignee, or other representative of them.

(17)

“State” means the State of Maryland.

Regulation .06 General Parking Regulations.Link Copy Citation

The control of all motor vehicle parking on Authority property is governed by this chapter.

Unless otherwise authorized, an individual may not park a motor vehicle on Authority property unless that individual:

(1)

Is a Canal Place patron;

(2)

Intends to pick up or discharge a Canal Place patron; or

(3)

Is on Authority property for purposes directly related to the business of the Authority.

A person may not abandon a motor vehicle on Authority property.

An individual may not park a motor vehicle on Authority property, except:

(1)

In specifically posted and designated areas; and

(2)

During the hours of Authority operations.

An individual may not park a motor vehicle on Authority property which interferes with or prevents the passage or movement of buses, emergency vehicles, or other motor vehicles.

An individual may not drive a motor vehicle on Authority property without a valid driver's license issued by the:

(1)

State; or

(2)

Jurisdiction where the individual resides, if other than Maryland.

The responsibility for finding a legal parking space rests with the motor vehicle operator.

An individual may not park a motor vehicle upon Authority property within 15 feet of:

(1)

A fire hydrant; or

(2)

Other fire control apparatus.

Unless otherwise authorized, an individual may not stop a motor vehicle upon Authority property:

(1)

To load or unload the motor vehicle in violation of a posted fire or traffic sign or regulation; or

(2)

In a manner which obstructs the movement of vehicular or pedestrian traffic.

A motor vehicle operator:

(1)

Shall park in one marked space only within:

(a)

A designated parking area, and

(b)

The marked space;

(2)

Shall leave clear access to adjacent spaces; and

(3)

May not:

(a)

Block driving lanes or roads, or

(b)

Create a hazard to other motor vehicle operators.

An individual may not park a motor vehicle in a marked pedestrian crosswalk.

An individual may not park a motor vehicle on Authority property to wash, clean, polish, repair, maintain, or overhaul the motor vehicle, except for repairs necessary to remove the motor vehicle from Authority property.

Parking in designated disabled parking areas is restricted to Canal Place patrons whose motor vehicles bear either:

(1)

A valid handicapped license plate; or

(2)

Other valid evidence that the user of the motor vehicle is handicapped as provided under Maryland law.

An individual may not park in areas adjacent to yellow painted curbs or in any other posted restricted areas.

A motor vehicle that is parked or placed on Authority property in such a manner as to be presumed abandoned, or that creates a nuisance or hazard, or that interferes with Authority operations or emergencies, may be towed or removed to a location chosen by the Authority or the Authority's designee.

Regulation .07 Taxicabs.Link Copy Citation

An individual operating a taxicab on Authority property may not stop or park the taxicab to block or interfere with the free passage of pedestrians or vehicular traffic on or about Authority property.

Taxicabs shall stand only in areas on Authority property posted for taxicabs.

Regulation .08 Motor Vehicles Prohibited by Type, Weight, or Size.Link Copy Citation

Except for individuals having business directly related to the Authority, or unless otherwise authorized, an individual may not park the following vehicles upon Authority property:

A trailer or towed vehicle;

A truck having a manufacturer's rated carrying capacity greater than 1 ton;

A vehicle with a gross weight greater than 8,000 pounds;

A vehicle having an overall length more than 20 feet including any load on it;

A vehicle wider than 8 feet; or

A bus.

Regulation .09 Towing, Impoundment, and Sale.Link Copy Citation

The State Police, the City of Cumberland police or their agents, or Authority parking control officers or agents, may take into custody an abandoned motor vehicle, or a vehicle parked in violation of this chapter, which is parked so as to constitute a nuisance or hazard to public safety, impede or obstruct the normal movement of vehicular or pedestrian traffic on Authority property, or deny Canal Place patrons full use and enjoyment of Canal Place property. For this purpose, the State Police, the City of Cumberland police, or Authority parking control officers or agents may use their own personnel, equipment, or facilities, for removing, preserving, and storing the vehicles. The Authority or its agents are not liable for any losses or damages resulting from these actions to the extent provided under Courts and Judicial Proceedings Article, §§5-301—5-304 and 5-522, Annotated Code of Maryland.

As soon as reasonably possible and within 7 days after the State Police or the City of Cumberland police or their agents take a vehicle into custody under this regulation, the State Police or the City of Cumberland police or their agents shall send a notice, by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, to:

(1)

The last known registered owner of the vehicle; and

(2)

Each secured party, as shown on the records of the Maryland Motor Vehicle Administration.

The notice shall:

(1)

State that the vehicle has been taken into custody;

(2)

Give the name, address, and telephone number of the individual providing the notice;

(3)

Describe the motor vehicle, including year, model, and vehicle identification number;

(4)

Give the location of the facility where the vehicle is held;

(5)

State the authority and reason for the removal, towing, or storage of the motor vehicle;

(6)

Inform the motor vehicle owner and secured parties of the owner's or secured parties' rights to reclaim the vehicle on payment of all towing, preservation, and storage charges resulting from taking or placing the vehicle in custody, upon:

(a)

Presentation of proof of identity and ownership or security interest, and

(b)

Signing a receipt for the motor vehicle; and

(7)

Be sent by certified mail, return receipt requested.

The Authority or its agent may seek to recover costs of impoundment or storage, and removal under this regulation. If the Authority seeks to apply the provisions of this regulation, the notice required by §B of this regulation shall also state that the failure of the motor vehicle owner or secured party to exercise the right to reclaim the vehicle may cause continuing liability of the owner for reasonable costs of impoundment and storage.

Regulation .10 Exceptions.Link Copy Citation

This chapter does not apply to:

Motor vehicles of the Authority, its employees, contractors or subcontractors; or

Police or emergency vehicles.

Regulation .11 Administration and Penalties.Link Copy Citation

The issuance of citations under this chapter shall comply with the requirements of Transportation Article, Title 26, Subtitle 3, Annotated Code of Maryland.

Citations issued under this chapter shall contain sufficient information to enable the individual receiving a citation or citations to:

(1)

Pay for the parking violation; or

(2)

Stand trial.

Penalties for parking violations are as provided by ordinance of the City of Cumberland for similar parking violations. A schedule of penalties shall be posted in prominent view of authorized visitors and tenants of Authority property. Penalties for uncontested parking violations may be paid directly to the Director or the Director's designee, at the Authority's principal office.

Regulation .12 Parking Control Officer Qualifications and Training.Link Copy Citation

Character.

(1)

A parking control officer:

(a)

Shall successfully pass a preemployment background investigation; and

(b)

May not have been convicted of a felony.

(2)

A parking control officer who fails to maintain a good character shall be relieved immediately of the authority to issue citations under this chapter.

Experience and Education. A parking control officer shall:

(1)

Have a minimum of 1 year of experience as a security officer or in a closely related field; and

(2)

Possess a high school diploma or a State equivalence certificate.

Training.

(1)

An individual designated as a parking control officer shall be trained in:

(a)

All authority regulations relating to parking control;

(b)

The preparation of citations;

(c)

The areas of customer service, conflict resolution, Authority property operations, and organization; and

(d)

Courtroom procedures, including courtroom demeanor and case presentation.

(2)

The training of a parking control officer shall consist of a minimum of 12 hours covering the subject areas in §C(1) of this regulation.

Regulation .13 Performance Standards for Parking Control Officers.Link Copy Citation

A parking control officer shall:

Act in a manner to bring credit both to the position of parking control officer and the Authority;

Act in a reasonable manner so as to avoid any confrontation which may:

(1)

Lead to personal injury, or

(2)

Result in embarrassment to the Authority;

Keep abreast of changes in the law, regulations, and policies which impact on the parking control officer's duties;

Safeguard, maintain, and clean the equipment, uniforms, and accessories which are issued to the parking control officer;

Be considered in a sensitive classification subject to the substance abuse policy of the Authority; and

Observe all State laws, personnel policies, and regulations applicable to the conduct of Authority employees.

Subtitle 29 — Maryland Heritage Areas Authority

Chapter 01. Designation of Recognized Heritage Areas

Regulation .01 General.Link Copy Citation

Financial Institutions Article, Title 13, Subtitle 11, Annotated Code of Maryland, establishes the Maryland Heritage Areas Authority and the Maryland System of Heritage Areas.

The Maryland Heritage Areas Authority is an independent unit in the Executive Branch of State Government that operates within the Maryland Department of Planning and is authorized to consider proposals submitted by local jurisdictions for designation of a heritage area as a recognized heritage area.

Once a heritage area is designated by the Authority as a recognized heritage area, grant funds are available through the Authority for the development of a management plan for the heritage area. A management plan for a heritage area must be approved by the Authority before the Authority can designate the heritage area as a certified heritage area under COMAR 14.29.02.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means Financial Institutions Article, §§13-1101—13-1124, Annotated Code of Maryland.

(2)

“Authority” means the Maryland Heritage Areas Authority established by the Act.

(3)

“Certified heritage area” means a recognized heritage area that has been designated as a certified heritage area by the Authority in accordance with the Act and COMAR 14.29.02

(4)

“Geographic information system file” means an electronic data file that captures, stores, and displays various types of spatial and attribute data on a map.

(5)

“Heritage area” means a contiguous or noncontiguous developed geographic area of public and private uses that:

(a)

Can range in size from as small as a portion of a county or municipal corporation to as large as a regional area;

(b)

Has a coherent and cohesive special character;

(c)

Is distinguished by a concentration of natural, recreational, cultural, and historic resources of Statewide significance that have played a vital role in the historic life and development of the area and contribute to the public through interpretive, educational, and recreational uses; and

(d)

May include traditional parks and historic places or properties.

(6)

“Heritage area management entity” means either a nonprofit organization or an agency of either State or local government that is or will be responsible for coordinating development of a management plan for a recognized heritage area or is responsible for implementing the management plan for a certified heritage area.

(7)

“Local jurisdiction” means any of the 23 counties of the State, the City of Baltimore, any municipal corporation in the State that is subject to the provisions of Article XI-E of the Maryland Constitution, or any of their duly authorized agencies or instrumentalities.

(8)

“Management plan” means a document prepared and approved in accordance with the Act and COMAR 14.29.02, that includes a comprehensive strategy expressed in words, maps, illustrations, or other media for planning, implementing, and achieving the goals and objectives of a heritage area.

(9)

“Recognized heritage area” means a heritage area designated by the Authority as a recognized heritage area in accordance with this chapter.

Regulation .03 Proposals for Designation of Recognized Heritage Areas.Link Copy Citation

A local jurisdiction with land area located within the geographic boundaries of a heritage area may submit to the Authority a proposal for designation of the heritage area as a recognized heritage area, and if the land area of the heritage area is located within more than one local jurisdiction the proposal shall be jointly submitted by each of the local jurisdictions.

A proposal for designation of a recognized heritage area shall:

(1)

Include a geographic information system file that identifies the boundaries for the heritage area;

(2)

Include a resolution, ordinance, or other appropriate authorization issued by the governing body of each local jurisdiction with land area located within the boundaries of the heritage area establishing that the local jurisdiction has approved the proposal;

(3)

Identify the heritage area management entity;

(4)

Identify and describe the natural, recreational, cultural, and historic resources that contribute to the special cohesive character of the heritage area;

(5)

Identify, as located within the heritage area, any:

(a)

Historic districts either listed, or determined by the Director of the Maryland Historical Trust to be eligible for listing, in the Maryland Register of Historic Properties; or

(b)

Natural or recreational resources determined by the Secretary of Natural Resources to be of Statewide significance;

(6)

Specify the general goals and objectives for preservation, development, and management of the heritage area;

(7)

Identify the types of public and private uses within the heritage area that will be intended or designed to advance the goals and objectives of the heritage area;

(8)

Describe the strategies for encouraging and accommodating visitation to, and the compatible economic development of, the heritage area;

(9)

Provide an economic overview of both the short-term and long-term costs and benefits related to development of the heritage area;

(10)

Describe the methods and means to be instituted by the local jurisdictions to assure the long-term preservation and protection of the heritage area’s resources, including zoning, subdivision, and other growth management controls;

(11)

To the extent that any of the following State agencies have programs or plans that may be affected by, or may be able to coordinate on, the designation of the heritage area as a recognized heritage area, identify to what extent such agencies were consulted during development of the proposal:

(a)

Department of Housing and Community Development regarding housing and neighborhood revitalization;

(b)

Maryland Department of Planning regarding land use planning, historic preservation, museum programs, and management of cultural and historic resources;

(c)

Department of Commerce regarding tourism, economic development, and job creation;

(d)

Department of Natural Resources regarding outdoor recreation and the management of natural resources and State greenways;

(e)

Department of Agriculture regarding agricultural activities;

(f)

Maryland Higher Education Commission and the State Department of Education regarding educational resources and education of the public about the heritage areas;

(g)

Department of Transportation regarding access to and transportation within the heritage area, including on the State scenic byways program and programs for special signage; and

(h)

Department of General Services regarding the management, maintenance, and disposition of State property; and

(12)

Include any additional information as may be requested by the Authority either prior or subsequent to submission of the proposal.

Regulation .04 Review of Proposals.Link Copy Citation

The Authority shall review a proposal submitted under Regulation .03 of this chapter for designation of a heritage area as a recognized heritage area.

The Authority may designate a heritage area as a recognized heritage area only if the Authority finds that:

(1)

The proposal for designation includes all information and requirements of Regulation .03B of this chapter;

(2)

The area proposed for designation satisfies the definition of a heritage area set forth in Regulation .02B(5) of this chapter;

(3)

The area includes at least one or more:

(a)

Historic districts either listed, or determined by the Director of the Maryland Historical Trust to be eligible for listing, in the Maryland Register of Historic Properties; or

(b)

Natural or recreational resources determined by the Secretary of Natural Resources to be of Statewide significance; and

(4)

Public assistance for the heritage area is reasonably expected to produce:

(a)

Additional private investments;

(b)

Job creation; and

(c)

Tourism revenues.

The Authority shall disapprove a proposal for designation of a heritage area as a recognized heritage area if the proposal does not satisfy the criteria in §B of this regulation.

If a proposal for designation of a heritage area as a recognized heritage area satisfies the criteria in §B of this regulation, the Authority may:

(1)

Approve the proposal, which shall constitute designation of the heritage area as a recognized heritage area; or

(2)

Approve the proposal subject to one or more modifications as determined necessary by the Authority, which shall constitute designation of the heritage area as a recognized heritage area, as modified by the Authority.

In determining whether to approval or disapprove a proposal under this regulation, the Authority may consider as factors:

(1)

The number of certified heritage areas in existence at the time of the determination; and

(2)

Financial resources available or anticipated to be available.

Upon reaching a determination under either §C or D of this regulation, the Authority shall promptly send written notice of the determination to each local jurisdiction that submitted the proposal and to the heritage area management entity identified in the proposal.

The boundaries of a recognized heritage area approved under this regulation shall be:

(1)

The boundaries of the heritage area as identified in the geographic information system file submitted with the proposal for designation as a recognized heritage area, as approved or approved with modifications by the Authority;

(2)

Posted on the website of the Maryland Historical Trust in the form of a Uniform Resource Locator (URL) to the geographic information system file; and

(3)

Published in the Maryland Register by the Authority in the form of a Uniform Resource Locator (URL) to the geographic information system file.

A local jurisdiction within, or the heritage area management entity for, a recognized heritage area may apply for a grant from the Authority under COMAR 14.29.03 to assist with the development of a management plan for the heritage area.

Regulation .05 Amendments to Recognized Heritage Area Boundaries.Link Copy Citation

The Authority shall consider a proposal to amend the boundaries of the recognized heritage area if the proposal:

(1)

Is submitted by the heritage area management entity;

(2)

Is approved by resolution, ordinance, or other appropriate authorization issued by the governing body of each local jurisdiction with land area located either within the portion of a recognized heritage area to be removed or within the area proposed to be added to the recognized heritage area;

(3)

Includes a geographic information system file that identifies the boundaries of the area proposed to be removed or added; and

(4)

Contains information or explanation as to why an area proposed to be added, viewed in relation to the recognized heritage area, satisfies the criteria for designation in Regulation .04B of this chapter.

When considering a proposal submitted under Regulation .05A of this chapter, the Authority shall:

(1)

Approve, approve with modification, or disapprove the proposal;

(2)

Send written notice of the action taken on the proposal to the heritage area management entity and all the local jurisdictions that approved of the proposal; and

(3)

If it approves the proposal or approves the proposal with modification:

(a)

Publish in the Maryland Register a Uniform Resource Locator (URL) to a geographic information system file for the revised boundaries; and

(b)

Post on the website of the Maryland Historical Trust a Uniform Resource Locator (URL) to a geographic information system file for the revised boundaries.

Regulation .06 Program Administration.Link Copy Citation

The Authority may adopt written policies or guidelines related to or governing the criteria for and administration of the procedures for designating recognized heritage areas and shall post any such adopted policies or guidelines on the website hosted by the Maryland Historical Trust.

A determination of the Authority made under Regulations .04 or .05 of this chapter is not a contested case within the meaning of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Regulation .07 Waiver.Link Copy Citation

The Authority may waive or vary a provision of this chapter if the waiver or variance is consistent with the Act and, as determined by the Authority, application of the provision in a specific instance or case, or in an emergency situation, would be inequitable or contrary to the purposes of the Act.

Regulation .08 False Statements.Link Copy Citation

A person who knowingly makes or causes to be made a false statement submitted or made to the Authority in connection with a proposal for designation of a heritage area as a recognized heritage area is subject to any penalties authorized by law.

Subtitle 29 — Maryland Heritage Areas Authority

Chapter 02. Adoption of Management Plans and Designation of Certified Heritage Areas

Regulation .01 General.Link Copy Citation

Financial Institutions Article, Title 13, Subtitle 11, Annotated Code of Maryland, establishes the Maryland Heritage Areas Authority and the Maryland System of Heritage Areas.

Once a recognized heritage area is designated by the Authority as a certified heritage area, certain entities located within the heritage area may apply for and receive grants and loans as provided by Financial Institutions Article, §13-1113, Annotated Code of Maryland, and COMAR 14.29.04 and 14.29.05.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means Financial Institutions Article, §§13-1101—13-1124, Annotated Code of Maryland.

(2)

“Authority” means the Maryland Heritage Areas Authority established by the Act.

(3)

“Certified heritage area” means a recognized heritage area that has been designated as a certified heritage area by the Authority in accordance with the Act and this chapter.

(4)

“Fund” means the Maryland Heritage Areas Authority Financing Fund established by the Act.

(5)

“Geographic information system file” means an electronic data file that captures, stores, and displays various types of spatial and attribute data on a map.

(6)

“Heritage area” means a contiguous or noncontiguous developed geographic area of public and private uses that:

(a)

Can range in size from as small as a portion of a county or municipal corporation to as large as a regional area;

(b)

Has a coherent and cohesive special character;

(c)

(d)

May include traditional parks and historic places or properties.

(7)

“Heritage area management entity” means a nonprofit organization or agency of either State or local government that is or will be responsible for coordinating development of a management plan for a recognized heritage area or is responsible for implementing the management plan for a certified heritage area.

(8)

(9)

Local Plan.

(a)

“Local plan” means the policies, statements, goals, and plans for private and public land use, transportation, and community facilities, documented in texts and maps and established as the guide for future development within a jurisdiction or area.

(b)

“Local plan” includes a general plan, master plan, comprehensive plan, community plan, sector plan, or similar plan adopted by a local jurisdiction in accordance with the Land Use Article, Annotated Code of Maryland.

(10)

“Management plan” means a document prepared and approved in accordance with the Act and this chapter, that includes a comprehensive strategy expressed in words, maps, illustrations, or other media for planning, implementing, and achieving the goals and objectives of the heritage area.

(11)

“Recognized heritage area” means a heritage area designated by the Authority as a recognized heritage area in accordance with COMAR 14.29.01.

Regulation .03 Proposals for Designation of Certified Heritage Areas.Link Copy Citation

A local jurisdiction with land area located within the geographic boundaries of a recognized heritage area may submit to the Authority a proposal for designation of the recognized heritage area as a certified heritage area, and if land area of the recognized heritage area is located within more than one local jurisdiction the proposal shall be jointly submitted by each of the local jurisdictions.

Before submitting to the Authority a proposal for designation of a certified heritage area, the governing body of each local jurisdiction with land area located within the boundaries of the proposed certified heritage area must, by resolution, ordinance, or other appropriate authorization:

(1)

Approve submission of the proposal to the Authority; and

(2)

Preliminarily approve adoption of an amendment to the jurisdiction’s local plan that incorporates the management plan for the heritage area.

A proposal for designation of a certified heritage area shall be submitted to the Authority within 45 days after the last local jurisdictions’ approvals under Regulation .03B of this chapter are completed.

A proposal for designation of a certified heritage area shall include:

(1)

An adopted resolution, ordinance, or other appropriate authorization issued by the governing body of each local jurisdiction with land area located within the boundaries of the proposed certified heritage area that amends the local plan of the local jurisdiction to incorporate the proposed management plan into the local plan;

(2)

A proposed management plan for the heritage area that:

(a)

Was developed in cooperation and consultation with the Authority and relevant private interests;

(b)

Contains a geographic information system file that identifies the boundaries for the proposed certified heritage area;

(c)

Identifies the heritage area management entity and describes:

(i)

Its organizational structure;

(ii)

Its relations with agencies of State and local government; and

(iii)

The specific performance criteria and methods for data collection and analysis that the heritage area management entity will use to measure success in achieving the goals and objectives of the management plan;

(d)

Identifies the land use recommendations for all land areas within the proposed certified heritage area as detailed in the corresponding local plan;

(e)

Identifies the types of public and private uses that will be encouraged and promoted within the proposed certified heritage area;

(f)

Identifies the local zoning for all land areas located within the proposed certified heritage area, which shall specify potential intensity of uses and identify those zones that are most appropriately devoted to, respectively, public uses and private uses;

(g)

Identifies property, if any, to be acquired, in whole or in part, for the benefit of the proposed certified heritage area by a local jurisdiction or other entity authorized by a local jurisdiction;

(h)

Describes those educational, interpretive, and recreational programs and projects planned to be undertaken within the proposed certified heritage area;

(i)

Describes plans for encouraging and accommodating visitation to, and compatible economic development of, the proposed certified heritage area;

(j)

Includes an economic assessment of both the short-term and long-term costs and benefits related to implementation of the management plan, including identification of anticipated sources of funding for implementation of the management plan;

(k)

Contains an inventory and evaluation of the significant natural, recreational, cultural, and historic resources located within the proposed certified heritage area;

(l)

Describes the plans and the means and methods for preserving and protecting the natural, recreational, cultural, and historic resources located within the proposed certified heritage area, including identification and summary of any existing or proposed local law or ordinance that:

(i)

Designates or operates to protect cultural or historic properties or natural areas; and

(ii)

Assures that future local actions and development will be consistent with the goals and objectives of preserving the natural, recreational, cultural, and historic resources of the proposed certified heritage area;

(m)

If the management plan proposes enactment of local law or ordinance to provide for one or more historic preservation commissions that would govern historic sites, structures, or districts located within the proposed certified heritage area, verifies that the provisions of the proposed enactment or enactments will:

(i)

Be consistent with Land Use Article, Title 8, Annotated Code of Maryland;

(ii)

Provide that members of the historic preservation commission will have minimum professional requirements established by the United States Department of the Interior under Part 61, Title 36, Code of Federal Regulations, for certifying local governments; and

(iii)

Provide that the historic preservation commission must review and approve the plans of any project that the local jurisdiction conducts, assists, licenses, or permits, if the project may affect a property located within the proposed certified heritage area that is either designated as historic by the local jurisdiction or is listed or eligible for listing in the Maryland Register of Historic Properties;

(n)

Includes a schedule for the planning, development, and management of the proposed certified heritage area; and

(o)

Demonstrates that the capabilities and capacities exist within the proposed certified heritage area, by or through either the heritage area management entity or local government agencies, to implement and manage the proposed certified heritage area, including the capability and capacity to:

(i)

Accept and disburse funds;

(ii)

Acquire, improve, and dispose of property;

(iii)

Manage, operate, and maintain appropriate public facilities; and

(iv)

Adopt and enforce land use and preservations standards and controls necessary to protect the significance natural, recreational, cultural, and historic resources located within the proposed certified heritage area; and

(3)

Any additional information as may be requested by the Authority either prior or subsequent to submission of the proposal.

Regulation .04 Review of Proposals and Designation.Link Copy Citation

Within 90 days of receiving a proposal under Regulation .03 of this chapter, the Authority shall:

(1)

Hold at least one public hearing concerning the proposed management plan within the proposed certified heritage; and

(2)

Approve, approve with conditions, or disapprove the proposed management plan.

The Authority shall disapprove a proposed management plan for a proposed certified heritage area if the Authority determines that:

(1)

The management plan does not adequately carry out the purposes of the Act; or

(2)

The proposal does not include all information required under, or meet all requirements of, Regulation .03D of this chapter.

If the Authority determines that a proposed management plan for a proposed certified heritage area includes all information required under, and meets all requirements of, Regulation .03D of this chapter, the Authority may:

(1)

Approve the proposed management plan; or

(2)

Approve the proposed management plan subject to one or more modifications as determined necessary by the Authority.

In determining whether to approval or disapprove a proposal under this regulation, the Authority may consider as factors:

(1)

The number of certified heritage areas in existence at the time of the determination; and

(2)

Financial resources available or anticipated to be available.

Upon reaching a determination under either §B or C of this regulation, the Authority shall promptly send written notice to the heritage area management entity and each local jurisdiction that submitted the proposed management plan:

(1)

Of the Authority’s determination; and

(2)

If the Authority disapproved the plan, of the reasons for disapproval and recommendations on how the plan might be revised to make it approvable.

Subject to §G of this regulation, an approval or an approval with modifications by the Authority of a proposed management plan shall constitute designation of the proposed certified heritage area as a certified heritage area.

During any one State fiscal year, the Authority may designate not more than two recognized heritage areas as certified heritage areas.

The boundaries of a certified heritage area shall be:

(1)

The boundaries of the proposed certified heritage area as identified in the geographic information system file submitted with the proposal for designation as a certified heritage area, as approved or approved with modifications by the Authority;

(2)

Published in the Maryland Register by the Authority in the form of a Uniform Resource Locator (URL) to the geographic information system file; and

(3)

Posted on the website of the Maryland Historical Trust in the form of a Uniform Resource Locator (URL) to the geographic information system file, a copy of which shall be sent electronically to the office of the county clerk of the county or counties in which the certified heritage area is located.

Regulation .05 Revisions to Management Plans and Certified Heritage Area Boundaries.Link Copy Citation

Definitions.

(1)

In this regulation, the following terms have the meanings indicated.

(2)

Terms Defined.

(a)

“Administrative revision” means a revision of or change to an approved management plan for a certified heritage area that relates to the administration of the heritage area by the heritage area management entity and does not revise or change the management plan’s themes, areas of focus, goals and objectives, or other programmatic components.

(b)

“Programmatic revision” means a revision of or change to an approved management plan for a certified heritage area that revises or changes the management plan’s themes, areas of focus, goals and objectives, or other programmatic components.

Administrative Revisions to Approved Management Plans.

(1)

A heritage area management entity for a certified heritage area may propose an administrative revision to the approved management plan for the heritage area by:

(a)

Submitting the proposal to the Authority in writing; and

(b)

Providing a copy of the proposal to each local jurisdiction located within the heritage area.

(2)

Within 90 days of receiving a proposal made under this section, the Authority shall:

(a)

Complete its review of the proposal;

(b)

Determine whether the proposal would adequately carry out the purposes of the Act;

(c)

Approve, approve with modification, or disapprove the proposal; and

(d)

Send written notice to the heritage area management entity of the action taken by the Authority on the proposal.

Programmatic Revisions to Approved Management Plans; Certain Expansions of Certified Heritage Area Boundaries.

(1)

A heritage area management entity for a certified heritage area may submit a proposal to:

(a)

Make a programmatic revision to the approved management plan for a certified heritage area; or

(b)

Amend or revise the boundaries of a certified heritage area to include property not contemplated in the approved management plan for inclusion in the certified heritage area.

(2)

For a proposal submitted under §C(1) of this regulation, the proposal shall:

(a)

Be approved by the heritage area management entity;

(b)

Be approved by resolution, ordinance, or other appropriate authorization issued by the governing body of:

(i)

For a revision to a management plan under §C(1)(a) of this regulation, each local jurisdiction with land area located within the certified heritage area; or

(ii)

For an amendment or revision to a heritage area boundary under §C(1)(b) of this regulation, each local jurisdiction with land area located within the property proposed to be added to the certified heritage area;

(c)

For a proposed boundary amendment, include a geographic information system file of the revised boundary; and

(d)

Be jointly submitted in writing to the Authority by the heritage are management entity and each local jurisdiction from which approval is required under §C(2)(b) of this regulation.

(3)

Within 90 days of receiving a proposal under this section, the Authority shall:

(a)

Hold at least one public hearing in the certified heritage area concerning the proposal;

(b)

Determine whether the proposal would adequately carry out the purposes of the Act;

(c)

Approve, approve with modification, or disapprove the proposal; and

(d)

Send written notice to the heritage area management entity and each local jurisdiction with land area located within the certified heritage area of the action taken by the Authority on the proposal.

Other Boundary Amendments.

(1)

A proposal to amend or revise the boundary of a certified heritage area to either remove property from the heritage area or to add or include within the heritage area property that the approved management plan contemplates for inclusion shall be:

(a)

Approved by the heritage area management entity;

(b)

Approved by resolution, ordinance, or other appropriate authorization issued by the governing body of each local jurisdictions with land area located within the property proposed to be added to or removed from the certified heritage area; and

(c)

Jointly submitted in writing to the Authority by the heritage area management entity and each such local jurisdiction, which submission shall include a geographic information system file of the revised boundary.

(2)

Within 90 days of receiving a proposal made under this section, the Authority shall:

(a)

Determine whether the proposal would adequately carry out the purposes of the Act;

(b)

Approve, approve with modifications, or disapprove the proposal; and

(c)

Send written notice to the heritage area management entity and each local jurisdiction with land area located within the property proposed to be added to or removed from the certified heritage area of the action taken by the Authority on the proposal.

Effective Date of Revisions.

(1)

A revision to an approved management plan approved by the Authority under either §B or C of this regulation is effective upon approval of the revision by the Authority.

(2)

A boundary amendment or revision approved by the Authority under either §C or D this regulation is effective upon publication by the Authority in the Maryland Register of the Uniform Resource Locator (URL) to a geographic information system file for the revised boundary.

(3)

A boundary amendment or revision approved by the Authority under this regulation shall be posted on the website of the Maryland Historical Trust in the form of a Uniform Resource Locator (URL) to the geographic information system file, a copy of which shall be sent electronically to the office of the county clerk of the county or counties in which the certified heritage area is located.

Regulation .06 Changes to Certified Heritage Area Designations.Link Copy Citation

The Authority may take action specified in §C of this regulation if the Authority finds that a local jurisdiction with land area located within a certified heritage area has:

(1)

Either acted or failed to act in a manner that has had a substantial adverse impact upon a significant natural, recreational, cultural, or historic resource located within the heritage area; or

(2)

Failed to effectively implement its role under the management plan.

Before taking action under §C of this regulation, the Authority shall:

(1)

Provide written notice to the local jurisdiction that:

(a)

Includes the Authority’s findings under §A of this regulation;

(b)

Informs the local jurisdiction of the actions the Authority might take under §C of this regulation;

(c)

Includes corrective instructions, recommendations, or suggestions as appropriate; and

(d)

Is sent by copy to the heritage area management entity and each other local jurisdiction with land area located within the certified heritage area;

(2)

Provide the local jurisdiction 60 days to respond in writing to the Authority’s notice; and

(3)

Either uphold, modify, or rescind the findings.

Upon a finding against a local jurisdiction under §A of this regulation that the Authority either upholds or modifies under §B of this regulation, the Authority may:

(1)

Remove from the certified heritage area the land area of the local jurisdiction that is the subject of the finding; or

(2)

After holding a public hearing in the certified heritage area, withdraw the Authority’s approval of the management plan for the certified heritage area.

If, under §C(1) of this regulation, the Authority removes a local jurisdiction from a certified heritage area, the Authority shall:

(1)

Provide written notice of the removal to the heritage area management entity and each local jurisdiction with land area located within the heritage area; and

(2)

Direct the remaining local jurisdictions in the certified heritage area to amend the management plan in accordance with Regulation .05D of this chapter to reflect the revised boundaries of the certified heritage area resulting from the removal.

If, under §C(2) of this regulation, the Authority withdraws approval of a management plan for a certified heritage area:

(1)

The heritage area will no longer be designated as a certified heritage area;

(2)

The heritage area will return to being designated as a recognized heritage area; and

(3)

The Authority shall:

(a)

Report the withdrawal of its approval of the management plan to the Governor and the General Assembly and include in the report a statement of the reasons for withdrawal; and

(b)

Provide written notice of the withdrawal of approval to the heritage area management entity and each local jurisdiction with land area located within the heritage area.

Regulation .07 Removal of a Heritage Area Management Entity.Link Copy Citation

The Authority may remove an entity from its role as the heritage area management entity for a certified heritage area if the Authority finds that the entity has:

(1)

Either acted or failed to act in a manner that has had a substantial adverse impact upon a significant natural, recreational, cultural, or historic resource located within the heritage area;

(2)

Failed to effectively implement the management plan for the heritage area; or

(3)

In any way misused, mismanaged, or misappropriated funds received from the Authority.

Before taking action under §A of this regulation, the Authority shall:

(1)

Provided written notice to the heritage area management entity and to each local jurisdiction with land area located within the certified heritage area that:

(a)

Includes the Authority’s findings under §A of this regulation;

(b)

Informs of the actions the Authority might take under §A of this regulation; and

(c)

Includes corrective instructions, recommendations, or suggestions as appropriate;

(2)

Provide the heritage area management entity 60 days to respond in writing to the Authority’s notice; and

(3)

Either uphold, modify, or rescind the findings.

If, under §A of this regulation, the Authority removes an entity from its role as the heritage area management entity for a certified heritage area, the Authority shall:

(1)

Provide written notice to the entity and each local jurisdiction with land area located within the certified heritage area of the removal; and

(2)

Discontinue for all purposes under this subtitle the Authority’s recognition of the entity as the heritage area management entity for the certified heritage area.

Within 90 days of receiving notice of a removal under §C(1) of this regulation or of a disapproval under §E(2) of this regulation, the local jurisdictions with land area located within the certified heritage area shall:

(1)

Agree upon a new entity to serve as the heritage area management entity; and

(2)

Send to the Authority:

(a)

The identity of the new entity and its organizational structure;

(b)

Information sufficient for the Authority to assess the capability and capacity of the new entity to serve as the heritage area management entity, including its relations with agencies of State and local government; and

(c)

A resolution, ordinance, or other appropriate authorization issued by the governing body of each local jurisdiction establishing the local jurisdiction’s support for the new entity to serve as the heritage area management entity.

Within 90 days of receiving the information required under §D(2) of this regulation, the Authority shall:

(1)

Either approve or disapprove of the new entity as the heritage area management entity; and

(2)

Provide written notice to the local jurisdictions of the Authority’s approval or disapproval.

The Authority may withdraw its approval of a management plan for a certified heritage area as provided for in Regulation .06 of this chapter if:

(1)

Upon removal by the Authority of a heritage area management entity, the local jurisdictions with land area located within a certified heritage area fail to comply with §D of this regulation; or

(2)

The Authority disapproves of a new entity under §E of this regulation.

Regulation .08 Program Administration.Link Copy Citation

The Authority may adopt written policies or guidelines related to or governing the criteria for and administration of the procedures for designating certified heritage areas and shall post any such adopted policies or guidelines on the website hosted by the Maryland Historical Trust.

A determination of the Authority made under Regulations .04, .05, .06, or .07 of this chapter is not a contested case within the meaning of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Regulation .09 Waiver.Link Copy Citation

Regulation .10 False Statements.Link Copy Citation

A person who knowingly makes or causes to be made a false statement submitted or made to the Authority in connection with a proposal for designation of a certified heritage area is subject to any penalties authorized by law.

Subtitle 29 — Maryland Heritage Areas Authority

Chapter 03. Maryland Heritage Areas Grant Program

Regulation .01 General.Link Copy Citation

This chapter sets forth the policies, procedures, and authorizations for administering the Maryland Heritage Areas Grant Program, established within the Maryland Heritage Areas Authority, which provides grants from the Maryland Heritage Areas Authority Financing Fund.

The objective of the Grant Program is to provide a source of funding, including grants to local jurisdictions and other appropriate entities, to develop management plans for recognized heritage areas, assist the operations of heritage area management entities, and undertake capital and non-capital projects that will assist and encourage preservation, tourism, and other economic development within certified heritage areas.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means Financial Institutions Article, §§13-1101—13-1124, Annotated Code of Maryland.

(2)

“Authority” means the Maryland Heritage Areas Authority established by the Act.

(3)

“Capital project” means a project to acquire, develop, preserve, rehabilitate, or restore either real property or tangible personal property that has a useful life of at least 15 years.

(4)

“Certified heritage area” means a recognized heritage area that has been designated a certified heritage area in accordance with the Act and Chapter .02 of this subtitle.

(5)

“Fund” means the Maryland Heritage Areas Authority Financing Fund established by the Act.

(6)

“Grant” means an award of financial assistance from the Fund.

(7)

“Grant Program” means the Maryland Heritage Areas Grant Program of the Authority established by this chapter as authorized under the Act.

(8)

“Grantee” means the recipient of a grant.

(9)

“Heritage area” means a contiguous or noncontiguous developed geographic area of public and private uses that:

(a)

Can range in size from as small as a portion of a county or municipal corporation or as large as a regional area;

(b)

Has a coherent and cohesive special character;

(c)

(d)

May include traditional parks and historic places or property.

(10)

(11)

(12)

(13)

“Noncapital project” means a project that is not a capital project and involves:

(a)

The development or presentation of interpretive exhibits, materials, or other products intended to further the educational or recreational objectives of a certified heritage area; or

(b)

Planning, design, interpretation, marketing, or programming activities intended to encourage revitalization of, or reinvestment in, a certified heritage area or its resources.

(14)

“Nonprofit organization” means a corporation, foundation, governmental entity, or other legal entity, no part of the net earnings of which inures to the benefit of a private shareholder or individual holding an interest in the entity.

(15)

“Recognized heritage area” means a heritage area designated a recognized heritage area in accordance with the Act and COMAR 14.29.01.

(16)

“Trust” means the Maryland Historical Trust established under State Finance and Procurement Article, §5A-310, Annotated Code of Maryland.

Regulation .03 Eligible Grantees and Eligible Activities.Link Copy Citation

An entity is eligible for a grant under the Grant Program if:

(1)

The entity is a:

(a)

Local jurisdiction;

(b)

Agency or unit of Maryland State Government;

(c)

Agency or unit of the federal government; or

(d)

Nonprofit organization that:

(i)

Is in good standing and qualified to do business in Maryland; and

(ii)

Has the legal capacity and all necessary legal authority to be obligated by the grant; and

(2)

For a grant for a noncapital project or a capital project, the entity is authorized to apply for the grant by the heritage area management entity for the certified heritage area that will benefit from the grant.

The Authority may provide a grant to an entity eligible under §A of this regulation if the grant is for purposes of funding:

(1)

Development of a management plan;

(2)

The operations and management of a heritage area management entity;

(3)

A noncapital project that:

(a)

Will be undertaken within a certified heritage area; and

(b)

Will further or complete an activity that is:

(i)

Identified in the management plan for the certified heritage area; or

(ii)

Consistent with goals, objectives, strategies, or actions outlined in the management plan or other planning document applicable to or utilized by the certified heritage area;

(4)

Marketing of a heritage area by either:

(a)

The heritage area management entity; or

(b)

The tourism office or agency for a local jurisdiction located within the heritage area;

(5)

A block grant to a heritage area management entity that the entity will exclusively use to fund subgrants for noncapital projects in accordance with policies implemented by the Authority;

(6)

A capital project that:

(a)

Will be undertaken within a certified heritage area; and

(b)

Will further or complete an activity that is:

(i)

Identified in the management plan for the certified heritage area; or

(ii)

Consistent with goals, objectives, strategies, or actions outlined in the management plan or other planning document applicable to or utilized by the certified heritage area; or

(7)

Other activities as may be approved by the Authority.

Regulation .04 Grant Application Procedures.Link Copy Citation

For any year during which money is available in the Fund to make grants from the Grant Program, the Authority shall:

(1)

Establish grant application procedures;

(2)

Establish selection criteria that the Authority will utilize when awarding grants;

(3)

Establish grant application deadlines;

(4)

Establish minimum and maximum amounts for awards of individual grants; and

(5)

Publish on the Trust’s website the grant application procedures, selection criteria, grant application deadline, and minimum and maximum award amounts.

An application for a grant shall be made on forms prescribed by the Authority and posted on the Trust’s website.

A grant application shall include information and documentation that:

(1)

Establishes that the applicant is an eligible grantee as provided in Regulation .03A of this chapter evidenced by copies of the applicant’s organizational documents, including as applicable its articles of incorporation and bylaws, its articles of organization and operating agreement, its certificate of limited partnership and limited partnership agreement, or its partnership or joint venture agreement;

(2)

Describes in detail the proposed activity;

(3)

Identifies the estimated or actual cost of the proposed activity evidenced by contractor bids, proposals, or other good faith estimates;

(4)

Identifies in a proposed budget all proposed sources and uses of funding for the activity;

(5)

Establishes the applicant’s capability and readiness to initiate and undertake the activity and to complete the activity within an established time frame;

(6)

Establishes the applicant’s financial capacity to pay for costs of the proposed activity that will not be funded by the grant;

(7)

Identifies the sources, forms, and amounts for the matching contribution required under Regulation .06B of this chapter;

(8)

Details the applicant’s administrative capabilities, including the applicant’s capacity to manage the proposed activity; and

(9)

May otherwise be required by the Authority as specified in the grant application form.

Regulation .05 Grant Application Review and Approval.Link Copy Citation

For each grant application submitted prior to the grant application deadline established by the Authority under Regulation .04A of this chapter, Authority staff shall review the application and determine if:

(1)

The applicant is an eligible grantee under Regulation .03A of this chapter; and

(2)

The activity for which the applicant seeks grant funding is an eligible activity under Regulation .03B of this chapter.

For each application that Authority staff determined under §A of this regulation that either the grantee or the project is ineligible for a grant, the Authority shall promptly send written notice of such determination to the grant applicant.

For each grant application that Authority staff determines under §A of this regulation is eligible for a grant, staff shall:

(1)

Evaluate and rank the application competitively with all other eligible applications in accordance with the selection criteria established by the Authority under Regulation .04A of this chapter;

(2)

Make a funding recommendation based upon the evaluation and ranking; and

(3)

Forward the funding recommendation to the Authority.

After receipt of Authority staff’s recommendations made under §C of this regulation, the Authority shall:

(1)

Review and consider staff’s recommendations;

(2)

Approve or disapprove each grant application; and

(3)

For each grant application approved, authorize an amount of funding for the grant:

(a)

That is within the limitations established under Regulation .06 of this chapter; and

(b)

Which may be an amount less than the amount requested by the applicant.

Authority staff shall promptly notify each grant applicant of the action taken by the Authority under §D of this regulation.

A decision by the Authority made under this regulation on an application for a grant is final and is not a contested case within the meaning of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Regulation .06 Grant Limitations, Terms, and Conditions.Link Copy Citation

Limitations. The amount of a grant may not:

(1)

Exceed 50 percent of the total cost of the proposed activity, as evidenced by contractor bids, proposals, or other good faith estimates or budgets provided by the applicant; or

(2)

Fall outside the minimum or maximum grant amounts established by the Authority.

Matching Requirements. A grantee shall make a matching contribution to an activity funded by a grant:

(1)

In an amount not less than the amount of the grant;

(2)

That consists of either cash, an equivalent dollar value of in-kind contributions, or a combination thereof; and

(3)

That is from sources and is in substance, form, and amount acceptable to the Authority.

Grant Agreement.

(1)

No funds shall be disbursed from the Fund to a grantee unless the grantee has first executed a grant agreement in form and substance acceptable to the Authority.

(2)

A grant agreement shall establish all terms and conditions of the grant, including:

(a)

The amount of the grant;

(b)

The matching contribution requirements;

(c)

A scope of work for the activity funded by the grant;

(d)

A budget for the activity funded by the grant;

(e)

A grant disbursement schedule;

(f)

Special conditions on grant disbursement as may be required by the Authority;

(g)

A project timeline and deadlines for expenditures of grant funds;

(h)

Insurance requirements, as may be applicable;

(i)

Historic preservation requirements, as may be applicable;

(j)

Reporting requirements;

(k)

Defaults and remedies; and

(l)

Other terms and conditions as may be required by the Authority.

(3)

For a capital project funded by a grant that will affect property that is listed or eligible for listing on the Maryland Register of Historic Properties, the grant agreement shall provide that:

(a)

The plans and specifications for the project must be reviewed and approved by the Trust prior to the grantee undertaking any work specified in the grant agreement;

(b)

All aspects of the project must conform to historic preservation standards established or applied by the Trust, including, but not limited to, the Secretary of the Interior’s Standards for Treatment of Historic Properties;

(c)

The grantee must permit staff from the Trust to inspect ongoing construction to ensure that the grantee is undertaking the project in conformance with the applicable historic preservations standards and requirements; and

(d)

If required by the Trust, the grantee shall:

(i)

Convey or cause to be conveyed to the Trust for recording in the applicable land records a deed of easement, in form, substance, and duration satisfactory to the Director of the Trust, for preservation of the historic real property and the improvements and the settings thereon affected by the project; or

(ii)

Enter into an agreement with the Trust, or cause an agreement with the Trust, that obligates preservation and maintenance of the historic property affected by the project, in form, substance, and duration satisfactory to the Director of the Trust.

Regulation .07 Grant Administration.Link Copy Citation

Books, Accounts, and Records.

(1)

A grantee shall maintain those books, accounts, and records related to a grant or an activity funded by a grant that the Authority from time to time may require, and shall cause the grantee’s contractors and subcontractors to do the same.

(2)

A grantee shall file with the Authority financial and other reports as the Authority may from time to time require.

(3)

Books, accounts, and records required to be maintain under this section shall be:

(a)

Open for inspection by representatives of the Authority or the State during reasonable working hours, before, during, or after the period of time during which the grant proceeds are expended; and

(b)

Maintained and made available for inspection for 3 years after either the date of grantee’s final expenditure of grant proceeds or the termination of the contractual relationship between the Authority and the grantee, whichever is later.

(4)

A grantee shall, upon request of the Authority or the State, make the grantee’s administrative offices and personnel, whether full-time, part-time, consultants, or volunteers, available to discuss or address matters concerning administration of a grant or of an activity funded by a grant.

Inspections. The Authority may conduct periodic inspections during the undertaking of an activity funded by a grant to assure that the activity is progressing in accordance with all terms and conditions of the grant agreement or other requirements of the Authority.

Reports. A grantee shall submit a final report, and interim reports as may be required by the Authority, that documents progress and evaluates effectiveness of the activity funded by a grant.

Nondiscrimination.

(1)

A grantee may not discriminate on the basis of age (except with respect to residents in elderly projects), race, color, religion, national origin, sex, marital status, or physical or mental handicap in any aspect of an activity financed or assisted under the Grant Program or in any aspect of employment by either a grantee or a contractor for the activity.

(2)

A grantee shall comply with all applicable federal, State, and local laws, and Authority policies and programs, regarding discrimination and equal opportunity in employment, housing, and credit practices, including:

(a)

Titles VI and VII of the Civil Rights Act of 1964, as amended;

(b)

Title VIII of the Civil Rights Act of 1968, as amended;

(c)

The Governor's Code of Fair Practices, as amended; and

(d)

The Authority’s Minority Business Enterprise Program, as amended, if the grantee does not have a minority business participation program which is acceptable to the Authority.

Regulation .08 Grant Program Administration.Link Copy Citation

Except for waivers under Regulation .09 of this chapter, any action or decision required or permitted to be taken or made by the Authority under this chapter may be taken or made by the Authority’s designee.

The Authority may terminate a grant or refuse to make additional disbursements under a grant agreement if the Authority finds that the grantee is not in compliance with a requirement of the Grant Program or a term of the grant agreement.

The Authority may adopt written policies or guidelines related to administration of the Grant Program and shall post any such adopted policies or guidelines on the Trust’s website.

Regulation .09 Waiver.Link Copy Citation

Regulation .10 False Statements.Link Copy Citation

A person who knowingly makes or causes to be made a false statement submitted or made to the Authority in connection with an application for a grant or affecting an existing grant is subject to any penalties authorized by law.

Subtitle 29 — Maryland Heritage Areas Authority

Chapter 04. Maryland Heritage Areas Loan Program

Regulation .01 General.Link Copy Citation

This chapter sets forth the policies, procedures, and authorizations for administering the Maryland Heritage Areas Loan Program, established within the Maryland Heritage Area Authority, which provides loans from the Maryland Heritage Areas Authority Financing Fund.

The objective of the Loan Program is to provide a source of funding, including loans to local jurisdictions or other appropriate entities, to undertake projects that will assist and encourage preservation, tourism, and other economic development within certified heritage areas.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means Financial Institutions Article, §§13-1101—13-1124, Annotated Code of Maryland.

(2)

“Authority” means the Maryland Heritage Areas Authority established by the Act.

(3)

“Borrower” means the recipient of a loan.

(4)

“Business entity” means a corporation, limited liability company, association, partnership, joint venture, or other legally organized entity.

(5)

“Capital project” means a project to acquire, develop, preserve, rehabilitate, or restore either real property or tangible personal property that has a useful life of at least 15 years.

(6)

“Certified heritage area” means a recognized heritage area that has been designated a certified heritage area in accordance with the Act and COMAR 14.29.02.

(7)

“Fund” means the Maryland Heritage Areas Authority Financing Fund established by the Act.

(8)

“Heritage area” means a contiguous or noncontiguous developed geographic area of public and private uses that:

(a)

Can range in size from as small as a portion of a county or municipal corporation to as large as a regional area;

(b)

Has a coherent and cohesive special character;

(c)

(d)

May include traditional parks and historic places or property.

(9)

(10)

(11)

“Loan” means a loan made from the Fund.

(12)

“Loan documents” means the promissory note, loan agreement, security instruments and other documents between a borrower and the Authority which evidence the terms and conditions of a loan.

(13)

“Loan Program” means the Maryland Heritage Areas Loan Program of the Authority established by this chapter as authorized under the Act.

(14)

(15)

“Nonprofit organization” means a corporation, foundation, governmental entity, or other legal entity, no part of the net earnings of which inure to the benefit of a private shareholder or individual holding an interest in the entity.

(16)

“Trust” means the Maryland Historical Trust established under State Finance and Procurement Article, §5A-310, Annotated Code of Maryland.

Regulation .03 Eligible Borrowers and Eligible Activities.Link Copy Citation

An entity is eligible to receive a loan under the Program if the entity:

(1)

Is a:

(a)

Local jurisdiction;

(b)

Nonprofit organization or a business entity that:

(i)

Is in good standing and qualified to do business in Maryland; and

(ii)

Has the legal capacity and all necessary legal authority to be obligated by the loan; or

(c)

An individual who has the legal capacity and all necessary legal authority to be obligated by the loan; and

(2)

Is authorized to apply for the loan by the heritage area management entity for the certified heritage area that will benefit from the loan.

The Authority may provide a loan to an entity eligible under §A of this regulation if the loan is for purposes of funding:

(1)

An activity that will:

(a)

Be undertaken within a certified heritage area; and

(b)

Further or complete an activity identified in the management plan for the certified heritage area; and

(2)

Is:

(a)

A capital project;

(b)

The purchase of capital equipment, furnishings, or inventory; or

(c)

Working capital to be used in conjunction with a capital project.

For an activity that involves improvement to leasehold property, the remaining term of the lease at the time the loan is made must not be less than the term of the loan.

Regulation .04 Loan Application Procedures.Link Copy Citation

An entity eligible to receive a loan under Regulation .03A of this chapter may apply to the Authority for a loan to fund an activity eligible under Regulation .03B of this chapter.

For reasons or circumstances determined appropriate or necessary by the Authority, the Authority may at its discretion:

(1)

Establish deadlines for acceptance of loan applications;

(2)

Refuse to accept loan applications; and

(3)

For a loan application accepted by the Authority:

(a)

Hold the Authority’s consideration of the application in abeyance; or

(b)

Decide not to consider the loan application.

Application. A loan application shall:

(1)

Be made on forms prescribed by the Authority;

(2)

Establish that the applicant is an eligible borrower as provided in Regulation .03A of this chapter evidenced by copies of its organizational documents, including as applicable its articles of incorporation and bylaws, its articles of organization and operating agreement, its certificate of limited partnership and limited partnership agreement, or its partnership or joint venture agreement, and evidence of being in good standing and qualified to do business in the State;

(3)

Describe in detail the proposed activity;

(4)

Identify the estimated or actual cost of the proposed activity evidenced by contractor bids, proposals, or other good faith estimates;

(5)

Identify in a proposed budget all proposed sources and uses of funding for the activity;

(6)

Establish the applicant’s capability and readiness to initiate and undertake the activity and to complete the activity within an established time frame;

(7)

Identify the property that will benefit from or be assisted by the loan;

(8)

Identify the ownership of the property and any lessees of the property;

(9)

Include information sufficient for the Authority to evaluate:

(a)

The activity’s consistency with the goals of the management plan;

(b)

The historical or cultural significance of the property;

(c)

The current and proposed conditions and uses of the property;

(d)

The extent to which the activity will impact use of the property;

(e)

The applicant’s ability to repay the loan, including identification of sources of revenue that will be used to repay the loan;

(f)

If the activity involves a leasehold property, that the activity is authorized under the lease and the remaining lease term is equal to the proposed term of the loan; and

(g)

If the activity involves acquisition of property, that the applicant has the authority to purchase the property under a valid purchase option agreement, purchase and sale agreement, or other evidence satisfactory to the Authority; and

(10)

Include other information as may be required by the Authority.

Application Fee. The Authority may require a loan applicant to pay an application fee to cover some portion of the cost of processing the application and the loan.

Loan Application Review and Processing.

(1)

After receipt of an application for a loan that the Authority has accepted and will consider for potential funding, staff of the Authority:

(a)

Will conduct an initial assessment for the completeness of the information required under §C of this regulation;

(b)

May conduct an inspection of the property for any assessment purpose related to the review and processing of the application; and

(c)

Shall notify the applicant in writing of any missing information required under §C of this regulation or of other requirements that the applicant must satisfy in order for the application to be complete.

(2)

The Authority shall not consider for approval a loan application for which the applicant has not satisfied all requirements.

Withdrawal of Application.

(1)

An applicant may withdraw an application for a loan at any time before closing of the loan by sending written notice to the Authority.

(2)

An applicant who withdraws an application shall be responsible for all costs, other than the Authority’s internal processing costs, incurred by the Authority to process the application, including, but not limited to, costs to obtain credit reports or appraisals.

Regulation .05 Loan Application Evaluation and Approval.Link Copy Citation

The Authority shall review and evaluate a completed loan application accepted under Regulation .04 of this chapter in accordance with selection criteria established by the Authority, which criteria may include:

(1)

The viability of the activity for which the loan is sought;

(2)

The applicant’s readiness to commence the activity and complete it within an established time frame;

(3)

The level of urgency of the applicant’s need for a loan to complete the activity;

(4)

The activity’s consistency with the goals of the management plan;

(5)

The extent to which the activity will have a positive impact on the certified heritage area;

(6)

The extent to which the activity, once completed, might serve as a model for other projects within certified heritage areas;

(7)

The applicant’s administrative capability, including the applicant’s capacity to manage the activity;

(8)

The applicant’s ability to repay the loan;

(9)

The availability of private or non-State funds for the activity; and

(10)

Such additional criteria as the Authority considers appropriate.

Following review and evaluation under §A of this regulation, the Authority shall:

(1)

Either approve, approve with modification, or disapprove the loan;

(2)

If approved, determine a level of funding for the loan, which may be in an amount less than the amount applied for by the applicant; and

(3)

Notify the applicant in writing of the action taken by the Authority on the application.

For a loan approved under §B of this regulation, the Authority may issue to the applicant a commitment letter for the loan that sets forth:

(1)

The amount of the loan;

(2)

Terms and conditions under which the loan will be made, which shall at a minimum include the terms and conditions set forth in Regulation .06 of this chapter; and

(3)

A time limit within which execution of loan documents shall occur before the Authority will withdraw its commitment, which time limit the Authority may extend at its sole discretion.

A decision of the Authority to approve or disapprove a loan is not a contested case within the meaning of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Loan closing shall be scheduled at a time and place acceptable to the applicant, Authority staff, and the Office of the Attorney General.

Regulation .06 Loan Terms and Conditions.Link Copy Citation

General Requirements. A loan shall, as necessary and required by the Authority, include terms and conditions consistent with this section.

(1)

Maximum Loan Amount. A loan may be in an amount not to exceed an 80 percent loan to value ratio based on the appraised value of the property assisted by the loan, or other property offered as collateral for the loan, less any preexisting indebtedness secured by a lien on the assisted property or the collateral property.

(2)

Interest Rate. The rate of interest charged by the Authority against the loan:

(a)

Shall be, as established from time to time by the Authority, consistent with applicable federal regulations governing State borrowing; and

(b)

May be either lower or higher than rates charged for other loans made by the Authority.

(3)

Insurance. The borrower shall cause the property assisted by the loan or securing the loan to be insured against loss or damage by fire and other hazards, casualties, and contingencies as may be required from time to time by the Authority in amounts satisfactory to the Authority, as described in §B of this regulation.

(4)

Term. The loan shall have a term established by the Authority that is based upon the use and amount of the loan.

(5)

Repayment.

(a)

Except as otherwise provided in §A(5)(b) of this regulation, a single monthly payment shall be charged, which shall be applied first to late charges, then the Authority’s enforcement and collection expenses, if applicable, then to interest, and then to principal, in that order.

(b)

At the discretion of the Authority, repayments of either principal or interest, or of both principal and interest, may be deferred, subject to the following additional requirements:

(i)

The loan term may provide for deferred payments of either principal or interest, or of both principal and interest.

(ii)

The deferred terms shall provide for repayment of deferred amounts at the loan maturity date, any earlier date established by the Authority, or upon any sale or other transfer of the property securing the loan.

(c)

The Authority may charge interest on deferred interest payments.

(6)

Late Charge. Late charges may be imposed by the Authority, as permitted by law.

(7)

Security. The loan shall be secured, at the discretion of the Authority, by collateral acceptable to the Authority, which may include:

(a)

Cash escrow;

(b)

A letter of credit;

(c)

A pledge of depository accounts;

(d)

A pledge of accounts receivable;

(e)

An assignment of income;

(f)

A security interest in machinery and equipment;

(g)

A mortgage or deed of trust on the real property assisted by the loan;

(h)

A mortgage or deed of trust on other real property satisfactory to the Authority;

(i)

Guarantees of repayment from guarantors acceptable to the Authority; or

(j)

Any other form of security or collateral acceptable to the Authority.

(8)

Plans and Specifications. The plans and specifications for a capital project funded by a loan shall be subject to prior review and approval by Authority staff and shall conform to applicable acquisition, construction, rehabilitation, and restoration requirements established or applied by the Authority.

(9)

Disbursement. Disbursement of loan funds shall be made as the activity progresses based upon requests for disbursement submitted by the borrower in a form satisfactory to the Authority.

(10)

Modification of Loan. In order to facilitate the successful completion or operation of an activity funded by a loan, the Authority may modify:

(a)

The rate of interest on the loan;

(b)

The time or amount of payment of principal or interest, or both principal and interest;

(c)

The maturity date of the loan; or

(d)

Any other term of a loan.

(11)

Loan Default. In the event of default under the loan documents, the Authority may:

(a)

Modify the rate of interest;

(b)

Modify the time or amount of payment of principal, interest, or both principal and interest;

(c)

Modify the maturity date of the loan;

(d)

Modify the loan in any other manner that promotes repayment of the loan and achieves the purposes of the Loan Program; and

(e)

Exercise all remedies provided by law and at equity, or available pursuant to the loan documents, including acceleration of payment of the entire principal and interest due on the loan, foreclosure, receivership, attachment, and repossession of property and collateral securing the loan.

(12)

If the Authority obtains title to property by taking action under §A(11)(e) of this regulation, the Authority shall obtain approval from the Board of Public Works prior to further conveyance of title to the property.

(13)

Prepayment Penalty. The Authority may not charge a prepayment penalty.

(14)

Historic Property. If an activity funded by a loan will impact property that is listed or eligible for listing on the Maryland Register of Historic Properties, the loan agreement shall provide that:

(a)

The plans and specifications for the project must be reviewed and approved by the Trust prior to the borrower undertaking any work on the property;

(b)

(c)

The borrower must permit staff from the Trust to inspect ongoing construction to ensure that the borrower is undertaking the project in conformance with the applicable historic preservations standards and requirements; and

(d)

If required by the Trust, the borrower shall:

(i)

(ii)

Enter into a preservation agreement with the Trust, or cause an agreement with the Trust, that obligates preservation and maintenance of the historic property affected by the project, in form, substance, and duration satisfactory to the Director.

(15)

Other Requirements. The Authority may establish other terms and conditions in the loan documents as considered reasonable and necessary by the Authority.

Real Property Requirements. The following requirements apply when a loan is secured by real property.

(1)

Mortgage or Deed of Trust.

(a)

A mortgage or deed of trust on real property securing the loan shall be recorded in the land records of the local jurisdiction in which the real property is situated.

(b)

The mortgage or deed of trust may be subordinate to other recorded mortgage liens, at the Authority’s discretion, provided that the Authority and the other mortgagee or mortgagees give any required consents and the loan to value ratio of the property being subordinated complies with the requirements of §B(4)(b) of this regulation.

(2)

Property, Liability, and Other Insurance.

(a)

The borrower shall provide evidence that the borrower, the property owner if borrower is not the property owner, and contractors, have obtained and will continue to maintain the following insurance coverages, as applicable:

(i)

Owner’s commercial general liability;

(ii)

Owner’s property or hazard on the property securing the loan, in an amount not less than the loan plus all other debt secured by a lien on the property;

(iii)

Builder’s risk during construction only;

(iv)

Contractor’s general liability; and

(v)

Flood insurance, if required by the Authority.

(b)

All insurance required under this section shall:

(i)

Be written by a company registered with the Maryland Insurance Administration, or a company approved by the Authority in the event the property securing the loan or insurance company are located out-of-State;

(ii)

Be in force at or before the time of loan closing;

(iii)

Not be terminable without prior notification to the Authority; and

(iv)

Contain such other terms and coverage satisfactory to the Authority.

(c)

Owner’s commercial general liability insurance shall:

(i)

Name the Authority as an additional insured; and

(ii)

Remain in force until full repayment of the loan.

(d)

Contractor’s general liability insurance shall:

(i)

Name the Authority as an additional insured; and

(ii)

Remain in place through completion of the project, or such later date as the Authority may require.

(e)

Owner’s property or hazard insurance and builder’s risk insurance shall:

(i)

Name the Authority as an additional insured, loss payee, and mortgagee; and

(ii)

Remain in force until full repayment of the loan.

(3)

Title Insurance.

(a)

For loans in amounts of $15,000 or greater, the Authority may require the borrower to provide a standard American Land Title Association Loan Policy — 2006, as amended, which policy shall:

(i)

Be issued by a title insurance company acceptable to the Authority;

(ii)

Be issued in an amount not less than the maximum principal amount of the loan;

(iii)

Insure the Authority as additional insured, mortgagee, and loss payee;

(iv)

Evidence that fee simple interest in the real property securing the loan is, as of the date of closing, vested in the borrower;

(v)

Contain only exceptions and encumbrances approved by the Authority; and

(vi)

Not include exceptions for survey matters, general or blanket exceptions, materialman’s liens or for taxes or assessments that are due and payable as of the date of closing.

(b)

For loans in amounts up to $15,000, the Authority may require the borrower to provide an attorney’s certificate of title or other evidence of title acceptable to the Authority, which;

(i)

Establishes that fee simple interest in the real property securing the loan is, as of the date of closing, vested in the borrower;

(ii)

May contain only exceptions and encumbrances approved by the Authority; and

(iii)

May not include exceptions for survey matters, general or blanket exceptions or materialman’s liens or for taxes or assessments that are due and payable as of the date of closing.

(4)

Appraisals. The Authority may require:

(a)

An appraisal of the real property assisted by the loan that establishes the property’s value after completion of the project; or

(b)

An appraisal of other real property that secures the loan that established that the property has sufficient value, taking into account all senior debt secured by a lien on the property, to secure the loan at an 80 percent loan to value ratio.

Regulation .07 Loan Administration.Link Copy Citation

Books and Records.

(1)

A borrower shall maintain the books, accounts, and records related to a loan or the activity funded by a loan that the Authority from time to time may require, and shall cause the borrower’s contractors and subcontractors to do the same.

(2)

A borrower shall file with the Authority financial and other reports as the Authority may from time to time require.

(3)

Books, accounts, and records required to be maintained under this section shall be:

(a)

Open for inspection by representatives of the Authority or the State during reasonable working hours before, during, or after repayment of the loan; and

(b)

Maintained and made available for inspection for up to 3 years after either the date of the borrower’s repayment of the loan or the termination of the contractual relationship between the Authority and the borrower, whichever is later.

(4)

A borrower shall, upon request of the Authority or the State, make the borrower’s administrative offices and personnel, whether full-time, part-time, consultants, or volunteers, available to discuss or address matters concerning administration of the loan or of the activity funded by a loan.

Inspections. The Authority may conduct periodic inspections during the undertaking of an activity funded by a loan to assure that the activity is progressing in accordance with all terms and conditions of the loan documents or other requirements of the Authority.

Reports. A borrower shall submit a final report, and interim reports as may be required by the Authority, that document progress and evaluate effectiveness of the activity funded by a loan.

Nondiscrimination.

(1)

A borrower may not discriminate on the basis of age (except with respect to residents in elderly projects), race, color, religion, national origin, sex, sexual orientation, marital status, or physical or mental handicap in any aspect of the project financed under the Program, or in any aspect of employment by any borrower, or contractor for any project financed under the Program.

(2)

A borrower shall comply with all applicable federal, State, and local laws and Authority policies and programs regarding discrimination and equal opportunity in employment, housing, and credit practices including:

(a)

Titles VI and VII of the Civil Rights Act of 1964, as amended;

(b)

Title VIII of the Civil Rights Act of 1968, as amended;

(c)

The Governor’s Code of Fair Practices, as amended; and

(d)

The Authority's Minority Business Enterprise Program, as amended, if the borrower does not have a minority business participation program which is acceptable to the Authority.

Regulation .08 Loan Program Administration.Link Copy Citation

The Authority may terminate a loan or refuse to make additional disbursements of a loan if the Authority finds that the borrower is not in compliance with a requirement of the Loan Program or any term of the loan documents.

The Authority may adopt written policies or guidelines related to administration of the Loan Program and shall post any such adopted policies or guidelines on the Trust’s website.

The Authority may enter into agreements for loan servicing or other services useful to the operation of the Loan Program on terms acceptable to the Authority.

Regulation .09 Waiver.Link Copy Citation

Regulation .10 False Statements.Link Copy Citation

A person who knowingly makes or causes to be made a false statement submitted or made to the Authority in connection with an application for a loan or affecting an existing loan is subject to any penalties authorized by law.

Subtitle 29 — Maryland Heritage Areas Authority

Chapter 05. Procedures for Reviewing Complaints

Regulation .01 General.Link Copy Citation

This chapter establishes procedures for submission to the Maryland Heritage Areas Authority, and review by the Authority, of complaints made by local governments or heritage area management entities related to activities undertaken by agencies of State Government that might have an adverse effect on a heritage area resource.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means Financial Institutions Article, §§13-1101—13-1124, Annotated Code of Maryland.

(2)

“Administrator” means the Administrator of the Authority.

(3)

“Authority” means the Maryland Heritage Areas Authority established by the Act.

(4)

“Certified heritage area” means a recognized heritage area that has been designated a certified heritage area in accordance with the Act and COMAR 14.29.02.

(5)

“Heritage area management entity” means a nonprofit organization or agency of either State or local government that may be responsible for coordinating development of a management plan for a heritage area or is responsible for implementing the management plan for a heritage area.

(6)

Regulation .03 Submission of Complaints.Link Copy Citation

A local jurisdiction or a heritage area management entity may submit to the Authority a complaint concerning activities undertaken by an agency or unit of State Government if the undertaking has an adverse effect, or has the potential to have an adverse effect, upon a natural, recreational, cultural, or historic resource located within a certified heritage area that is located within the local jurisdiction or for which heritage area management entity is responsible.

A complaint shall:

(1)

Be in writing;

(2)

Be submitted to the Administrator;

(3)

Identify the certified heritage area;

(4)

Identify the agency or unit of State Government that is undertaking or has undertaken the activity and the nature of the activity;

(5)

Identify the heritage area resource that is subject to the adverse effect;

(6)

Describe the adverse effect; and

(7)

Identify any law, rule, or regulation that the agency or unit of State Government may be in violation of in undertaking the activity.

Regulation .04 Review of Complaints.Link Copy Citation

Upon receiving a complaint under Regulation .03 of this chapter, the Administrator shall:

(1)

Review the complaint;

(2)

Conduct an investigation into the allegations contained in the complaint to the extent and in a manner determined appropriate, necessary, and warranted by the Administrator;

(3)

As may be appropriate and relevant, consider:

(a)

The relative value and significance to the certified heritage area of the resource that the complaint alleges is or will be adversely affected; and

(b)

Any impacts that the activity has had or may have upon properties listed, or eligible for listing, in the Maryland Register of Historic Properties; and

(4)

Refer to the Authority for its review and consideration the complaint and the results of the Administrator’s investigation.

If, after review and consideration under §A of this regulation, the Authority finds that the activity complained of is having, or may have, an adverse effect upon a natural, recreational, cultural, or historic resource located within a certified heritage area, the Administrator shall:

(1)

Inform the agency or unit of State Government of the findings; and

(2)

To the extent justified, practicable, and warranted by the circumstances, consult and work cooperatively with the unit or agency and the complainant, as may be appropriate, to identify alternatives for the activity or methods to mitigate the adverse effect.

Review of a complaint under this regulation does not constitute a contested case within the meaning of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Subtitle 29 — Maryland Heritage Areas Authority

Chapter 06. Procedures for Resolving Disputes

Regulation .01 General.Link Copy Citation

This chapter establishes procedures for the review and resolution of disputes that arise in connection with exercise by the Maryland Heritage Areas Authority of its authority under Financial Institutions Article, Title 13, Subtitle 11, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means Financial Institutions Article, §§13-1101—13-1124, Annotated Code of Maryland.

(2)

“Administrator” means the Administrator of the Authority.

(3)

“Authority” means the Maryland Heritage Areas Authority established by the Act.

(4)

“Certified heritage area” means a recognized heritage area that has been designated a certified heritage area in accordance with the Act and COMAR 14.29.02.

(5)

Decision of the Authority.

(a)

“Decision of the Authority” means a decision, action, or exercise of statutory authority by the Authority and includes an exercise of authority by the Authority that is permitted, required, or contemplated under the Act.

(b)

“Decision of the Authority” does not include a determination by the Authority:

(i)

Under the Act or COMAR 14.29.01 regarding designation or an application for designation of a heritage area as a recognized heritage area;

(ii)

Under the Act or COMAR 14.29.02 regarding review and approval of a management plan or designation or an application for designation of a recognized heritage area as a certified heritage area;

(iii)

Under the Act or COMAR 14.29.03 related to review and approval of grant applications;

(iv)

Under the Act or COMAR 14.29.04 related to review and approval of loan applications; or

(v)

Related to enforcement of the terms of a grant, loan, or other financing.

(6)

“Petition” means a petition filed under Regulation .03 of this chapter concerning a decision of the Authority.

(7)

“Petitioner” means a person or entity that files a petition under Regulation .03 of this chapter concerning a decision of the Authority.

Regulation .03 Petition for Dispute Resolution.Link Copy Citation

A person or entity that disputes a decision of the Authority and is aggrieved by the decision may file a petition with the Authority that seeks to have the Authority resolve the dispute.

A petition submitted under this regulation shall:

(1)

Be in writing;

(2)

Be submitted to the Administrator;

(3)

Identify the decision of the Authority that the petitioner disputes;

(4)

Explain how the petitioner is aggrieved by the decision; and

(5)

Identify any law, rule, or regulation that the petitioner contends is or was violated by the decision of the Authority.

Regulation .04 Review of Petitions.Link Copy Citation

Upon receiving a petition, the Administrator shall:

(1)

Review the petition;

(2)

Review the decision of the Authority that the petitioner disputes; and

(3)

Refer to the Authority for its consideration the petition and the results of the Administrator’s review.

Within 90 days of receipt by the Administrator of a petition, the Authority shall consider the petition at meeting of the Authority during which the Authority shall:

(1)

Review the petition;

(2)

Consider the results of the Administrator’s review of the petition;

(3)

Provide the petitioner an opportunity to address the Authority and present to the Authority any additional information or evidence that is relevant to the petition; and

(4)

Make a determination to:

(a)

Alter, amend, or rescind the decision of the Authority; or

(b)

Deny the petition by affirming the decision of the Authority.

The Administrator shall promptly send written notice to the petitioner of the Authority’s determination under §B(4) of this regulation.

The Authority’s minutes for a meeting during which it considers a petition shall include:

(1)

A summary of all oral statements and discussions concerning the petition;

(2)

A copy of all documents submitted to, received by, or considered by the Authority on the petition; and

(3)

The Authority’s determination on the petition.

Regulation .05 Appeal.Link Copy Citation

A determination made by the Authority under Regulation .04B of this chapter may be appealed by the petitioner to the Office of Administrative Hearings in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

On appeal, a determination made by the Authority under Regulation .04B of this chapter may not be reversed or modified unless the petitioner establishes by a preponderance of the evidence that:

(1)

The determination was arbitrary, capricious, or contrary to law, rule, or regulation; or

(2)

The Authority failed to follow its own procedures or this chapter.

The decision of the Office of Administrative Hearings on an appeal is the final administrative decision.

Subtitle 30 — Public Employee Relations Board

Chapter 01. Definitions

Regulation .01 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Board” means the Maryland Public Employee Relations Board (PERB) established by State Government Article, §22–301, Annotated Code of Maryland.

(2)

“Business day” means Monday through Friday, excluding State holidays and any other day the State is closed for business.

(3)

“Chair” means the chair referenced in State Government Article, §22–302(a)(1), Annotated Code of Maryland.

(4)

“Deputy Director” means any appropriate Deputy Director identified in State Government Article, §22-305, Annotated Code of Maryland.

(5)

“Election period” means the period from the date an election petition is filed to the date employees can begin voting.

(6)

“Executive Director” means the individual appointed by PERB under State Government Article, §22–304, Annotated Code of Maryland.

(7)

“Negotiability dispute” means a dispute arising in good faith during the course of collective bargaining as to whether a specific issue is subject to collective bargaining.

(8)

“Presiding hearing officer” means the individual or body designated to preside over any hearing conducted under this subtitle.

(9)

“State” means the State of Maryland.

Subtitle 30 — Public Employee Relations Board

Chapter 02. Board Policy

Regulation .01 Voluntary Settlements; Adjustments.Link Copy Citation

It is Board policy to encourage the voluntary efforts of the parties to settle or adjust disputes.

Such efforts at resolution and any settlements or adjustments reached shall be consistent with the provisions, purposes, and policies of Education Article, Titles 6 and 16, Personnel and Pensions Article, Title 3, and State Government Article, Title 22, Annotated Code of Maryland.

Subtitle 30 — Public Employee Relations Board

Chapter 03. General Course and Method of Operation

Regulation .01 Receipt and Review.Link Copy Citation

The Board may assign the Executive Director to process and assign petitions and charges filed with the Board.

The Executive Director shall first screen the petition or charge to ensure that the Board has jurisdiction to hear the case.

Regulation .02 Dismissal for Lack of Jurisdiction.Link Copy Citation

Subject to the Board’s approval, the Executive Director may dismiss the case for lack of jurisdiction.

In the case of dismissal for lack of jurisdiction, the complainant shall be notified, in writing, of the Board action as well as the reason or reasons for the dismissal.

Subtitle 30 — Public Employee Relations Board

Chapter 04. Filing

Regulation .01 When Filed.Link Copy Citation

A document is filed with the Board when it is received by the Executive Director or the Executive Director’s designee via mail, email, or personal delivery.

Regulation .02 Address and Contact Information.Link Copy Citation

All filings and other communications with the Board shall be addressed to the Maryland Public Employee Relations Board.

Means of contacting the Board can be found on its website.

Subtitle 30 — Public Employee Relations Board

Chapter 05. Computation of Time Periods

Regulation .01 Time Periods.Link Copy Citation

In this subtitle, time periods refer to calendar days unless otherwise indicated.

Regulation .02 Service.Link Copy Citation

For purposes of service of any document filed before the Board, absent any evidence to the contrary, it is presumed that any document served by U.S. mail was received by the addressee 3 business days after the date the document was mailed.

A 3-day period shall be added to any time period in which service was affected by mail.

Regulation .03 Beginning and Ending of Time Periods.Link Copy Citation

A time period is computed beginning with the day after the act or event which initiates the period and concludes with the last day of the period.

A time period which would otherwise end on a weekend, State holiday, or day the State is closed for business instead ends on the following business day.

For time periods of fewer than 10 days, weekend days, State holidays, and days the State is closed for business do not count in computing the time period.

Regulation .04 Extension of Time Periods.Link Copy Citation

The Board or the Executive Director may extend a time period not prescribed by statute. This may happen:

Before the initial time period ends, without motion or notice, if good cause for the extension is shown; and

After the initial time period ends, upon written motion filed with the Executive Director, if the failure to act was the result of excusable neglect or good cause.

Subtitle 30 — Public Employee Relations Board

Chapter 06. Requests for and Inspection of Board Documents

Regulation .01 General Rules.Link Copy Citation

The public may inspect the rules, decisions, and public records of the Board upon written request filed within a reasonable time period in advance of inspection.

A prescribed format for requests for inspection may not be required.

Written requests shall be submitted to the Board at its official address.

Regulation .02 Requests for Board Documents.Link Copy Citation

A person may request in writing copies of the Board’s reports, decisions, orders, and certifications.

A request for public records of PERB shall be provided at cost.

Subtitle 30 — Public Employee Relations Board

Chapter 07. Petition for Adoption of Regulation

Regulation .01 Request for New Regulation.Link Copy Citation

An interested person may submit to the Board a petition for consideration of the adoption of a regulation.

Within 60 days after the petition is submitted, the Board shall:

(1)

In writing, deny the petition and state the reasons for the denial; or

(2)

Initiate the procedures for consideration of the regulation.

Subtitle 30 — Public Employee Relations Board

Chapter 08. Procedures Applicable to All Proceedings

Regulation .01 When a Hearing May Be Held.Link Copy Citation

The Board or its delegee shall hold a hearing when:

The Board finds there is a dispute of a material fact or facts and probable cause that an unfair labor practice has been committed;

The Board finds that there is a dispute over the appropriateness of a bargaining unit; or

There is a request to deny or revoke certification of an exclusive representative for willfully failing to comply with the State Government Article, Title 22, Annotated Code of Maryland.

Regulation .02 Representation Hearings.Link Copy Citation

The Board or its delegee may hold a hearing in representation proceedings other than bargaining unit disputes:

To establish procedures for resolving disputes about negotiability; or

In impasse proceedings.

Regulation .03 Informal Resolution with Parties.Link Copy Citation

Parties on their own may voluntarily settle any matter.

A Deputy Director may assist the parties with the settlement of an unfair labor practice case.

Regulation .04 Terms of Settlement.Link Copy Citation

Terms of any voluntarily approved settlement shall be approved by the Board.

Regulation .05 Withdrawal of Charge.Link Copy Citation

A party may withdraw a charge prior to the issuance of a complaint by providing notice to the appropriate Deputy Director.

Regulation .06 Expedited Proceedings at the Board’s Discretion.Link Copy Citation

If the Board after review and discussion of all the materials in a case determines that there are no material facts in dispute, the Board may choose to expedite review of the case and decide it without a hearing.

If the Board chooses expedited review, the Chair shall inform the parties that the case will be decided without a hearing, unless the parties show that there are material facts in dispute or offer another compelling reason or reasons.

In expedited review, the Board shall establish deadlines for the parties to submit a joint statement of material facts, any facts that a party contends are in dispute, and briefs with arguments and precedents in support of their position.

The Board shall decide the case based on the submissions of the parties.

Regulation .07 Notice of Hearing.Link Copy Citation

Service by Mail. Written notice of a Board or delegated hearing shall be delivered by the Board to all parties by mail or email.

Contents. For Board hearings, the notice shall include:

(1)

A statement of the date, time, place, nature, and method, whether in-person, by mail, or by electronic means, of the hearing;

(2)

A statement of the legal authority and jurisdiction under which the hearing is to be held;

(3)

A reference to the particular sections of the statutes and regulations involved;

(4)

A copy of the document or documents that prompted the hearing; and

(5)

Any other information required by State Government Article, §10-208, Annotated Code of Maryland.

For hearings conducted by the Office of Administrative Hearings, notice shall comply with the requirements of COMAR 28.02.01.05.

Regulation .08 Determination of Presiding Hearing Officer.Link Copy Citation

In hearings conducted by the Board, the Chair shall preside for purposes of administering the hearing pursuant to this chapter.

The Chair may designate a Board member to preside in the Chair’s absence.

The presiding hearing officer shall fix the time, place, and method for all hearings.

Regulation .09 Representation.Link Copy Citation

Except as otherwise provided by law, a party with standing to participate in a proceeding before the Board may appear and represent themselves or be represented by an attorney licensed to practice law in Maryland.

In the event that an out-of-State attorney seeks to represent a party before the Board, the attorney shall apply for admission under Business Occupations and Professions Article, §10-215, Annotated Code of Maryland, and Rules Governing Admission to the Bar of Maryland, Rule 19-217.

Regulation .10 Prehearing Submissions and Conference.Link Copy Citation

In hearings conducted by the Board, any party and any interested employee organization may submit to the presiding hearing officer prior to the hearing any motions, pleadings, or briefs for consideration.

Documents submitted under §A of this regulation shall be submitted at least 10 days prior to the hearing.

The presiding hearing officer may order a prehearing conference for any administrative purpose the presiding hearing officer considers necessary for the appropriate and orderly conduct of a pending matter.

The parties shall cooperate in good faith with the presiding hearing officer in the appropriate and orderly conduct of any pending matter.

The presiding hearing officer may order, with the consent of all parties, a prehearing conference for the purpose of seeking the voluntary resolution of a pending matter.

Regulation .11 Subpoenas.Link Copy Citation

Issuance of Subpoenas.

(1)

The Board, the Executive Director, or the Office of Administrative Hearings, as appropriate, may issue subpoenas requiring the attendance and testimony of witnesses and production of documents or tangible items at any hearing.

(2)

Subpoenas issued by the Office of Administrative Hearings shall be issued in accordance with COMAR 28.02.01.14.

Request for Subpoenas.

(1)

A request for issuance of a subpoena shall:

(a)

Be made in writing to the Board, Executive Director, or Office of Administrative Hearings, as appropriate;

(b)

State:

(i)

The name and address of the individual to be subpoenaed;

(ii)

If production of documents or tangible items is sought, a particular description of the documents or tangible items sought; and

(iii)

The name, address, email address, if any, and telephone number of the party requesting the subpoena; and

(c)

Be sent by personal delivery, certified mail, or email to each party.

(2)

To the extent practicable, a request for subpoena shall be filed with the Board, Executive Director, or Office of Administrative Hearings, as appropriate, at least 7 days before:

(a)

A prehearing conference, if one has been scheduled; or

(b)

The hearing, if no prehearing conference has been scheduled.

Service of Subpoenas. A subpoena may be served by personal service, by certified mail or by email.

If the subpoena is served by an individual other than the Office of Administrative Hearings, a certificate of service attesting to the method of service and date of service shall be filed with the Board, Executive Director, or Office of Administrative Hearings, as appropriate.

Objections to Subpoenas. A party or an individual who has been served a subpoena may object to the subpoena by filing a motion to modify or quash the subpoena within 7 days of service of the subpoena or by the date of the hearing, whichever is earlier.

Enforcement of Subpoenas.

(1)

If a person fails to comply with a properly served subpoena, the Board shall issue an order requiring compliance with the subpoena.

(2)

The Board or the Office of Administrative Hearings as appropriate may apply to the appropriate circuit court for an order to show cause why an individual should not be sanctioned for refusal to comply with a subpoena.

Regulation .12 Continuance.Link Copy Citation

Application. A party may request a continuance for good cause upon written application to the presiding hearing officer before commencement of the hearing or other proceeding, or by oral application to the presiding hearing officer during the hearing and shall give simultaneous notice of the request to all parties.

Order. Board hearings or proceedings on any matter may be continued by order of the presiding hearing officer with the reasons or other conditions stated in the order, with notice to all parties.

Regulation .13 Failure to Attend Hearing or Proceeding and Default.Link Copy Citation

If, after receiving notice, a party fails to attend a prehearing conference, hearing, or other scheduled proceeding, the Board or delegee, as appropriate, may impose sanctions, which may include a final default decision and order, against the defaulting party.

Within 7 days after service of a default decision and order, the party may file a written motion:

(1)

Requesting that the default decision and order be vacated or modified; and

(2)

Stating the grounds for the request.

If the Board or delegee, 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 Board or its delegee, as appropriate, may vacate the default decision and order.

A final default decision and order is the final administrative action.

Regulation .14 Consolidation.Link Copy Citation

Upon application of a party or upon its own motion, the Board may consolidate for hearing any cases that involve common questions of law or fact.

Regulation .15 Stipulations and Affidavits.Link Copy Citation

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.

Affidavits. A party, the Board or any Board staff, or the presiding hearing officer, because a witness is unavailable for another appropriate reason, may admit an affidavit as evidence. All affidavit testimony shall be under oath or affirmation and subject to the penalties of perjury.

Regulation .16 Motions.Link Copy Citation

Process.

(1)

Unless otherwise provided by this subtitle, a party:

(a)

May move for appropriate relief before or during a hearing, including, if appropriate, for summary decision by the Board; and

(b)

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

(2)

A written motion shall:

(a)

Be filed not later than 5 days before the date of a prehearing conference, if any, or 7 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)

5 days after service of the motion; or

(b)

The date of the hearing.

Amendments.

(1)

A charge, motion, or response may be amended for good cause shown, but not ex parte, upon motion at any time before the start of the hearing.

(2)

Form. Motions to amend shall be in writing filed with the presiding hearing officer, and the moving party shall serve a copy upon all parties by regular mail or email.

(3)

The Board, the Executive Director, or the administrative law judge, as appropriate, may schedule a hearing to consider a written motion.

Rulings.

(1)

The Board may rule on a motion for summary decision prior to, during, or after hearing. The Board may grant such a motion if it finds that:

(a)

There is no genuine issue as to any material fact; and

(b)

The moving party is entitled to prevail as a matter of law.

(2)

The Board or administrative law judge may reserve ruling on a motion until during or after a hearing. The presiding hearing officer may issue a written ruling or orally state the ruling on the record.

(3)

If the Board decides that a ruling on a motion shall be reserved until after the hearing, the Board shall issue the ruling in writing and may include the ruling in the final decision.

(4)

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

Regulation .17 Conduct of Hearings.Link Copy Citation

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.

Virtual Hearings.

(1)

The Board or the administrative law judge, as appropriate, may conduct all or part of the hearing by video conferencing or other electronic means.

(2)

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

Quorum.

(1)

A quorum of the Board shall attend all hearings conducted by the Board.

(2)

If reasonably practicable, the attending Board members shall be the Chair, and at least one of the Members from the list submitted by exclusive representatives, and at least one of the Members from the list submitted by public employers.

(3)

If all parties consent, it is permissible for a variation from the composition of Board members described in §C(2) to attend the hearing.

Regulation .18 Evidence.Link Copy Citation

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

The rules of evidence observed by courts do not apply to hearings under this subtitle.

The presiding hearing officer shall admit evidence, including reliable hearsay evidence, if it is the kind upon which reasonable persons are accustomed to relying in administrative proceedings.

Irrelevant or unduly repetitive evidence may be excluded.

The presiding hearing officer shall observe the rules of privilege recognized by law.

All testimony at a hearing shall be under oath or affirmation and subject to the penalties of perjury.

The presiding hearing officer may admit as evidence all or part of the information described under COMAR 28.02.01.21.

Sequestration of Witnesses.

(1)

Upon request by a party, or on their own behalf, the presiding hearing officer may sequester witnesses from the hearing room.

(2)

The presiding hearing officer shall order the witnesses, parties, attorneys, and all others present in the hearing room not to disclose to any witness sequestered under this section the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during the witness’s absence.

Regulation .19 Expert Testimony.Link Copy Citation

Expert testimony may be accepted by the presiding hearing officer if the testimony, as proffered, would aid in an understanding of the case.

Regulation .20 Appointment of Interpreter.Link Copy Citation

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

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

The party requesting the interpreter shall bear the cost of the interpreter, unless the party or witness is hearing-impaired.

Waiver of Cost of the Interpreter.

(1)

A party who by reason of indigence is unable to pay the cost of the interpreter may file a request for waiver of that cost with the presiding hearing officer. The waiver request shall be accompanied by an affidavit verifying the facts set forth in the request and the applicant’s inability to pay.

(2)

If the presiding hearing officer is satisfied that the applicant is unable by reason of indigence to pay the cost of the interpreter, the presiding hearing officer may waive the payment of cost, with the cost paid by the Board.

(3)

A waiver of the cost of an interpreter shall be available only to an individual applicant and not to a group or other entity.

Regulation .21 Burdens of Going Forward and Persuasion.Link Copy Citation

In any proceeding under this chapter, the petitioner, moving party, or appellant bears the burden of going forward to establish a prima facie case as to the existence of grounds for its action.

The Board or the presiding hearing officer, 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 .22 Ex Parte Communications.Link Copy Citation

A party or a party’s representative may not communicate ex parte with members of the Board, the Executive Director, an administrative law judge, or any of their staff who have participated in the contested case regarding the merits of any issue in the hearing.

Actions taken by the Board, Board staff, or an administrative law judge following an ex parte communication are governed by State Government Article, §10-219, Annotated Code of Maryland.

Regulation .23 Transcripts; Costs.Link Copy Citation

The Board shall provide a court reporter and transcription services for the hearing, with the cost, including a copy of the transcript being provided to the Board, to be split by the parties.

Waiver of Transcription Costs.

(1)

A party who by reason of indigence is unable to pay the cost of transcription may file a request for waiver of the costs with the presiding hearing officer.

(2)

The request of waiver shall be accompanied by an affidavit verifying the facts set forth in the request and the applicant’s inability to pay.

(3)

If the presiding hearing officer is satisfied that the party is unable by reason of indigence to pay the cost of transcription, the presiding hearing officer may waive the payment of cost, and that party’s cost shall be paid by the Board.

(4)

A waiver of transcription costs shall be available only to an individual applicant and not to a group or other entity.

Regulation .24 Briefs and Oral Arguments.Link Copy Citation

Oral Arguments. At the discretion of the presiding hearing officer, oral arguments may be presented by the parties with time limits determined by the presiding hearing officer.

Briefs. Briefs may be filed in the order and within the time and any page limits set by the presiding hearing officer.

All briefs shall be served on all parties in the proceeding by mail, email, or personal delivery.

Regulation .25 Board Decision.Link Copy Citation

The Board, as soon as reasonably practicable after the conclusion of the hearing, and in accordance with any timelines prescribed by statute, shall issue a written decision.

The decision of the Board is the final administrative decision for purposes of judicial review. Unless the matter is remanded for further proceedings, or a motion for reconsideration is filed, the date of the written decision of the Board is the date of the final decision of the agency for purposes of judicial review.

A final decision shall:

(1)

Be in writing;

(2)

Be served on all parties by mail or email; and

(3)

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 review.

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

Regulation .26 Judicial Review.Link Copy Citation

A party who is aggrieved by a final decision is entitled to judicial review in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

The Board may request to intervene as a party to the judicial proceeding.

Subtitle 30 — Public Employee Relations Board

Chapter 09. Unfair Labor Practice Proceedings

Regulation .01 Charge.Link Copy Citation

Party. A party alleging an unfair labor practice may request relief from the Board by filing a charge with the Executive Director.

Form. A charge shall be in writing and signed on a form provided by the Board according to this subtitle.

Timeliness. The charge shall be filed with the Board within 6 months from the later of the alleged violation or following the time that a reasonable person would, upon exercising due diligence, have discovered the occurrence of the alleged violation.

A charge shall:

(1)

Accurately describe the issues;

(2)

Provide a clear and concise statement of the facts constituting the alleged unfair labor practice, including the names of the individuals involved in the alleged act, the dates and places of the alleged occurrence, and the specific unfair labor practice under this chapter;

(3)

Contain the name, mailing address, email address if any, and telephone number of the complainant, and the same information, if known, about any other party named, including the name and title of the complainant’s representative, if any, and the representative of any other named party; and

(4)

Include a declaration that the complainant swears and affirms, under the penalties of perjury and upon knowledge, information, and belief, that the allegations are true and correct.

The charging party shall serve the charge on all other parties by personal delivery, mail or email, and provide a certificate of service to the Executive Director by mail or email.

Regulation .02 Investigation.Link Copy Citation

After a charge is properly filed with the Board, the Executive Director shall, as soon as reasonably practicable, email or mail a copy of the charge to all parties along with a letter explaining the next steps of the process.

A Deputy Director shall commence investigation of a charge as soon as reasonably practicable after it is filed, and notify the Executive Director and the Board if the Deputy Director finds:

(1)

The charge is untimely filed;

(2)

The charge fails to state an actionable claim under State Government Article, Title 22, Annotated Code of Maryland; or

(3)

The Board holds no jurisdiction over the claims presented in the charge.

If the charge alleges an unfair labor practice “resulting from a party’s conduct in collective bargaining” and alleges it has affected bargaining, the following actions are required:

(1)

A Deputy Director shall notify the charged party that it must file a response to the charge with the Board within 10 days of the date of the letter issued by a Deputy Director under §A of this regulation.

(2)

The charged party’s response shall include a specific admission or denial of each allegation of the complaint. Admissions or denials may be made to all or part of an allegation but shall fairly address the allegations. If appropriate, the answer may include any defense.

(3)

If, upon proper service of the complaint, the respondent fails to file a response, the failure may be considered by the Board to be an admission of the material facts alleged in the complaint.

(4)

The Deputy Director shall investigate the allegations, the defenses, and all relevant facts.

(5)

Within 20 days of the filing of the charge, the Deputy Director shall seek informal resolution of the charge with the parties.

(6)

Within 20 days of the filing of the charge, the Deputy Director shall submit to the Board a written report. The report shall set forth the Deputy Director’s recommendations to the Board as to whether, based on the totality of the factual circumstances ascertained during the investigation, probable cause exists to believe that the alleged unfair labor practice has occurred.

(7)

After receiving the Deputy Director’s report, and within 30 days of receiving a properly filed charge, the Board shall decide whether to issue a complaint or dismiss the charge. The Board may also seek informal resolution of the charge by stipulation, agreed settlement, consent order, or by any other method agreed upon by the parties.

(8)

The Board shall issue its decision within 90 days of the filing of the charge.

For all charges of unfair labor practices not covered by §C of this regulation, the following actions are required:

(1)

A Deputy Director shall notify the charged party that it must file with the Board a response to the charge within 20 days of the date the processing letter was sent. Upon application and good cause shown, the Executive Director may extend the time to answer to a specific time and date.

(2)

The Deputy Director shall investigate the allegations, defenses, and all relevant facts.

(3)

The Deputy Director shall, prior to submitting a recommendation to the Board, seek informal resolution of the charge with the parties.

(4)

The Deputy Director shall provide to the Board a case file of all relevant information gathered in the investigation, including the charge, any responses, any requested exhibits, and a written report. The report shall set forth the Deputy Director’s recommendations to the Board as to whether, based on the totality of the factual circumstances ascertained during the investigation, probable cause exists to believe that the alleged unfair labor practice has occurred.

(5)

After receiving the Deputy Director’s report, the Board shall decide whether to issue a complaint or dismiss the charge. The Board may also seek informal resolution of the dispute by stipulation, agreed settlement, consent order, or any other method agreed upon by the parties.

The Board may establish appropriate internal procedures, as considered necessary, to further implement this chapter.

If the Board finds that probable cause exists to support an unfair labor practice, the Board shall take the actions required by the State Government Article, §22-307, Annotated Code of Maryland, including issuing a complaint. Not less than 15 days after issuing a complaint, the Board shall issue a Notice of Hearing before the Board or the Office of Administrative Hearings.

Subtitle 30 — Public Employee Relations Board

Chapter 10. Representation Elections

Regulation .01 Filing a Petition.Link Copy Citation

A representation petition may be filed by:

An employee organization seeking certification as an exclusive representative; or

An employee, a group of employees, or an employee organization seeking a new election to determine an exclusive representative.

Regulation .02 When to File the Petition.Link Copy Citation

A petition may be filed at any time, provided that no election may be held for a bargaining unit within 12 months following the final date of a previous election conducted for that unit.

Regulation .03 How to File a Petition.Link Copy Citation

An original and any amended petition shall be filed with the Executive Director. The petitioner shall make and maintain a copy of the petition or amended petition.

Regulation .04 Eligible Voters.Link Copy Citation

Employees eligible to vote are those employees who:

Are employed on the date of the last payroll period before the petition for the election is filed; and

Are still employed at the end of the election period.

Regulation .05 Petition.Link Copy Citation

An initial petition for a representation election, and any other petitions for an employee organization to be included on the ballot in that election, shall meet the showing of interest requirements set forth in State Government Article, §§22-402 and 22-405, Annotated Code of Maryland.

Every petition shall be in writing and shall contain:

(1)

The name, address, telephone number, and email address of the petitioner’s representative;

(2)

The purpose for the petition;

(3)

The bargaining unit involved in the petition;

(4)

A copy of the most current or recent collective bargaining agreement, if any;

(5)

A declaration by the petitioner or the petitioner’s representative under the penalties of perjury that the contents of the petition are true and correct to the best of the declarant’s information and belief; and

(6)

Any other facts relevant to the petition.

In addition to the items required by §B of this regulation, an election petition shall contain or be accompanied by:

(1)

The name of the employee organization as it will appear on the ballot;

(2)

Showing of interest forms signed by the percentage of eligible employees in the appropriate bargaining unit required by State Government Article, §§22-402 and 22-405, Annotated Code of Maryland;

(3)

A copy of the employee organization’s governing documents that:

(a)

Give individual members the right to participate in the activities of the organization;

(b)

Require periodic elections by secret ballot that are conducted with recognized safeguards to ensure the equal rights of all members to nominate, seek office, and vote in the elections; and

(c)

Direct full and accurate accounting of all income and expenses using standard accounting methods; and

(4)

A certification that the organization accepts members without regard to any characteristic listed in State Government Article, §22-201(d), Annotated Code of Maryland.

When filing the petition, the petitioner shall also request a preferred method of voting, that is, on-site, by mail, or by electronic means.

Regulation .06 Showing of Interest Forms.Link Copy Citation

The employer shall provide to the Board and the petitioner within 2 days of the filing of a petition an alphabetical list of public employees in the bargaining unit requested by the petitioner with the information required by State Government Article, §22-402(f)(2), Annotated Code of Maryland.

The Executive Director shall determine the adequacy of the showing of interest based on the number of eligible employees in the proposed unit by comparing the showing of interest forms with the list provided by the employer.

Content of Form.

(1)

Each showing of interest form shall be an original separate document for each eligible employee in the appropriate bargaining unit who supports representation by the petitioner organization.

(2)

A signed union authorization card or union membership card including the name of the petitioner is a valid showing of interest form.

(3)

Forms other than union authorization cards or union membership cards shall contain:

(a)

A handwritten or electronic signature of the employee;

(b)

The date the form was signed; and

(c)

A statement that the employee who signed the form desires to be represented by the petitioner for the purposes of collective bargaining.

(4)

All signatures used for the showing of interest, including those on authorization or membership cards, shall be collected no more than 18 months prior to the filing of the petition.

Regulation .07 Evaluation of Showing of Interest Forms.Link Copy Citation

Review by Executive Director.

(1)

Each name on the showing of interest forms shall be compared with the names on the employer list.

(2)

Each valid showing of interest form shall be marked in the upper right hand corner in a suitable fashion to show it has been accepted.

(3)

Each invalid showing of interest form shall be marked as:

(a)

“NOL” if the name is not on the employer list;

(b)

“Excluded” or with an abbreviation thereof if named by the employer as an excluded employee; or

(c)

“Invalid” or with an abbreviation thereof if determined invalid by the Executive Director.

(4)

Forms marked “excluded” or with an abbreviation shall indicate the employer’s stated reason for exclusion as follows:

(a)

Managerial employee;

(b)

Confidential employee;

(c)

When excluded from the definition of public employee, a supervisory employee; or

(d)

Other stated reason for exclusion.

(5)

Forms marked “invalid” shall show the reason for invalidity as follows:

(a)

Illegible;

(b)

A duplicate showing of interest form for the same petitioner;

(c)

Fraudulent; or

(d)

Other stated reason for invalidity.

If an employee files one showing of interest form for more than one exclusive representative, one form for each exclusive representative shall be valid if the showing of interest form otherwise complies with this subtitle.

The number of accepted showing of interest forms shall be tabulated.

If the Executive Director determines the showing of interest is not adequate, the Executive Director shall allow the petitioner a minimum of an additional 30 days to submit additional showing of interest forms after the petitioner is notified of the determination.

Showing of interest forms are confidential and may not be released unless a petition is declared invalid. If a petition is declared invalid, the marked showing of interest forms shall be returned to the petitioner.

Regulation .08 Petitioned-for Bargaining Unit.Link Copy Citation

Scope of Board Authority over Bargaining Units.

(1)

The Board or its delegee shall decide if the bargaining unit identified in the petition is appropriate.

(2)

The Board may not modify any bargaining unit defined prior to June 30, 2023.

(3)

The Board may not modify any bargaining unit covered by a collective bargaining agreement in effect on June 30, 2023.

If there is no dispute about the appropriateness of the petitioned for bargaining unit, the Board or its delegee shall, either along with other orders about the election or separately, order the petitioned-for unit as appropriate for the election, or certify the petitioner as the unit’s representative pursuant to COMAR 14.30.08.09, and for bargaining.

If the appropriateness of the petitioned-for bargaining unit is disputed, the Board shall:

(1)

Conduct a hearing; and

(2)

Determine the appropriate bargaining unit and issue an order defining the unit accordingly.

If the bargaining unit determined appropriate by the Board differs from the petitioned-for bargaining unit, the Board or its delegee may:

(1)

Dismiss the petition;

(2)

Direct an election in the appropriate bargaining unit if at least 30 percent of the employees counted towards the showing of interest are employed in the appropriate bargaining unit; or

(3)

Certify the petitioner as the representative of the unit without an election pursuant to Regulation .09 of this chapter.

Regulation .09 Certification Without Election.Link Copy Citation

At the time of the showing of interest, the Board shall certify the employee organization as the exclusive representative without an election if:

(1)

A petition for an exclusive representative has been filed for a bargaining unit;

(2)

The Board finds that a majority of the employees in the bargaining unit have signed valid authorizations designating the employee organization as their exclusive representative; and

(3)

No other employee organization is currently certified or recognized as the exclusive representative of the bargaining unit.

If the Board certifies an employee organization as an exclusive representative under §A of this regulation, the Executive Director shall notify all parties of this certification.

Regulation .10 Posting of Petitions.Link Copy Citation

As soon as practicable, but not later than 5 business days after a determination that a lawful election shall be conducted, the Executive Director shall post a copy of the petition on the bulletin board outside the Board’s office, and on the Board’s website, showing the date of posting.

A posted election petition shall remain posted until the requested election is completed or until, for any reason, the petition is dismissed.

Regulation .11 Method of Voting.Link Copy Citation

The available methods of voting are in-person, by mail or by electronic means.

No matter which method is used, voting shall be by secret ballot.

The voting method preferred by the petitioner, if any, shall be used, unless another employee organization that will be on the ballot requests a different method.

If there is a dispute between two or more employee organizations on the voting method, the Board shall designate the method of voting.

Regulation .12 Time Period for Voting.Link Copy Citation

Eligible voters shall be given at least 10 days to vote with the final day for voting within 90 days of the date the Board received the election petition.

For on-site voting, each of the 10 days for voting shall be a working day for employees.

Regulation .13 Preparation for Election.Link Copy Citation

The Executive Director, or designee, shall consult with the public employer and the petitioners about the 10-day time period for election voting. The Executive Director or designee may require the parties to attend a preelection conference in person or virtually.

Whether by consultation or preelection conference, or both, the Executive Director or designee shall gather information on relevant election factors to determine the:

(1)

Tentative dates of election;

(2)

Times of election on each date;

(3)

Place of election;

(4)

Identity of eligible voters; and

(5)

Method of voting.

Regulation .14 Notice of Election.Link Copy Citation

Within 30 days of the filing of a valid petition of election, the Executive Director shall send a notice of election indicating that a valid petition has been filed and that an election will be conducted to:

(1)

The petitioner;

(2)

All interested employee organizations that qualified for the ballot; and

(3)

The employer.

The notice of election shall provide a sample ballot and identify:

(1)

The employer;

(2)

The bargaining unit;

(3)

Choices presented to the voter.

The notice of an on-site election shall include:

(1)

The 10 days for voting;

(2)

The location of polling places; and

(3)

The hours the polls will be open.

The notice of a mail ballot election shall include:

(1)

The date the ballots will be mailed or distributed to the voters, provided that the ballots will be mailed approximately 2 business days before the time period for voting;

(2)

The 14-day time period in which mail ballots may be postmarked for return to the Executive Director, provided that the final day of the period is not later than 90 days after the election petition is filed; and

(3)

The date and time the ballots will be counted;

(4)

The place and time of ballot counting; and

(5)

Further information that the Executive Director considers appropriate.

The notice of an electronic voting election shall include:

(1)

The 10 days for voting; and

(2)

The name of the vendor who will communicate with the voter about how to vote.

Posting Notice of Election.

(1)

A copy of the notice of election and the sample ballot shall be posted at the Board’s office at least 21 days before the election.

(2)

A copy of the notice of election and the sample ballot shall be posted by the employer at all work locations where notices are customarily posted for the benefit of employees in the bargaining unit. The employer shall post the notice of election and sample ballot for at least 21 days before the election or distribution of mail ballots, or for at least 14 days if the time before the election or ballot distribution is shorter, and post them through the end of the election.

(3)

Posting requirements may be modified by mutual written agreement of all parties filed with and approved by the Executive Director.

(4)

Notwithstanding §F(2) of this regulation, the Executive Director may tailor posting requirements to provide adequate notice to employees.

(5)

The employer shall take reasonable precautions to ensure that notices of election and sample ballots are not altered, covered, defaced, or removed before the completion of the election. If a notice is so affected, the employer shall replace the notice of election and sample ballots with a new notice.

Regulation .15 Withdrawal from Election.Link Copy Citation

Prior to Notice of Election: When a withdrawal request is received prior to the sending of the notice of election, the Board or its delegee shall grant the request without prejudice to the subsequent filing of a new petition by the petitioner.

After sending of the Notice of Election. When a withdrawal request is received after the notice of election was sent, the Board shall grant the request, but may bar that party from refiling a petition for a period of 6 months from the grant of withdrawal.

Regulation .16 Ballots.Link Copy Citation

The Executive Director shall prepare and distribute official ballots.

Ballots shall contain the name of each candidate for representative along with a final choice of “no exclusive representative”.

The order of candidates on the ballots shall be determined by drawing lots under the administration of the Executive Director.

Eligible candidates in a runoff election shall be listed as they appeared on the initial ballot.

The format of the ballot shall to the extent possible be the same for mail and electronic voting elections as for on-site elections.

Regulation .17 Voter List.Link Copy Citation

No later than 10 days prior to the start of voting, the employer shall provide an up-to-date and accurate voter list to the Executive Director.

The voter list shall contain the following information for each employee in the unit eligible to vote:

(1)

Full name;

(2)

Job title;

(3)

Worksite address; and

(4)

Email address, if any.

The Executive Director shall promptly provide the voter list to the petitioner and all other employee organizations included in the election.

Regulation .18 Conduct of Elections.Link Copy Citation

The anonymity of ballots shall be maintained to the greatest extent possible.

On-Site Elections.

(1)

Voting shall be scheduled during workdays whenever possible and polling places and voting times shall permit reasonable access by voters. Public employers shall grant reasonable release time to employees so that the employees can vote during their workday or shift.

(2)

The Executive Director shall oversee the election. At the discretion of the Executive Director, the election may be overseen by an election judge who shall be a board member or other designated individual who is selected based upon qualifications and integrity.

(3)

The Executive Director or election judge shall be solely responsible for:

(a)

The conduct of the election;

(b)

The regulation of the polling site and immediate environs, including the designation of the boundaries of the polling areas;

(c)

The maintenance of voting materials, including ballots;

(d)

The counting of ballots and recording of the results; and

(e)

The certification of the accuracy of the ballot count.

(4)

There shall be no electioneering of any kind within the marked and designated polling areas. In addition, no voter shall be subjected to intimidation, duress, or coercion during an election. The Board may set aside an election outcome favorable to a party who substantially and materially violates this provision, and order remedies for the violation, which might include a new election.

(5)

If there is more than one polling place, the Executive Director or election judge shall sequester ballots from each location until counted. Sequestered ballots shall be sealed in an envelope or other appropriate container and delivered to the counting location.

(6)

Election Observers. Each employee organization participating in an on-site election may be represented by one observer who has no supervisory power over employees who are voting per bargaining unit, at each polling place, to observe:

(a)

The voting activities; and

(b)

The counting of the ballots and the certification of the accuracy of the ballot count.

(7)

The public employer may designate one observer who is not a supervisor of any of the employees who are eligible to vote in the election, per bargaining unit, at each polling place, to observe:

(a)

The voting activities; and

(b)

The counting of the ballots and the certification of the accuracy of the ballot count.

(8)

The participating unions and the public employer shall provide the Executive Director, at least 3 days before the start of the election, with the names of their designated observers and no more than two alternate observers for each one, unless otherwise agreed to by the parties and the Executive Director, who may observe in place of, but not in addition to, a designated observer.

(9)

The final certification of the accuracy of the ballot count shall be by the Executive Director.

Mail Ballot Elections.

(1)

On the scheduled date for mailing ballots, the Executive Director shall mail to each eligible voter:

(a)

An official ballot;

(b)

A “Secret Ballot Envelope”;

(c)

A “Mail Ballot Envelope”; and

(d)

Voting instructions.

(2)

The voting instructions shall instruct the voter to return the ballot to the Board in the two envelopes as follows:

(a)

The voted ballot shall be placed in the smaller envelope marked “Secret Ballot Envelope”, which contains the name of the bargaining unit and any additional instructions required by the Executive Director;

(b)

The smaller envelope shall then be placed in the larger “Mail Ballot Envelope”; and

(c)

The “Mail Ballot Envelope” is then to be mailed or delivered to the Executive Director.

(3)

The “Mail Ballot Envelope” shall be:

(a)

Preaddressed; and

(b)

Postage prepaid.

(4)

The “Mail Ballot Envelope” shall contain a space to identify:

(a)

The voter by name;

(b)

The employer;

(c)

The bargaining unit;

(d)

The voter’s signature; and

(e)

Other information that the Executive Director may require.

(5)

A ballot shall be voided if the voter fails to provide or destroys any required identity information on the “Mail Ballot Envelope”.

(6)

Each “Mail Ballot Envelope” shall be authenticated against the list of eligible voters when the ballots are counted.

(7)

“Secret Ballot Envelopes” shall be removed from authenticated “Mail Ballot Envelopes” and deposited in a suitable container with other “Secret Ballot Envelopes” to preserve anonymity.

(8)

Each party to a mail ballot election may be represented by one representative to observe the counting of the ballots and the certification of the accuracy of the ballot count. The Executive Director shall arrange for the opportunity for this observation.

(9)

After all the authenticated “Secret Ballot Envelopes” are collected, the ballots shall be removed and counted at random and recorded in the presence of election observers, if any.

(10)

All challenges to mail ballots due to the identity or eligibility of the voter shall be raised before the removal of the “Secret Ballot Envelope” from the “Mail Ballot Envelope”.

Electronic Voting.

(1)

The Board shall designate the vendor who will administer the electronic voting. The parties shall split the costs of the vendor.

(2)

Any challenges to a voter’s eligibility to vote shall be resolved before the employee votes.

(3)

After eligibility is resolved, the Board shall ensure that a list of voters is produced, and the Board shall provide that list to the vendor and all parties.

(4)

Log-in credentials for voting shall be randomly assigned to each voter so that nobody other than the voter can access each log-in credential.

(5)

One observer from each party may observe how credentials are prepared and watch the tabulation.

(6)

The electronic voting system cannot link a voter to their vote, once cast, and nobody is permitted to attempt to use the system to make such a link.

(7)

The vendor shall retain the voting system and digital records until the election is complete.

Regulation .19 Challenged Ballots.Link Copy Citation

A voter may be challenged for cause by a designated observer described in Regulation .18 of this chapter.

If a voter is challenged for cause, the challenged voter may vote and shall then place the ballot in an envelope marked only “Secret Ballot”.

The “Secret Ballot Envelope” shall next be sealed in a separate envelope marked “Challenged Ballot Envelope”, which identifies on the outside:

(1)

The identity of the challenged voter;

(2)

The name of the person making the challenge; and

(3)

The reason for the challenge.

The challenged voter shall then report to the Board representative at the election, who shall allow the challenged voter to place the “Challenged Ballot Envelope” into the container with the regularly cast ballots.

If a mail ballot election, the Board representative shall write on the outer envelope the cause of the challenge and set the challenged ballot aside.

Regulation .20 Void Ballots.Link Copy Citation

The Executive Director or the election judge shall determine a ballot void if:

(1)

The ballot does not reveal the intent of the voter due to:

(a)

Mutilation;

(b)

Soiling; or

(c)

Any other reason;

(2)

In the case of a mail ballot, for the reasons in §A(1) of this regulation or if it is returned without all required voter identification.

A void ballot may not be considered in the tally.

The Executive Director or the Executive Director’s designee shall liberally view ballots in favor of validity by focusing on the objective of determining the intent of the voter.

Regulation .21 Tally of Ballots.Link Copy Citation

Ballots shall be counted at a place and time prescribed by the Executive Director, or the Executive Director’s designee, and shall be open to public viewing.

The Executive Director, or the Executive Director’s designee, shall undertake the counting of the ballots. One observer from the public employer and one observer from each party to the election may observe this ballot counting. All observers shall observe the counting in the same way, either all in-person or all virtually.

Regulation .22 Election Result.Link Copy Citation

The Executive Director shall, after the tally of ballots is completed, report to the parties within 5 days:

(1)

The choice earning a majority of votes cast, if any choice on the ballot received such a majority; or

(2)

If none of the choices on the ballot receive a majority of the valid votes cast in an election, that the Board will conduct a runoff election between the choices that received the two highest number of votes in the election.

When providing either one of these reports, the Executive Director shall also provide to the parties the official tally of ballots. The Executive Director shall maintain proof that the official tally was shared with the parties, and produce the tally upon request by any party.

Regulation .23 Post-Election Procedures.Link Copy Citation

Challenged Ballots. When there are sufficient unresolved challenges to affect the election results, within 10 days after the Executive Director sends the election result, the party or parties making the challenges shall file with the Board a statement of reasons for each challenge and any supporting evidence.

Objections. Any objection to the election shall:

(1)

Be filed with the Board, and served on all other parties, within 10 days of the Executive Director sending the election result, even when challenged ballots are sufficient in number to determine the outcome of the election; and

(2)

Include a specific statement of the reasons for each objection, including describing how the election outcome was allegedly prejudiced, and also provide any supporting evidence.

If the challenged ballots are sufficient in number to affect the results of the election or if objections are filed, the Executive Director, or another person designated by the Board, shall conduct an investigation and make a report and recommendation of findings to the Board on the merits of the objections filed or the validity of any determinative challenges.

Hearings. If the Board has reason to believe that the allegations or challenges may be valid, the Board shall order a hearing, if necessary, and make a determination on the findings made in the Executive Director’s or the Board designee’s report. The procedures of COMAR 14.30.08 shall apply to any hearing ordered.

Final Board Action. After consideration of the findings made by the Executive Director or designee, and any hearing held, the Board shall certify the results of the election, as appropriate, issuing a certification of representative, overturning the results of the election, ordering a new election, or dismissing the petition or petitions.

Regulation .24 Runoff Election.Link Copy Citation

If none of the choices on the ballot receive a majority of the valid votes cast in an election, the Executive Director shall conduct a runoff election between the two choices that received the two largest numbers of votes in the initial election.

A runoff election shall be held at least 10 days, and not later than 30 days, after the Board resolves all relevant and properly filed objections or challenges to ballots.

Only employees who were eligible to vote in the initial election and who remain in the bargaining unit on the dates of the runoff election are eligible to vote in the runoff election.

The order of appearance of the choices on a runoff ballot shall be the same as on the initial ballot.

The provisions of COMAR 14.30.10.18—.23 apply to the runoff election.

Subtitle 30 — Public Employee Relations Board

Chapter 11. Hearings

Regulation .01 Filing Petitions.Link Copy Citation

A petition for an election to determine whether an exclusive representative should no longer represent a unit, known as a “decertification petition” and a “decertification election” may be filed only by an employee in that unit who is currently so represented. An employer may not initiate or assist an employee or group of employees in the filing of a decertification petition.

Regulation .02 When to File the Petition.Link Copy Citation

A decertification petition may not be filed for a bargaining unit within 2 years following the final date of a previous election conducted for that bargaining unit.

If an agreement between the public employer and incumbent employee organization is in effect, a valid decertification petition may be filed and an election held only if the petition is filed not more than 120 days nor less than 90 days prior to expiration of the agreement.

Regulation .03 Showing of Interest.Link Copy Citation

For a decertification petition and election, a showing of interest form is valid if the signatures were collected within the 9-month period immediately preceding the date on which the petition for election is filed.

Regulation .04 Decertification Petition Proceeding — Participants.Link Copy Citation

If there is no intervening employee organization in a decertification petition proceeding, an election to decertify an incumbent certified employee organization may not be held if the incumbent provides the Board with a written disclaimer of any representation interest in the unit in response to the Notice of Election.

If there is an intervenor, an election shall be held if the intervening employee organization proffers a 30 percent showing of interest in a reasonable period of time prior to the date originally scheduled for the election.

If there is no intervening employee organization, an election will not be conducted if the petitioner provides the Board with a written request to withdraw the petition.

If there is an intervenor, an election will be conducted if the intervening employee organization proffers a 30 percent showing of interest in a reasonable period of time prior to the date originally scheduled for the election.

Regulation .05 Method of Voting; Certain Applicable Regulations.Link Copy Citation

The Board shall designate the method of voting based on the request of one or more employee organizations on the ballot.

If there is a dispute between two or more employee organizations on the ballot over the method of voting, the Board shall designate the method of voting.

Except for the provisions in this chapter, the Board shall abide, the Board shall abide by COMAR 14.30.10 in processing decertification petitions and elections.

Subtitle 30 — Public Employee Relations Board

Chapter 12. Petitions for Unit Clarification

Regulation .01 Petition.Link Copy Citation

A unit clarification petition alleges that an employee organization is currently recognized by the public employer as the representative of employees in the unit, but the petitioner seeks clarification of the placement of certain employees or job classifications in that unit.

A unit clarification petition may be filed by the public employer or recognized employee organization.

Content.

(1)

A unit clarification petition seeks the Board to determine whether particular employees shall be included in or excluded from an existing unit.

(2)

A unit clarification petition shall contain a description of the proposed clarification and a statement of the reasons.

(3)

A certified employee organization shall also submit a copy of the certification for the unit if available.

(4)

All parties shall submit copies of any presently existing or recently expired contracts covering any of the employees at issue.

Examples of common reasons for unit clarification petitions include:

(1)

Changes in the employer’s operations and the parties are unable to agree whether or not the affected employees shall be included in or excluded from the recognized unit;

(2)

To resolve eligibility or inclusion issues that were deferred in the preelection process and thus not agreed to by the parties or determined by the Board, Executive Director, or other designee; and

(3)

To determine the status of individuals who voted subject to challenge in an election but whose ballots were not determinative.

Regulation .02 Board Actions Regarding Bargaining Units.Link Copy Citation

The Board may not clarify:

Any bargaining unit defined prior to June 30, 2023; or

Any bargaining unit covered by a collective bargaining agreement in effect on June 30, 2023.

Regulation .03 Investigation.Link Copy Citation

Review of Petition.

(1)

On receipt of the unit clarification petition, the Executive Director or designee shall advise the parties that the determination may be based on the investigation, without the need for a hearing.

(2)

The Executive Director or designee shall review the petition and any supporting materials and related cases. The Executive Director or designee shall ensure that there are no fatal defects on the face of the petition and that the requested changes and the reasons are sufficiently described.

If it appears that a question concerning representation exists, or if for any other reason it appears that the case would ultimately be dismissed, the Executive Director or designee shall advise the petitioner and a withdrawal request shall be solicited. If a withdrawal is not received, the Board shall issue a decision and order dismissing the petition.

Regulation .04 Hearing.Link Copy Citation

While investigating, the Executive Director or designee shall decide whether a hearing is necessary to decide issues presented by the unit clarification petition. The Executive Director or designee may make a determination based on the investigation, without a hearing. If a hearing is found necessary, the Executive Director or designee shall make a recommendation to the Board.

If the Board chooses a hearing for the unit clarification petition, the Board shall also assign a presiding officer for the hearing. The presiding officer and parties shall abide by the applicable hearing and post-hearing procedures set forth in this chapter for a unit clarification petition hearing.

Regulation .05 Determination.Link Copy Citation

If no hearing is conducted, the Executive Director or other designee shall prepare a written recommendation to the Board of the appropriate course of action to resolve the issues presented by the petition.

If a hearing is conducted, the presiding officer shall prepare a written recommendation to the Board of the appropriate course of action to resolve the issues presented by the petition.

Based on the recommendation the Board receives, the Board shall prepare a decision and order that clarifies the bargaining unit or dismisses the petition.

Subtitle 30 — Public Employee Relations Board

Chapter 13. Collective Bargaining

Regulation .01 Negotiations.Link Copy Citation

The designated representatives of the employer and of the exclusive representative shall:

(1)

Identify the participants for negotiations;

(2)

Establish the amount of release time for negotiating;

(3)

Set a tentative schedule and agenda for negotiations;

(4)

Establish any other matter deemed pertinent and necessary before beginning any other negotiation activities;

(5)

Meet at reasonable times and locations agreeable to all parties; and

(6)

Negotiate a written agreement by collective bargaining in good faith.

Negotiations shall address:

(1)

Wages;

(2)

Hours of work;

(3)

Other terms and conditions of employment; and

(4)

Any matter required by applicable law.

A party to collective bargaining negotiations may not be compelled to:

(1)

Agree to a proposal; or

(2)

Make a concession.

An employer may not be required to negotiate over any matter that is inconsistent with applicable law, but an employer may reach agreement regarding any such matter if it is understood that the agreement with respect to the matter cannot become effective unless the applicable law is amended by the General Assembly.

Subtitle 30 — Public Employee Relations Board

Chapter 14. Impasse Procedures for Collective Bargaining

Regulation .01 State Government Employees.Link Copy Citation

Offer of or Request for Mediation. The Board may, on its own initiative, offer mediation to the parties. Either party may also request that the Board appoint a mediator. Acceptance of an offer of mediation or agreement to participate in mediation is voluntary. If either party declines mediation after it has been requested by a party or offered by the Board, that party shall decline the mediation services in writing with a brief statement of the reason for declining to participate in mediation.

An original and one copy of the request for mediation shall be filed with the Board and served on the other party.

Mediation for State government employees is a consensual process by which the parties are assisted by a mediator in voluntarily arriving at an agreement and under which neither party is nor can be compelled to make a concession or enter into an agreement.

Appointment of Mediator. Upon receipt of a request for mediation, the Board may, with the consent of both parties and after consultation with the parties, appoint an impartial and disinterested individual as mediator, including a Member of the Board, or may request mediation by Federal Mediation and Conciliation Service.

Confidential Nature of Mediation.

(1)

Any information, either written or oral, disclosed by the parties to the mediator in the performance of mediation duties may not be discussed by the mediator voluntarily or by compulsion unless approved by the parties involved.

(2)

The mediator may not disclose any information with regard to any mediation conducted on behalf of any party to any cause pending in a proceeding before a court, Board, or investigatory body. The mediator shall respectfully decline, by reason of this regulation, to divulge any information disclosed by a party in the performance of the mediator’s duties.

(3)

The request for mediation and the parties’ responses are confidential and may not be disclosed by any party.

Regulation .02 Public School Certificated and Non-Certificated Employees: Impasses in Negotiations over Collective Bargaining Agreements.Link Copy Citation

Requests for Determination that an Impasse in Negotiations Has Been Reached.

(1)

A party requesting a determination that an impasse in negotiations has been reached may request relief from the Board by completing and filing the appropriate form.

(2)

In response to a filing of the appropriate form, the Board shall, after internal deliberations and investigation, issue either:

(a)

The notice of determination that an impasse in negotiations has been reached; or

(b)

The notice of determination that an impasse in negotiations has not been reached.

Determination of Impasse in Negotiations.

(1)

If the Board determines that an impasse is reached in negotiations between a public-school employer and an employee organization that is designated as an exclusive negotiating agent, the Board shall within 10 calendar days:

(a)

Request last and best offers from the public-school employer and the employee organization, which may not include items or topics not previously raised in the bargaining process. The last and best offers shall list separately every term or condition of employment in dispute and the demand of the party making the last and best offer; and

(b)

Order the public-school employer and the employee organization to commence mediation within 14 days after the Board’s determination that an impasse has been reached.

(2)

Within 5 calendar days after an order to mediate, the parties shall select a mediator by:

(a)

Agreement; or

(b)

Alternate striking from a list of seven neutral parties furnished by the Federal Mediation and Conciliation Service or the American Arbitration Association.

Further proceedings for resolving the impasse shall be conducted as set forth in Education Article, §6-406(e)(4)—(14), Annotated Code of Maryland.

Regulation .03 Public School Certificated and Non-Certificated Employees: Impasses in Negotiations over New Employee Processing.Link Copy Citation

If any negotiations over new employee processing have not been resolved within 45 days after the first meeting of the public school employer and the exclusive representative on this matter, or within 60 days after an initial request to negotiate, whichever occurs first, either party may request that the Board declare an impasse.

The regulations governing impasses in negotiations over collective bargaining agreements shall also apply to impasses in negotiations over new employee processing.

In resolving impasses in negotiations over new employee processing, the mediator or Board shall consider the factors identified in Education Article, §6-405(a)(2)(iii), Annotated Code of Maryland.

Regulation .04 State Higher Education Employees.Link Copy Citation

Notice of Impasse — Contents. If it appears that an impasse has been reached during collective bargaining negotiations and the parties do not have a ground rule or other agreement providing for the resolution of the impasse, the Executive Director may be notified in writing by one or both of the parties. The notice of impasse shall include the following:

(1)

The names of the chief negotiators for each party;

(2)

The expiration date of the existing collective bargaining agreement, if any;

(3)

A description of the unit affected by the impasse, including the approximate number of employees in the unit;

(4)

The date when negotiations commenced and the date of the last meeting; and

(5)

The matters at impasse and any other relevant facts, including a list of specific labor organization or employer demands or both, upon which impasse has been reached.

Voluntary Impasse Assistance.

(1)

Upon receipt of a notice of impasse, the Executive Director or designee shall initiate an informal inquiry.

(2)

Unless jointly filed, the Executive Director or designee shall verify with the other party that the parties are at impasse.

(3)

Upon confirmation or receipt of a joint notice of impasse, the parties may voluntarily agree to mediate the impasse and select a mediator. If the parties are unable to mutually agree on the selection of a mediator, the Chair or Executive Director shall advise the parties of third-party mediation options, which may include a member of the Board, or may request mediation by a third-party mediation service.

(4)

The parties shall bear any cost associated with the use of third-party mediation services.

Mediator’s Report. If, upon exhaustion of mediation efforts, the dispute remains unresolved, upon agreement of both parties, the mediator may file a fact finding and objective status report with the Board outlining the matters that were resolved and those that remain outstanding.

Regulation .05 Community College Faculty: Impasses in Negotiations for Collective Bargaining Agreements.Link Copy Citation

Mediation.

(1)

If a party determines that an impasse exists, that party may request the assistance of the Board in mediation or engage another mediator mutually agreed to by the parties.

(2)

If a party requests mediation assistance from the Board, an original and one copy of the request for mediation shall be filed with the Board and served on the other party.

(3)

Mediation for community college faculty is a consensual process by which the parties are assisted by a mediator in voluntarily arriving at an agreement and under which neither party is nor can be compelled to make a concession or enter into an agreement.

(4)

Appointment of Mediator. Upon receipt of a request for mediation, the Board may, with the consent of both parties and after consultation with the parties, appoint an impartial and disinterested individual as mediator, which may be a member of the board, or may request mediation by the Federal Mediation and Conciliation Service.

(5)

Confidential Nature of Mediation.

(a)

(b)

(c)

The request for mediation and the parties’ responses are confidential and may not be disclosed by any party.

Fact-Finding Instead of Mediation.

(1)

If the parties do not mutually agree to mediation, then either party may petition the Board to initiate fact-finding. A petitioning party shall inform the Board of any notification deadlines to which it is subject.

(2)

The Board shall, based on the status of bargaining and the budget schedule of the public employer, determine whether an impasse exists, and if the Board finds an impasse it shall notify the parties that fact-finding is to be initiated.

(3)

A public employer and the exclusive representative may select their own fact finder.

(4)

If the parties have not selected their own fact finder within 5 days of any required notification, or within 20 days of petitioning the Board for fact-finding, whichever is sooner, the Board shall submit to the parties the names of five qualified individuals.

Each party alternately shall strike two names from the list with the remaining individual being the fact finder.

Fact-finding shall be conducted as set forth in Education Article, §16-707(b)—(e), Annotated Code of Maryland.

Subtitle 30 — Public Employee Relations Board

Chapter 15. Negotiability Disputes

Regulation .01 Petition.Link Copy Citation

If a negotiability dispute arises between the employer and the exclusive representative, either party may petition the Board for expedited resolution of the dispute.

The petition shall set forth the material facts of the dispute and the precise question of negotiability submitted for resolution and include certificate of service upon the other party.

Regulation .02 Expedited Resolution.Link Copy Citation

The petition filed pursuant to Regulation .01 of this chapter shall be given priority by the Board.

As deemed appropriate by the Board, the petition may be set for informal resolution, hearing, or oral argument, or decided upon submission of briefs.

Subtitle 31 — Office for Children

Chapter 01. Local Care Teams and State Coordinating Council

Regulation .01 Purpose.Link Copy Citation

The purpose of this chapter is to:

Define the roles and responsibilities of the State Coordinating Council and the local care teams in fostering the development of resources necessary to serve children with intensive needs in the State of Maryland;

Promote interagency coordination in the provision of such services; and

Ensure that State funds for the out-of-State placement of children with intensive needs are allocated in accordance with relevant State and federal laws.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Appropriate service or placement” means a service, placement, or plan of care provided in accordance with the requirements of applicable federal and State laws, including:

(a)

20 U.S.C. §1400 et seq.;

(b)

42 U.S.C. §§620 and 670 et seq.;

(c)

The Child Abuse Prevention and Treatment Act, 42 U.S.C. §5102 et seq.;

(d)

The Adoptions and Safe Families Act of 1997 (P. L. 105-89);

(e)

Courts and Judicial Proceedings Article, §3-820, Annotated Code of Maryland;

(f)

COMAR 13A.05.01 and 13A.05.02;

(g)

Health-General Article, Title 15, Annotated Code of Maryland;

(h)

Applicable regulations in COMAR 10.09; and

(i)

The reauthorization of the Elementary and Secondary Schools Act of 2001, P.L. 107—110 (January 8, 2002).

(2)

Child in Need of Out-of-State Placement.

(a)

“Child in need of out-of-State placement” means a child who is recommended for or placed in an out-of-home placement outside of the State by a public agency.

(b)

“Child in need of out-of-State placement” does not include a child:

(i)

Placed in foster care, as defined in Family Law Article, §5-501, Annotated Code of Maryland; or

(ii)

Who is in a hospital for 30 continuous days or less.

(3)

“Child with intensive needs” means a child who has behavioral, educational, developmental, or mental health needs that cannot be met through available public agency resources because:

(a)

The child’s needs exceed the resources of a single public agency; or

(b)

There is no legally mandated funding source to meet the child’s needs; or

(c)

A child is in need of out-of-State placement.

(4)

“Children’s Cabinet” means those agencies directed by Executive Order:

(a)

To examine Maryland’s system of services to children and their families; and

(b)

To facilitate ongoing improvements to this service delivery system.

(5)

“Cost sheet” means a document which details the cost of needed services.

(6)

“Family” means an eligible child’s natural, adoptive, or foster parents, and includes:

(a)

A guardian;

(b)

A person acting as parent of a child; and

(c)

A relative or stepparent with whom a child lives.

(7)

“Funding agency” means the State or local agency designated by State or federal law as responsible for funding or cofunding educational, residential, or treatment services identified in a child’s plan of care.

(8)

“Funding letter” means a document generated by the Governor’s Office for Children detailing the cost of educational, residential, or treatment services and the designated funding agencies.

(9)

“Hospital” has the meaning stated in Health-General Article, §19-301, Annotated Code of Maryland.

(10)

“Local agency” means the local school system, the local management board, and any local or regional departments, divisions, or offices of the State agencies identified in §B(19) of this regulation.

(11)

“Local Care Team (LCT)” means the interagency body established in each local subdivision in the State for the purpose of providing a forum for interagency discussions and problem solving and offering referrals and information for families of children with intensive needs.

(12)

“Local Management Board (LMB)” means the interagency body established by each local jurisdiction in the State for the purpose of overseeing and ensuring the implementation of a local interagency delivery system for children, youth, and families in that jurisdiction.

(13)

“Notification” means the submission of completed documents as determined and required by the State Coordinating Council.

(14)

“Out-of-State placement” means the placement of a child with intensive needs in a residential facility outside of the State for which State funding is sought, including:

(a)

Alternative living units;

(b)

Group homes;

(c)

Hospitals;

(d)

Residential facilities for children with disabilities;

(e)

Residential treatment centers;

(f)

Wilderness programs; and

(g)

Other out-of-home settings as needed or appropriate to meet the intensive needs of a child.

(15)

“Parent advocate” means an individual who is trained by and actively participates in a parents’ support or advocacy organization whose purpose is to support families of children with intensive needs.

(16)

“Parent or guardian” means the parent, guardian, or person with legal authority to make decisions regarding the placement or other services provided by public agencies to a child with intensive needs..

(17)

“Plan of care” means the plan developed for the out-of-home placement of a child with intensive needs consistent with:

(a)

The child’s individualized education program, if the child is a student with disabilities;

(b)

Any court-ordered services;

(c)

Services covered and authorized under the Maryland Medical Assistance Program if the child is eligible for medical assistance under Health-General Article, Title 15, Annotated Code of Maryland; or

(d)

Any other service or program mandated by federal or State law with respect to the individual child.

(18)

“Review” means the SCC discussion of aggregated data compiled by GOC from the notifications submitted by the State placing agencies.

(19)

“State agency” means the:

(a)

Maryland Department of Health;

(b)

Department of Human Services;

(c)

Department of Juvenile Services;

(d)

Governor’s Office for Children; and

(e)

Maryland State Department of Education.

(20)

“State Coordinating Council (SCC)” means the State interagency body established as a committee of the Children’s Cabinet and which is responsible for:

(a)

Reviewing and tracking the types, costs, and effectiveness of services required to meet the needs of children who are recommended for out-of-State placements;

(b)

Coordinating the monitoring of out-of-State placement services to children with intensive needs; and

(c)

Performing additional functions in accordance with the directives of the Children’s Cabinet.

Regulation .03 Membership and Organization of the SCC and the LCT.Link Copy Citation

SCC Membership and Organization.

(1)

The members of the SCC are the following State officials, or their designees:

(a)

The Secretary of the Maryland Department of Health;

(b)

The Secretary of the Department of Human Services;

(c)

The Secretary of the Department of Juvenile Services;

(d)

The Executive Director of the Governor’s Office for Children; and

(e)

The State Superintendent of Schools.

(2)

The Secretary of Budget and Management, or a designee, shall serve as a non-voting, ex officio member of the SCC.

(3)

The Secretary of the Department of Disabilities, or a designee, shall serve as a non-voting, ex officio member of the SCC.

(4)

The Children’s Cabinet shall designate up to 3 individuals to serve on the SCC on a rotating basis to represent:

(a)

Family members or family advocates; and

(b)

Youth or youth advocates.

(5)

The Governor’s Office for Children shall provide staff support for the SCC.

(6)

The SCC shall be chaired by a voting member as follows:

(a)

The chairman shall serve a term of 12 months; and

(b)

The chairmanship shall rotate among all voting members.

(7)

The SCC shall establish and develop procedures to:

(a)

Review notifications for state funding for the out-of-State placement of individual children with intensive needs;

(b)

Make recommendations regarding the review of such notifications to the SCC; and

(c)

Perform other functions as identified by the Children’s Cabinet or the SCC.

LCT Membership and Organization.

(1)

Each LCT shall consist of at least one designee of each of the following bodies:

(a)

The Alcohol and Drug Administration;

(b)

The Department of Juvenile Services;

(c)

The Developmental Disabilities Administration;

(d)

The local school system;

(e)

The Mental Hygiene Administration or the local core service agency;

(f)

The local department of social services;

(g)

The local health department; and

(h)

The local management board.

(2)

The LCT membership shall include a parent of a child with intensive needs from the community, or parent advocate, or both, appointed by the chairman of the LCT in consultation with the local child advocacy community.

(3)

The LCT membership shall include a non-voting representative of the local office of the Division of Rehabilitative Services to represent individuals who are 16 years old and older.

(4)

Although each LCT member agency may designate staff to represent it on the LCT, all designees shall possess authority to the extent permitted by federal and State law to commit the resources of the agency that they represent.

(5)

For all matters decided by a vote of the LCT:

(a)

Each member agency listed in §B(1) of this regulation has a single vote; and

(b)

The parent and parent advocate member represented on the LCT each have a single vote.

(6)

The LCT shall select its chair by:

(a)

Rotating the chairmanship among the members of the agencies represented on the LCT; or

(b)

Appointing the LMB’s designee to the LCT as its chair.

(7)

Each LCT:

(a)

Shall determine which of its members will have responsibility for its administrative functions; and

(b)

If 2 or more members will share the responsibility, shall determine the rotation of the administrative functions.

Regulation .04 Role and Responsibilities of the SCC.Link Copy Citation

General Responsibilities. The SCC shall encourage the implementation of the State’s policies to:

(1)

Promote the development of a continuum of quality educational, treatment, and residential services in Maryland which will enable children with intensive needs to be served in the least restrictive setting appropriate to their individual needs; and

(2)

Identify any additional treatment, educational, and residential resources, opportunities, or supports which may provide children with appropriate services in the least restrictive environment.

Oversight of Resources for Children with Intensive Needs. The SCC shall oversee the resources available to serve children with intensive needs through the following activities:

(1)

Establishment, support, and maintenance of a data tracking protocol to support agency accountability and State level service planning capability;

(2)

Maintenance of a list of all residential facilities for children with intensive needs, which are approved or licensed by State agencies;

(3)

Coordination of the monitoring of out-of-State facilities for compliance with applicable laws, regulations, and standards;

(4)

Recommendations to State and local agencies regarding the use of existing community-based services and the development of new and enhanced community-based programs to serve children with intensive needs;

(5)

Reviewing notifications for State funding of the individual placement of a child in need of out-of-State placement;

(6)

Tracking the types, costs, and effectiveness of services required to meet the needs of children who are placed in an out-of-State facility; and

(7)

Providing training and technical assistance to local agency and community partners.

Regulation .05 LCC Policies and Procedures.Link Copy Citation

Each LCT shall develop policies and procedures to govern the:

(1)

Conduct of regular meetings of the LCT; and

(2)

Discussion of any requests for assistance by member agencies of individual children with intensive needs, including procedures for:

(a)

Timely discussion of all requests for assistance;

(b)

Expedited discussion of any request for assistance designated as an emergency matter by the referring agency; and

(c)

Assurances of parental participation, or documentation of the LCT’s diligent efforts to assure parental participation, in the discussion of a child’s care.

The LCT shall meet a minimum of four times per calendar year for the purposes stated in Human Services Article, §8-407, Annotated Code of Maryland.

The Executive Director of the Governor’s Office for Children may grant waivers to the number of meetings required under §B of this regulation if:

(1)

The LCT requests a waiver in writing prior to January 1 of the applicable calendar year;

(2)

The LCT explains the reason for the waiver request;

(3)

The request does not violate any applicable statute, law, regulation, ordinance, or bylaw; and

(4)

The request is reasonable under the circumstances.

Waivers under this chapter may be granted for a 1-year period, are renewable, and are subject to reconsideration at any time.

The denial of a waiver may not be appealed.

Regulation .06 Notification of Out-of-State Placement.Link Copy Citation

The placing agency shall submit a notification of State funding for the costs, or a portion of the costs, of the placement, as provided by applicable State laws.

Prior to notification of out-of-State placement to the SCC, the placing agency shall notify all appropriate local agencies, the local school system and family members of the placement decision and expected admission date.

Prior to notification of out-of-State placement to the SCC, the placing agency shall ensure that funding discussions have included input from all appropriate local agencies, the local school system and family members.

The notification shall be on a form specified by the SCC and shall include the following:

(1)

Information deemed necessary by the SCC to identify the child, the child’s intensive needs, and the nature and costs of the recommended placement;

(2)

Documentation of the placing agency’s efforts to serve the child in the least restrictive environment appropriate to the child’s needs, including:

(a)

A description of efforts to identify appropriate community-based services to meet the child’s needs;

(b)

Reasons why community-based options were considered inadequate to meet the child’s needs or were otherwise rejected;

(c)

A description of additional supports and services which would be required to provide appropriate services in an in-State facility, a community-based program, or the child’s home;

(d)

The lack of availability of appropriate in-State facilities and services to meet the needs of the child; and

(3)

A plan for the child’s return from the out-of-State placement, including:

(a)

Time frame for the child’s return;

(b)

Description of services and resources needed to facilitate the child’s return; and

(c)

As appropriate, identification of a strategy for developing resources needed to facilitate the child’s return which are not currently available in the community.

Exception Criteria for Out-of-State Placements.

(1)

The SCC may review a notification from a placing agency for State funding of an out-of-State placement under one of the following exception criteria:

(a)

The out-of-State placement is closer to the child’s home than any alternative in-State placement;

(b)

The plan for the child’s permanent placement includes residence with a caregiver in proximity to the proposed out-of-State placement;

(c)

The individualized needs of the child cannot be met through available, appropriate in-State resources at a total cost less than or equal to 100 percent of the average cost per placement for all appropriate out-of-State programs for which application would be made for the child;

(d)

The child is currently in detention, shelter care, or committed to the Department of Juvenile Services pending placement under a court order;

(e)

Compliance with the federal Individuals with Disabilities Education Act requires out-of-State placement; or

(f)

The child is hospitalized in an acute care psychiatric hospital under the following circumstances:

(i)

The child is committed to the Department of Juvenile Services, a local department of social services, or a division of the Maryland Department of Health;

(ii)

The child’s treatment team has determined that the child is ready for discharge.

(iii)

The only available, appropriate placement is out-of-State.

(2)

The referring agency shall indicate which of the above exceptions is applicable with regard to the placement of the child for whom it has made notification to the SCC.

(3)

The SCC will meet at least 6 times a year to conduct business meetings and provide trainings and technical assistance.

Regulation .07 Parental Participation.Link Copy Citation

Attendance at LCT.

(1)

A child’s parents and the child’s legal counsel shall be invited to attend a meeting of the LCT or any portion of the meeting during which the child’s care is discussed.

(2)

The child’s parents and legal counsel may present information to the meeting participants regarding their position as to the child’s needs and care.

Notices to Parents.

(1)

At least 10 calendar days before a meeting at which a child’s care is to be discussed, the parents and the child’s advocate or counsel shall receive a written invitation to the meeting, including the:

(a)

Date, time, and location of the meeting;

(b)

Intent to discuss the child’s care at the meeting; and

(c)

Child’s right to be represented by an advocate or counsel.

Regulation .08 SCC Coordination of Monitoring of Out-of-State Residential Services.Link Copy Citation

The SCC shall develop and implement a process to coordinate the monitoring of out-of-State facilities where Maryland children are being served at State expense.

The SCC shall review any monitoring reports of site visits of out-of-State facilities that have been conducted by placing agency monitoring teams.

Based upon the findings of a placing agency monitoring team, the SCC shall consult with the monitoring team to determine whether remedial actions are necessary.

Each SCC member shall notify appropriate agency staff of any reports of monitoring of out-of-State residential services.

The SCC shall review licensing and monitoring reports from each state in which a facility under contract with a placing agency is located.

The Department of Human Services, Department of Juvenile Services, Department of Education, and Maryland Department of Health will share official monitoring reports with the SCC within 2 weeks of report being finally approved by the relevant agency head or designee.

Regulation .09 Amendments.Link Copy Citation

Before being submitted for publication, any proposed amendments to this chapter shall be reviewed and approved by the Office for Children and the Children’s Cabinet.

Subtitle 31 — Office for Children

Chapter 02. Interagency Coordination

Regulation .01 Purpose.Link Copy Citation

The purpose of these regulations is to establish a single point of entry for the licensing of residential child care programs with the Department of Human Services, the Department of Juvenile Services, and the Maryland Department of Health, and to coordinate the licensing process for residential child care facilities and the approval of education programs in such facilities with the Department of Human Services, the Department of Juvenile Services, the Maryland Department of Health, and the Department of Education.

Regulation .02 Scope.Link Copy Citation

These regulations apply to the licensing of the residential child care programs licensed by the Department of Human Services, the Department of Juvenile Services, or the Maryland Department of Health.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Agencies” means the Department of Human Services, the Department of Juvenile Services, the Maryland Department of Health, and the Department of Education.

(2)

“Care” means food, clothing, education, shelter, social or health services, or any combination of these rendered in a residential setting.

(3)

“Child” means an individual younger than 21 years old, unless otherwise provided by State law.

(4)

“Children's Cabinet” means those agencies directed by Executive Order:

(a)

To examine Maryland's system of services to children and their families; and

(b)

To facilitate ongoing improvements to this service delivery system.

(5)

“Expansion request” means the materials required by the Office, from an established provider who wishes to expand a residential child care program to an additional location.

(6)

“Facility” means the physical premises where a residential child care program is operated.

(7)

“Licensing” means the process undertaken by an agency to issue, suspend, or deny a license.

(8)

“Monitoring” means the process of assessing continuing compliance with agency licensing requirements and applicable statutes and regulations.

(9)

“Office” means the Governor's Office for Children.

(10)

“Program administrator” means the individual designated by the licensee's governing body as having day-to-day responsibility for the administration and operation of a program, including ensuring the care, treatment, safety, and protection of the children residing in the program.

(11)

“Proposal” means the materials required by the Office from a potential new provider or an established provider to develop a new residential child care facility or program.

(12)

“Provider” means the operator of a program.

(13)

“Residential child care program” means a program of care provided in a residential setting by a provider on a 24-hour basis for longer than 24 hours to a child or children unless otherwise provided by State law.

(14)

“Sanctions” means all or any part of the penalties agencies impose on facilities or providers for failure to comply with the applicable licensing laws and regulations.

(15)

“Single point of entry review panel” means an interagency panel convened as needed at the request of the Office for Children to review proposals and expansion requests.

Regulation .04 Single Point of Entry.Link Copy Citation

The Office shall serve as a single point of entry for a:

(1)

Prospective provider that wishes to establish a residential child care program; and

(2)

Current provider that wishes to expand an existing residential child care program.

Duties of the Single Point of Entry. As the single point of entry, the Office shall:

(1)

Provide information to persons interested in operating a residential child care program on the process for the licensing, rate setting, contracting, and purchase of beds;

(2)

Accept proposals from persons interested in developing a residential child care program;

(3)

Serve as the point of registration for established providers interested in expanding their residential child care programs;

(4)

Coordinate the review of proposals and requests for registration among the agencies; and

(5)

Designate a licensing agency to process each completed proposal or request for registration received by the Office.

Related Duties. The Office shall disseminate the following information regarding the monitoring of residential child care programs from agencies that license or contract with such programs to other agencies that may place or otherwise serve a child in that program:

(1)

Agency program monitoring schedules; and

(2)

Sanctions or corrective actions imposed on a residential child care program by an agency.

Regulation .05 Filing Requirements for Providers.Link Copy Citation

Providers shall file with the Office:

(1)

A proposal, if the provider wishes to establish a new residential child care program; or

(2)

An expansion request, if the provider wishes to expand a current residential child care program.

Required Content of a Proposal. To be assigned to a licensing agency, a proposal shall include:

(1)

Face sheet, in accordance with the format prescribed by the Office;

(2)

Table of contents;

(3)

Statement of purpose for the program, which includes the organization's mission;

(4)

Identification and description of the qualifications of the program administrator;

(5)

Organizational capability, including:

(a)

Experience in serving children and youth;

(b)

Experience in serving special populations in residential programs;

(c)

Experience in the operation of residential programs for children and youth; and

(d)

Identity and qualifications of the board of directors;

(6)

Program needs assessment, including:

(a)

Needs assessment methodology;

(b)

Results of needs assessment;

(c)

Need for type of program or facility proposed; and

(d)

Criteria for selecting program location;

(7)

Program description, including:

(a)

Population served;

(b)

Residential plan;

(c)

Program activities, including:

(i)

Recreation;

(ii)

Tutoring; and

(iii)

After-school activities;

(d)

Therapeutic services;

(e)

Family involvement strategies;

(f)

Model schedule for residents;

(g)

Program services for summer and holiday periods; and

(h)

Other program elements;

(8)

Management plans, including:

(a)

Financial management plan;

(b)

Marketing plan;

(c)

Community relations plan;

(d)

Quality control plan; and

(e)

Outcome-based self-evaluation plan;

(9)

Staffing plan, including:

(a)

Staffing requirements;

(b)

Staff qualifications;

(c)

Staff recruitment; and

(d)

Training;

(10)

Education plan, including:

(a)

Documentation of collaboration with the local school system in the enrollment and education of resident children;

(b)

The extent of participation in the child's educational activities; and

(c)

Notice of the provider's intent, if any, to operate an educational program within the residential program's facilities; and

(11)

Health care plan, including:

(a)

Residents' access to health care;

(b)

Supervision of residents' health care needs;

(c)

Medical emergencies;

(d)

Mental health services for residents; and

(e)

Resident nutrition.

Required Content of an Expansion Request. To be assigned to a licensing agency, an expansion request shall include:

(1)

Face sheet;

(2)

Copy of the program's current license;

(3)

Description of the specific program expansion requested; and

(4)

Description of changes, if any, to the licensee's current program that would result from the requested expansion.

The Office shall provide detailed instructions regarding the submission of proposals and requests for registration, including:

(1)

Format of proposals and requests for registration;

(2)

Filing procedures; and

(3)

Specific elements to be addressed in each content area.

Regulation .06 Single Point of Entry Review.Link Copy Citation

Preliminary Review by the Office. Within 90 days of the receipt of a proposal or expansion request, the Office shall conduct a preliminary review to determine if the proposal is adequate to refer to a licensing agency, based upon the following criteria:

(1)

Completeness of the proposal or expansion request;

(2)

Adequacy of the proposal or expansion request in meeting the content requirements of Regulation .05B and C of this chapter;

(3)

Any prior denial of licensure, sanction taken, or corrective action required by an agency of the program or the program's parent corporation; and

(4)

Community, county, or regional resource development needs as specified by either the Children's Cabinet or an agency.

Based upon a preliminary review, the Office shall:

(1)

Certify that a program has filed a completed proposal or expansion request in conformance with single point of entry requirements;

(2)

Require that a program administrator appear before a single point of entry review panel to address any inadequacies identified in the preliminary review and answer any other questions which the panel may have regarding the proposal; or

(3)

Return the proposal or expansion request with instructions for possible resubmission.

Single Point of Entry Review Panel.

(1)

A single point of entry review panel shall be convened at the request of the Office to review a proposal that has been resubmitted to address inadequacies identified by the Office in its preliminary review.

(2)

The single point of entry review panel shall comprise:

(a)

A representative of the Office; and

(b)

Two representatives designated from the agencies that place children in residential child care facilities or the Department of Education.

(3)

The program administrator shall represent a program before the panel.

(4)

At least 10 days before an interview with the panel, the Office shall provide the program with a written list of proposal or expansion request inadequacies or other questions that the panel may ask the program administrator to address.

Single Point of Entry Review Panel Recommendations. Within 30 days of an interview with a program administrator, the panel shall:

(1)

If the panel determines that the program has met single point of entry requirements, recommend that the program be referred to a licensing agency with certification that it has filed a completed proposal or expansion request; or

(2)

If the panel determines that the program has not met single point of entry requirements:

(a)

Return the proposal or request for registration to the program or facility with instructions for possible resubmission; or

(b)

For a resubmission, recommend that the proposal or expansion request be referred to a licensing agency without certification that the program has met single point of entry requirements.

Submission of Additional Information. If a provider fails to resubmit an application under §B(3) or D(2)(a) of this regulation within 60 days of the Office's request for additional information, the Office shall consider the provider's proposal or expansion request to have been withdrawn and shall close the provider's file.

Regulation .07 Designation of Licensing Agency.Link Copy Citation

The Office shall designate a licensing agency from among the agencies authorized by State law and regulations to license residential child care facilities for each proposal or expansion request that is:

(1)

Certified as meeting single point of entry requirements; or

(2)

Recommended by a review panel for referral without certification to a licensing agency.

The Office shall indicate to the licensing agency whether it has certified that the proposal or expansion request has met single point of entry requirements.

The Office shall select the licensing agency based upon:

(1)

The type of program or facility being proposed;

(2)

State law and regulations governing agency responsibility for specific populations of children;

(3)

Existing relationships between an agency and a provider; and

(4)

Any standards established by the Children's Cabinet.

Multiple Programs or Facilities.

(1)

A provider may operate multiple programs or facilities licensed by different agencies.

(2)

An individual program or facility may not be licensed by more than one agency.

Educational Programs in Residential Child Care Facilities. The Office shall refer residential child care programs and facilities that plan to operate an educational program to the Department of Education for processing pursuant to COMAR 13A.09.10.

Regulation .08 Functions of Licensing Agency.Link Copy Citation

Licensing. The licensing agency designated under Regulation .07 of this chapter shall:

(1)

Consider the relevant experiences and actions of other agencies with programs or facilities operated by the provider's parent corporation, including:

(a)

Denial of licensure;

(b)

Sanctions, including suspension or revocation of licensure; and

(c)

Corrective action requirements;

(2)

Issue a written licensing report;

(3)

Submit the licensing report to the provider and the Office;

(4)

Do one of the following:

(a)

Issue or deny the license for the program in accordance with the regulations of the licensing agency; or

(b)

Deny a license or suspend consideration of a licensing application based upon an action under §A(1) of this regulation;

(5)

Notify the provider of an action under §A(4) of this regulation within 60 days after the date of receipt of the completed application in accordance with the regulations of the licensing agency; and

(6)

Notify the provider of the right to and method of requesting a hearing if the license is denied.

Monitoring. In consultation with an agency utilizing the program or facility, the licensing agency designated under Regulation .07 of this chapter shall:

(1)

Monitor the facility at least annually;

(2)

Notify the Office of its program monitoring schedule;

(3)

Recommend to the Secretary of the licensing agency sanctions to be imposed upon the program if the program is not in compliance with licensing law and regulations applicable to the program;

(4)

Inform the Office of any sanctions or corrective actions imposed on a provider; and

(5)

Notify the provider in writing of proposed sanctions and the right to request, and method for requesting, a fair hearing regarding the imposition of sanctions.

Regulation .09 Appeals.Link Copy Citation

A provider upon whom a sanction is imposed under Regulation .07 or .08 of this chapter may file an appeal in accordance with the applicable licensing agency's regulations governing administrative appeals taken pursuant to the Administrative Procedure Act, State Government Article, §§10-201 and 10-405, Annotated Code of Maryland.

Subtitle 31 — Office for Children

Chapter 03. Interagency Discharge Planning for Hospitalized Children and Adolescents

Regulation .01 Scope.Link Copy Citation

The following regulations govern procedures for the development of interagency plans for the provision of services to hospitalized children.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Case service coordinator” means a State employee, assigned to the Office for Children, who is responsible for tracking the status of hospitalized children and coordinating interagency efforts to secure the timely and appropriate placement of these children.

(2)

“Departments” means the Maryland Departments of Health, Human Services, Education, and Juvenile Services.

(3)

“Discharge plan” means the written plan, developed by the hospital treatment team and qualified professionals from the Departments providing services to the child, which describes the services, treatment, and training appropriate for the child outside the hospital setting.

(4)

“Hospitalized child” means both State-hospitalized children and privately hospitalized children.

(5)

“Lead agency” means the Department designated by the multi-agency review team to implement the hospitalized child's discharge plan.

(6)

“Multi-agency review team” means a committee of senior officials from the Departments and the Office for Children.

(7)

“Private psychiatric hospital” means Brooklane Hospital, Gundry Glass Hospital, Sheppard and Enoch Pratt Hospital, and Taylor Manor Hospital.

(8)

“Privately hospitalized child” means an individual under 18 years old, committed by juvenile court order to State custody and who is admitted to a private psychiatric hospital.

(9)

“State-hospitalized child” means an individual 18 years old admitted to the Mental Hygiene Administration's inpatient hospital-level care.

Regulation .03 Procedures for Identification and Tracking of Hospitalized Children.Link Copy Citation

Each State hospital and each private psychiatric hospital, when possible, shall complete an inpatient tracking form for each hospitalized child and report to a designated Department as follows:

(1)

Within 24 hours after the first business day following the admission of a hospitalized child, the hospital staff shall complete and transmit the inpatient tracking form to the designated Department; and

(2)

The hospital staff shall update the inpatient tracking forms every 2 weeks and transmit the forms to the designated Department.

The case service coordinator shall maintain the tracking forms and any data reports generated from the forms. The case service coordinator shall forward data reports generated from the forms to all Departments.

Regulation .04 Procedures for Development of Interagency Plans.Link Copy Citation

Within 10 working days after a child is hospitalized, the lead agency shall provide case management services to each hospitalized child, in the manner considered appropriate by the lead agency, to assist in securing and maintaining appropriate discharge services and placement.

The hospital treatment team and lead agency shall jointly develop for each hospitalized child a discharge plan that includes recommendations for the services needed to maintain the child outside the inpatient setting and provide appropriate treatment.

The recommendations in the discharge plan may include the following:

(1)

Therapy;

(2)

Education;

(3)

Residential arrangement;

(4)

Medications and medical needs;

(5)

Physical needs;

(6)

Social and recreational needs;

(7)

Family involvement in therapy; and

(8)

Family visitation.

The case manager from the lead agency shall attend the discharge planning meeting with the hospital treatment team, or be available by telephone to discuss the discharge plan. The lead agency shall be responsible for implementing the discharge plan.

The multi-agency review team shall meet every 2 weeks to review the discharge plan and the tracking forms of each hospitalized child who is ready for discharge or whose tracking forms indicate possible difficulty in obtaining timely and appropriate discharge to assist in resolving problems that might require interagency action or planning.

Regulation .05 Transitional Services.Link Copy Citation

Transitional services include:

(1)

Therapeutic;

(2)

Educational;

(3)

Interim residential;

(4)

Social; and

(5)

Recreational.

The lead agency shall provide transitional services when the treating physician, in consultation with the hospital treatment team and the lead agency, determines that:

(1)

The hospitalized child is ready for discharge and remains in the hospital; and

(2)

Transitional services are necessary to prevent specific clinical deterioration of the hospitalized child.

The lead agency, in consultation with the treating physician and the hospital treatment team, other departments, the child, and the child's parents if the parents are available, shall determine the specific transitional services provided to the child.

The lead agency may provide transitional services if:

(1)

The lead agency determines that transitional services are necessary to assist with a hospitalized child's adjustment to an aftercare placement; and

(2)

Resources are available.

Subtitle 31 — Office for Children

Chapter 04. Rate Setting for Child Care Providers

Regulation .01 Scope.Link Copy Citation

This chapter outlines the requirements for the determination of rates for the following services purchased by the departments for children:

Residential services licensed by:

(1)

The Department of Human Services;

(2)

The Department of Juvenile Services;

(3)

The Maryland Department of Health; or

(4)

Any State department;

Nonresidential services in programs approved or accredited by the Maryland State Department of Education, under COMAR 13A.09.10, or the Department of Juvenile Services; and

Out-of-State services from providers licensed, accredited, certified, or approved by the providers' respective states and approved for placement by the departments described in Regulation .02B(9) of this chapter.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Advisory Committee” means the Maryland Interagency Rates Advisory Committee which consists of parents, advocates, and providers appointed by the Children's Cabinet.

(2)

“Allowable variance” means less than or equal to plus one standard deviation from the mean as determined by the factors and methodology outlined in the Manual defined in §B(11) of this regulation.

(3)

“Child placement agency” means a private agency licensed by the Department of Human Services to receive and place children in foster homes, treatment foster homes, and independent living arrangements.

(4)

“Children's Cabinet” means those agencies listed under Executive Order 01.01.2024.05C.

(5)

“Class Guidelines” means the Class Determination Guidelines for Residential Child Care Programs, which are maintained and updated, as necessary, by the Committee.

(6)

“Committee” means the Maryland Interagency Rates Committee, consisting of an individual or individuals representing:

(a)

The Maryland Department of Health;

(b)

The Department of Human Services;

(c)

The Department of Juvenile Services;

(d)

The Department of Budget and Management;

(e)

The Maryland State Department of Education; and

(f)

The Governor’s Office for Children.

(7)

“Cost Guidelines” means the Cost Guidelines for Child Placement Agencies, Education Programs, and Non-Residential Programs, which are maintained and updated, as necessary, by the Committee.

(8)

“Days” means calendar days, unless otherwise specified.

(9)

“Departments” means the:

(a)

Maryland Department of Health;

(b)

Department of Human Services;

(c)

Department of Juvenile Services; and

(d)

Maryland State Department of Education.

(10)

“Educational program” means a program approved under COMAR 13A.09.10 as a nonpublic general education school to operate in conjunction with residential or nonresidential child care program licensed or approved by the Department of Health, Department of Human Services, or Department of Juvenile Services.

(11)

“Manual” means the Rate Setting Methodology Manual for Providers, which is maintained and updated, as necessary, by the Committee.

(12)

“Nonpreferred provider” means a provider whose rate or rates, when grouped by service type and, when appropriate, capacity, falls or fall outside an allowable variance.

(13)

“Nonresidential program” means a community nonresidential youth program that serves youth served by the Department of Juvenile Services and is not otherwise licensed or certified by the State.

(14)

“Preferred provider” means a provider whose rate or rates, when grouped by service type and, when appropriate, capacity, falls or fall within an allowable variance.

(15)

“Provider” means an entity licensed, approved, accredited, or certified to provide services to children and adolescents within:

(a)

Maryland under:

(i)

COMAR 07.05.01;

(ii)

COMAR 10.21.07;

(iii)

COMAR 16.06.01; or

(iv)

COMAR 14.31.05—14.31.07;

(b)

Maryland or another state under COMAR 13A.09.10; or

(c)

A state other than Maryland under the applicable laws of that state.

(16)

“Provider Instructions” means the Interagency Rates Committee Provider Instructions, which are maintained and updated, as necessary, by the Committee.

(17)

“Rate” means the daily reimbursement for services provided to children in residential child care programs and other specified programs.

(18)

“Rate Section” means the Rate Section at the Maryland State Department of Education.

(19)

Residential Child Care Program.

(a)

“Residential child care program” means an entity that provides for children 24-hours per day within a structured set of services and activities that are designed to achieve specific objectives relative to the needs of the children served and that include the provision of food, clothing, shelter, education, social services, health, mental health, recreation, or any combination of these services and activities.

(b)

“Residential child care program” includes a program:

(i)

Licensed by the Department of Health, the Department of Human Services, or the Department of Juvenile Services; and

(ii)

Subject to the requirements of the Governor’s Office of Children governing operations of residential child care programs.

(20)

“Unallowable costs” means those expenditures defined by applicable federal regulations and the Cost Guidelines as unreimbursable.

Regulation .03 Rate Setting Methodology.Link Copy Citation

The Committee shall develop and maintain a rate setting methodology for reimbursing specified providers.

Cost-Based Methodology.

(1)

Child placement agencies, educational programs, and nonresidential programs shall receive a rate based on a cost-based methodology.

(2)

The cost-based methodology determines a rate based on an individual provider’s budget, including, but not limited to:

(a)

Management and general services;

(b)

Direct services;

(c)

Education services;

(d)

Medical services; and

(e)

Clinical services.

(3)

The rate determination shall be calculated using:

(a)

An individual program budget application;

(b)

A mean annual rate for a specified program category; and

(c)

A direct care cost comparison metric.

(4)

The cost-based methodology is contained in the Manual and the Cost Guidelines, which are published on the Maryland State Department of Education website.

Class-Based Methodology.

(1)

Residential child care programs shall receive a rate based on a class-based methodology.

(2)

The class-based methodology determines a rate based on the level of services provided by the residential child care program.

(3)

The Committee shall determine the level of services the residential child care program must provide to meet the requirements of each class as defined by the Committee.

(4)

Each class is assigned a flat rate by the Committee.

(5)

The class-based methodology is contained in the Manual and the Class Guidelines, which are published on the Maryland State Department of Education website.

Regulation .04 Rates Determination Application.Link Copy Citation

Renewal Rate Application and Submission.

(1)

The Rate Section shall distribute the Provider Instructions and applications for determinations of renewal rates to in-State and out-of-State providers whose programs previously received an approved rate from the Committee by December 31 of each year.

(2)

Except as provided in §A(3) of this regulation, providers shall submit an application to the Rate Section for a renewal rate determination by February 15 of each year in accordance with this chapter.

(3)

For fiscal year 2025, residential child care programs shall submit an application to the Rate Section by July 31, 2024, for a class-based rate, consistent with the Provider Instructions and Regulation .03C of this chapter.

New Rate Application and Submission.

(1)

On written request by a provider, the Rate Section shall distribute the Provider Instructions and applications for a rate determination for in-State and out-of-State providers whose programs have not previously received an approved rate from the Committee.

(2)

Providers shall submit to the Rate Section an application for a rate for new programs before anticipated licensure, certification, or approval.

Out-of-State Providers.

(1)

An out-of-State provider that does not have a rate established in the state in which services are provided may submit an application in accordance with this regulation.

(2)

A provider that provides services in a licensed out-of-State facility which has a rate established by the authorized rate-setting body of the state in which the facility is located shall submit documentation to the Committee of the rates established by the authorized rate-setting body of their respective state, if applicable, instead of an application.

Conformance with Manual, Cost and Class Guidelines, and Provider Instructions. Provider applications shall conform to the requirements set forth in the Manual, Cost and Class Guidelines, as appropriate, and the Provider Instructions.

Regulation .05 Rate Determination, Approval, and Notification.Link Copy Citation

Use of Guidelines.

(1)

Rates for child placement agencies, educational programs, and nonresidential programs shall be determined, excluding unallowable costs, consistent with the Cost Guidelines.

(2)

Rates for residential child care programs shall be determined consistent with the Class Guidelines.

Review of Application. After review of a rate application, the Committee shall take one of the following actions:

(1)

Approve the rate requested in the application;

(2)

Return the application to the provider, requesting that additional information or changes to the application be resubmitted within 10 business days; or

(3)

Deny the rate requested in the application and issue a revised rate.

Notification of Approved Renewal Rates.

(1)

Except as otherwise provided in §C(2) of this regulation, the Committee shall notify providers of their approved rates for applications timely submitted that meet the requirements of the Provider Instructions by June 15 of each year.

(2)

For fiscal year 2025, the Committee shall notify residential child care programs that submit a timely and complete application to the Rate Section, consistent with Regulation .04A(3) of this chapter, by September 15, 2024.

Notification of Approved New Rates. The Committee shall review applications, submitted in conformance with the Provider Instructions, and make a rate determination for new programs within 60 days of receipt. Rate determinations are not final until issuance of a license or accreditation.

Effective Dates for Rates.

(1)

Except as otherwise provided in §E(2) of this regulation, renewal rates shall be in effect at the start of the State fiscal year and remain in effect until the end of that State fiscal year.

(2)

For fiscal year 2025, rates approved by the Committee for residential child care programs consistent with §C(2) of this regulation shall be in effect October 1, 2024, and remain in effect until June 30, 2025.

(3)

Rates for new child placement agencies, educational programs, and nonresidentIal programs issued after March 31 of each State fiscal year shall remain in effect until June 30 of the following State fiscal year.

Determination of Preferred Providers.

(1)

The Committee shall categorize child placement agencies according to service type and, when appropriate, capacity.

(2)

The Committee shall use the methodology in the Manual to determine approved rates within each category and determine preferred providers.

The Committee shall publish, annually, a list of all providers and approved rates and shall issue quarterly supplements with changes and additions. Child placement agencies shall be designated as preferred or nonpreferred in the listings, in accordance with the Committee's determination.

Conformance with Federal Laws. Rates shall be determined in conformance with relevant federal requirements, including Title IV-E of the Social Security Act.

Cost Containment. The Committee may impose cost containment measures to bring the rate structure into conformity with the budget appropriations approved by the General Assembly, and nothing in the Manual, Cost and Class Guidelines, or Provider Instructions shall preclude the implementation of cost containment.

Regulation .06 Reconsideration of a Committee Determination.Link Copy Citation

A provider may request reconsideration of a Committee determination made under Regulation .05 of this chapter.

The Rate Section shall act on behalf of the Committee to receive and process requests for reconsideration.

A provider seeking reconsideration of a determination shall file a written request with the Rate Section. The request is to be filed within 30 days of the provider's receipt of notice of the Committee's determination.

The Rate Section shall review each request for reconsideration to determine if it provides sufficient information to complete analysis of the request.

Each request for reconsideration shall include detailed information regarding:

(1)

The relief requested; and

(2)

The basis for the relief.

If a request for reconsideration does not include sufficient information for review, the Rate Section shall provide written notice to the provider listing all information required to complete the review.

If the provider fails to provide the additional required information within 45 days of receipt of the Rate Section notice, the Rate Section shall void the provider's request for reconsideration.

Review by the Committee. Within 30 days of receipt of a complete request for reconsideration from the provider, the Committee shall provide written notification to the provider of its decision to:

(1)

Grant the request.

(2)

Grant the request with modification; or

(3)

Deny the request.

A reconsideration of a determination by the Committee under this chapter is not a contested case within the meaning of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Regulation .07 Appeals.Link Copy Citation

Filing of an Appeal.

(1)

A provider may appeal to the Children's Cabinet the Committee's decision regarding a request for reconsideration made under Regulation .06 of this chapter.

(2)

The provider shall file a written appeal with the Rate Section within 30 days of the provider's receipt of the Committee's decision regarding the request for reconsideration.

(3)

The appeal shall set forth the specific objections to the Committee's decision regarding the request for reconsideration.

Rate Section Requirements. Upon receipt of an appeal, the Rate Section shall:

(1)

Forward the appeal to the Children's Cabinet or its designee; and

(2)

Provide to the Children's Cabinet a copy of the record upon which the Committee's decision regarding the provider's request for reconsideration was based, including:

(a)

The provider's written request for a reconsideration; and

(b)

Any supporting documentation.

Review by the Children's Cabinet. Within 30 days of receipt of an appeal from the provider, the Children's Cabinet or its designee shall:

(1)

Review the written appeal and the record provided by the Rate Section;

(2)

Request additional information, if needed, from the provider or the Rate Section; and

(3)

Issue a final, binding opinion upholding, modifying, or reversing the rate set by the Committee.

An appeal to the Children's Cabinet is not a contested case within the meaning of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Regulation .08 Modification of a Committee Determination.Link Copy Citation

Request for Modification. A provider may request a modification of a current Committee determination during the State fiscal year under the following conditions:

(1)

To address health and safety issues which arise after the annual rate process;

(2)

To address an emergency situation, such as fire or natural disaster;

(3)

To address corrective action issues requested by the licensing agency or by a placing agency in conjunction with the licensing agency; or

(4)

To address a program modification requested by a licensing or placing agency.

The Rate Section shall act on behalf of the Committee to receive and process requests for modifications.

A provider seeking modification of a determination shall file a written request with the Rate Section.

The Rate Section shall review each request for modification to determine if it provides sufficient information to complete analysis of the request.

Each request for modification shall include detailed information regarding:

(1)

The relief requested; and

(2)

The basis for the relief.

If a request for modification does not include sufficient information for review, the Rate Section shall provide written notice to the provider listing all information required to complete the review.

If the provider fails to provide the additional required information within 45 days of receipt of the Rate Section notice, the Rate Section shall void the provider's request for modification.

Review by the Committee. Within 30 days of receipt of a complete request for modification from the provider, the Committee shall provide written notification to the provider of its decision to:

(1)

Grant the request;

(2)

Grant the request with modification; or

(3)

Deny the request.

A modification of a determination by the Committee under this chapter, or an appeal to the Children's Cabinet, is not a contested case within the meaning of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Regulation .09 Interagency Rates Committee Advisory Committee.Link Copy Citation

An Advisory Committee to the Interagency Rates Committee, composed of parents, advocates, and providers, shall be appointed by the Children's Cabinet. The Advisory Committee may recommend and review policies and procedures regarding rate setting and provide information regarding the impact of rates on children, facilities, providers, and the business community.

The Advisory Committee shall meet periodically.

Regulation .10 Interagency Rates Advisory Committee.Link Copy Citation

An advisory committee to the Interagency Rates Committee composed of parents, advocates, and providers shall be appointed by the Children's Cabinet. The Advisory Committee shall recommend and review policies and procedures regarding rate setting and provide information regarding the impact of rates on children, facilities, providers, and the business community.

The Advisory Committee shall meet periodically.

Subtitle 31 — Office for Children

Chapter 05. Licensing and Monitoring of Residential Child Care Programs

Regulation .01 Purpose.Link Copy Citation

This chapter sets forth the process in Maryland for licensure of residential child care programs and monitoring of residential child care programs for children and youth, and establishes the procedures which applicants must follow in order to obtain licensure. The licensure and monitoring processes are designed to protect the health, safety, and well being of children placed in residential child care programs.

Regulation .02 Scope.Link Copy Citation

This chapter applies to residential child care programs licensed by the Department of Human Services, the Maryland Department of Health, and the Department of Juvenile Services, including the following programs for children:

(1)

Alternative living units;

(2)

Emergency shelter placement;

(3)

Group homes;

(4)

Mother-infant programs;

(5)

Nonpublic residential educational facilities;

(6)

Programs for medically fragile children;

(7)

Programs for pregnant adolescents;

(8)

Psychiatric respite care;

(9)

Residential crisis services;

(10)

State-operated residential educational facilities;

(11)

Secure care;

(12)

Therapeutic group homes; and

(13)

Wilderness programs.

Except as set forth in §C of this regulation, a person shall be licensed under this chapter and COMAR 14.31.06 and 14.31.07 before operating a private residential child care program.

This chapter does not apply to the care of children by:

(1)

A parent or guardian of the child;

(2)

An individual related to the child by blood or marriage within four degrees of consanguinity or affinity under the civil law rule;

(3)

An individual who:

(a)

Exercises temporary care, custody, or control over the child at the request of a parent or guardian of the child; and

(b)

Who is not otherwise required to be licensed;

(4)

An individual with whom the child is placed in individual family care or foster care by a licensed child placement agency, a court of competent jurisdiction, or agency as defined by Regulation .03 of this chapter, and who is otherwise required to be licensed;

(5)

A youth camp subject to certification by the Maryland Department of Health;

(6)

A facility subject to the Certificate of Need process under State law;

(7)

A nonpublic residential school that is not approved to serve students with disabilities under COMAR 13A.05.02.12;

(8)

A facility listed in Article 83C, §2-117, Annotated Code of Maryland; or

(9)

A residential facility operated by the Department of Juvenile Services.

Special Licensing and Monitoring Requirements.

(1)

Special licensing and monitoring requirements which differ from or supplement the requirements of this chapter are applicable to the following:

(a)

Nonpublic residential educational facilities;

(b)

Secure care programs;

(c)

Wilderness programs;

(d)

Programs for medically fragile children;

(e)

Programs for children with developmental disabilities;

(f)

Shelter care programs;

(g)

Programs for pregnant adolescents; and

(h)

Mother-infant programs.

(2)

Special licensing and monitoring requirements for the programs listed in §D(1) of this regulation appear in COMAR 14.31.07.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Agency” means the Maryland Department of Health, the Department of Human Services, or the Department of Juvenile Services.

(2)

“Alternative living unit” means a residence owned, leased, or operated by a licensee that:

(a)

Provides residential services for children who, because of a developmental disability, require specialized living arrangements;

(b)

Admits not more than three children; and

(c)

Provides 24 hours of supervision per unit, per day.

(3)

“Applicant” means a person who seeks a license.

(4)

“Aversive technique” means the use of painful or noxious stimuli to the body, which is intrusive to the individual's physical, mental, or emotional well being, to terminate challenging or maladaptive behavior.

(5)

“Behavior plan” means a plan designed to modify a child's behavior through the use of clinically accepted techniques.

(6)

“Child” means an individual younger than 21 years old, unless otherwise defined in the regulations of an agency that serves children in need of placement in a residential child care program.

(7)

“Children's Cabinet” means those agencies directed by Executive Order:

(a)

To examine Maryland's system of services to children and their families; and

(b)

To facilitate ongoing improvements to this delivery system.

(8)

“Community-based behavioral respite” means relief services provided by a community residential licensee designed to meet the individual behavioral needs of a child with a serious emotional disturbance for not more than 30 days in a community-based setting.

(9)

“Corrective action plan” means a program's detailed remedy to correct deficiencies in the program's compliance with State licensing regulations and with other legal requirements identified by the licensing agency or other State or federal agency.

(10)

“Day” means a calendar day.

(11)

“Developmental disability” means a severe chronic disability of an individual that:

(a)

Is attributable to a physical or mental impairment, other than the sole diagnosis of mental illness, or to a combination of mental and physical impairments;

(b)

Is likely to continue indefinitely;

(c)

Is manifested before the age of 22;

(d)

Results in an inability to live independently without external support or continuing and regular assistance; and

(e)

Reflects the need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are individually planned and coordinated for the individual.

(12)

“Emergency shelter placement” means the immediate placement of a child in a residential child care program because the placing agency or individual satisfactorily documents that it is physically impossible to accomplish a planned placement as required by this chapter and good practice.

(13)

“Employee” means an individual who works for a licensee for compensation.

(14)

“Expansion request” means a request for materials required by the Governor's Office for Children under COMAR 14.31.02 of a licensed provider who wishes to expand a residential child care program to an additional location.

(15)

“Facility” means the physical premises where a residential child care program is operated.

(16)

“Group home” means a facility owned, leased, or operated by a licensee that provides:

(a)

Residential services for youths such as care, diagnosis, training, education, and rehabilitation; and

(b)

A group living experience.

(17)

“Individualized educational program” means a plan for special education and related services designed to provide a free appropriate public education to a student with disabilities under 28 U.S.C. §1401 et seq. and COMAR 13A.05.01.

(18)

“Interagency Rates Committee” means the Maryland Interagency Rates Advisory Committee constituted under COMAR 14.31.04 to establish State reimbursement rates for services to children in residential child care programs and other programs.

(19)

“License” means the approval granted by a licensing agency to operate a private residential child care program.

(20)

Licensee.

(a)

“Licensee” means a corporation that has been granted a license to operate a residential child care program.

(b)

“Licensee”, unless the context indicates otherwise, includes the corporation's:

(i)

Board of directors;

(ii)

Officers;

(iii)

Employees;

(iv)

Agents;

(v)

Assigns; and

(vi)

Volunteers.

(21)

“Licensing agency” means the agency designated by the Governor's Office for Children to be responsible for licensing a private residential child care program.

(22)

“Management of disruptive behavior” means an agency-approved curriculum for managing challenging or aggressive behavior.

(23)

“Mechanical support” means a mechanical device used to support an individual's proper body position, balance, or alignment.

(24)

“Medically fragile child” means a child who is dependent upon any combination of the following:

(a)

Mechanical ventilation for at least part of each day;

(b)

Intravenous administration of nutritional substances or drugs;

(c)

Other device-based respiratory or nutritional support on a daily basis, including tracheotomy tube care, suctioning, or oxygen support;

(d)

Other medical devices that compensate for vital body functions; including:

(i)

Apnea or cardiorespiratory monitors;

(ii)

Renal dialysis; or

(iii)

Other mechanical devices; or

(e)

Substantial nursing care in connection with disabilities.

(25)

“Monitoring” means the evaluation of a program's compliance with regulations.

(26)

“Mother infant programs” are residential child care programs that provide special services and residential care to children who are mothers and their infants.

(27)

“Nonpublic residential educational facility” means the residential facility of a nonpublic school program approved under COMAR 13A.05.02.12 for the placement of students with disabilities.

(28)

Parent.

(a)

“Parent” means a child's biological or adoptive parent.

(b)

“Parent”, unless otherwise indicated, includes a child's guardian, or custodian or parent surrogate appointed under the Individuals with Disabilities Education Act.

(29)

" Physical plant" means the building or buildings in which a private residential child care program or state-operated program is operated.

(30)

“Placing agency” means the agency, individual, or entity that places a child in a private residential child care program or State-operated program.

(31)

“Program for pregnant adolescents” means a residential program that provides comprehensive prenatal care, dental care, delivery services, pediatric services, and day care arrangements for pregnant minors.

(32)

Program.

(a)

“Program” means a private residential child care program.

(b)

“Program”, unless otherwise indicated, includes the physical plant.

(33)

“Psychiatric respite” means residential programs on hospital grounds in which children discharged from inpatient psychiatric hospitalizations receive transition services in anticipation of placement in a residential treatment or community-based setting.

(34)

“Quality assurance plan” means a plan submitted to the licensing agency by the licensee or applicant that documents the means by which achievement of goals and objectives established by the licensee will be measured.

(35)

Residential Child Care Program.

(a)

“Residential child care program” means an entity that provides care for children 24-hours-per-day within a structured set of services and activities that are designed to achieve specific objectives relative to the needs of the children served, including the provision of:

(i)

Food;

(ii)

Clothing;

(iii)

Shelter;

(iv)

Education;

(v)

Social services;

(vi)

Health;

(vii)

Mental health;

(viii)

Recreation; or

(ix)

Any combination of these services and activities.

(b)

“Residential child care program” includes residential services for children in:

(i)

Residential facilities for children with developmental disabilities;

(ii)

Child care homes;

(iii)

Child care institutions;

(iv)

Therapeutic group homes; and

(v)

Group homes.

(36)

“Residential crisis services” means intensive mental health and support services that are:

(a)

Provided to a child with mental illness who is expecting, or is at risk of, a psychiatric crisis that would impair the child's ability to function in the community;

(b)

Designed to prevent a psychiatric inpatient admission of the child, provide an alternative to the psychiatric inpatient admission, or shorten the length of an inpatient stay; and

(c)

Provided on a short-term basis in a community-based setting for not more than 30 days.

(37)

“Secure care program” means a program that employs locked doors or other physical means to prevent egress by alleged or adjudicated delinquent children.

(38)

“Shelter care” means care in:

(a)

A shelter care program licensed solely for the temporary care of children for not more than 60 days; or

(b)

A self-contained structured shelter care program licensed by the Department of Juvenile Services for the temporary care of children for not more than 90 days.

(39)

“State-operated residential educational facility” means the Maryland School for the Deaf and the Maryland School for the Blind.

(40)

“Submit” means to deliver a document:

(a)

In a manner that ensures its receipt by the party to whom it is addressed; and

(b)

Which is considered complete only upon actual receipt by that party.

(41)

“Teen mother program” means a licensed residential program that provides care and services for children who are mothers with an infant.

(42)

“Therapeutic group home” means a small private group home that provides residential child care as well as access to a range of diagnostic and therapeutic mental health services for children and adolescents who have mental disorders.

(43)

“Treatment foster care” means a 24-hour substitute care program operated by a licensed child placement agency or local department of social services for children with a serious emotional, behavioral, medical, or psychological condition.

(44)

“Variance” means an alternative to a specific licensing regulation.

(45)

“Volunteer” means an individual who provides services without compensation at a residential child care program.

(46)

“Waiver” means the setting aside of a specific licensing regulation.

(47)

“Wilderness program” means a program:

(a)

In which facilities and activities are related to nature as much as possible in a site that is left essentially in its natural state; and

(b)

Where living and program quarters and activities are integrated into the natural environment.

Regulation .04 Organization and Administration.Link Copy Citation

Incorporation.

(1)

Each applicant and licensee shall be incorporated and maintain their corporate status.

(2)

The applicant shall submit to the licensing agency:

(a)

A certified copy of the articles of incorporation and by-laws, before licensure and upon request of the licensing agency; and

(b)

At least 45 days before the proposed implementation date, any changes in the:

(i)

Corporate name;

(ii)

Articles of incorporation; or

(iii)

By-laws.

(3)

Before it submits an application for licensure to the licensing agency, an out-of-State applicant shall register and qualify with the Department of Assessments and Taxation to do business in Maryland.

Financial Operation. The applicant shall:

(1)

Upon initial application, provide written documentation that the organization:

(a)

Is solvent; and

(b)

Has access to the financial resources to operate for at least 6 months;

(2)

Base the financial operation of the program on an annual budget that reflects anticipated expenditures and sources of income;

(3)

Have a sound plan of financing to provide sufficient funds to operate the program;

(4)

Maintain insurance in the following categories:

(a)

Fire;

(b)

Casualty;

(c)

Professional liability;

(d)

General liability; and

(e)

Directors' and officers' liability;

(5)

Comply with the legal requirements for unemployment compensation and workers' compensation;

(6)

Submit to the licensing agency an annual audit by an independent certified public accountant who is not:

(a)

An employee or officer of the corporation;

(b)

A member of the board of directors; or

(c)

Related to an employee, officer, or director;

(7)

Provide the licensing agency access to financial records or financial statements, upon request;

(8)

Notify the licensing agency of any filing of bankruptcy, and keep the licensing agency informed of any legal actions resulting from the bankruptcy filing; and

(9)

Notify the licensing agency of any legal action related to the licensee's residential child care programs that is filed against the licensee, and the outcome of the legal action.

Regulation .05 Licensing Process.Link Copy Citation

Initial Inquiries.

(1)

An applicant initially shall direct inquiries for obtaining a license to the Governor's Office for Children in accordance with COMAR 14.31.02.

(2)

Based upon a completed proposal submitted by the applicant in accordance with COMAR 14.31.02, the Governor's Office for Children shall designate a licensing agency.

(3)

The licensing agency shall send an application to the applicant upon referral from the Governor's Office for Children.

Application Process.

(1)

An applicant shall submit a completed application within 6 months of receipt of the application from the licensing agency.

(2)

Within 60 days after receipt of a complete application, authorized staff individuals at the licensing agency shall:

(a)

Evaluate the application, including consideration of the factors listed in COMAR 14.31.02.08A;

(b)

Inspect the proposed physical plant; and

(c)

Propose to issue or deny the license.

Valid License. Unless revoked or suspended, a license is valid for a period of 2 years.

Separate License. A license is valid only for the program and the physical plant specified in the license application. A licensee shall obtain a separate license for each physical plant where a program is located.

False Information. A licensing agency may deny a new license or a renewed license if the applicant or licensee knowingly provides false information to the licensing agency or the Interagency Rates Committee.

Expansion.

(1)

A licensee may not expand the number of beds for which it is licensed, unless the licensee:

(a)

Has been serving children in the program without suspension or revocation and has not been subject to a corrective action plan regarding matters concerning the health and safety of children for at least 1 year; and

(b)

Has written permission from its licensing agency.

(2)

A licensee who does not meet the conditions of §F(1)(a) and (b) of this regulation shall seek a waiver under Regulation .11 of this chapter to expand a program.

A licensee may operate more than one program in the same facility if the programs are:

(1)

Individually licensed, and the licenses for each program specifically allow for the licensure of the other program in the same facility; and

(2)

Operated as discrete programs with clear separation of the children in each program.

License Renewal.

(1)

A licensee seeking renewal of its license shall submit to the licensing agency a license renewal application 120 days before its license expires.

(2)

The licensing agency shall propose to grant or deny a completed renewal application within 60 days of its determination that the application is complete.

(3)

If the licensing agency is unable to redetermine the licensee's eligibility before the license expires, the licensing agency shall extend the license expiration date until the renewal application process is completed in accordance with the requirements of State Government Article, §10-226, Annotated Code of Maryland.

(4)

If the licensing agency renews a license to the licensee, the licensee shall return the expired license to the licensing agency.

Program Closure. When a licensee closes its program, the license is invalid. Before the licensee closes its program, the licensee shall:

(1)

Inform the licensing agency and any agency that has placed children in the program at least 30 days in advance of the closing;

(2)

Submit a written plan for the removal of children from the program to the licensing agency for approval;

(3)

Implement the plan for the removal of children subject to the oversight of the licensing agency; and

(4)

Return the license to the licensing agency on the day the program closes.

Proposed License Denial. If the licensing agency proposes to deny an application for a license or renewal of a license under §E of this regulation, the licensing agency shall give written notice to the applicant or the licensee of the proposed denial that includes:

(1)

The facts that warrant the proposed denial of the license or renewal of the license;

(2)

Citation to the regulations upon which the proposed denial is based; and

(3)

Notification that, before the denial of the license or renewal of the license, the applicant or licensee may request a hearing under the provisions of Regulation .10 of this chapter.

Regulation .06 Monitoring and Evaluation of Programs.Link Copy Citation

Monitoring Activities.

(1)

For monitoring purposes, the licensing agency may require the licensee to make its records, personnel, residents, and facilities available on an announced or unannounced basis:

(a)

At any time, if the agency's visit concerns a matter regarding the health, safety, or proper care of the program's residents; or

(b)

At a reasonable time during the program's business hours, if the visit concerns other matters.

(2)

Monitoring activities may include:

(a)

Reviews of financial, personnel, and child records;

(b)

Interviews with staff individuals;

(c)

Interviews with children in care;

(d)

Site inspections of the physical plant;

(e)

On-site observations of the agency's program operations; and

(f)

Any other information gathering pertinent to State law or this chapter.

(3)

The licensing agency shall monitor each program to evaluate its facilities, policies, and operations:

(a)

Before the issuance or renewal of a license;

(b)

At the time of the mid-license period report; and

(c)

Before the suspension or revocation of a license.

Response to Complaints.

(1)

The licensing agency shall initiate a response to complaints from any source about the licensee within 24 hours.

(2)

In responding to a complaint, the licensing agency may require the licensee to:

(a)

Make the program available for agency inspection as provided in §A of this regulation;

(b)

Provide a written response to the complaint from the licensee; or

(c)

Complete any additional appropriate procedure deemed necessary by the agency to ensure the safety and welfare of the program's residents.

Mid-License Period Evaluation. The licensing agency shall complete a mid-license period evaluation of each program as follows:

(1)

The licensing agency shall send notification to the licensee 60 days before the end of the first year of the license period that:

(a)

The program shall submit to the licensing agency a mid-license period report on or before the anniversary of the license issuance date;

(b)

The mid-license period report shall include:

(i)

A list of governing board members and officers;

(ii)

The program's audit or audit review for the current year;

(iii)

An operations budget for the current year; and

(iv)

The licensee's current quality assurance plan; and

(2)

The licensing agency shall conduct a mid-license period review, including:

(a)

Review of board minutes, personnel records, and children's records; and

(b)

On-site inspection of the program.

Child Safety Concerns. If, at any time during the course of monitoring a program, the licensing agency's monitor has reason to believe that a child residing in a program has been subject to abuse or neglect, the monitor shall report that concern in accordance with Family Law Article, §§5-704 and 5-705, Annotated Code of Maryland.

Regulation .07 Interagency Monitoring of Residential Child Care Programs.Link Copy Citation

A licensing or placing agency may request that a program be monitored by an interagency team if:

(1)

Children placed by multiple agencies may be affected by suspected deficiencies in the program's compliance with State licensing or other legal requirements; or

(2)

The expertise of another agency is required to adequately assess a program's compliance or remedy noncompliance with particular State licensing regulations or other legal requirements.

A request to constitute an interagency team shall be made to the Children's Cabinet, or its designee, in writing or in an oral presentation at an official meeting of the Children's Cabinet or its designee.

Upon receipt of a request, the Children's Cabinet or its designee shall:

(1)

Decide whether to authorize formation of an interagency monitoring team;

(2)

Identify the agencies to be represented on the team; and

(3)

Specify the scope of the interagency monitoring initiative.

The interagency monitoring team shall submit a copy of its findings and recommendations for corrective action to the Children's Cabinet or its designee for final approval.

This regulation does not limit agencies from informally collaborating in the monitoring of a program upon mutual agreement.

Regulation .08 Corrective Actions.Link Copy Citation

If the licensing agency determines through its monitoring and evaluation activities that a program is deficient in meeting the licensing requirements of this chapter, COMAR 14.31.06, or COMAR 14.31.07, and the licensing agency chooses to require a corrective action plan, it shall:

(1)

Determine whether it is necessary during the pendency of the corrective action process to:

(a)

Remove children currently placed in the facility; or

(b)

Place a moratorium on future placements to the program;

(2)

Evaluate and, if acceptable, approve the corrective action plan;

(3)

Determine appropriate timelines for the completion of corrective actions;

(4)

Conduct periodic monitoring of any program for which it required a corrective action plan:

(a)

To assess the program's progress toward remedying the deficiencies; and

(b)

To evaluate the program's viability as it is affected by the licensing agency's action.

Upon determining that corrective actions are required to remedy deficiencies, the licensing agency shall give written notice to the program including:

(1)

A description of the regulation violated or other program violation;

(2)

A description of any sanctions to be imposed; and

(3)

The requirements for the licensee's submission of a plan of correction to the licensing agency.

Corrective Action Plans.

(1)

Within 10 days of receipt of a deficiency notice under §B of this regulation, the licensee shall submit a corrective action plan to the licensing agency for approval.

(2)

The licensing agency shall review the corrective action plan by the effective date of the sanction indicated in the deficiency notice and inform the licensee whether the plan of correction has been accepted.

(3)

If the licensee fails to submit an acceptable corrective action plan within the agency's timelines, the licensing agency may:

(a)

Impose additional corrective action measures under this regulation;

(b)

Provide additional time for the licensee to submit a revised corrective action plan; or

(c)

Impose sanctions under Regulation .09 of this chapter.

Corrective Action Outcomes.

(1)

If the licensing agency, at any time during the corrective action period, determines that the licensee has failed to fulfill the corrective action plan requirements or makes insufficient progress towards remedying deficiencies, the licensing agency may:

(a)

Require the removal of currently placed children from the program;

(b)

Place a moratorium on future placements at the program; or

(c)

For good cause, grant an extension of time for completion of a corrective action plan.

(2)

If the licensing agency determines, at the end of the prescribed corrective action period, that the licensee has failed to remedy deficiencies adequately, the agency shall impose sanctions under Regulation .09 of this chapter.

Services to Children at Programs with Corrective Action Plans.

(1)

The placing agency shall identify an expedited, interim placement for a child who must be removed from a program due to deficiencies.

(2)

If the licensing agency determines that children may no longer be placed in a program with uncorrected deficiencies, the licensing agency may grant a waiver for the placement of an individual child, or group of children, in the program based on the following considerations:

(a)

The seriousness of the deficiency and its implications for the child's health, safety, and welfare;

(b)

Applicable legal requirements including:

(i)

The child's individualized education program, if the child is a student with disabilities;

(ii)

Any court order regarding the child's placement; and

(iii)

Any other legal requirements that may govern in the child's placement;

(c)

The medical recommendations of the child's treating physician;

(d)

The availability of alternative placements; and

(e)

The ability of the program to ensure safe and appropriate services for each child for whom the waiver is sought.

Regulation .09 Sanctions.Link Copy Citation

Causes for Sanctions.

(1)

The licensing agency may impose sanctions on a program, regardless of whether a corrective action plan is required in accordance with Regulation .08A of this chapter, for violations of the regulations of this chapter, COMAR 14.31.06 or 14.31.07, or any combination of these.

(2)

Sanctions may also be imposed for:

(a)

Misrepresentations of fact to the licensing agency, a placing agency, the Office for Children, or the Interagency Rates Committee;

(b)

Submission of false financial information to the licensing agency, the Office for Children, or the Interagency Rates Committee;

(c)

Failure to cooperate with the monitoring activities of the licensing agency or placing agencies under Regulation .06 of this chapter;

(d)

Failure to prepare or implement an adequate corrective plan under Regulation .08 of this chapter when found to be in noncompliance with the licensing standards of COMAR 14.31.06; or

(e)

Violations of other federal or State laws or regulations that jeopardize the safety or welfare of the program's residents.

Types of Sanctions.

(1)

Sanctions may include the suspension, revocation, and limitation of the program's license.

(2)

Limitations on a license may include restrictions on the:

(a)

Number of children served by the program;

(b)

Diagnostic and other characteristics of the population served by the program; and

(c)

Elements of the program's services for which corrective action is deemed necessary by the licensing agency.

Revocation.

(1)

Except as set forth in §D of this regulation, the licensing agency shall give the licensee notice of the intended revocation at least 20 days before a license is revoked.

(2)

The licensing agency shall include in the notice:

(a)

A statement of the regulation violated and the nature of the violation;

(b)

The effective date of the revocation; and

(c)

A statement describing the licensee's right under Regulation .10 of this chapter to a hearing before the revocation.

(3)

Unless the licensee files an appeal of the revocation under Regulation .10 of this chapter, the licensing agency shall:

(a)

Notify the placing agency of the revocation at least 20 days before the intended revocation; and

(b)

Advise the placing agency to remove the children by the revocation date.

(4)

Unless the licensee files an appeal under Regulation .10 of this chapter, the licensee shall relinquish care of the children in the program to the placing agency by the revocation date.

Other Sanctions.

(1)

The licensing agency may suspend or limit a license for a violation of these regulations, which the licensing agency determines can be corrected within the period of suspension or limitation.

(2)

Except as set forth in §E of this regulation, the licensing agency shall give the licensee notice of the intended action at least 20 days before a license is suspended or limited.

(3)

The licensing agency shall include in the notice:

(a)

A statement of the regulation violated and the nature of the violation;

(b)

For proposed license suspensions:

(i)

The length of the suspension; and

(ii)

The effective date of the suspension;

(c)

For proposed license limitation:

(i)

The nature of the limitation on the program's license;

(ii)

The duration of the limitation; and

(iii)

The effective date of the limitation;

(d)

Information about the licensee's responsibility to submit to the licensing agency a corrective action plan; and

(e)

A statement describing the licensee's right under Regulation .10 of this chapter to a hearing before the imposition of the suspension or limitation.

(4)

Unless the licensee files an appeal of the suspension or license limitation under Regulation .10 of this chapter, the licensing agency shall:

(a)

Notify the placing agency of the intended suspension or limitation at least 20 days before a license is suspended or limited; and

(b)

Advise the placing agency to remove the children by the effective date.

(5)

Unless the licensee files an appeal under Regulation .10 of this chapter, the licensee shall:

(a)

By the suspension date, relinquish care of the children in the program to the placing agency; or

(b)

By the license limitation date, modify the program's operations in accordance with the license limitation, including relinquishment of the care of children to the placing agency as necessary.

Emergency Action.

(1)

Notwithstanding any other requirement of these regulations, if the licensing agency determines that action is necessary to protect the health, safety, or welfare of the children or the general public, the licensing agency, without prior notice, may suspend, revoke, or limit a license pursuant to State Government Article, §10-226(c)(2), Annotated Code of Maryland.

(2)

If the licensing agency takes an emergency action, the licensing agency shall deliver to the licensee a notice that includes:

(a)

A statement of the specific regulation violated and the nature of the violation;

(b)

A description of the action being taken by the licensing agency;

(c)

For emergency suspensions, information about the licensee's responsibility to submit to the licensing agency a plan of correction; and

(d)

A statement describing the licensee's right under Regulation .10 of this chapter to a hearing after the emergency action.

(3)

The licensing agency shall notify the placing agency of the emergency action and advise the placing agency to remove the children immediately.

(4)

The licensee shall relinquish care of the children in the program to the placing agency.

Court Action. If the licensee does not relinquish care of the children as set forth under §§B—E of this regulation, the licensing agency shall take appropriate court action to enjoin the licensee from further caring for the children, including, if applicable, requesting that criminal action be taken pursuant to State law.

Regulation .10 Hearings.Link Copy Citation

Right to Hearing. An applicant or licensee has a right to a hearing under the contested case provisions of the Maryland Administrative Procedure Act when:

(1)

A licensing agency proposes to deny an application for a license;

(2)

A licensing agency proposes to deny an application for renewal of a license;

(3)

A licensing agency intends to impose sanctions or to suspend or revoke the license; or

(4)

The licensee is subject to emergency action.

Request. A request for hearing under this regulation shall be submitted to the secretary of the licensing agency within 10 days after notice of the action about which the hearing is requested.

Notification. The licensing agency shall notify the placing agency of the final decision of the hearing.

Regulation .11 Injunctions.Link Copy Citation

The licensing agency may seek to enjoin an institution, agency, society, individual, or set of individuals from operating a private residential child care program without a license or in violation of a term or condition of a license.

The licensing agency shall file the request for an injunction in the circuit court in the jurisdiction in which the program is located or has an established place of business.

Regulation .12 Variance and Waiver.Link Copy Citation

Request for Variance.

(1)

An applicant or licensee may submit to the licensing agency a written request for a variance.

(2)

An applicant or licensee shall demonstrate that the variance will:

(a)

Meet or produce the intended effect of each regulation for which the variance is requested; and

(b)

Maintain the health, safety, and well-being of the children in the program at or above the level required by the regulation for which the variance is requested.

Licensing Agency Action on Request for Variance.

(1)

The licensing agency shall act on a request for variance and notify the applicant or licensee of its decision within 30 days of receipt of the request, except for good cause.

(2)

The licensing agency may grant the request for a variance if:

(a)

The applicant or licensee submitted the request in accordance with the provisions of §A of this regulation;

(b)

The applicant or licensee has complied with all other licensing regulations; and

(c)

The licensing agency determines that the requested variance will meet the requirements of §A(2) of this regulation.

(3)

Unless otherwise specified in the licensing agency's decision, a variance remains in effect for the term of the license.

Request for Waiver.

(1)

An applicant or licensee may submit to the licensing agency a written request for a waiver.

(2)

The applicant or licensee shall include in the request specific facts upon which the waiver is requested and shall demonstrate that:

(a)

The waiver is necessary to meet the requirements of State or federal law; or

(b)

It would be unduly burdensome and inequitable for the applicant or licensee to comply with the provisions of the regulation for which the waiver is requested; and

(c)

Under the waiver, the program will maintain the health, safety, and well-being of the children in the program at or above the level required by the regulation for which the waiver is sought.

Licensing Agency Action on Request for Waiver.

(1)

The licensing agency shall act on a request for a waiver and notify the applicant or licensee of its decision within 30 days of receipt of the request, except for good cause.

(2)

The licensing agency may grant the request for a waiver if:

(a)

The applicant or licensee submitted the request in accordance with the provisions of §C of this regulation;

(b)

The waiver is consistent with State law;

(c)

The health, safety, and well-being of the children in the program is not jeopardized by the granting of the waiver; and

(d)

The licensing agency determines that the requested waiver meets the requirements of §C(2) of this regulation.

(3)

Unless otherwise specified in the licensing agency's decision, a waiver remains in effect for the term of the license.

(4)

Appeals. An applicant or licensee aggrieved by the decision of the licensing agency on a request for a variance or waiver may appeal the decision under Regulation .10 of this chapter.

Regulation .13 Amendments to Regulations.Link Copy Citation

This chapter may not be amended unless the amendment is approved by the Office for Children, the Secretary of Health, the Secretary of Human Services, the Secretary of Juvenile Services, and the State Superintendent of Schools.

Subtitle 31 — Office for Children

Chapter 06. Standards for Residential Child Care Programs

Regulation .01 Purpose.Link Copy Citation

This chapter articulates the standards that must be met and maintained by residential child care programs for children and youth. These requirements are designed to protect the health, safety, and well being of children placed in residential child care programs.

Regulation .02 Scope.Link Copy Citation

This chapter applies to residential child care programs licensed by the Department of Human Services (DHS), Maryland Department of Health (MDH), and Department of Juvenile Services (DJS), including the following residential programs for children:

(1)

Alternative living units;

(2)

Group homes;

(3)

Nonpublic residential educational facilities;

(4)

MDH/Community Mental Health Programs/Residential Crisis Services;

(5)

State-operated residential educational facilities; and

(6)

Therapeutic group homes.

Except as set forth in §C of this regulation, a person or entity shall be licensed under these regulations before operating a nonpublic residential child care program.

This chapter does not apply to the care of children by:

(1)

A parent or guardian of the child;

(2)

An individual related to the child by blood or marriage within five degrees of consanguinity or affinity under the civil law rule.

(3)

An individual who exercises temporary care, custody, or control over the child at the request of a parent or guardian of the child and who is not otherwise required to be licensed;

(4)

(5)

A youth camp subject to certification by the Maryland Department of Health;

(6)

A facility subject to the certificate of need process under State law;

(7)

A nonpublic residential school that is not approved to serve students with disabilities under COMAR 13A.05.02.12;

(8)

A facility listed in Human Services Article, §9-226, Annotated Code of Maryland, or a residential facility operated by the Department of Juvenile Services; or

(9)

A homeless shelter.

Special Licensing and Monitoring Requirements.

(1)

Special licensing and monitoring requirements that differ from or supplement the requirements of this chapter are applicable to the following:

(a)

State-operated residential educational facilities;

(b)

Secure care programs;

(c)

Wilderness programs;

(d)

Programs for medically fragile children;

(e)

Programs for children with developmental disabilities;

(f)

Shelter care programs;

(g)

Programs for adolescent girls who are pregnant;

(h)

Mother-baby programs;

(i)

Therapeutic group homes;

(j)

MDH Community Mental Health Programs/Residential Crisis Services; and

(k)

MDH Community Mental Health Programs/Residential Respite Care Services.

(2)

Special licensing and monitoring requirements for the programs listed in §D(1) of this regulation appear in COMAR 14.31.07.

Regulation .03 Definitions.Link Copy Citation

In this chapter, the definitions in COMAR 14.31.05 apply, and the following terms have the meanings indicated.

Terms Defined.

(1)

“Administration” means the licensing agency.

(2)

“Behavior intervention plan” means a plan that is based on the functional behavioral assessment, designed to address challenging behaviors through the use of positive behavioral interventions, strategies, and supports, developed by a human services professional as defined in §B( 21) of this regulation, who has training and expertise in conducting a behavior functional assessment.

(3)

“Behavioral consultation” means on-site observation, assessment, and evaluation of the child within the context of the child’s existing program. Behavioral consultation may include:

(a)

Recommendations regarding structure of the program;

(b)

Appropriate activities and services; or

(c)

Consultation with human services professionals.

(4)

“Behavioral health” means treatment of mental illness, emotional disorders, drug abuse, or alcohol abuse.

(5)

“Behavioral respite” means relief services provided by a community-based residential program that meets a child’s behavioral needs.

(6)

“Board” means the board of directors of a residential child care program responsible for the planning and oversight of the operation of the residential child care program.

(7)

“Certified residential child and youth care practitioner” means an individual who is certified by the Maryland State Board for the Certification of Residential Child Care Program Professionals as defined in COMAR 10.57.01.02B(7).

(8)

“Challenging behavior” means those behaviors exhibited by a child which are harmful, destructive, or socially unacceptable and necessitate being addressed in the child’s individual plan of care and behavior intervention plan.

(9)

“Chemical restraint” means the use of medication that is not the current treatment for a child’s condition to control behavior or restrict the child’s movement.

(10)

“Chief administrator” means the individual, regardless of title, who is appointed by the Board as having responsibility for the overall administration of the organization.

(11)

“Chief financial officer” means the program executive with the primary responsibility for overseeing the financial activities of the program including financial planning, budget preparation, monitoring cash-flow, record keeping, and reporting to the Board.

(12)

“Children's Cabinet” means those agencies directed by Executive Order 01.01.2006.03:

(a)

To examine Maryland's system of services to children and their families; and

(b)

To facilitate ongoing improvements to this service delivery system.

(13)

“Contractual and temporary staff” in this chapter are those human services professionals and direct care staff who work at the residential child care program on a contractual or temporary basis or who are placed by a staffing organization with whom the licensee has a contract to perform those duties specified in the job description.

(14)

“Cordless window covering” has the meaning stated in Family Law Article, §5-505, Annotated Code of Maryland.

(15)

“Custodial agency” means the agency having primary legal responsibility, which may result from an order of shelter, commitment, limited guardianship, full guardianship, or voluntary placement, time limited, for the child in placement, and may include a child with disabilities.

(16)

Direct Care Staff.

(a)

“Direct care staff” means staff assigned to perform direct responsibilities related to activities of daily living, self-help and socialization skills.

(b)

“Direct care staff” does not include human services professionals, except when a human services professional is specifically assigned to perform the duties of direct care staff as specified in Regulation .06B(1) of this chapter.

(17)

“Emergency placement” means residential services provided to a child who requires immediate placement in a residential child care program because the child is:

(a)

Abandoned;

(b)

At risk of serious immediate danger; or

(c)

At risk for long-term, out-of-home placement without use of placement as a short-term intervention.

(18)

“Family” has the meaning stated in Human Services Article, §8-101, Annotated Code of Maryland.

(19)

“Functional behavior assessment” means the systematic process of gathering information to guide the development of an effective and efficient behavior intervention plan for the problem behavior.

(20)

“Group home” means a residential child care program, including:

(a)

Shelter care, including:

(i)

Emergency; or

(ii)

Structured;

(b)

Mother-baby programs;

(c)

Programs for adolescent girls who are pregnant;

(d)

Psychiatric respite care;

(e)

Secure care;

(f)

Programs for children who are medically fragile;

(g)

Programs for children with developmental disabilities;

(h)

Residential crisis services;

(i)

Residential respite care services;

(j)

Wilderness programs; and

(k)

Diagnostic evaluation treatment programs.

(21)

“Human services professional” means:

(a)

A social worker licensed under Health Occupations Article, Title 19, Annotated Code of Maryland;

(b)

A psychologist licensed under Health Occupations Article, Title 18, Annotated Code of Maryland;

(c)

A professional counselor certified under Health Occupations Article, Title 17, Annotated Code of Maryland;

(d)

A nurse licensed under Health Occupations Article, Title 8, Annotated Code of Maryland;

(e)

A psychiatrist licensed under Health Occupations Article, Title 14, Annotated Code of Maryland;

(f)

A guidance counselor certified under COMAR 13A.12.03.02 or a school psychologist certified under COMAR 13A.12.03.10;

(g)

A certified counselor meeting the requirements under COMAR 10.58.07 to practice alcohol or drug counseling; or

(h)

For programs serving children with developmental disabilities, an individual with a bachelor’s degree in a human services field who has a minimum of 1 year of full-time experience working directly with persons with developmental disabilities.

(22)

“Individual plan of care” means an individualized written plan as detailed in Regulation .17C of this chapter.

(23)

“Licensee” has the meaning stated in COMAR 14.31.05.03B(20).

(24)

“Mechanical restraint” means any mechanical device that restricts the free movement of an individual.

(25)

“Medication management” means the facilitation of the safe and effective use of prescription and over-the-counter medications. The management of medications encompasses the way medications are procured, delivered, prescribed, self-administered or staff-administered, documented, and monitored.

(26)

“Office” means the Governor’s Office for Children.

(27)

“Permanency plan” means a design for services articulated by the placing agency that specifies:

(a)

Where and with whom a child shall live; and

(b)

The proposed legal relationship between the child and the child's permanent caretaker.

(28)

“Physical restraint” means the use of physical force, without the use of any device or material, to restrict the free movement of all or a portion of a child's body, not including:

(a)

Briefly holding a child in order to calm or comfort the child;

(b)

Holding the child by the hand or arm to escort the child safely from one area to another;

(c)

Moving a disruptive child who is unwilling to leave the area when other methods such as counseling have been unsuccessful; or

(d)

Breaking up a fight.

(29)

“Policy” means a set of basic principles adopted by the Board used to enforce procedures and which are in accordance with the requirements for residential child care programs under this chapter.

(30)

“Positive behavioral interventions, strategies, and supports” means a therapeutic intervention that uses a broad range of systemic and individualized strategies for enhancing positive social and emotional results while preventing or reducing challenging behaviors.

(31)

“Procedure” means a detailed explanation of how policies will be implemented.

(32)

“Program administrator” means the individual, regardless of title, certified under Health Occupations Article, Title 20, Annotated Code of Maryland, who is designated by the Board as having the day-to-day responsibility for the overall administration and operation of a program and for assuring the care, treatment, safety, and protection of children.

(33)

“Prone restraint” means a specific type of restraint in which a child is placed face down on the floor or another surface and physical pressure is applied to the child’s body to keep the child in the prone position. Use of prone restraint is prohibited in Maryland.

(34)

Protective or Stabilizing Device.

(a)

“Protective or stabilizing device” means any device or material attached or adjacent to the child’s body for the purpose of enhancing functional skills, preventing unintentional harm to self or others, or ensuring safe positioning of an individual.

(b)

“Protective or stabilizing device” is limited to:

(i)

Adaptive equipment prescribed by a health professional, if used for the purpose for which the device is intended by the manufacturer;

(ii)

Seat belts; or

(iii)

Other safety equipment to secure children during transportation.

(35)

“Residential child and youth care practitioner (RCYCP)” has the meaning stated in Health Occupations Article, Title 20, Annotated Code of Maryland. An RCYCP is direct care staff as defined in COMAR 14.31.06.04B(15).

(36)

“Restraint” means a technique that is implemented to impede a child’s physical mobility or limit free access to the environment, including chemical, mechanical or physical restraints.

(37)

“Seclusion” means the confinement of a child alone in a room from which the child is physically prevented from leaving. Use of seclusion is prohibited in residential child care programs in Maryland.

(38)

“Self-administration of medication” has the meaning stated for “self-administer” in Education Article, §7-421(a)(4), Annotated Code of Maryland.

(39)

Severe Injury.

(a)

“Severe injury” means a medical emergency that requires immediate assessment and intervention by a somatic health care provider.

(b)

“Severe injury” includes, but is not limited to, fractures, dislocations, third-degree burns (destruction of tissue), electric shock, loss or tearing of body parts, all eye emergencies, ingestion of toxic substance or sharp or dangerous objects, and any injury with loss of consciousness or head injuries.

(40)

“Somatic health care” means medical care that addresses an individual’s physical health care needs.

(41)

“Structural barrier” means any inanimate object.

(42)

“Time-out” means the removal of a child to a supervised area, which is unlocked and free of structural barriers that prevent egress for a limited period of time during which the child has an opportunity to regain self-control and is not participating in program activities.

(43)

“Trauma-informed care” means a person-centered approach which includes assessment, prevention of re-traumatization, and development and implementation of a safe environment plan. It is a system that reduces the risk of exposure, is strengths-based and resilience-focused, promotes respect, and supports cultural and developmental factors.

Regulation .04 Governance.Link Copy Citation

Legal Status. The licensee shall be incorporated under applicable law and maintain documents which identify its incorporation and administrative structure and staffing, including lines of authority.

Governance. The corporation shall have by-laws which describe the Board’s legal responsibility for and authority over the policies, finances, and all related activities for implementing the program in accordance with Human Services Article, §8-806. The Board shall:

(1)

Ensure that the corporation does not discriminate on the basis of:

(a)

Race;

(b)

Color;

(c)

National origin;

(d)

Religion;

(e)

Creed;

(f)

Age;

(g)

Sex;

(h)

Sexual orientation;

(i)

Marital status;

(j)

Ancestry; or

(k)

Physical or mental disability;

(2)

Screen and select the organization’s chief administrator in accordance with corporate policy;

(3)

Define in writing the role of the chief administrator;

(4)

Require the chief administrator, or appropriate designee authorized to act in the chief administrator's absence, to be accessible at all times to the agency staff and representatives of the Administration;

(5)

Conduct an annual written evaluation of the chief administrator;

(6)

Ensure that the program is housed, maintained, staffed, equipped, and funded to operate the programs effectively and solvently;

(7)

Consult with the Administration and receive its approval before making a substantive change to the service program plan described in the current license application;

(8)

Notify the Administration of any change of:

(a)

The chief administrator within 48 hours; and

(b)

Address or phone number of the program office at least 14 days before the change;

(9)

At least every 2 years, in consultation with the chief administrator, formulate, review, and revise as necessary the program’s written materials concerning:

(a)

Current program and service policy, including short-term and long-term goals;

(b)

Personnel practices and job descriptions;

(c)

Fiscal management policy;

(d)

The program evaluation report; and

(10)

Be responsible for:

(a)

The fiscal soundness of the program operation and undertake the review and approval of the:

(i)

Program’s annual budget;

(ii)

Periodic accounting report; and

(iii)

Annual audit or audit review completed by an independent certified public accountant; and

(b)

Maintaining the licensee’s continual compliance with the:

(i)

Provisions of the corporation's charter;

(ii)

Terms of all leases, contracts, or legal agreements to which the licensee is a party; and

(iii)

Relevant federal, State, and local laws and regulations governing the operation of the licensee.

Advisory Board.

(1)

If a licensee is an out-of-State corporation, it shall have an advisory board consisting of at least 3 Maryland residents, at least one of whom shall be a member of the board of directors.

(2)

The advisory board shall:

(a)

Meet at least quarterly;

(b)

Provide input to the licensee regarding the operation of the program and compliance with these regulations;

(c)

Assist the licensee with its relations with the surrounding community;

(d)

Meet the requirements of §D(2) and (3) of this regulation; and

(e)

Perform such other duties as the licensee shall request.

Composition and Organization of the Board.

(1)

The Board shall:

(a)

Be structured with a president or chair elected from the Board membership who presides at meetings to enable the Board to discharge its responsibilities;

(b)

Adopt bylaws for its operation;

(c)

Maintain written minutes of and records of attendance at all its meetings;

(d)

Ensure that a quorum of its members meet at least quarterly;

(e)

Include at least five members:

(i)

At least one of whom is a Maryland resident;

(ii)

At least one of whom shall have demonstrated experience in or knowledge of the human services field; and

(iii)

At least one of whom shall have demonstrated knowledge in the field of accounting, business, or financial management;

(f)

Maintain a list of its membership with each member's:

(i)

Phone number;

(ii)

Address; and

(iii)

Term of membership; and

(g)

Have a plan for periodic change of the Board's composition.

(2)

An individual who has been convicted of, or who has entered a plea of guilty or nolo contendere to, a charge of child abuse or neglect or contributing to the delinquency of a minor may not be or become a member of the Board or of an advisory board of the corporation or program.

(3)

An employee of the corporation or program or an immediate family member of an employee of the corporation or the program may not be a voting member of the Board.

(4)

An individual who is compensated for providing goods or services to the corporation or program may not be a member of the Board.

(5)

No member of the Board may be a staff person employed by:

(a)

The Governor’s Office for Children;

(b)

A licensing agency;

(c)

Local departments of social services;

(d)

A placement agency;

(e)

The State Department of Education; or

(f)

Any governmental organization which regulates or purchases from the program.

(6)

Each member of the Board shall complete a training course on the duties and responsibilities of Board members that is offered by the State or approved by the Office within 3 months of appointment to the Board.

Chief Financial Officer.

(1)

The Board shall have a chief financial officer for the corporation.

(2)

The chief financial officer shall provide a report at least quarterly to the Board on the financial condition of the corporation.

Regulation .05 Personnel Administration.Link Copy Citation

Personnel Policies.

(1)

The board of directors shall:

(a)

Adopt and adhere to written personnel policies; and

(b)

Review the policies at least every 2 years.

(2)

The written policies shall include the following provisions:

(a)

Annual performance evaluation;

(b)

Communicable diseases;

(c)

Confidentiality of records;

(d)

Description of job responsibilities;

(e)

Drug and alcohol free workplace;

(f)

Employee discipline, suspension, and dismissal;

(g)

Employee supervision;

(h)

Grievance procedures for employees;

(i)

Hiring and recruitment of qualified staff;

(j)

Hours of work;

(k)

Organizational chart;

(l)

Orientation and on-going training requirements;

(m)

Salary and benefits package;

(n)

Vacation and other leave allowances;

(o)

A prohibition against the employment of any person whose physical or emotional health, notwithstanding any accommodations required by law, would impair that person's ability to protect the health, welfare, and safety of the program's residents; and

(p)

A prohibition against employment discrimination based on race, color, national origin, religion, creed, age, sex, sexual orientation, marital status, ancestry, or physical or mental disability.

(3)

The licensee shall document that all employees have received a copy of the program's personnel policies.

(4)

A licensee may not appoint as an employee, a member of the board of directors, or a volunteer with unsupervised access to children any individual who:

(a)

Refuses to submit to:

(i)

A criminal background check in accordance with State law, including Family Law Article, §§5-560—5-568, Annotated Code of Maryland; or

(ii)

A Child Protective Services clearance;

(b)

Has an indicated child abuse or neglect finding; or

(c)

Has a conviction for:

(i)

Child abuse or neglect;

(ii)

Spousal abuse;

(iii)

Rape;

(iv)

Sexual assault;

(v)

Homicide; or

(vi)

Any crime against children;

(d)

Has a conviction within 5 years of applying for a job with the program for assault or a drug-related offense; or

(e)

Has conviction within 5 years for a violation of the Courts and Judicial Proceedings Article, §3-838 or 3-8A-30, Annotated Code of Maryland.

The licensee shall refrain from hiring practices that may result in conflicts of interest, including the concurrent employment of staff persons employed by:

(1)

A licensing agency;

(2)

Local departments of social services;

(3)

A placing agency; or

(4)

The State Department of Education.

The licensee shall establish and post a code of conduct that:

(1)

Bans sexual harassment or other discrimination against staff and residents; and

(2)

Requires that staff conduct themselves in a manner appropriate to serve the needs of program residents.

The licensee shall:

(1)

Have written job descriptions for all positions;

(2)

Document that all employees meet or exceed the minimum qualifications for their positions;

(3)

Assure that all employees have effective communication skills appropriate to their positions;

(4)

Maintain adequate staff coverage at all times based on the time of day, the size and nature of the program, and layout of the physical plant;

(5)

Ensure that, when the program administrator is unavailable, that the program administrator appoints a qualified staff member to whom on-site authority is delegated;

(6)

Have sufficient staff to carry out the licensee's administrative, business, clerical, dietary, housekeeping, maintenance, secretarial, and supervisory functions; and

(7)

Ensure that requests for a criminal background check in accordance with COMAR 12.15.02 and Child Protective Services clearances have been submitted for each prospective employee before the employee begins work at the program.

Personnel Record. The licensee shall:

(1)

Maintain for each staff member a personnel record that contains:

(a)

An employment application or resume showing qualifications and experience;

(b)

At least three references documented either by letter or notation of verbal contact indicating:

(i)

The date the contact was made;

(ii)

The individual making the contact;

(iii)

The individual contacted; and

(iv)

The reference content;

(c)

A written statement of medical examination by a licensed physician, made at the time of the staff member's employment, certifying that the physician has examined the staff member and found nothing in the individual's general, physical, or emotional condition that would endanger the health and well being of children;

(d)

A screening for tuberculosis every 2 years administered by the Mantoux method or current Centers for Disease Control and Prevention standard with an analysis of results or, for those staff members whose results were positive, an annual medical certification that the staff member presents no symptoms of active tuberculosis;

(e)

Documentation of a criminal background check request made in accordance with State law, including COMAR 12.15.02, and a copy of the initial outcome and any periodic updates;

(f)

Documentation of a request for Child Protective Services check and a copy of the outcome;

(g)

A completed federal “Employment Eligibility Verification” form (I-9);

(h)

A copy of current applicable professional credentials;

(i)

A copy of current cardiopulmonary resuscitation certification for all child care staff;

(j)

Annual performance evaluations;

(k)

Documentation of personnel actions, such as disciplinary and commendation reports relating to the individual's employment with the program;

(l)

For a staff member who drives a motor vehicle to transport children:

(i)

A copy of the staff member's current driver's license; and

(ii)

An official copy of the staff member's driving record updated every 2 years;

(m)

Documentation that the staff member has received and read the policies described in Regulations .14 and .15 of this chapter related to the reporting of suspected child abuse and neglect and discipline and control of children; and

(n)

Documentation that the staff member has received the employee training required under §F of this regulation;

(2)

Grant a staff member reasonable access to the staff member's own personnel record; and

(3)

Maintain the personnel file of each employee for a period of 5 years after the employee leaves the employment of the licensee.

Training of Child Care Workers.

(1)

Each employee who provides direct care to children shall receive a minimum of 40 hours of initial and annual training.

(2)

The program administrator shall designate an employee to accompany new direct care employees on initial tours of duty until the employee's supervisor determines that the new employee:

(a)

Is able to effectively safeguard the health and safety of the children; and

(b)

Has completed the requirements of §F(3)(a)—(f) of this regulation.

(3)

The training of employees who may provide direct care to children shall include:

(a)

Emergency preparedness and general safety practices;

(b)

Cardiopulmonary resuscitation leading to certification;

(c)

Annual first-aid training either through completion of:

(i)

American Red Cross standard first-aid course which is valid for the period of time recognized by the American Red Cross; or

(ii)

First-aid training by a certified or otherwise qualified instructor;

(d)

Child abuse and neglect identification and reporting, including training in accordance with any curriculum provided by the licensing agency regarding specific aspects of child abuse and neglect prevention and reporting in residential programs;

(e)

Suicide risk assessment and prevention;

(f)

Approved forms of discipline and behavior management techniques including crisis management and the use of isolation and restraints;

(g)

Medication management;

(h)

Infection control and Maryland Occupational Safety and Health Bloodborne Pathogen Standards;

(i)

Parenting issues, collaboration with families, and supporting children and families in making choices;

(j)

Psychosocial and emotional needs of the children, family relationships, and the impact of separation;

(k)

Special needs of the population served;

(l)

Child development;

(m)

The role of the child care employee;

(n)

Food preparation, food service, and nutrition, if the employee is involved in preparing meals for residents; and

(o)

Communication skills.

(4)

Staff training shall utilize any relevant curriculum approved by the licensing agency.

Employee Evaluation. The licensee shall:

(1)

Evaluate each employee at least once a year; and

(2)

Document each evaluation with the signature and date of the signature of the employee and the employee's immediate supervisor.

Staffing Plan. The licensee shall:

(1)

Analyze:

(a)

The number of children the licensee intends to serve;

(b)

The needs of each of the children to be served; and

(c)

The needs of the program based on the size and layout of the physical plant;

(2)

Develop and implement a staffing plan that:

(a)

Addresses the health and safety needs of each child;

(b)

Provides each child with the services identified in the child's individual service plan;

(c)

Provides for the treatment, recreation, education, and social development of children in placement; and

(d)

Addresses the management of staffing needs, including:

(i)

Maximum work hours;

(ii)

Deployment of personnel; and

(iii)

Emergency staffing.

Regulation .06 Employee Duties and Qualifications.Link Copy Citation

Program Administrator.

(1)

The Board shall employ a certified program administrator responsible for:

(a)

Overall administration of the program;

(b)

Implementation of all policies;

(c)

Maintenance of the physical plant; and

(d)

Fiscal accountability.

(2)

The program administrator shall be certified as required by Health Occupations Article, Title 20, Annotated Code of Maryland.

(3)

The Board may appoint a noncertified individual to serve in the capacity of acting program administrator in accordance with Health Occupations Article, Title 20, Annotated Code of Maryland.

Direct Care Staff.

(1)

The licensee shall employ direct child care staff to:

(a)

Assist the children in meeting the goals and objectives of their individual plans of care;

(b)

Guide and supervise the children in accordance with the Residents’ Bill of Rights in Human Services Article, §8-707, Annotated Code of Maryland;

(c)

Manage the children’s behavior;

(d)

Promote the physical and emotional well-being of the children; and

(e)

Facilitate the attainment of independent living skills based on the needs of the child.

(2)

Direct care staff shall be 21 years old or older and have a high school diploma or its equivalent.

Human Service Professionals. The licensee shall employ human service professionals appropriate to the needs of the child and the nature of the program to perform functions in accordance with Regulation .17 of this chapter, including:

(1)

Developing, reviewing, and signing each individual plan of care;

(2)

Consulting with and training employees regarding implementation of each individual plan of care;

(3)

Developing, reviewing, and signing each individual plan of care and discharge plan;

(4)

Participating in the admission process;

(5)

Providing counseling services to the children directly or through community resources; and

(6)

Serving as a liaison to the children’s parents or legal guardian, schools, juvenile court, and other social and community services.

Other Professional Service Providers. The licensee shall:

(1)

Obtain any other professional services, including consultation required for the implementation of individual plans of care, that are not available from its employees;

(2)

Ensure that the professionals are qualified, certified, or licensed appropriately for the nature of the service; and

(3)

Obtain the signature of the professional in agreement to comply with the licensee’s confidentiality policy.

Volunteers or Student Interns. If volunteers or student interns are used, the licensee shall:

(1)

Adhere to a written plan for the participation of volunteers or student interns;

(2)

Ensure that volunteers and student interns who have direct contact with the children and who perform the duties of an RCYCP:

(a)

Are supervised and evaluated by appropriate staff;

(b)

Are not used to replace a required staff position;

(c)

Have references verified by the licensee;

(d)

Are oriented and trained in:

(i)

The philosophy of the program;

(ii)

The needs and rights of the children; and

(iii)

The methods of meeting those needs;

(e)

As appropriate, are aware of or have input into the children’s individual plans of care;

(f)

Annually are screened for tuberculosis by the Mantoux method or the current Centers for Disease Control and Prevention standard and analysis of results or, for a volunteer or student intern whose screening results were positive, provide an annual medical certification that the individual presents no symptoms of active tuberculosis;

(g)

Are not permitted to have unsupervised access to children until the licensee has:

(i)

Received the results of a criminal background check;

(ii)

Received the results of a child protective services check;

(iii)

Resubmitted an application for a child protective services check every 2 years from the date of commencement of the provisions of services; and

(iv)

Completed the training required in Regulation .05E of this chapter; and

(h)

Provide the licensee a copy of applicable professional credentials.

Regulation .07 Physical Plant.Link Copy Citation

General Requirements. The licensee shall:

(1)

Comply with federal, State, and local building, fire, and health codes and laws, and all applicable local zoning laws;

(2)

Use a physical plant that is constructed and equipped in a manner consistent with the needs of the children, staff, and visitors and that is constructed and maintained reasonably to protect and to ensure the safety of all staff and residents;

(3)

Ensure compliance by submitting annually to the licensing agency:

(a)

Reports of all annual fire and health inspections conducted by the local jurisdiction; or

(b)

If the local jurisdiction does not conduct annual fire or health inspections annually, written documentation shall be obtained annually from the appropriate public agencies that inspections are not required;

(4)

Maintain evidence and provide documentation upon request that the physical plant had been tested for and found to be free of hazards from lead paint, asbestos, and radon;

(5)

Ensure that all facilities maintain at least one working fire extinguisher;

(6)

If there is evidence of insect or rodent infestation provide documentation of:

(a)

An inspection; and

(b)

Insect or rodent treatment, if necessary; and

(7)

Install telephone service and equipment that is:

(a)

Not solely provided through the use of cellular phone service;

(b)

Accessible and usable by staff and residents;

(c)

In all buildings used by the children.

License. The licensee shall prominently display the authentic current residential child care program license on site:

(1)

In the building bearing the address listed on the license;

(2)

In an area of the building open and easily accessible to visitors; and

(3)

In accordance with the requirements of the licensing agency.

Building, Grounds, and Equipment. The licensee shall:

(1)

Maintain all structures and grounds free from health and safety hazards;

(2)

Ensure that all outside and kitchen trash containers are covered;

(3)

Remove all trash at least once a week or more frequently as needed;

(4)

Ensure that all infectious waste is stored in biohazard waste containers and removed on a regular basis; and

(5)

Locate, install, and safely maintain appropriate playground or other recreational equipment.

Counseling and Administrative Space. The licensee shall maintain a designated space separate from the children’s living area:

(1)

For private discussions and counseling; and

(2)

For administrative purposes.

Living Areas. The licensee shall ensure that each building that houses children:

(1)

Has adequate space for informal and recreational use by the children;

(2)

Is not used as a primary residence for any individual other than children placed in the program;

(3)

Is a smoke and pollutant free environment;

(4)

Has walls that are:

(a)

Regularly cleaned and painted; and

(b)

Kept free of perforations, cracks, or punctures; and

(5)

Is maintained in a clean and orderly manner.

Sleeping Accommodations.

(1)

The licensee shall ensure that bedrooms occupied by ambulatory children measure at least:

(a)

80 square feet of usable floor space in single occupancy bedrooms; or

(b)

60 square feet of usable floor space per child in multiple occupancy bedrooms.

(2)

The licensee shall ensure that bedrooms occupied by non-ambulatory children measure at least:

(a)

120 square feet of usable floor space in single occupancy bedrooms; or

(b)

100 square feet of usable floor space per child with at least 3 feet between beds in multiple occupancy bedrooms.

(3)

A licensee shall:

(a)

Supply individual beds that are:

(i)

Adequate in size to accommodate the height and weight of the child; and

(ii)

Solidly constructed and consisting of a clean, comfortable, nontoxic, and fire-retardant mattress capable of being disinfected;

(b)

Maintain separate sleeping rooms for boys and girls who are 2 years old or older;

(c)

Allow no more than four children to sleep in a bedroom;

(d)

Ensure that the mattress of any bed in use is far enough away from the ceiling to allow the occupant to sit up in bed;

(e)

Change all bed linens at least once a week and whenever soiled;

(f)

Provide waterproof mattress protection for children who are enuretic;

(g)

Disinfect mattresses after use by another child;

(h)

Provide the children with a personal bureau or locker for clothing and personal belongings and a designated space for hanging clothing;

(i)

Allow the children to have some discretion in the decoration of sleeping areas;

(j)

Assure that all living areas are kept orderly and clean; and

(k)

Provide a source of natural lighting.

(4)

For children who sleep in beds, the licensee shall:

(a)

Provide a pillow, two sheets, and sufficient covering for comfort;

(b)

Prohibit the use of cots, bunk beds, loft beds, or sleep sofas as beds; and

(c)

Ensure that only the child assigned to a bed sleeps in it.

(5)

For infants and other children who require a crib, the licensee shall:

(a)

Shall provide an age appropriate sized crib for each infant or child in care;

(b)

May not allow an infant to sleep in a playpen or on a mat at any time; and

(c)

Shall ensure that:

(i)

Only the infant assigned to a crib sleeps in it;

(ii)

All cribs and playpens meet industry standards;

(iii)

Mattresses used in cribs and playpens fit snugly;

(iv)

Each infant has sheets, blankets, and other coverings for the infant's exclusive use;

(v)

Wet, soiled or damaged sheets, mattresses, blankets, or other coverings are immediately replaced;

(vi)

All sheets and blankets are laundered at least once a week, or, if soiled, are laundered before next use; and

(vii)

Cribs and playpens are free of hazards.

Bathrooms. The licensee shall:

(1)

Keep bathrooms in good operating order and maintain sanitary conditions;

(2)

For every five children, provide at least:

(a)

One sink with hot and cold water;

(b)

One bath or shower with hot and cold water; and

(c)

One flush toilet;

(3)

Unless the children require assistance, provide toilets and baths or showers that allow for individual privacy;

(4)

Equip tubs and showers with slip-proof surfaces;

(5)

Secure mirrors to the walls at heights appropriate for use by the children; and

(6)

Unless otherwise specified in the child’s individual plan of care, make available 24 hours a day, without children needing to request them, personal hygiene supplies, including but not limited to, toilet paper, soap, shampoo, toothbrushes, towels and washcloths; and

(7)

Equip bathrooms with adaptive equipment based on the needs of the children served.

Kitchens and Dining Areas. The licensee shall:

(1)

Have equipment and space for meal preparation, storage, serving, eating, and clean-up of meals;

(2)

Maintain all equipment in clean, safe working order, and ensure that equipment meets all applicable health and safety standards;

(3)

Unless the licensee documents that disposable dinnerware is necessary to protect the health or safety of the children, refrain from using disposable dinnerware on a daily basis;

(4)

Ensure that all dishes, cups, and glasses used by the children are:

(a)

Free from chips, cracks, or other defects; and

(b)

Properly cleaned between each meal; and

(5)

Unless otherwise specified in the child’s individual plan of care, ensure that children have access to unlocked food storage areas containing approved between-meal snacks.

Furnishings. The licensee shall supply clean, comfortable furniture in good repair.

Doorways, Windows, and Window Coverings. The licensee shall supply:

(1)

Doors that can be opened from the inside and the outside for all bedrooms and bathrooms;

(2)

Screens that are in good repair and removable in emergencies on all exterior windows that can be opened and exterior doors that may be left open;

(3)

Window coverings that will ensure privacy;

(4)

All window coverings, which shall have no draw cord capable of forming a loop greater than 7.25 inches;

(5)

All new and replacement window coverings, which shall be cordless window coverings; and

(6)

For each door or window in high-risk areas, such as recreation rooms and stairwells, shatter-resistant material or safety glass.

Electrical Systems. The licensee shall ensure that the physical plant has:

(1)

Electrical equipment, wiring, switches, sockets, and outlets which are maintained in compliance with local and State building codes;

(2)

Sufficient illumination in rooms, corridors, and stairwells to permit safe usage; and

(3)

Lighting of exterior areas during the night.

Climate Control. The licensee shall:

(1)

Provide heating and cooling systems which meet all applicable codes;

(2)

Ensure heating systems that exceed 120°F that are accessible to residents are equipped with protective materials to prevent residents from coming in contact with the heat source;

(3)

Maintain an air temperature of at least 68°F in the living areas and sleeping quarters of the physical plant; and

(4)

Prohibit the use of kerosene or open coil heaters.

Ventilation. In accordance with all local building codes, the licensee shall supply ventilation for each room used by the children through:

(1)

A window that can be opened;

(2)

An exhaust fan; or

(3)

An air conditioning system.

Water. The licensee shall:

(1)

Provide a continuous supply of potable hot and cold running water;

(2)

Equip the physical plant with a sanitary potable water distribution system;

(3)

Ensure that hot water accessible to the children is regulated to a temperature of 110°F or lower; and

(4)

If water from any source other than a public water supply is used:

(a)

Annually obtain a water test conducted by the appropriate State or local authority in accordance with State or local law; and

(b)

Keep on file the most recent test report.

Regulation .08 Emergencies and General Safety.Link Copy Citation

Emergencies.

(1)

The licensee shall:

(a)

Hold emergency drills:

(i)

At least monthly;

(ii)

On each shift, at least quarterly;

(iii)

At unexpected times and under varying conditions; and

(iv)

Maintain documentation of drills for 3 years;

(b)

Post adjacent to all telephones a list of emergency telephone numbers for:

(i)

Ambulance;

(ii)

Fire;

(iii)

Police;

(iv)

Poison control; and

(v)

Program administrator;

(c)

Post accessible copies of the evacuation procedure in conspicuous places on each floor of the physical plant; and

(d)

Keep exits free of obstruction or impediments to immediate use.

(2)

The licensee shall develop an emergency plan for foreseeable emergencies and disasters that shall include:

(a)

Procedures that will be followed before, during, and after an emergency to address the following:

(i)

Ensuring that documentation regarding children and staff contains current health, contact persons, and other important information that is immediately accessible in the event of an evacuation;

(ii)

Establishing a communication protocol among all appropriate parties that includes redundant communication means; and

(iii)

The notification to parent or legal guardian, licensing agency, and placing agency regarding the action that will be taken concerning the safety and well-being of the children served;

(b)

The evacuation, transportation, and 72-hour shelter-in-place of children and staff served;

(c)

The staff coverage, organization, and assignment of responsibilities that include:

(i)

Staff coverage needs for ongoing shelter-in-place or evacuations;

(ii)

Identification of staff members available to report for or remain at work for extended periods; and

(iii)

Establishment of staff notification and recall contingency plans and procedures;

(d)

The continuity of services, including:

(i)

Operations, planning, and financial and logistical arrangements;

(ii)

Procurement of essential goods, equipment, and services to sustain operations for at least 72 hours;

(iii)

Relocation to alternate facilities or other locations; and

(iv)

Reasonable efforts to continue care;

(e)

Provisions to ensure that the facility’s emergency and disaster plans are shared with local emergency management organizations;

(f)

An executive summary of the evacuation procedures that shall be provided, on request, to the family member of a child; and

(g)

Provisions to ensure that all staff and volunteers are aware of the procedures required by this chapter and that all staff and volunteers implement each procedure as adopted.

General Safety. The licensee shall:

(1)

Maintain a written active safety plan;

(2)

Document accidents;

(3)

Maintain first-aid kits appropriate in size and content to the nature of the program;

(4)

Prohibit firearms and chemical weapons on the grounds of or within the physical plant;

(5)

Maintain poisonous, toxic, or flammable materials in accordance with appropriate health code standards;

(6)

Except under the supervision of staff for use during celebrations, prohibit the use of candles;

(7)

Maintain in safe and good repair power-driven equipment;

(8)

Ensure that power-driven equipment is used by children only under the direct supervision of an employee and in accordance with State law; and

(9)

Ensure that, if animals are kept on the grounds or in the facility:

(a)

The animals are, consistent with the local ordinance or State law:

(i)

Licensed or registered;

(ii)

Vaccinated; and

(iii)

Leashed when outdoors;

(b)

Children are, when age appropriate, educated regarding the care and grooming of the animal;

(c)

Children allergic to the animal are not placed with the licensee;

(d)

A responsible adult is always present when an animal is near an infant; and

(e)

An animal suspected of becoming dangerous is removed from the grounds and facility.

Toys and Equipment. The licensee shall ensure that all toys and equipment used by children are:

(1)

Sturdy;

(2)

Of safe construction;

(3)

Nontoxic;

(4)

If used by children younger than 3 years old, large enough so they cannot be swallowed by a child;

(5)

Clean; and

(6)

In compliance with the standards of the Consumer Product Safety Commission.

Transportation. A licensee shall:

(1)

Supply transportation necessary to implement the children's individual service plans, including:

(a)

The provision of any necessary specialized transportation to accommodate a child who uses medical equipment; and

(b)

The capacity to transport children in case of an emergency;

(2)

Enhance the safety of children during transportation by ensuring:

(a)

The development and enforcement of appropriate written safety rules for transporting children;

(b)

Proper registration and maintenance in a safe condition and in conformity with all applicable laws any motor vehicle used for the transportation of children;

(c)

Retention of maintenance and repair records on all licensee-owned or leased motor vehicles used for the transportation of the children;

(d)

The availability of a first-aid kit in all vehicles used to transport children; and

(e)

Compliance with federal and State laws on child restraint;

(3)

Ensure that an individual who operates a licensee-owned or leased motor vehicle to transport the children is properly licensed to operate that class of vehicle;

(4)

Ensure that the number of individuals in a motor vehicle used to transport the children does not exceed the vehicle's industry-rated capacity;

(5)

Assure that any motor vehicle, whether owned by the licensee or a licensee's employee, which is used to transport children is properly insured for that purpose;

(6)

Meet any special medical needs that a child may have during transportation, including:

(a)

Advising the motor vehicle's operator if a child's health needs may cause difficulties during transportation, such as seizures, tendency towards motion sickness, or a disability; and

(b)

For non-ambulatory children in all motor vehicles except automobiles:

(i)

Using a ramp device or a hydraulic lift, if a ramp device is also available in case of emergency, to permit entry and exit of the children; and

(ii)

Securing wheelchairs to the floor and arranging them with adequate aisle space and access to the exit door; and

(7)

Curtail the use of 15-passenger vans for the transportation of children as follows:

(a)

Licensee may not acquire or otherwise put into service a 15-passenger van for the transportation of children; and

(b)

After January 1, 2006, a licensee may not transport children for any purpose in a 15-passenger van.

Swimming Pools, Hot Tubs, and Spas.

(1)

If an in-ground swimming pool is located on the grounds of a licensee:

(a)

The pool shall be maintained in a safe and sanitary condition;

(b)

If a child younger than 8 years old is placed with the licensee, the pool area shall be completely enclosed by a fence that is:

(i)

At least 4 feet high; and

(ii)

Constructed of wood, concrete, brick, or chain metal; and

(c)

When the pool is not in use:

(i)

The pool area shall be protected from access by a locked gate; and

(ii)

The pool shall be completely covered in a manner to prevent access by a child.

(2)

The licensee shall ensure that an above-ground swimming pool located on the licensee's grounds:

(a)

Is maintained in a safe and sanitary condition;

(b)

Is 4 feet above ground at all points; and

(c)

When not in use, has:

(i)

A secured cover which prevents access by children, or retractable or removable ladders locked or stored away from the pool;

(ii)

Locked doors and gates that access the pool; and

(iii)

No climbable objects on the pool's exterior.

(3)

The licensee shall allow children to swim:

(a)

Only in approved areas; and

(b)

Under the supervision of sufficient individuals who:

(i)

Are trained in first aid, water safety, and cardiopulmonary resuscitation; and

(ii)

Have current senior lifesaving certificates from the American Red Cross or its equivalent.

(4)

Hot tubs and spas are prohibited on the grounds of a licensee's facility.

Any applicable State, federal, or local requirement shall control in the event of any conflict by any requirement in this chapter.

Regulation .09 General Program Requirements.Link Copy Citation

Community Integration. The licensee shall:

(1)

Develop and institute a plan to integrate the program into the life of the community, ensuring that children have opportunities to participate in community activities to a degree consistent with their needs and limitations;

(2)

Ensure that community residents have reasonable access to the program administrator to address concerns about the program staff and residents;

(3)

Appoint at least one resident of the community to be a member of the Board; and

(4)

Develop and implement a procedure for the resolution of complaints from the community.

Communications with Family and Others. The licensee shall:

(1)

Before or upon placement, give the child’s parent or legal guardian, the placing agency, and the child, a program handbook that is in a format that is understandable and comprehensive, and includes:

(a)

The mission of the program and its admission and discharge policy;

(b)

Normal daily routines;

(c)

Treatment strategies and disciplinary philosophy;

(d)

Visiting hours and other procedures related to communication with the child;

(e)

A procedure through which the child or parent may register grievances regarding the child's care;

(f)

The program’s policies with respect to accessing health care and the exercise of religion or a life philosophy; and

(g)

The telephone number of the appropriate staff on duty who may be contacted;

(2)

Implement a written policy regarding communication which includes visitation, correspondence, reports, and telephone contact between the child and others;

(3)

Consult with the placing agency to ascertain the child’s status with respect to family member contact and encourage family participation in the plan of care;

(4)

Consistent with the child's individual plan of care, maintain conditions of reasonable privacy for the child’s visits and telephone contacts;

(5)

Have flexible visiting hours for visitors who are unable to visit at the regular times;

(6)

Unless inconsistent with the child’s individual plan of care, permit the child to receive and send mail;

(7)

Establish and implement written procedures for all overnight visits away from the program which address:

(a)

Documentation of permission from the placing agency, parent, or guardian;

(b)

Determination of the duration of the visit; and

(c)

Documentation of the:

(i)

Name and address of the individual responsible for the child while absent from the program;

(ii)

Child's location while absent from the program; and

(iii)

Time of the child's departure from and return to the program;

(8)

Prohibit restrictions on a child’s access to the child’s attorney; and

(9)

When a child’s communication with an individual outside the program is curtailed or terminated:

(a)

Inform the child and, unless unsafe for the child, the individual affected by the restriction; and

(b)

Include a written statement of the reasons for the restriction in the child's case file.

Normal Daily Routines. The licensee shall:

(1)

Have a written plan of normal daily routines which shall be made available to the children and employees; and

(2)

Unless inappropriate, permit the children to participate in planning normal daily routines.

Public Relations.

(1)

Before using a child's picture or other uniquely identifying information for the purpose of public relations in any form, the licensee shall obtain the written consent of:

(a)

The child, if appropriate;

(b)

The child's parent or legal guardian; and

(c)

If required, the juvenile court.

(2)

The licensee may not use a child, a child’s picture, or other uniquely identifying information in any way that would likely be harmful or cause embarrassment to the child or the child’s family.

Child Grievance Procedure.

(1)

The licensee shall establish and follow a written grievance procedure that:

(a)

Includes:

(i)

Each step in the process;

(ii)

Specific timelines; and

(iii)

Identification of the person who should receive the grievance;

(b)

Requires documentation of receipt of the procedure in the child's individual case record; and

(c)

Documents all grievances and communicates corrective actions to the:

(i)

Licensing agency; and

(ii)

The child and the child’s parents or legal guardian, as appropriate.

(2)

The licensee shall provide the child and the child’s parents or legal guardian unimpeded access to a description of how to file a grievance, including:

(a)

Any formal grievance forms or other requirements for the format and content of the complaint;

(b)

Guidance for obtaining staff and other assistance in completing and filing a grievance; and

(c)

Instructions regarding the identity, address, and telephone number of the individuals designated to receive and act upon grievances.

(3)

The licensee shall post the name and telephone number of the licensing agency and child protective services contact persons near every telephone that is accessible to staff and residents.

(4)

The licensee shall ensure that there is no retaliation against a child or a child’s family for filing a grievance.

(5)

The grievance procedure shall be approved by the licensing agency.

Regulation .10 Basic Life Needs.Link Copy Citation

General. The licensee shall have a structured plan of care designed to meet the children's physical needs and well-being.

Food and Nutrition. The licensee shall:

(1)

Serve food that meets or exceeds the children's recommended dietary allowances as established by the Food and Nutrition Board of the National Academy of Sciences;

(2)

Maintain at least a 72-hour supply of food in accordance with the planned menu;

(3)

Maintain nonperishable food items in the event of an emergency, in accordance with the licensee’s emergency preparedness plan;

(4)

Provide each child three meals each day, which are approved by a registered dietician and offer nutritious between-meal snacks, with not more than 14 hours between dinner and breakfast the following day;

(5)

Offer approved supplementary or modified nutritionally sufficient diets for religious, cultural, life philosophy, or health reasons, as appropriate;

(6)

Prohibit forced feeding of or withholding of food from a child as a form of discipline;

(7)

Ensure that if employees are served food from the facility, it shall be the same food as that served to the children;

(8)

Observe the applicable requirements of the Maryland Department of Health and local health departments; and

(9)

Design menus that:

(a)

Are kept on file for 12 months;

(b)

Are approved at least annually by an individual licensed by the State to practice dietetics;

(c)

Are planned at least a week in advance;

(d)

Document the actual foods served, including comparable substitutions; and

(e)

Document any between-meal snacks provided.

Children’s Personal Funds. The licensee shall:

(1)

Have and observe a written policy concerning a child’s personal funds which addresses:

(a)

The child's access to the child's personal funds;

(b)

Accrual of interest into the child's account from an interest bearing account;

(c)

Accounting for the child's funds on request; and

(d)

The limit, if any, placed on the personal funds a child may bring into and hold while in the program;

(2)

Make an inventory of the child's personal funds and other belongings upon admission, and update the inventory as needed;

(3)

Treat money earned by a child or received by the child as a gift or as an allowance as the child's personal property;

(4)

Account for and maintain a child's personal funds separate from program funds;

(5)

Transfer a child’s personal funds to the child within 5 business days of discharge from the program;

(6)

As applicable, deduct reasonable sums from a child's allowance as restitution for damage done, if the practice is consistent with the licensee’s program and written restitution policy; and

(7)

Ensure that restitution shall be paid from the child’s personal funds in accordance with the child’s court order.

Clothing. The licensee shall:

(1)

Ensure that the children have an adequate supply of clean, comfortable, well-fitting clothes, and shoes for indoor and outdoor wear;

(2)

Treat a child's clothing as the child's personal property;

(3)

Allow a child to be involved, as appropriate, in the selection, care, and maintenance of the child's clothing;

(4)

Use donated clothing only if suitable and in good condition; and

(5)

Transfer a child's clothing to the child upon discharge.

Other Personal Belongings.

(1)

The licensee shall have a policy regarding personal belongings that will:

(a)

Allow a child to possess appropriate personal belongings;

(b)

Make reasonable provisions for the protection of a child's personal belongings; and

(c)

Transfer to a child the child's personal belongings upon discharge.

(2)

The licensee may limit the size, value, or type of personal belongings that a child may bring to the program.

Personal Hygiene. The licensee shall:

(1)

Instruct the children in good habits of personal care, hygiene, and grooming; and

(2)

Provide each child with culture-specific and gender-specific hygiene products, including, but not limited to:

(a)

A toothbrush and toothpaste;

(b)

Mouthwash and dental floss;

(c)

A comb and brush;

(d)

Clean towels and washcloths;

(e)

Soap;

(f)

Shampoo and conditioner;

(g)

Body lotion or moisturizer;

(h)

Deodorant; and

(i)

Feminine hygiene products.

Sleep. The licensee shall:

(1)

Establish and follow routines for waking the children and putting them to bed; and

(2)

Provide children the opportunity each night for at least 8 hours of uninterrupted sleep, except in the event of an emergency or drill.

Regulation .11 Children's Rights.Link Copy Citation

General. The licensee shall provide services designed to meet the children's needs for guidance, learning, and personal development.

Each child shall be treated in compliance with a “Residents’ Bill of Rights,” as set forth in Human Services Article, §8-707, Annotated Code of Maryland.

Regulation .12 Children's Services.Link Copy Citation

Education.

(1)

Each licensee shall collaborate with the placing agency and document efforts to:

(a)

Ensure that each child of mandatory school age who has not earned a high school diploma or certificate of completion under COMAR 13A.03.02.02 is receiving an appropriate elementary or secondary school education;

(b)

If the child is a student with disabilities, cooperate with the team constituted under COMAR 13A.05.01 as appropriate to ensure that the child receives special education and related services as provided for in the child's individualized education program; and

(c)

Ensure that each child above the mandatory school age who has not received a secondary school diploma or certificate of completion under COMAR 13A.03.02.02 participates in:

(i)

A secondary school education program;

(ii)

A tutoring program to prepare the child to take the General Educational Development Test under COMAR 13A.03.03; or

(iii)

Developmentally appropriate vocational skills training.

(2)

The placing agency and licensee shall work cooperatively with the local school system to:

(a)

Facilitate the child’s enrollment in school within the local school system within 3 school days of placement at the facility, and if not feasible, document in writing all attempts and rationale for the delay;

(b)

Ensure that the child attends the local school whenever feasible and appropriate consistent with Education Article, §4-122(a)(4), Annotated Code of Maryland; and

(c)

Participate as appropriate in the child's educational activities.

(3)

If a licensee determines that there is a need to establish educational services in its facility, the licensee shall:

(a)

Obtain a certificate of approval in accordance with COMAR 13A.09.10, if the licensee intends to establish a nonpublic educational program or GED program; or

(b)

Establish a tutoring program for children who are concurrently enrolled in a public or nonpublic educational program.

(4)

Each licensee shall notify the placing agency and the licensing agency when a child is suspended from school for more than 3 days.

(5)

Each licensee shall immediately notify the placing agency and the licensing agency when a child is expelled from school.

(6)

Each licensee shall develop an individualized daily program plan for a child who has been suspended or expelled from school.

Recreation and Leisure. The licensee shall develop a written plan that:

(1)

Provides the children with a range of indoor and outdoor recreation and leisure activities both in the program and in the community; and

(2)

Bases recreation and leisure activities on a child’s needs and interests and the group composition.

Life Skills Training. The licensee shall provide each child with life skills training appropriate to the age and capability of the child in areas including:

(1)

Accessing community resources and services;

(2)

Conflict resolution;

(3)

Dating, marriage, and family planning;

(4)

Decision making;

(5)

Money management;

(6)

Nutrition;

(7)

Personal hygiene and grooming;

(8)

Personal relationships;

(9)

Personal safety; and

(10)

Time management.

Work Experience. The licensee:

(1)

Shall train a child in work readiness according to the child's age and capability;

(2)

Shall develop appropriate work experiences for a child that:

(a)

Do not interfere with a child's time for school, study periods, sleep, community activities, or family visits;

(b)

Comply with federal and State law on labor and employment and child labor; and

(c)

Do not use a minor as a substitute for child care staff;

(3)

Shall change the child’s routine duties often to provide a variety of experience; and

(4)

For a child who legally is not attending school, shall document informing the child of opportunities of or assistance to the child in the attainment of gainful employment or facilitation of the participation of the child in a vocational academic program geared to the acquisition of suitable employment or necessary life skills.

Regulation .13 Health Care.Link Copy Citation

General Health Services. The licensee shall:

(1)

Establish and implement a written plan for the provision of preventive, routine, and emergency medical, dental, optical, and mental health care for the children;

(2)

Establish and implement a written policy for documenting and addressing health complaints; and

(3)

Obtain written authorization from a parent, legal guardian, or other authorized individual for emergency and non-emergency medical, dental, optical, or mental health care.

Medication Administration Policy.

(1)

The licensee shall observe written policies for the management and administration of medications to children.

(2)

The policy shall comply with all relevant State statutes and regulations.

Medication Management.

(1)

The licensee shall maintain medications as follows:

(a)

The licensee shall store medications in a locked drawer, cabinet, or container intended for medication storage, or, if a refrigerator is required, in a locked container in the refrigerator;

(b)

The licensee shall store all Schedule I and Schedule II controlled substances, as defined in Criminal Law Article, Title 5, Annotated Code of Maryland, under two consecutive locks; and

(c)

The licensee shall discard outdated or discontinued prescription and over-the-counter medications in a manner that prohibits misuse.

(2)

For a newly admitted child, the licensee shall:

(a)

Continue any current medications that the child is receiving at the time of admission to the program; and

(b)

Within 3 days of admission, consult with the licensee’s medical care provider, psychiatrist, or the child’s primary care physician concerning the continuation of a current medication.

(3)

For each child in the program who receives medications, the licensee shall:

(a)

As medically indicated, obtain from the child’s medical care provider a review of the child’s medications and documentation of the reasons for continuing, discontinuing, or changing medication, depending on the child’s medical needs; and

(b)

Document all medication taken, including the:

(i)

Name of the child;

(ii)

Name of the medication;

(iii)

Frequency and dosage of the medication;

(iv)

Date, time, and type of administration of the medication; and

(v)

Name and signature of the employee who administered the medication or supervised its self-administration;

(c)

Notify the prescribing physician in any case of a medication error or drug reaction; and

(d)

Coordinate with the pharmacy and the child’s parents or legal guardian to provide information about appropriate administration of medications during the child’s home visits.

(4)

The licensee shall include the training provided under Regulation .05E(4)(g) of this chapter to all direct care staff regarding:

(a)

The therapeutic benefits and side effects of medications used by children in the program; and

(b)

Medication administration, in accordance with the requirements of §B of this regulation.

(5)

The licensee shall prohibit the use of medication for the purpose of group control, experimentation, or research.

(6)

The licensee shall coordinate with the child's health care provider and the placing agency at the time of the child's discharge to ensure continuity in the administration of medications to the child.

Somatic Health Care. The licensee shall:

(1)

Establish and implement written policies and procedures for the provision of somatic health care services;

(2)

Provide the children with access to somatic health care through a physician licensed to practice medicine in the State or, under the supervision of a licensed physician, a nurse practitioner or physician’s assistant appropriately certified or licensed to practice in the State;

(3)

Arrange for access to prompt diagnosis and treatment of acute illnesses;

(4)

Arrange for access to continuing care for chronic illnesses;

(5)

Arrange for hospitalization for a child when deemed necessary by the licensee’s somatic health care provider; and

(6)

As authorized by State and federal law, make available to the child, the child's parent or legal guardian, and the placing agency a copy or summary of the child's health record

Dental Care. The licensee shall:

(1)

Provide the children with access to dental care through a dentist licensed to practice dentistry in the State;

(2)

Unless a child has been examined and treated as necessary during the 6 months before the child’s admission to the program, have each child examined by a dentist within 30 days after admission;

(3)

Have each child examined by a dentist at least every 12 months or more frequently as prescribed by the dentist; and

(4)

Arrange for access to prompt treatment of acute dental needs.

Vision and Audiological Care. The licensee shall provide the child with access to vision and audiological care as authorized by the child’s primary care physician through an appropriate professional licensed to practice in the State.

Immunization. The licensee shall:

(1)

Within 30 days after admission and subject to the provisions of State law, provide for the immunization of any child who has not been immunized in accordance with the immunization schedules of the American Academy of Pediatrics; and

(2)

Maintain a record of immunizations in the child's individual case record.

Physical Examination. The licensee shall secure a physical examination for each child, with a copy of the documentation of the examination:

(1)

Within 30 days of admission or earlier if indicated by the child’s health status, unless a child has been examined and treated as necessary during the 12 months before the child’s admission to the program; and

(2)

After the examination conducted under §H(1) of this regulation, according to a schedule established by the child's medical care provider, the American Academy of Pediatrics, or the Early and Periodic Screening, Diagnosis, and Treatment schedule.

Emergency Health Services. The licensee shall establish and implement written policies and procedures for emergency medical, dental, or mental health needs requiring emergency hospital treatment, including:

(1)

Communication of the need for immediate assistance;

(2)

Transportation of the child;

(3)

Notification to the licensing agency, the placing agency, and, unless inconsistent with the child’s individual plan of care, the child’s parent or legal guardian; and

(4)

Supervision of the child and the children remaining at the program.

Communicable Diseases. The licensee shall:

(1)

Establish and implement a policy for managing communicable diseases, including isolation when necessary;

(2)

Establish and implement a policy that requires staff to exercise standard precautions with respect to communicable diseases and infection control; and

(3)

Comply with Maryland Occupational Safety and Health Bloodborne Pathogen Standards and the Centers for Disease Control and Prevention's guidelines for the prevention of communicable diseases and other health emergencies.

Suicide Prevention. The licensee shall establish and follow procedures for suicide prevention and intervention.

Regulation .14 Child Abuse and Neglect.Link Copy Citation

Written Policy. The licensee shall establish and implement a written policy that sets out, in compliance with State law and regulations:

(1)

The definitions of child abuse and neglect;

(2)

The procedures to be followed if the licensee has reason to believe that a child has been subjected to abuse or neglect; and

(3)

The penalties that the program may impose for failure to comply with the policy.

Reporting Requirements.

(1)

An individual who notifies the local department of social services or appropriate law enforcement agency under this regulation also shall report and give all information required by State law to:

(a)

The program administrator; or

(b)

If the program administrator is the individual alleged to be responsible for the abuse or neglect, a specified officer of the licensee.

(2)

The licensee may not prevent an individual from making a report of abuse or neglect or take disciplinary action against an individual for making in good faith a report of abuse or neglect.

(3)

The licensee shall cooperate in the conduct of any investigation or proceeding brought as result of a report of abuse or neglect by:

(a)

Allowing employees to participate in the investigation and to provide testimony without loss of leave, pay, or other benefits; and

(b)

Disciplining employees who fail or refuse to report abuse or neglect when required to do so or do not cooperate in the investigation or provide testimony when requested.

(4)

Within 48 hours after a licensee files a report of child abuse or neglect with the local department of social services or the appropriate law enforcement agency, or within 48 hours after it becomes known to the licensee that the report has been filed, the licensee shall:

(a)

Submit a written report to the licensing agency informing it of the activity; and

(b)

Unless inconsistent with the child’s individual plan of care, inform the child’s parent or legal guardian of the allegation.

(5)

Within 10 days after a local department of social services makes a finding regarding a report that a child may have been subjected to abuse or neglect by an individual associated with the licensee, the licensee shall submit to the licensing agency a written final report indicating any necessary corrective action that the licensee will undertake and put into effect not more than 30 days after the final report.

Employee's Signature. The licensee shall ensure that as a condition of employment, all employees read and sign a statement acknowledging receipt of the policy established under §A of this regulation.

Administrative Leave. Upon being notified of or making a report alleging that an employee has subjected a child to abuse or neglect, the licensee shall immediately place the employee on administrative leave and remove the employee from access to the children. This regulation does not prohibit a licensee from suspending without pay or discharging an employee alleged to have subjected a child to abuse or neglect.

Multidisciplinary Consultation. When the local department of social services asks the program administrator to participate on a multidisciplinary case consultation team to investigate a report of child abuse or neglect and to help formulate a corrective action plan, the program administrator or designee shall participate on the team.

Posting Telephone Numbers. The licensee shall post conspicuously the telephone number supplied by the local department of social services for reporting child abuse or neglect.

Regulation .15 Behavioral Interventions, Strategies, and Supports.Link Copy Citation

General Policies.

(1)

The licensee shall establish and follow written policies and procedures that:

(a)

Are communicated to the child, the child’s parent or legal guardian, program personnel, licensing agency, and the placing agency;

(b)

Incorporate the principles of positive behavioral interventions, strategies and supports, and trauma-informed care into all prevention and intervention strategies;

(c)

Specify the approved procedures for the administration of prevention and intervention strategies and supports;

(d)

Identify the program personnel authorized to administer each form of prevention and intervention strategies and supports;

(e)

Include the procedures for training program personnel in the use and administration of each form of prevention and intervention strategies and supports that incorporate the principles listed in §A(1)(b) of this regulation; and

(f)

Annually review the forms of prevention and intervention strategies and supports.

(2)

A licensee may not use the following as disciplinary measures:

(a)

Physical, mental, and verbal abuse, or corporal punishment;

(b)

Assignment of physically strenuous exercise or work;

(c)

The withholding of:

(i)

Food;

(ii)

Water;

(iii)

Sleep;

(iv)

Mail;

(v)

Family visits; or

(vi)

Program participation other than recreation or leisure activities;

(d)

Forced feeding of a child;

(e)

Chemical restraints, unless in compliance with State law and ordered by a physician;

(f)

Mechanical restraints, except as permitted by other applicable State regulations or ordered by a court of competent jurisdiction; or

(g)

Physical restraint, except when failure to do so would result in harm to others or to the child.

(3)

A program may not delegate behavioral interventions, strategies, and supports of a child to another child or group of children.

Interventions Strategies.

(1)

General Program Requirements. Program staff shall be encouraged to use an array of prevention and intervention strategies to increase adaptive behaviors or decrease targeted behaviors, as specified in the behavior intervention plan, that incorporate the following principles:

(a)

Positive behavioral intervention strategies and supports;

(b)

Trauma-informed care; and

(c)

Individualized behavioral assessments and planning in accordance with COMAR 14.31.06.17.

(2)

Program staff may use restraint only:

(a)

After less restrictive or alternative approaches have been considered and:

(i)

Attempted; or

(ii)

Determined to be inappropriate;

(b)

In a humane, safe, and effective manner;

(c)

Without intent to harm or cause discomfort;

(d)

When consistent with documented medical or psychological limitations and the child’s individual plan of care; and

(e)

If the staff member performing the restraint has current certification in the use of restraint via the training program used by the licensee that has been approved by the State.

(3)

Nothing in this chapter shall limit the responsibilities of law enforcement, judicial authorities, or security personnel.

Safe Environment Plan.

(1)

General. The program shall develop a safe environment plan during intake and admission. The safe environment plan shall be reviewed and updated in conjunction with the child’s individual plan of care, or more frequently, as appropriate. The program shall partner with the child, the child’s parent or legal guardian, as applicable, and the custodial agency to develop a plan to create and maintain a nonviolent and healing environment and to prevent the use of restraint. The safe environment plan shall be easily accessible to program personnel at all times.

(2)

Unless otherwise documented in a plan, the safe environment plan shall include the following:

(a)

Physical space that the program shall provide to make the child feel safe, comforted, and in control of the child’s behavior;

(b)

The triggers and situations that increase stress or fear and may cause the child to lose control of his or her behavior and how the child’s loss of control of his or her behavior is manifested;

(c)

The methods for calming or soothing that the child prefers and has found to be successful;

(d)

The child’s preferences regarding positive, nonphysical interventions, strategies, and supports if the child’s level of agitation increases;

(e)

The medication that is appropriate clinically and agreed to and prescribed by the child’s treating physician that the child may choose to take voluntarily, if the child’s level of agitation increases despite the use of the alternative interventions identified in the safe environment plan;

(f)

Any medical information that can affect the safety of a restrictive intervention;

(g)

Any trauma history that the child has experienced;

(h)

Any preferences or contraindications to the debriefing process; and

(i)

The time frame in which law enforcement will be notified in the event of a child being absent without leave, not to exceed time limits as specified in COMAR 14.31.06.16.

(3)

The program shall ensure that all program personnel working directly with the child:

(a)

Are fully briefed on each child’s safe environment plan; and

(b)

Honor the child’s requests and preferences identified in the plan, unless clinically contraindicated in a particular situation.

(4)

The treatment team shall:

(a)

Review the safe environment plan with the child following any post-restraint debriefing, and at other times consistent with the program’s policy, make any necessary changes identified by the child, staff, or both as appropriate; and

(b)

Ensure that staff, the child’s parent or legal guardian, and the custodial agency are informed of any subsequent modifications made to safe environment and individual plan of care.

Use of Time Out.

(1)

Program personnel may use time-out to address a child’s behavior if:

(a)

The safe environment plan supports time-out;

(b)

The child requests time-out;

(c)

The child’s behavior unreasonably interferes with the program activities; or

(d)

The child’s behavior constitutes an emergency, and time-out is necessary to protect a child or other person from imminent, serious, physical harm after other less intrusive interventions have failed or been determined to be inappropriate.

(2)

A setting used for time out shall:

(a)

Provide program personnel with the ability to see the child at all times;

(b)

Provide adequate lighting, ventilation, and furnishings; and

(c)

Be unlocked and free of structural barriers to prevent egress.

(3)

Program personnel shall supervise a child placed in time-out and provide a child in time-out with:

(a)

An explanation of the behavior that resulted in the use of time-out; and

(b)

Explanation and instruction on the behavioral expectations when the child returns to the milieu.

(4)

Each period of time-out shall be appropriate to the developmental level of the child and the degree of severity of the behavior, and may not exceed 30 minutes.

(5)

A child’s parent or legal guardian, the custodial agency, and program personnel may at any time request a meeting to address the use of time-out and to:

(a)

Conduct a functional behavioral assessment; and

(b)

Develop, review, or revise a child’s plan of care.

Restraint.

(1)

Physical Restraint.

(a)

The use of physical restraint must be in accordance with the approved behavior management system used by the licensee.

(b)

The use of prone restraint is prohibited in residential child care facilities.

(c)

The use of physical restraint is prohibited in residential child care facilities unless:

(i)

The parent or legal guardian of a child has been notified before admission that the use of physical restraint may be necessary; and

(ii)

There is an emergency situation and physical restraint is necessary to protect a child or other individuals from imminent, serious, physical harm after other less intrusive, nonphysical interventions have failed or been determined inappropriate.

(d)

Physical restraint may be applied only by program personnel who have successfully completed State-approved training in the appropriate use of physical restraint consistent with §G of this regulation.

(e)

In applying physical restraint, program personnel may only use the least amount of force necessary to protect a child or other person from imminent, serious physical harm.

(f)

A physical restraint:

(i)

Shall be removed as soon as the resident is calm; and

(ii)

May not last longer than 30 minutes per occurrence or longer than the approved behavior management system used by the licensee.

(g)

Trained staff shall constantly monitor the use of restraint for the following:

(i)

Proper technique;

(ii)

Level of consciousness of the youth being restrained;

(iii)

Breathing; and

(iv)

Other safety factors.

(h)

The program administrator or designee shall be contacted immediately after the initiation of the restraint.

(2)

Mechanical Restraint.

(a)

The use of mechanical restraint is prohibited in residential child care facilities, except as permitted in COMAR 14.31.07.08.

(b)

Program personnel are not prohibited from using a protective or stabilizing device prescribed by a health care professional.

(3)

The use of seclusion is prohibited in Maryland residential child care facilities.

(4)

Referral to Team.

(a)

If restraint is used, and the child’s behavior intervention plan does not include the use of restraint, the team specified in Regulation .17A of this chapter shall meet within 5 business days of the incident to consider:

(i)

The review of the safe environment plan;

(ii)

The need for a functional behavioral assessment;

(iii)

Reviewing or developing appropriate behavioral interventions; and

(iv)

Revising or implementing a behavior intervention plan.

(b)

If a child’s behavior intervention plan includes the use of restraint, it shall specify how often the team shall meet to review or revise, as appropriate, the child’s behavior intervention plan.

(c)

When a team meets to review or revise a child’s behavior intervention plan, the team shall consider:

(i)

Existing health, physical, psychological, and psychosocial information;

(ii)

Information provided by the parent or legal guardian and the custodial agency; and

(iii)

Observations by program personnel and related service providers.

(d)

The program shall provide the parent or legal guardian, the child, the custodial agency, and the child’s attorney with written notice when a team proposes or refuses to initiate or change the child’s behavior intervention plan to include the use of restraint.

(e)

A parent or legal guardian or child may request an appeal through the program's grievance process in accordance with Regulation .09E of this chapter if the parent or legal guardian or child disagrees with the team’s decision to propose, or refuse to initiate, or change the child’s behavior intervention plan to use restraint.

(5)

Documentation Requirements for the Use of Restraint. Documentation of events surrounding the utilization of restraint in the child’s record shall include, but not be limited to:

(a)

Type of restraint used;

(b)

Rationale for the restraint and expected outcome of the intervention;

(c)

The safe environment plan or other less restrictive interventions, de-escalation techniques, or all of these utilized prior to the implementation of restraint and the child’s response to each;

(d)

The child’s response during and after the implementation of the restraint;

(e)

The length of time in restraint;

(f)

Description of the specific precipitating factors leading to the restraint, including:

(i)

Description of observable behavioral, emotional, and physical characteristics of the child involved;

(ii)

Degree of restriction or loss of privileges;

(iii)

Any event, situation, or condition immediately preceding the behavior that prompted the use of restraint; and

(iv)

The behavior that prompted the use of a restraint;

(g)

Specific location where the restraint occurred, and general activity occurring within the environment before the incident;

(h)

Staffing level, types of program personnel (male, female, unlicensed, licensed);

(i)

Unit capacity and unit population;

(j)

The names of the program personnel who observed the behavior that prompted the use of restraint;

(k)

The names and signatures of the program personnel implementing, observing, and monitoring the use of restraint;

(l)

A description of the restraint event, including:

(i)

The child’s behavior and reaction during the restraint; and

(ii)

The name and signature of the administrator informed of the use of restraint;

(m)

Physical condition, including any observable or reportable injuries of the child during and after the restraint, including:

(i)

Description of any injuries sustained;

(ii)

On-site first aid intervention; and

(iii)

Off-site medical treatment;

(n)

Medication, as identified in the child’s safe environment plan, administered before, during, or after the restraint;

(o)

Date and time of the restraint; and

(p)

Notification:

(i)

To the program administrator or designee;

(ii)

To the parent or legal guardian;

(iii)

To the placement agency; and

(iv)

To the licensing agency in writing, the information described in Regulation .18D of this chapter.

Debriefing.

(1)

Staff.

(a)

Within 24 hours of the incident, program personnel involved in the incident and the clinical coordinator, supervisor, or designee shall discuss and document the management of the incident by addressing the following:

(i)

The precipitating factors of the incident;

(ii)

Program personnel response to the incident;

(iii)

De-escalation techniques or less restrictive interventions attempted, or both, and the child’s response to each;

(iv)

Timeliness of program personnel intervention;

(v)

Program personnel's ability to function as a team and improvements that could be made;

(vi)

Adequacy of program personnel response and need for additional staff;

(vii)

Aspects of the incident that should be the focus for discussion for the team; and

(viii)

Other interventions that could have been used to prevent the restraint.

(2)

Child.

(a)

Within 24 hours of the incident, unless contraindicated by the safe environment plan, the child involved in the incident and the program administrator or designee shall discuss and document the management of the incident by addressing the following:

(i)

The precipitating factors of the incident;

(ii)

Program personnel response to the incident;

(iii)

De-escalation techniques or less restrictive interventions attempted, or both, and the child’s response to each;

(iv)

Timeliness of program personnel intervention;

(v)

Program personnel's ability to function as a team, and improvements that could be made;

(vi)

Adequacy of program personnel response, and need for additional staff;

(vii)

Aspects of the incident that should be the focus for discussion for the team; and

(viii)

Other interventions that could have been used to prevent the restraint.

(b)

If the child declines to participate in the debriefing:

(i)

Program personnel shall document efforts to conduct the debriefing, efforts to engage the child in the process, and the reasons the child declined to participate; and

(ii)

Negative consequences may not be imposed upon the child for nonparticipation.

Administrative Procedures.

(1)

Each residential child care facility shall develop policies and procedures to address:

(a)

A continuum of prevention and intervention strategies that incorporate the principles of positive behavioral interventions, strategies and supports, and trauma-informed care;

(b)

The prevention of self-injurious behaviors;

(c)

Methods for identifying and defusing potentially dangerous behavior;

(d)

The use and documentation of time-out consistent with Regulation .15D of this chapter; and

(e)

The use of restraint consistent with Regulation .15E of this chapter.

(2)

Quality Assurance. Each residential child care facility shall develop a quality assurance process to:

(a)

Ensure that each child’s needs are addressed;

(b)

Monitor and address the incident management findings, frequency, and types of restraints utilized;

(c)

Implement measures to reduce the use of restraint; and

(d)

Annually review policies and procedures, and provide them to program personnel and the parent or legal guardian.

(3)

Training.

(a)

Each residential child care facility shall provide training to program personnel on this chapter and the appropriate implementation of policies and procedures developed in accordance with §A of this regulation.

(b)

The program personnel shall receive training on current professionally accepted practices and standards from a vendor whose training program has been approved by the State and which includes all of the following:

(i)

Positive behavioral intervention strategies and supports;

(ii)

Trauma-informed care; and

(iii)

Restraint.

(c)

Training shall be required:

(i)

Before program personnel may work with children independently; and

(ii)

At least annually.

(d)

Each residential child care facility shall identify program personnel authorized to serve as a program wide resource to:

(i)

Assist with training on de-escalation techniques; and

(ii)

Ensure proper administration of time out and restraint.

(4)

Monitoring and Compliance.

(a)

Each residential child care facility shall develop policies and procedures on:

(i)

Monitoring the use of time out and restraint; and

(ii)

Receiving and investigating complaints regarding time out and restraint practices.

(b)

The residential child care facility shall report the use of restraint to:

(i)

The parent or legal guardian within 24 hours of the incident unless otherwise specified in the safe environment plan by the parent or legal guardian;

(ii)

The placement agency;

(iii)

The licensing agency in writing, information described in Regulation .18D of this chapter; and

(iv)

Child Protective Services, as required by Regulation .14 of this chapter.

(c)

The licensing agency may monitor and request any information regarding any matter related to time-out or restraint implemented by a residential child care facility.

Regulation .16 Absence Without Leave.Link Copy Citation

Written Policy. The licensee shall have and follow a written policy to govern its actions when a child is discovered to be absent without leave.

Child’s Return. Unless otherwise specified in the child’s individual plan of care, if the child has not returned to the program within 1 hour of the program discovering that the child is missing or unaccounted for, the licensee shall notify:

(1)

The local law enforcement authority;

(2)

The placing agency;

(3)

The licensing agency; and

(4)

The child’s parent or legal guardian, unless inconsistent with the child’s individual plan of care.

Notification. When a child who was missing or unaccounted for returns to the program, the licensee shall immediately notify:

(1)

The local law enforcement authority;

(2)

The child’s parent or legal guardian;

(3)

The placing agency; and

(4)

The licensing agency.

Regulation .17 Admission, Individual Plan of Care, Behavior Intervention Plan, and Discharge.Link Copy Citation

General Requirements.

(1)

The licensee shall have and follow written policies regarding:

(a)

Admission;

(b)

Individual plan of care;

(c)

Behavior intervention plan;

(d)

Behavior support services; and

(e)

Discharge.

(2)

The licensee shall form a team comprised of at least the following individuals to participate in the:

(a)

Admission process:

(i)

A representative designated by the placing agency;

(ii)

Program staff responsible for the care and supervision of the child;

(iii)

Unless clearly inappropriate, the child; and

(iv)

If appropriate, the child’s parent or legal guardian; and

(b)

Development of the individual plan of care and the discharge plan:

(i)

A representative designated by the placing agency;

(ii)

A human service professional from the program considering the admission;

(iii)

Program staff responsible for the care and supervision of the child;

(iv)

The child’s parent or legal guardian, if consistent with the child’s permanency plan; and

(v)

Unless clearly inappropriate, the child.

(3)

Each team shall:

(a)

Document those present and participating; and

(b)

Indicate in the individual case record the reason, if known, why an invited individual did not attend.

Admission.

(1)

The licensee shall include in its admission policy a:

(a)

Statement of nondiscrimination consistent with Title VII of the Civil Rights Act and State Government Article, Title 20, Annotated Code of Maryland;

(b)

Provision for an assessment to determine the child’s needs and the licensee’s ability to meet them; and

(c)

Method for notifying, when appropriate, a child’s parent or legal guardian if the child is self-admitted.

(2)

The licensee may not admit a child referred by an out-of-State placing agency without documentation that the agency has initiated actions to abide by any applicable interstate compact.

(3)

The licensee may not admit into care:

(a)

More children than the number specified in its license;

(b)

Children outside of the age range specified in the license; or

(c)

Children not of the gender specified in the license.

(4)

In order to admit a child whose characteristics and needs do not fit the profile approved by the licensing agency, the licensee shall document that it has:

(a)

Obtained oral permission from the licensing agency before the child's admission; and

(b)

Requested written documentation of the licensing agency’s permission within 5 days of the child’s placement, which describes:

(i)

The reasons for the placement; and

(ii)

How the program will ensure adequate and appropriate care for the child.

(5)

Except for emergency placements, the licensee shall admit a child only upon receipt of at least:

(a)

A social history or predisposition report, to include any history of abuse or neglect;

(b)

A health history that is not older than 6 months, including, if applicable, a list of currently prescribed medications;

(c)

A mental health screening report that:

(i)

Includes screening for the child's risk of suicide; and

(ii)

Was completed in less than 72 hours before the child's placement;

(d)

An educational history;

(e)

Medical insurance documentation;

(f)

If required by federal or State law, any psychological, psychiatric, or developmental assessment that is not older than 12 months;

(g)

Emergency telephone numbers to contact the child’s parent or legal guardian;

(h)

If applicable, a document that specifies a guardian or custodian of the child other than the biological parent;

(i)

The child's permanency plan;

(j)

Authorizations necessary for providing care, including:

(i)

Medical, dental, and behavioral health authorizations for routine and emergency care;

(ii)

Any applicable court order or master's recommendation; and

(iii)

Applicable non-court order for shelter care.

(6)

For emergency placements, the licensee and the placing agency shall ensure that the licensee receives the documents specified in §§A, B, and C of this regulation within 24 hours of the child's placement.

(7)

If it has the discretion to refuse to admit a child referred by the placing agency, the licensee shall process each referral promptly and submit to the placing agency its decision on the referral within 10 days after receipt.

(8)

The licensee shall:

(a)

Examine each child upon admission;

(b)

Document in the child's individual case record any illness, fever, rash, bruise, or injury; and

(c)

Take appropriate action as necessary.

(9)

Within 3 days after admission, the licensee shall include in a child’s individual case record:

(a)

A preliminary, individualized assessment of the child’s needs performed by a human service professional;

(b)

A safe environment plan; and

(c)

Any document listed in §B(4) of this regulation not received before the child’s placement.

Individual Plan of Care. The licensee shall require the team convened pursuant to §A(2)(b) of this regulation:

(1)

To develop for each child, within 30 days after admission, an individual plan of care that includes:

(a)

An evaluation that meets the requirements of the Early and Periodic Screening, Diagnosis and Treatment program;

(b)

If appropriate, a behavior intervention plan as defined in §D of this regulation;

(c)

Measurable objectives with time frames leading to the achievement of goals;

(d)

Implementation dates and strategies;

(e)

Individuals responsible for providing the supports, services, implementation, and monitoring of the plan;

(f)

Documentation indicating whether or not the child and parent or legal guardian agree with the plan;

(g)

Education, including special education and related services to implement the individualized education program of a student as required under the Individuals With Disabilities Education Act;

(h)

Family relationship;

(i)

Health care;

(j)

Life skills development;

(k)

Personal, emotional, and social development;

(l)

Recreation plan;

(m)

Vocational training;

(n)

The placing agency’s permanency plan; and

(o)

Other areas as appropriate; and

(2)

To execute the:

(a)

Review and update of every child’s individual plan of care at least every 90 days;

(b)

Modification of the individual plan of care as required by the child’s needs, interests, and circumstances; and

(c)

Documentation of monthly progress toward achievement of goals and estimated length of stay.

Behavior Plan.

(1)

The licensee shall have a comprehensive written policy that identifies the process by which a behavior intervention plan is determined to be appropriate.

(2)

The licensee shall ensure that a behavior intervention plan is developed for each child for whom it is appropriate that includes:

(a)

An assessment of each challenging behavior as identified in the individual plan of care;

(b)

A description of the function of current behaviors including their frequency and severity;

(c)

The behavioral objectives for the child including:

(i)

Criteria for determining achievement of the objectives established;

(ii)

A description of the adaptive skills to be learned by a child that serve as alternatives to behaviors that present a danger to self or serious bodily harm to others;

(iii)

A description of the adaptive skills to be learned by a child that serve as functional alternatives to the challenging behavior or behaviors to be decreased;

(iv)

Identification of the individual or individuals responsible for monitoring the behavior intervention plan;

(v)

The data to be collected to assess progress towards meeting the behavior intervention plan’s objectives;

(vi)

Documentation for the use of physical restraint, the reason for its use, and the length of time used; and

(vii)

For licensees of the Maryland Department of Health, documentation for the use of mechanical restraint, the reason for its use, and the length of time used;

(d)

Take into account the medical condition of the child; and

(e)

Describe the treatment techniques and when the techniques are to be used.

(3)

Before implementation, the licensee shall ensure that each behavior intervention plan that includes the use of restraints includes the written informed consent of:

(a)

The child, when appropriate;

(b)

The child’s parent or legal guardian, when appropriate; and

(c)

The placing agency’s designee.

(4)

If the program is licensed to serve children with developmental disabilities, each behavior intervention plan that includes the use of restraints shall be approved by the standing committee established under COMAR 14.31.07.08 before the plan’s implementation.

Behavior Support Services.

(1)

A licensee who contracts for behavior support services as determined by the behavior intervention plan shall ensure that its contractor:

(a)

Meets the requirements of this chapter; and

(b)

Is knowledgeable about the licensing agency's service delivery system.

(2)

Behavior support services may include:

(a)

Behavioral consultation;

(b)

Temporary augmentation of staff;

(c)

Behavioral training; and

(d)

Behavioral respite services.

(3)

In addition to the training requirements in COMAR 10.22.02.10—.11 for licensees of the Maryland Department of Health and the training and requirements of this chapter, the licensee shall ensure that staff who provide behavior support services, before being assigned independent duties, receive training in the:

(a)

Principles of behavioral change; and

(b)

Use of a specific behavior management technique as outlined in the child’s behavior intervention plan.

Discharge.

(1)

For planned discharges, the licensee shall:

(a)

Except for emergency shelter placement, and at least 30 days before a planned discharge, prepare a discharge plan which includes:

(i)

The name, address, telephone number, and relationship of the individual with whom the child will be residing upon discharge;

(ii)

A statement of unmet identified and continuing needs including but not limited to behavioral and somatic health, education, family and peer relationships, employment, behavior, medications, and recommendation for follow-up treatment; and

(b)

Within 30 calendar days after discharge, submit to the placing agency a discharge summary which includes:

(i)

A final summary of the child’s performance in the program;

(ii)

A summary of the child’s health, dental, optical, and behavioral health records; and

(iii)

A summary of services provided to the child, including behavioral and somatic health, education, family and peer relationships, employment, behavior, medications, and recommendation for follow-up treatment.

(2)

For unplanned discharges, the licensee shall:

(a)

Provide at least 72 hours’ notice to the placing agency unless there is imminent risk of harm to self or others;

(b)

At the time of discharge, provide to the placement agency a discharge plan which includes:

(i)

Specific details of the reason for discharge; and

(ii)

A statement of unmet and continuing needs; and

(c)

Within 30 calendar days after discharge, submit to the placing agency a discharge summary which includes:

(i)

A final summary of the child’s performance in the program;

(ii)

A final summary of the child’s medical, dental, optical, and behavioral health records; and

(iii)

A summary of services provided to the child.

Regulation .18 Reports and Records.Link Copy Citation

General Requirements. The licensee shall:

(1)

Submit reports and maintain records as directed by the licensing and contracting agencies in order to ensure compliance with these regulations and other federal and State laws; and

(2)

Comply with requirements for incident reporting as specified by the licensing and contracting agencies.

Confidentiality of Records. The licensee shall:

(1)

Have and follow written procedures for the maintenance and security of individual case records and health records in accordance with State and federal law, which include:

(a)

The identity of the staff persons responsible for the custody and maintenance of the records;

(b)

A prohibition on the release of records except in accordance with law or contractual obligation; and

(c)

A notice that employees may not disclose or knowingly permit the disclosure of any information concerning the child or the child’s family to any unauthorized person;

(2)

Destroy records, in accordance with timelines established by State and federal law, in a manner that will preserve their confidentiality; and

(3)

Ensure that if the program’s parent corporation dissolves, its individual case records concerning children served by the program are given to the placing agency.

Record Maintenance. The licensee shall:

(1)

Maintain a register of the children currently in the program which includes the child's:

(a)

Name;

(b)

Sex;

(c)

Date of birth;

(d)

Placing agency; and

(e)

Dates of admission and anticipated discharge;

(2)

Retain for the later of 5 years after discharge of a child, or 3 years after the child becomes 18 years old, individual case records;

(3)

Retain financial records for at least 6 years from the date of their creation or after any contract with the State terminates; and

(4)

Protect all documents against fire damage, theft, and unauthorized disclosure.

Regulation .19 Program Planning, Evaluation, and Quality Improvement.Link Copy Citation

Program Planning and Evaluation. The licensee shall have a formal process for program planning and evaluation which includes at least:

(1)

A clearly stated written mission for the program approved by the board of directors;

(2)

A set of measurable goals and objectives which is based upon the mission, program, population served, and State-mandated outcome measures;

(3)

A periodic review of achievement of goals and objectives; and

(4)

A correction plan approved by the Board for unmet goals.

Program Quality Improvement. The licensee shall:

(1)

Develop and implement an ongoing quality improvement plan; and

(2)

Annually review and evaluate the quality and effectiveness of the services provided.

Subtitle 31 — Office for Children

Chapter 07. Specialized Licensing Standards

Regulation .01 Purpose.Link Copy Citation

The purpose of this chapter is to establish specialized licensing and monitoring standards that supplement or alter the core licensing standards of COMAR 14.31.05 and 14.31.06 for particular types of residential child care programs.

Regulation .02 Scope.Link Copy Citation

This chapter contains specialized licensing standards for the following types of residential child care programs:

State-operated residential educational facilities;

Secure care programs;

Wilderness programs;

Programs for medically fragile children;

Programs for children with developmental disabilities;

Shelter care programs;

Programs for pregnant adolescents;

Mother-infant programs;

Therapeutic group homes;

Community mental health programs providing residential crisis services; and

Community mental health programs providing respite care services.

Regulation .03 Definitions.Link Copy Citation

In this chapter, the definitions in COMAR 14.31.05 and 14.31.06 apply, and the following terms have the meanings indicated.

Terms Defined.

(1)

“Developmental Disabilities Administration” means the Developmental Disabilities Administration of the Maryland Department of Health.

(2)

“Infant” means a child younger than 24 months old.

(3)

“Locked door isolation” means the involuntary restriction of a child from others for a period of time to a designated area from which the child may not leave, for the purpose of providing the child with an opportunity to gain behavioral control.

Regulation .04 State-Operated Residential Educational Facilities.Link Copy Citation

Scope. This regulation applies only to the Maryland School for the Deaf and the Maryland School for the Blind.

Applicable Core Regulations. The standards for residential child care programs established in COMAR 14.31.05 apply to residential educational facilities only to the extent that they are specifically referenced in §§D—F of this regulation.

Licensing and Monitoring.

(1)

Licensing Agency.

(a)

The Department of Human Services is the licensing agency for residential education facilities.

(b)

A residential educational facility may request a variance or waiver of the provisions listed in this subsection by filing a request for variance or waiver under COMAR 14.31.05.13.

(c)

Residential educational facilities shall be monitored and evaluated as provided in COMAR 14.31.05.07 —.09 only with respect to the standards set out in §§D—F of this regulation.

(2)

The governance and operation of residential educational facilities shall otherwise be regulated under the provisions of Education Article, §8-301 et seq., Annotated Code of Maryland.

Licensing Standards. Employees of residential education facilities who provide supervision for children when the children are not attending school shall provide the licensee with documentation of:

(1)

An annual screening for tuberculosis administered by the Mantoux method or current Centers for Disease Control and Prevention standard with an analysis of results or, for those staff members whose results were positive, an annual medication certification that the staff member presents no symptoms of active tuberculosis;

(2)

A copy of current cardiopulmonary resuscitation certification;

(3)

A written statement of medical examination by a licensed physician, made at the time of the staff member's employment, certifying that the physician has examined the staff member and found nothing in the individual's general, physical, or emotional condition which would endanger the health and well-being of children;

(4)

Request for criminal background check and copy of outcome upon receipt; and

(5)

Protective services clearance from the appropriate department of social services.

Licensee Documentation. The licensee shall provide the licensing agency annually with documentation of:

(1)

On-site fire inspections by the local fire department;

(2)

On-site health inspections by the local health department; and

(3)

Weekly menus approved by an individual licensed by the State to practice dietetics.

Child Abuse and Neglect Reporting. The licensee shall provide the licensing agency with:

(1)

A written procedure for reporting child abuse or neglect;

(2)

A verbal report of any suspected child abuse or neglect within 1 hour of the suspected abuse or neglect;

(3)

A written report within 24 hours of the suspected abuse or neglect; and

(4)

A written incident report within 24 hours of any incident which threatens the life, health, or general well being of a child in care.

Regulation .05 Secure Care Programs.Link Copy Citation

Licensing Requirements. In addition to the requirements set out in this regulation, a licensee that provides secure care shall also meet the requirements of COMAR 14.31.05 and 14.31.06.

Security. In order to have a license as a secure care program, a licensee shall:

(1)

Be licensed by the Department of Juvenile Services;

(2)

Identify in its application for licensure the specific security measures to be used by the program and demonstrate that the measures are necessary in order to provide care for the children to be served by the applicant;

(3)

Structure the physical plant so that it has:

(a)

A 24-hour control center for monitoring and coordinating its security, safety, and communication systems;

(b)

A perimeter that can retain the children within it and prevent unauthorized access into it; and

(c)

Doors that open out from any room used by children;

(4)

Assign and deploy staff so that the children are visually supervised and staff are able to respond immediately to emergencies;

(5)

Open mail addressed to a child in front of the child to check for contraband;

(6)

Inspect:

(a)

On a weekly basis:

(i)

The operation of all security devices; and

(ii)

For the presence of contraband; and

(b)

On a daily basis, all areas occupied by the children; and

(7)

Document all inspections and immediately correct all problems or defects found during the inspections.

Restraints. The licensee:

(1)

May use restraints on children only in conformity with this regulation;

(2)

Shall have and follow a written policy on the use of restraints that:

(a)

Identifies the type of restraints used by the licensee;

(b)

Specifies the criteria for the use of each type of restraint and that the staff authorizes approval and use of each type; and

(c)

Establishes procedures for the:

(i)

Monitoring and supervision of children in restraints;

(ii)

Immediate review of the use of restraints; and

(iii)

Documentation of each use of restraints;

(3)

Shall prohibit the use of restraint in any manner that causes the child physical pain or undue anxiety; and

(4)

Shall train staff upon employment and annually after that in the proper use of restraint.

Locked-Door Isolation.

(1)

A licensee may place a child in locked-door isolation only if:

(a)

Locked-door isolation is clearly necessary to prevent imminent physical harm to the child or other individuals; and

(b)

Less restrictive methods of behavior control have failed or cannot reasonably be implemented.

(2)

A licensee shall have and follow written procedures for the use of locked-door isolation that identify the staff authorized to approve the use of locked-door isolation.

(3)

A licensee shall ensure that a child placed in locked-door isolation:

(a)

Does not possess belts, matches, weapons, or other objects or materials that might be used to inflict self-injury;

(b)

Does not present imminent danger to self or others;

(c)

Is offered 1 hour of large muscle activity every 24 hours that takes place out-of-room and, weather permitting, out-of-doors;

(d)

Has all reasonable personal physical needs met;

(e)

Receives all scheduled meals and snacks on time; and

(f)

Is granted prompt access to bathroom facilities.

(4)

Staff shall monitor a child in locked-door isolation by:

(a)

Maintaining auditory contact with the child at all times;

(b)

Making visual contact with the child every 10 minutes; and

(c)

Recording each contact with the child in a permanently bound logbook.

(5)

The licensee shall ensure that a room used for locked-door isolation is designed and constructed to safeguard the health, safety, and well-being of children.

(6)

The room used for locked door isolation shall have:

(a)

An area of at least 60 square feet;

(b)

A tamper-proof ceiling light fixture with a minimum of a 75-watt bulb;

(c)

A door with a window that is impact-resistant, shatterproof, and mounted to allow inspection of the entire room;

(d)

Adequate ventilation; and

(e)

Equipment and fixtures that are designed and maintained in a manner to prevent their use in an attempted suicide.

(7)

In order for a child to be held in locked-door isolation for longer than 30 minutes during a 12-hour period, the program administrator shall:

(a)

Approve the locked-door isolation every 2 hours;

(b)

Obtain for the child every 2 hours an examination by a physician or nurse;

(c)

Notify the placing agency and the child's parent if the locked-door isolation continues for more than 8 hours; and

(d)

Remove a child from locked-door isolation after 72 hours.

Regulation .06 Wilderness Programs.Link Copy Citation

Additional Requirements.

(1)

In addition to the requirements set forth in COMAR 14.31.05 and 14.31.06, a licensee shall ensure that a wilderness program also meets the requirements of this regulation.

(2)

With the exception of §§B and C of this regulation, the requirements of COMAR 14.31.06.07 are not applicable to wilderness programs.

Living Environment. The living environment, including all sleeping and food preparation, and personal hygiene facilities, of a wilderness program shall:

(1)

Be well drained and free from depressions in which water may stagnate;

(2)

Be free from noxious plants and uncontrolled weeds or brush; and

(3)

Have an approved sanitary landfill or similar disposal facility for solid wastes that is not subject to inundation by flooding.

The licensee shall ensure that every wilderness site has available an adequate supply of potable water.

Food Preparation and Storage.

(1)

If food is prepared at a central dining building, the licensee shall meet the requirements set out in COMAR 14.31.06.07 for kitchens.

(2)

If food is prepared away from a central dining building, the licensee shall:

(a)

Store food in a manner that deters spoilage and contamination;

(b)

Ensure that perishable food stored in ice chests is:

(i)

Maintained at a refrigerated temperature; and

(ii)

Is not stored in an ice chest for more than 24 hours;

(c)

Ensure that all surfaces that come in contact with food are clean and, when preparing meat products and other foods, not sources of cross contamination; and

(d)

Clean thoroughly and store all dishes, cooking, and eating utensils in a manner to avoid contamination.

Toilet and Personal Hygiene Facilities.

(1)

If a water supply is not available, the licensee shall provide sanitary type privies, or portable toilets, that meet local or State health department standards.

(2)

The licensee shall maintain all toilet and personal hygiene areas in a sanitary manner to eliminate health or pollution hazards.

(3)

The licensee shall locate privies at least 150 feet from a stream, lake, or well and at least 75 feet from a sleeping area.

(4)

At sites not equipped with a permanent toilet facility, the licensee shall provide at least one privy or portable toilet for every 15 people.

Heating. The licensee shall install and ventilate heating stoves that use combustible fuel in a manner that prevents fire hazards and dangerous concentrations of gases.

Sleeping Areas. The licensee shall use:

(1)

Bedding that is adequate for protection and comfort in cold weather;

(2)

Sleeping bags that are fiber-filled, fire retardant, and rated for 0°F;

(3)

Mattresses and pillows that meet federal regulations; and

(4)

Screening or mosquito nets in the children's personal sleeping areas.

Clothing. The licensee shall provide each child with an adequate supply of clean clothing, suitable for outdoor living and appropriate for weather conditions, and sturdy, water resistant outdoor shoes or boots.

Fire Safety. The licensee shall equip each wilderness site with a fire extinguisher located not more than 75 feet from each combustible fuel heating device or campfire.

Regulation .07 Programs for Medically Fragile Children.Link Copy Citation

Additional Requirements. In addition to the requirements set out in COMAR 14.31.05 and 14.31.06, a program for medically fragile children also shall meet the requirements of this regulation.

Staff. The licensee shall:

(1)

Ensure that a health care professional licensed to practice in the State trains child care staff, based on the individual needs of each child; and

(2)

Obtain consultation services from a pediatric medical specialist for input on the placement of and ongoing care decisions regarding the children.

Physical Plant.

(1)

If specialized equipment is necessary for a child, the licensee shall provide adequate square footage space in excess of the minimum standards otherwise required by COMAR 14.31.06.

(2)

The licensee shall equip the physical plant with sufficient electrical service and outlets for assistive technology or special equipment.

(3)

The licensee shall maintain a back-up generator for electrical outages and, if necessary, provide for emergency sources of heat.

Emergency Medical Plan. The licensee shall ensure that each child's individual service plan includes a child-specific emergency protocol that is immediately accessible to employees.

Emergency Management Plan. As part of its emergency management plan, the licensee shall notify public utilities of the existence of the program.

Regulation .08 Programs for Children With Developmental Disabilities.Link Copy Citation

Additional Requirements. In addition to the requirements set out in COMAR 14.31.05 and 14.31.06, a program for children with developmental disabilities also shall meet the requirements of this regulation.

Quality Assurance. The licensee shall conform to the quality assurance standards established in COMAR 10.22.02.14.

Standing Committee. The licensee shall establish a standing committee or committees to:

(1)

Perform the quality assurance functions set forth in COMAR 14.31.05;

(2)

Review the licensee's protocol for identifying, reporting, documenting, investigating, and reviewing of incidents to ensure compliance with the licensing agency's procedures;

(3)

Monitor implementation of the licensee's protocol identified in §C(2) of this regulation, including a review of all incidents in an effort to identify deficient practices and recommend necessary corrective action;

(4)

Approve all behavior plans that use restrictive techniques to ensure that the behavior plan complies with the requirements of COMAR 10.22.10, 10.22.04.03A, and 14.31.05.15;

(5)

Review, approve, and establish the time frame for the restriction of a right if it is not related to a challenging behavior, in accordance with COMAR 10.22.04.03A, or other requirements appropriate to the licensing agency;

(6)

Review the licensee's policies and procedures and practices to ensure that they adequately protect the legal and human rights of each child served by the licensee; and

(7)

Unless otherwise provided for, be organized to perform the functions set forth in §A of this regulation for one or more licensees.

Standing Committee Composition.

(1)

For programs licensed by the Maryland Department of Health, the committee or committees shall include an equal number of licensee staff, and child proponents or members of the community who are not employed by the licensee. For a committee member who is remunerated only to serve as a member of the committee, that member is not counted as staff or as a member of the community.

(2)

For programs serving children with developmental disabilities licensed by other licensing agencies, the committee shall be established in accord with the licensing agency's policy.

Consultation. The committee or committees may consult with a licensed health professional such as a social worker, psychologist, physician, physician's assistant, nurse practitioner, or board-certified clinical pharmacist, as needed.

Conflict of Interest. A committee member may not participate in the decision making process of any:

(1)

Incident in which the committee member was involved; or

(2)

Behavior plan that the committee member has developed.

Meetings. The committee or committees shall meet as needed to perform the functions identified in §E of this regulation, with at least a majority of members present.

Confidentiality. The committee or committees shall ensure confidentiality of information regarding the child in accordance with Health-General Article, §7-1010, Annotated Code of Maryland, and COMAR 14.31.06.18.

Use of Restraints. For licensees of the Maryland Department of Health, appropriate methods of preventing or managing challenging behaviors may include the use of mechanical restraints.

Change in Licensure Status.

(1)

A licensee may voluntarily surrender its license in accordance with COMAR 10.22.02.02F.

(2)

A licensee wishing to open, close, or relocate a site shall meet the requirements of COMAR 14.31.05.05.

(3)

If a licensee is required to open, close, or relocate a site due to an emergency and the notice requirements set forth in COMAR 14.31.05.09E cannot be met, the licensee shall notify the regional director who shall notify the licensing agency to ensure compliance with all relevant regulations.

Policies and Procedures. A licensee shall develop and adopt written policies and procedures in addition to those policies and procedures required in COMAR 14.31.06 to ensure:

(1)

The fundamental rights of residents in accordance with Health-General Article, §7-1002, Annotated Code of Maryland;

(2)

Confidentiality for each individual in accordance with Health-General Article, §7-1010, Annotated Code of Maryland;

(3)

The implementation of a grievance process with safeguards that protect against retaliatory actions for the filing of any grievance;

(4)

The reporting and investigation of all incidents, including those involving life-threatening conditions, in accordance with the Developmental Disabilities Administration's procedures on reportable incidents;

(5)

The administration of medications in accordance with the practices established by the curriculum of the Developmental Disabilities Administration on medication training;

(6)

Compliance with COMAR 10.27.11;

(7)

Assurance that, before a child is to be required to pay for property damage caused by the individual's actions, the child's individual plan shows evidence that:

(a)

The child has a history of destructive behavior that has been documented in the child's behavior plan;

(b)

The child has a behavior plan that addresses the destructive behavior;

(c)

The child's family has the ability to pay for damages;

(d)

The licensee's standing committee has reviewed and approved the damage payment; and

(e)

The licensee has reported this approval to the regional director of the Developmental Disabilities Administration;

(8)

Compliance with Health-General Article, §5-605, Annotated Code of Maryland; and

(9)

The absence of a financial or personal conflict of interest for members of the governing body, staff, care providers, volunteers, and standing committee members in their work with the program.

Regulation .09 Shelter Care Programs.Link Copy Citation

In addition to the requirements set out in COMAR 14.31.05 and 14.31.06, a licensee shall ensure a program that provides shelter care also meets the requirements of this regulation.

Requirements for Non-Agency Placements.

(1)

If a person or entity other than an agency places a child in shelter care, the licensee shall seek authorization for the placement by:

(a)

Moving, within 24 hours after admission, to acquire legal custody of the child; or

(b)

Requesting the consent of the child's parent for the placement and for any routine or emergency medical, dental, or mental health care.

(2)

If the licensee is unable to obtain consent, the licensee shall document the efforts made to obtain consent and the reasons for the failure.

The licensee shall ensure that a child newly admitted to shelter care receives timely health care, including:

(1)

Within 24 hours of admission, an initial health screening by a medical care provider;

(2)

Immediate treatment of any communicable disease or serious injury; and

(3)

Within 30 days of admission, a comprehensive medical examination.

The licensee shall ensure the provision of appropriate educational services for all children placed in the facility in accordance with the requirements of COMAR 14.31.06.12A.

Regulation .10 Pregnant Adolescents.Link Copy Citation

In addition to the requirements set out in COMAR 14.31.05 and 14.31.06, a licensee shall ensure a program caring for pregnant adolescents also meets the requirements of this regulation.

A program caring for pregnant adolescents shall ensure that:

(1)

All pregnant adolescents receive comprehensive prenatal care, including:

(a)

A medical care program outlined by a licensed medical professional; and

(b)

Participation in a child birth class provided by a qualified and competent childbirth educator.

(2)

Arrangements for the delivery of the child are made:

(a)

By the end of the second trimester;

(b)

In situations when the adolescent is already pregnant beyond the second trimester, upon admission to the facility; or

(c)

Within 15 consecutive calendar days of the adolescent's admission to the facility.

(3)

Delivery arrangements are clearly recorded in the adolescent's medical record to which appropriate employees have access in an emergency;

(4)

Pregnant adolescents receive a dental examination within 3 consecutive calendar months of admission, and that needed dental care is provided;

(5)

Identification of pediatric services is provided at least 3 months before anticipated delivery; and

(6)

Day care arrangements in an approved day care home or center are made.

Regulation .11 Mother-Infant Programs.Link Copy Citation

In addition to the requirements set out in COMAR 14.31.05 and 14.31.06, a licensee shall ensure a program that provides mother-infant services also meets the requirements of this regulation.

A licensee may provide care and service for children who are mothers with an infant if:

(1)

The licensing agency approves the program in writing;

(2)

The licensee ensures that adolescents follow the advice of a licensed physician regarding the health care of the adolescent's child;

(3)

The licensee provides the mother with:

(a)

Sanitary space, a table, and plumbing necessary to change diapers;

(b)

Competent instruction in the care and nurturing of infants;

(c)

Limits on her social activities to ensure that she is responsible for her infant;

(d)

Opportunity, encouragement, and structure for the completion of her education;

(e)

Encouragement to develop her capacity for and understanding of her independence;

(f)

Assurance that any child care center or home where the infant may be placed during daytime hours is licensed under State law;

(g)

Professional guidance, training, and counseling in human sexuality; and

(h)

A bed in a room separate from where the infant sleeps after the infant is 6 months old;

(4)

The licensee assures that the infant is provided with:

(a)

Protection from harm;

(b)

Access to health care;

(c)

Proper food and nutrition;

(d)

Physical warmth and nurture;

(e)

Protection from disease;

(f)

Physical comfort;

(g)

Proper sleeping environment in an appropriate crib;

(h)

Appropriate feeding schedule;

(i)

Regularly changed diapers in a sanitary environment;

(j)

When the infant is 6 months old, a crib in a room separate from where the mother sleeps;

(k)

Pediatric care in accordance with Early and Periodic Screening, Diagnosis, and Treatment schedules; and

(l)

Required immunizations;

(5)

The licensee ensures that direct care workers in this program:

(a)

Receive 10 hours of training specific to infant care before assuming duties in a mother-infant program as part of the training requirements of COMAR 14.31.06; and

(b)

Annually receive 15 hours of training specific to the mother-infant program as part of the training requirements of COMAR 14.31.06; and

(6)

The program provides the licensing agency with a written policy regarding the care of an adolescent's child by another adolescent in residence in which the following conditions are met:

(a)

The adolescent assumes care of no more than one other child in addition to her own at any time;

(b)

The adolescents discuss the expectations of the caregiver, including:

(i)

Duration of child care;

(ii)

The child's nutritional and toileting needs; and

(iii)

Any arrangements for compensation or exchange of baby-sitting; and

(c)

The arrangement is reviewed and approved by the program administrator or the program administrator's designee.

Regulation .12 Therapeutic Group Homes.Link Copy Citation

A therapeutic group home shall meet the requirements of COMAR 14.31.05 and 14.31.06, with the following exceptions:

(1)

COMAR 14.31.06.17B;

(2)

COMAR 14.31.06.17C; and

(3)

COMAR 14.31.06.17D.

A therapeutic group home shall also meet the requirements of the following regulations found in COMAR 10.21.07:

(1)

COMAR 10.21.07.02;

(2)

COMAR 10.21.07.03B;

(3)

COMAR 10.21.07.05B;

(4)

COMAR 10.21.07.05C;

(5)

COMAR 10.21.07.06B;

(6)

COMAR 10.21.07.07;

(7)

COMAR 10.21.07.08A(1);

(8)

COMAR 10.21.07.08C;

(9)

COMAR 10.21.07.09;

(10)

COMAR 10.21.07.10C;

(11)

COMAR 10.21.07.11;

(12)

COMAR 10.21.07.12;

(13)

COMAR 10.21.07.13B;

(14)

COMAR 10.21.07.14; and

(15)

COMAR 10.21.07.17B.

Regulation .13 Community Mental Health Programs Providing Residential Crisis Services.Link Copy Citation

In addition to the requirements of COMAR 14.31.05 and 14.31.06, a community mental health program providing residential crisis services shall meet the requirements of COMAR 10.21.26.

Regulation .14 Community Mental Health Programs Providing Respite Care Services.Link Copy Citation

In addition to the requirements of COMAR 14.31.05 and 14.31.06, a community mental health program providing respite care services shall meet the requirements of COMAR 10.21.27.

Subtitle 31 — Office for Children

Chapter 08. Eligibility and Prioritization for Services for Interagency Funds

Repealed

Subtitle 31 — Office for Children

Chapter 09. Statement of Need

Regulation .01 Purpose.Link Copy Citation

The purpose of this chapter is to establish a process for developing and issuing a statement of need for residential child care programs licensed by the Department of Human Services or the Department of Juvenile Services.

Regulation .02 Scope.Link Copy Citation

This chapter applies to the development and issuance of a statement of need for residential child care programs to be licensed by the Department of Human Services or the Department of Juvenile Services. This chapter also applies to the relocation of an existing or previously licensed residential child care program to another site and the expansion or increase in the number of placements of an existing residential child care program.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Agencies” means the Department of Human Services and the Department of Juvenile Services.

(2)

“Expansion request” means the materials required by the Office submitted by a licensed provider that seeks to add additional beds to an existing facility, to expand the physical site or to duplicate a residential child care program in a new location.

(3)

“Facility” means the physical premises where a residential child care program that is licensed by the Department of Human Services or the Department of Juvenile Services is operated.

(4)

“Licensing” means the process undertaken by the Agencies to issue, suspend, revoke, or deny a license.

(5)

“Office” means the Governor's Office for Children.

(6)

“Proposal” means the materials required by the Office, submitted by a potential new provider or an established provider, to develop a new residential child care facility or program, or an expansion request.

(7)

“Provider” means the operator of a residential child care program.

(8)

“Residential child care program” means a program of care provided in a residential setting by a provider on a 24-hour basis, for longer than 24 hours, to a child or children, unless otherwise provided by State law. A residential child care program does not include any program licensed by Maryland Department of Health.

(9)

“Statement of need” means an official certification of public need in a county or region issued by one of the Agencies for the location and/or establishment of a residential child care program.

Regulation .04 Statement of Need.Link Copy Citation

A Statement of Need shall be issued by the Department of Human Services or the Department of Juvenile Services before:

(1)

A prospective licensee may submit to the Office a proposal for a residential child care program in accordance with COMAR 14.31.02;

(2)

An existing or previously licensed residential child care program is relocated to another site;

(3)

The physical site of a residential child care program is expanded; or

(4)

The number of placements in a residential child care program is increased.

In developing a statement of need, the Agencies shall:

(1)

Consider needs identified in the State Resource Plan and the Interagency Strategic Plan;

(2)

Consider the specialized mental, physical, and behavioral health and development needs of children in the county or region affected by the statement of need; and

(3)

Give notice and an opportunity to comment on the proposed statement of need to stakeholders in the counties or regions affected by the statement of need, including:

(a)

State and local child-serving agencies;

(b)

Providers of residential and community-based services for children; and

(c)

Children, parents, foster parents, and other guardians.

When the need for a residential child care program is identified, the Agencies shall publish a notice of a statement of need in the Maryland Register.

The statement of need shall include:

(1)

Identification of the geographic area or areas of need, including the primary region or regions of residence of the children who will be placed in the facility;

(2)

Identification of population to be served, including specialized mental, physical, behavioral health, and developmental needs of the children affected by the statement of need;

(3)

Description of services that will be provided;

(4)

Description of the current availability of the proposed services in the region or regions;

(5)

Description of the actual or projected number of children who need the proposed services from the region or regions;

(6)

Number of beds required;

(7)

Description of the methodology used as the basis for the agency's calculations set forth in a manner that permits independent verification if requested;

(8)

Date by which proposals must be submitted;

(9)

Date by which beds must be available; and

(10)

Selection criteria.

Proposals for a residential child care program must be submitted to the Office in accordance with COMAR 14.31.02 only in response to a published statement of need.

The Agencies may not grant a license for a residential child care program unless a statement of need has been issued.

The Agencies may not delegate their authority to issue a statement of need.

The Agencies shall perform the licensure for a residential child care program in accordance with the applicable provisions of COMAR 14.31.05.

The Agencies shall perform an evaluation of responses to requests for proposals, and selection of a contractor in accordance with the applicable provisions of COMAR 21.05.03 and other applicable statutes and regulations.

Regulation .05 Disputes.Link Copy Citation

When the licensing agency rejects a proposal submitted in response to a request for proposals issued in conjunction with a statement of need under this regulation, a provider has a right to protest the rejection to the licensing agency procurement officer under the protest provisions of COMAR 21.10.02.

A provider has a right to a hearing under the licensing provisions of COMAR 14.31.05.10 when the licensing agency denies an application for a license under this regulation.

Subtitle 32 — State Labor Relations Board

Chapter 01. General Provisions

Subtitle 32 — State Labor Relations Board

Chapter 02. General Practice and Hearing Procedures

Subtitle 32 — State Labor Relations Board

Chapter 03. Bargaining Unit and Bargaining Representative Determination

Subtitle 32 — State Labor Relations Board

Chapter 04. Elections

Subtitle 32 — State Labor Relations Board

Chapter 05. Unfair Labor Practice Complaint Process

Subtitle 32 — State Labor Relations Board

Chapter 06. Collective Bargaining, Negotiations, and Negotiability Disputes

Subtitle 32 — State Labor Relations Board

Chapter 07. Mediation Procedures

Subtitle 32 — State Labor Relations Board

Chapter 08. Procedures Governing Employee Information

Subtitle 33 — Department of Information Technology

Chapter 01. Definitions and General Provisions

Regulation .01 Scope.Link Copy Citation

This subtitle does not apply to changes relating to or the purchase, lease, or rental of information technology by:

(1)

Public institutions of higher education solely for academic or research purposes;

(2)

The Maryland Port Administration;

(3)

The University System of Maryland;

(4)

St. Mary's College of Maryland; or

(5)

Morgan State University.

Notwithstanding any other provision of law, except as provided in State Finance and Procurement Article, §3A-302(b), Annotated Code of Maryland, this subtitle applies to all units of the Executive Branch of State Government including public institutions of higher education other than Morgan State University, the University System of Maryland, and St. Mary's College of Maryland.

Regulation .02 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Accessible” means:

(a)

Easy to get to;

(b)

Approachable; or

(c)

Available.

(2)

“Agency” means each unit of State government to which this subtitle is applicable in accordance with State Finance and Procurement Article, §3A-302, Annotated Code of Maryland, and Regulation .01 of this chapter.

(3)

“Application” means software designed to perform, or to help the user to perform, a specific task or tasks.

(4)

“Assistive technology (AT)” means any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities.

(5)

“Audio description”, “video description”, or “descriptive narration” means narration added to a soundtrack, usually during existing pauses in dialogue, to:

(a)

Describe important visual details that cannot be understood from the main soundtrack alone;

(b)

Inform individuals who are blind or who have low vision about visual content essential for comprehension;

(c)

Provide information about actions, characters, scene changes, on-screen text, and other visual content; and

(d)

Supplement the regular audio track of a program.

(6)

“Authoring tool” means any software, or collection of software components, that can be used by authors, alone or collaboratively, to create or modify content for use by others, including other authors.

(7)

Closed Functionality.

(a)

“Closed functionality” means characteristics that limit functionality or prevent a user from attaching or installing assistive technology.

(b)

“Closed functionality” includes self-service machines, information kiosks, set-top boxes, fax machines, calculators, and computers that are locked down so that users may not adjust settings due to a policy such as desktop core configuration.

(8)

“Content” means electronic information and data, as well as the encoding that defines its structure, presentation, and interactions.

(9)

“Department” means the Department of Information Technology.

(10)

Document.

(a)

“Document” means a logically distinct assembly of content (such as a file, set of files, or streamed media) that: Functions as a single entity rather than a collection; is not part of software; and does not include its own software to retrieve and present content for users.

(b)

“Document” includes, but is not limited to, letters, email messages, spreadsheets, presentations, podcasts, images, and movies.

(11)

Equivalent.

(a)

“Equivalent” means fulfilling essentially the same function or purpose upon presentation to a user.

(b)

“Equivalent” fulfills essentially the same function for a person with a disability utilizing reasonable accommodations to the extent possible, given the nature of the disability and the state of technology, as the primary content does for the person without a disability.

(12)

“Existing ICT” means ICT that was procured, maintained, or used on or before January 18, 2018.

(13)

“Hardware” means a tangible device, equipment, or a physical component of nonvisual ICT, such as telephones, computers, multifunction copy machines, and keyboards.

(14)

“Information technology” has the meaning set forth in 40 U.S.C. 11101(6).

(15)

Information and Communication Technology (ICT).

(a)

“Information and communication technology (ICT)” means information technology and other equipment, systems, technologies, or processes for which the principal function is the creation, manipulation, storage, display, receipt, or transmission of electronic data and information, as well as any associated content.

(b)

“Information and communication technology (ICT)” includes, but is not limited to:

(i)

Computers and peripheral equipment;

(ii)

Information kiosks and transaction machines;

(iii)

Telecommunications equipment;

(iv)

Customer premises equipment;

(v)

Multifunction office machines;

(vi)

Software;

(vii)

Applications;

(viii)

Websites;

(ix)

Videos; and

(x)

Electronic documents.

(16)

Keyboard.

(a)

“Keyboard” means a set of systematically arranged alphanumeric keys or a control that generates alphanumeric input by which a machine or device is operated.

(b)

“Keyboard” includes tactilely discernible keys used in conjunction with the alphanumeric keys if their function maps to keys on the keyboard interfaces.

(17)

“Label” means text, or a component with a text alternative, that is presented to a user to identify content. A label is presented to all users, whereas a name may be hidden and only exposed by assistive technology. In many cases, the name and the label are the same.

(18)

“Name” means text by which software can identify a component to the user. A name may be hidden and only exposed by assistive technology, whereas a label is presented to all users. In many cases, the label and the name are the same. Name is unrelated to the name attribute in HTML.

(19)

“Nonweb software” means software that is not:

(a)

A webpage;

(b)

Embedded in a webpage; and

(c)

Used in the rendering or functioning of webpages.

(20)

“Nonvisual access” means the ability, through keyboard control, synthesized speech, braille, or other methods not requiring sight, to receive, use, and manipulate information, and operate controls necessary to access information technology.

(21)

“Operable part” means the hardware-based user controls for activating, deactivating, or adjusting ICT.

(22)

“Platform accessibility services” means the services provided by a platform enabling interoperability with assistive technology, including application programming interfaces (API) and the document object model (DOM).

(23)

Platform Software.

(a)

“Platform Software” means software that:

(i)

Interacts with hardware or provides services for other software;

(ii)

May run or host other software;

(iii)

May isolate the other software from underlying software or hardware layers; and

(iv)

May have both platform and nonplatform aspects.

(b)

“Platform software” includes:

(i)

Desktop operating systems;

(ii)

Embedded operating systems, including mobile systems;

(iii)

Web browsers;

(iv)

Plug-ins to web browsers that render a particular media or format; and

(v)

Sets of components that allow other applications to execute, such as applications which support macros or scripting.

(24)

“Programmatically determinable” means the ability to be determined by software from author-supplied data that is provided in a way that different user agents, including assistive technologies, can extract and present the information to users in different modalities.

(25)

“Public facing” means the content made available by an agency to members of the general public, including, but not limited to, an agency web site, blog post, or social media page.

(26)

“Software” means programs, procedures, rules, and related data and documentation that direct the use and operation of ICT and instruct it to perform a given task or function, including, but not limited to, applications, non-web software, and platform software.

(27)

Software Tool.

(a)

“Software tool” means software:

(i)

For which the primary function is the development of other software;

(ii)

That usually comes in the form of an integrated development environment (IDE); and

(iii)

Is a suite of related products and utilities.

(b)

“Software tool” includes Microsoft® Visual Studio®, Apple® Xcode®, and Eclipse Foundation Eclipse®.

(28)

“Telecommunications” means the signal transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

(29)

“Terminal” means a device or software with which the end user directly interacts and that provides the user interface, including software that provides the user interface on more than one device such as a telephone and a server.

(30)

"Text" means a sequence of characters that can be programmatically determined and that expresses something in human language.

(31)

“Voice over Internet protocol (VoIP)” means technology that provides real-time voice communications and requires a broadband connection from the user's location and customer premises equipment compatible with Internet protocol.

(32)

“Webpage” means a nonembedded resource obtained from a single universal resource identifier (URI) using hypertext transfer protocol (HTTP), plus any other resources that are provided for the rendering, retrieval, and presentation of content.

Subtitle 33 — Department of Information Technology

Chapter 02. Information and Communication Technology Nonvisual Access Standards

Regulation .01 Purpose.Link Copy Citation

The purpose of this chapter is to implement State Finance and Procurement Article, §§3A-303(a)(5), 3A-311, and 3A-312, Annotated Code of Maryland.

This chapter sets forth uniform nonvisual access standards to be used in the procurement of information and communication technology (ICT) and the provision of ICT services by or on behalf of agencies.

Regulation .02 Scope.Link Copy Citation

This chapter applies to the procurement of ICT and the provision of ICT services by or on behalf of agencies, except if:

(1)

The ICT is not available with nonvisual access because the essential elements of the information technology are visual and a nonvisual equivalent cannot be developed; or

(2)

The cost of modifying the ICT for compatibility with software and hardware for nonvisual access would increase the price of the procurement by more than 15 percent.

This chapter does not apply to ICT that is acquired and used by a contractor:

(1)

Incidental to performing under a contract with the State or any agency; and

(2)

To the extent that the ICT is not transferred to the State or any agency as part of the contractor's obligations to perform or incorporated into the deliverables provided to the State or any agency under the contract.

The ICT products or ICT services a contractor develops, procures, maintains, or uses that are not specified as part of a contract with the State or any agency are not required to comply with this chapter.

Except as otherwise required to comply with other law, this chapter may not be construed to require the installation of accessibility-related software or an assistive technology device at a workstation of a State employee who is not an individual with a disability.

Except as otherwise required to comply with the requirements of other law, this chapter may not be construed to require agencies:

(1)

To provide access to the public to information at a location other than where the ICT is ordinarily provided to the public; or

(2)

To purchase products for access and use by individuals with disabilities at a location other than where the ICT is ordinarily provided to the public.

Section E of this regulation may not be construed to relieve any unit of State government of its obligation to provide information or data under any other requirements of the law.

Except as provided by §§A—F of this regulation, ICT and ICT services procured, used, maintained, developed, and provided by or on behalf of agencies shall be nonvisually accessible in accordance with the standards promulgated in this chapter.

Agencies shall procure ICT and services that comply with the provisions in this chapter when such ICT and ICT services are available in the commercial marketplace or developed in response to a State government solicitation.

Best Meets. If ICT conforming to one or more provisions in this chapter is not commercially available, the agency shall procure the ICT that best meets the agency's business needs, consistent with this chapter.

Best Meets Required Documentation. The responsible agency official shall document in writing:

(1)

The nonavailability of conforming ICT, including a description of market research performed and which provisions cannot be met; and

(2)

The basis for determining that the ICT to be procured best meets the agency's business needs, consistent with this chapter.

Best Meets Alternative Means. If ICT that fully conforms to the provisions of this chapter is not commercially available, the agency shall provide individuals with visual disabilities access to and use of information and data by an alternative means that meets identified needs.

This chapter may not be construed to prohibit the use of designs or technologies as alternatives to those prescribed in this chapter if they result in substantially equivalent or greater access for people with visual disabilities.

Regulation .03 Functional Performance Criteria.Link Copy Citation

Functional performance criteria shall apply to Regulations .04—.06 of this chapter.

ICT shall be considered nonvisually accessible if the ICT meets the following requirements:

(1)

Without Vision. If a visual mode of operation is provided, ICT shall provide at least one mode of operation that does not require user vision.

(2)

With Limited Vision. If a visual mode of operation is provided, ICT shall provide at least one mode of operation that enables users to make use of limited vision.

(3)

Without Perception of Color. If a visual mode of operation is provided, ICT shall provide at least one nonvisual mode of operation that does not require user perception of color.

Regulation .04 Hardware.Link Copy Citation

Scope. The requirements of this regulation shall apply to ICT that is hardware if required by Regulation .02 of this chapter and if otherwise referenced in this chapter.

Closed Functionality.

(1)

ICT with closed functionality shall be operable without requiring the user to attach or install assistive technology other than personal headsets or other audio couplers.

(2)

Speech-Output Enabled Exceptions. The following are exceptions to §B(3) of this regulation:

(a)

Speech output shall not be required if ICT display screens only provide status indicators and those indicators conform to §H of this regulation in lieu of subsection §B(3) of this regulation.

(b)

If speech cannot be supported due to constraints in available memory or processor capability, ICT shall be permitted to conform to §H of this regulation.

(c)

Audible tones shall be permitted instead of speech output if the content of user input is not displayed as entered for security purposes, including, but not limited to, asterisks representing personal identification numbers.

(d)

Speech output shall not be required for the:

(i)

Machine location;

(ii)

Date and time of transaction;

(iii)

Customer account number; and

(iv)

Machine identifier or label.

(e)

Speech output shall not be required for advertisements and other similar information unless they convey information that can be used for the transaction being conducted.

(3)

Speech-Output Enabled.

(a)

ICT with a display screen shall be speech-output enabled for full and independent use by individuals with vision impairments.

(b)

Information Displayed On-Screen. Speech output shall be provided for all information displayed on-screen.

(c)

Transactional Outputs. If transactional outputs are provided, the speech output shall audibly provide all information necessary to verify a transaction.

(d)

Speech Delivery Type and Coordination.

(i)

Speech output shall be delivered through a mechanism that is readily available to all users, including, but not limited to, an industry standard connector or a telephone handset.

(ii)

Speech shall be recorded or digitized human or synthesized.

(iii)

Speech output shall be coordinated with information displayed on the screen.

(e)

User Control. The requirements for user control are as follows:

(i)

Speech output for any single function shall be automatically interrupted when a transaction is selected.

(ii)

Speech output shall be capable of being repeated and paused.

(4)

Braille Instructions Exception. Section B(5) of this regulation does not apply to devices for personal use.

(5)

Braille Instructions. The Braille Instructions are as follows:

(a)

If speech output is required by §B(3) of this regulation, braille instructions for initiating the speech mode of operation shall be provided.

(b)

Braille shall be contracted and shall conform to 36 CFR §1191.D.703.3.1. which is incorporated by reference herein.

Volume.

(1)

ICT that delivers sound, including speech output required by §B(3) of this regulation shall provide volume control and output amplification conforming to this section.

(2)

Private Listening. The volume requirements for private listening are as follows:

(a)

If ICT provides private listening, it shall provide a mode of operation for controlling the volume.

(b)

If ICT delivers output by an audio transducer typically held up to the ear, a means for effective magnetic wireless coupling to hearing technologies shall be provided.

(3)

Nonprivate Listening. The volume requirements for nonprivate listening are as follows:

(a)

If ICT provides nonprivate listening, incremental volume control shall be provided with output amplification up to a level of at least 65 dB.

(b)

A function shall be provided to automatically reset the volume to the default level after every use.

(4)

Characters on Display Screens.

(a)

At least one mode of characters displayed on the screen shall be in a sans serif font.

(b)

If ICT does not provide a screen enlargement feature, characters shall be 3/16 inch (4.8 mm) high, at a minimum, based on the uppercase letter “I”.

(c)

Characters shall contrast with their background with either light characters on a dark background or dark characters on a light background.

Biometrics.

(1)

Exception. If at least two biometric options that use different biological characteristics are provided, ICT shall be permitted to use biometrics as the only means for user identification or control.

(2)

If provided, biometrics shall not be the only means for user identification or control.

Preservation of Information Provided for Accessibility. ICT that transmits or converts information or communication shall not remove nonproprietary information provided for accessibility or shall restore it upon delivery.

Privacy. The privacy requirements are as follows:

(1)

The same degree of privacy of input and output shall be provided to all individuals.

(2)

When speech output required by §B(3) of this regulation is enabled, the screen shall not blank automatically.

Standard Connections. If data connections used for input and output are provided, at least one of each type of connection shall conform to industry standard nonproprietary formats.

Operable Parts. The operable parts requirements are as follows:

(1)

If provided, operable parts used in the normal operation of ICT shall conform to this section.

(2)

Contrast. If provided, keys and controls shall contrast visually from background surfaces. Characters and symbols shall contrast visually from background surfaces with either light characters or symbols on a dark background or dark characters or symbols on a light background.

(3)

Input Controls Exceptions. Devices for personal use with input controls that are audibly discernable without activation and operable by touch shall not be required to conform to §H(4) of this regulation.

(4)

Input Controls. At least one input control conforming to this section shall be provided for each function.

(5)

Tactilely Discernible. Input controls shall be operable by touch and tactilely discernible without activation.

(6)

Alphabetic Keys. If provided, individual alphabetic keys shall be arranged in a QWERTY-based keyboard layout, and the “F” and “J” keys shall be tactilely distinct from the other keys.

(7)

Numeric Keys.

(a)

If provided, numeric keys shall be arranged in a 12-key ascending or descending keypad layout.

(b)

The number five key shall be tactilely distinct from the other keys.

(c)

If the ICT provides an alphabetic overlay on numeric keys, the relationships between letters and digits shall conform to 36 CFR §1194.C.407.3.3, which is incorporated by reference.

(8)

Key Repeat. If a keyboard with key repeat is provided, the delay before the key repeat feature is activated shall be fixed at, or adjustable to, 2 seconds minimum.

(9)

Timed Response. If a timed response is required, the user shall be alerted visually, as well as by touch or sound, and shall be given the opportunity to indicate that more time is needed.

(10)

Tickets, Fare Cards, and Keycards. If tickets, fare cards, or keycards are provided, they shall have an orientation that is tactilely discernible if orientation is important to further use of the ticket, fare card, or keycard.

Display Screens.

(1)

If provided, display screens shall conform to this regulation.

(2)

Visibility. If stationary ICT provides one or more display screens, at least one of each type of display screen shall be visible from a point located 40 inches (1015 mm) above the floor space where the display screen is viewed.

(3)

Flashing Exception. Flashes that do not exceed the general flash and red flash thresholds as defined in The Web Content Accessibility Guidelines (WCAG) 2.1 Level AAA (June 5,2018), as incorporated by reference under COMAR 13A.06.05.02, are not required to conform to §I(4) of this regulation.

(4)

Flashing. If ICT emits lights in flashes, there shall be no more than three flashes in any 1-second period.

Status Indicators. If provided, status indicators shall be discernible visually and by touch or sound.

Color Coding. If provided, color coding shall not be used as the only means of conveying information, indicating an action, prompting a response, or distinguishing a visual element.

Caller ID. If provided, caller identification and similar telecommunications functions shall be visible and audible.

Closed Caption Processing Technologies.

(1)

If ICT displays or processes video with synchronized audio, ICT shall provide closed caption processing technology that conforms to this section.

(2)

Decoding and Display of Closed Captions. Players and displays shall decode closed caption data and support display of captions.

(3)

Pass-Through of Closed Caption Data. Cabling and ancillary equipment shall pass through caption data.

Audio Description Processing Technologies.

(1)

If ICT displays or processes video with synchronized audio, ICT shall provide audio description processing technology conforming to this section.

(2)

Digital Television Tuners. Digital television tuners shall be considered nonvisually accessible if the ICT provides audio description processing that conforms to the requirements of 36 CFR §1194.C.414.1.1, which is incorporated by reference.

(3)

Other ICT. ICT other than digital television tuners shall provide audio description processing.

User Controls for Captions and Audio Descriptions.

(1)

If ICT displays video with synchronized audio, ICT shall provide user controls for closed captions and audio descriptions conforming to this section.

(2)

Exception. Devices for personal use shall not be required to conform to this section, provided that captions and audio descriptions can be enabled through systemwide platform settings.

(3)

Caption Controls. If ICT provides operable parts for volume control, ICT shall also provide operable parts for caption selection.

(4)

Audio Description Controls. If ICT provides operable parts for program selection, ICT shall also provide operable parts for the selection of audio description.

Regulation .05 Software.Link Copy Citation

Software ICT shall be considered nonvisually accessible if the software ICT meets the requirements of 36 CFR §1194.C.5, which is incorporated by reference.

Regulation .06 Support Documentation and Services.Link Copy Citation

Scope. The technical requirements of this regulation shall apply to ICT support documentation and services if required by this chapter.

Support Documentation.

(1)

General documentation that supports the use of ICT shall conform to this section.

(2)

Accessibility and Compatibility Features. Documentation shall list and explain how to use the nonvisual accessibility and compatibility features required by Regulations .04 and .05 of this chapter. Documentation shall include accessibility features that are built in and accessibility features that provide compatibility with assistive technology.

(3)

Electronic Support Documentation. Documentation in electronic format, including web-based self-service support shall be considered nonvisually accessible if the ICT meets the requirements of 36 CFR §1194.C.602.3, which is incorporated by reference.

(4)

Alternate Formats for Nonelectronic Support Documentation. If support documentation is only provided in nonelectronic formats, alternate formats usable by individuals with visual disabilities shall be provided upon request.

Services.

(1)

Nonvisual ICT support services, including, but not limited to, help desks, call centers, training services, and automated self-service technical support, shall conform to this section.

(2)

Information on Accessibility and Compatibility Features. Nonvisual ICT support services shall include information on the accessibility and compatibility features required by this chapter.

(3)

Accommodation of Communication Needs. Support services shall be provided directly to the user or through a referral to a point of contact. Such ICT support services shall accommodate the communication needs of individuals with visual disabilities.

Regulation .07 Compliance Certification.Link Copy Citation

Each agency shall certify in the Agency Information Technology Master Plan submission to the Department of Information Technology, in a form prescribed by the Department, that the ICT procured and services provided by or on behalf of the unit comply with the requirements in this chapter.

Regulation .08 Self-Contained, Closed Products.Link Copy Citation

Self-contained products shall be usable by people with visual disabilities without requiring an end-user to attach assistive technology to the product.

If a product utilizes touch screens or contact-sensitive controls, an input method shall be provided that complies with Regulation .06D(1) and (2) of this chapter.

If an ocular form of user identification or control is used, an alternative form of identification or activation which does not require the user to possess a particular ocular characteristic shall also be provided.

If a product provides auditory output, the audio signal shall be provided at a standard signal level through an industry standard connector that allows for private listening using a headset or personal speakers. The product shall provide the ability to interrupt, pause, and restart the audio at any time.

When products deliver voice output in a public area, incremental volume control shall be provided with output amplification up to a level of at least 65 decibels. Where the ambient noise level of the environment is above 45 decibels, a volume gain of at least 20 decibels above the ambient level shall be user selectable. A function shall be provided to automatically reset the volume to the default level after every use.

Color-coding may not be used as the only means of conveying information, indicating an action, prompting a response, or distinguishing a visual element.

If a product permits a user to adjust color and contrast settings, a range of color selections capable of producing a variety of contrast levels shall be provided.

Products shall be designed to avoid causing the screen to flicker with a frequency greater than 2 hertz and lower than 55 hertz.

Regulation .09 Desktop and Portable Computers.Link Copy Citation

All mechanically operated controls and keys shall comply with Regulation .06D(1) and (2) of this chapter.

If a product utilizes touch screens or touch-operated controls, an input method shall be provided that complies with Regulation .06D(1) and (2) of this chapter.

When an ocular form of user identification or control is used, an alternative form of identification or activation, which does not require the user to possess particular ocular characteristics, shall also be provided.

Regulation .10 Functional Performance Criteria.Link Copy Citation

At least one mode of operation and information retrieval that does not require user vision shall be provided, or support for assistive technology used by people who are blind or visually impaired shall be provided.

At least one mode of operation and information retrieval that does not require visual acuity greater than 20/70 shall be provided in audio and enlarged print output working together or independently, or support for assistive technology used by people who are visually impaired shall be provided.

Regulation .11 Information, Documentation, and Support.Link Copy Citation

Product support documentation provided to end-users shall be made available in nonvisually accessible alternate formats upon request, at no additional charge.

End-users shall have access to a description of the accessibility and compatibility features of products in nonvisually accessible alternate formats or alternate methods upon request, at no additional charge.

Support services for products shall accommodate the communication needs of end-users with visual disabilities.

Subtitle 34 — Public School Labor Relations Board

Chapter 01. Recognition of Employee Organizations

Subtitle 34 — Public School Labor Relations Board

Chapter 02. Negotiability Dispute

Subtitle 34 — Public School Labor Relations Board

Chapter 03. Impasse Determination

Subtitle 34 — Public School Labor Relations Board

Chapter 04. Charge of Statutory Violation

Subtitle 34 — Public School Labor Relations Board

Chapter 05. Public Information Act Requests

Subtitle 34 — Public School Labor Relations Board

Chapter 06. Attendance, Recording, Photographing, and Broadcasting of Open Sessions

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 01. General Provisions

Regulation .01 Compliance with Federal Law.Link Copy Citation

The Maryland Health Benefit Exchange shall comply with all provisions of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and all associated guidance and regulations hereto and hereafter issued.

Regulation .02 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Advance payments of the premium tax credit” means payment of the federal tax credits authorized by 26 U.S.C. §36B and its implementing regulations, which are provided on an advance basis to an eligible individual enrolled in a qualified health plan through the Exchange under §1412 of the Affordable Care Act.

(2)

“Advanced Premium Tax Credit (APTC)” has the meaning stated in 45 CFR §155.20.

(3)

“Affordable Care Act (ACA)” means the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148), as amended, including by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152), and the regulations issued under it.

(4)

“Authorized carrier” means a carrier that the Exchange certifies is authorized to offer a qualified plan in the Exchange under COMAR 14.35.15.

(5)

“Board” has the meaning stated in Insurance Article, §31-101, Annotated Code of Maryland.

(6)

“Bronze coverage level” means the level of coverage described under §1302(d)(1)(A) of the ACA.

(7)

“CARES” means the case management data system that tracks eligibility for Medicaid and other social services.

(8)

“Carrier” has the meaning set forth in Insurance Article §31-101(c), Annotated Code of Maryland.

(9)

“Catastrophic plan” means a qualified health plan described in §1302(e) of the ACA.

(10)

“Certification standard” means a process, procedure, requirement, or condition of participation in the Exchange under COMAR 14.35.15 or COMAR 14.35.16.

(11)

“Commissioner” means the Maryland Insurance Commissioner.

(12)

Cost Sharing.

(a)

“Cost sharing” means any expenditure required by or on behalf of an enrollee with respect to covered benefits.

(b)

“Cost sharing” includes deductibles, coinsurance, copayments, or similar charges.

(c)

“Cost sharing” does not include premiums, balance billing amounts for non-network providers, and spending for non-covered services.

(13)

“Cost-sharing reductions (CSR)” means reductions in cost sharing for an eligible individual enrolled in a silver level plan through the Exchange or for an individual who is an Indian enrolled in a QHP through the Exchange.

(14)

“Coverage” means insurance through which benefits are provided.

(15)

“Department” means the Maryland Department of Health.

(16)

“Dependent” has the meaning stated in 26 CFR §54.9801-2 with respect to eligibility for coverage under an individual or SHOP QHP because of a relationship to a qualified individual or enrollee.

(17)

“Eligibility determination” means a decision by the Exchange about an applicant’s eligibility to enroll in a QHP or insurance affordability program or terminate a qualified individual’s enrollment in a QHP or insurance affordability program.

(18)

“Enrollee” means a qualified individual, or qualified employee, who is enrolled in a qualified plan through the Individual or SHOP Exchange.

(19)

“Enrollment” means the qualified individual’s coverage in a qualified plan, catastrophic plan, or insurance affordability program through the Exchange.

(20)

“Exchange” has the meaning stated in Insurance Article §31-101(e), Annotated Code of Maryland.

(21)

“Exchange annual training” means the yearly training administered to certified navigators, licensed navigators, application counselors, and authorized producers by the Exchange as part of its training program.

(22)

“Gold coverage level” means the level of coverage described under §1302(d)(1)(C) of the ACA.

(23)

“Grace period” means the period of time during which a carrier is prohibited from terminating an enrollee’s enrollment in a qualified plan, as specified in:

(a)

Insurance Article, §15-1315(c)—(e), Annotated Code of Maryland, if the enrollee is receiving advanced premium tax credits;

(b)

Insurance Article, §15-209, Annotated Code of Maryland, for insurers due to non-payment of premium;

(c)

COMAR 31.10.25.04C, for non-profit health service plans;

(d)

COMAR 31.12.07.05D, for HMOs;

(e)

COMAR 31.12.04.05A, for dental plan organizations;

(f)

COMAR 31.11.10.04I for insurers and non-profit health service plans offering small employer coverage in health benefit plans; or

(g)

COMAR 31.12.07.04I, for HMOs offering small employer coverage in health benefit plans.

(24)

“Health benefit plan” has the meaning stated in Insurance Article, §31-101, Annotated Code of Maryland.

(25)

“HHS” means the federal Department of Health and Human Services.

(26)

“Individual Exchange” has the meaning stated in Insurance Article §31-101(h), Annotated Code of Maryland.

(27)

“Individual Exchange Navigator” has the meaning stated in Insurance Article §31-101(i), Annotated Code of Maryland.

(28)

“Individual Exchange Navigator Certification” has the meaning stated in Insurance Article §31-101(j), Annotated Code of Maryland.

(29)

“Individual Exchange Navigator Entity” has the meaning stated in Insurance Article §31-101(k), Annotated Code of Maryland.

(30)

“Insurance producer” has the meaning stated in Insurance Article §1-101(u), Annotated Code of Maryland.

(31)

“Insurance producer authorization” has the meaning stated in Insurance Article §31-101(m), Annotated Code of Maryland.

(32)

“JAIL MATCH” means the data system containing information about incarcerated individuals within the State.

(33)

“Limited cost sharing plan variation” means the cost-sharing reduction variation of a QHP described in 45 CFR §156.420(b)(2).

(34)

“Managed care program” has the meaning stated in COMAR 10.09.62.01B(100).

(35)

“Maryland Children’s Health Program (MCHP)” has the meaning stated in COMAR 10.09.43.02B.

(36)

“Maryland Insurance Administration” means the insurance administration for the State established under Insurance Article, §2-101, Annotated Code of Maryland.

(37)

“Medicaid” has the meaning stated in COMAR 10.09.24.02B(32).

(38)

“Minimum essential coverage (MEC)” has the meaning stated in 26 USC §5000A(f) and the corresponding regulation under 26 CFR §1.5000A-2(a).

(39)

“Navigator entity” means Individual Exchange Navigator Entity.

(40)

“Open enrollment period” means the annual period during which a qualified individual may enroll in coverage through the Exchange, including the initial open enrollment period as stated in 45 CFR §155.20.

(41)

“Plain language” has the meaning stated in §1311(e)(3)(b) of the Affordable Care Act.

(42)

“Plan variation” means a zero cost sharing plan variation, a limited cost sharing plan variation, or a silver plan variation.

(43)

“Platinum coverage level” means the level of coverage described under §1302(d)(1)(D) of the ACA.

(44)

“Product” has the meaning stated in 45 CFR §154.102.

(45)

“Provider network” has the same meaning as “provider panel” as stated in COMAR 31.10.35.03B(7).

(46)

“Qualified dental plan (QDP)” has the meaning stated in Insurance Article, §31-101, Annotated Code of Maryland.

(47)

“Qualified employee” means an employee who has been determined eligible to enroll in a qualified plan through the SHOP Exchange.

(48)

“Qualified health plan (QHP)” has the meaning stated in Insurance Article, §31-101, Annotated Code of Maryland.

(49)

“Qualified individual” has the meaning stated in Insurance Article, §31-101(s), Annotated Code of Maryland.

(50)

“Qualified plan” has the meaning stated in Insurance Article, §31-101, Annotated Code of Maryland.

(51)

“SHOP Exchange” has the meaning stated in Insurance Article, §31-101, Annotated Code of Maryland.

(52)

“Silver coverage level” means the level of coverage described under §1302(d)(1)(B) of the ACA.

(53)

“Silver plan variation” means any of the cost-sharing reduction plan variations of the standard silver QHP under 45 CFR §156.420(a).

(54)

“Single, streamlined application form” means the eligibility application for Medicaid, MCHP, qualified health plan, stand-alone dental plan, APTC, or CSR through the Exchange.

(55)

“Special enrollment period” means the period during which a qualified individual, dependent, or enrollee, who experiences certain qualifying events may enroll in, or change enrollment in, a QHP through the Exchange outside of the annual open enrollment periods.

(56)

“Stand-alone dental plan (SADP)” means a qualified dental plan that meets the requirements under 45 CFR §155.1065(a).

(57)

“Zero cost sharing plan variation” means the cost-sharing reduction plan variation of a QHP under 45 CFR §156.420(b)(1).

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 02. Individual Exchange Navigator Certification and Training Standards

Regulation .01 Scope.Link Copy Citation

This chapter sets forth the qualifications, training, and certification standards for an individual who applies to receive an Individual Exchange navigator certification and is required under Insurance Article, §31-113(h)(1), Annotated Code of Maryland to hold an Individual Exchange navigator certification to provide the services listed under Insurance Article, §31-113(d)(1), Annotated Code of Maryland.

Regulation .02 Eligibility Requirements.Link Copy Citation

To qualify for an Individual Exchange navigator certification, an applicant shall:

Be of good character and trustworthy;

Be at least 18 years old;

Successfully complete and comply with any ongoing requirements of the training program set forth under regulation .04 of this chapter; and

Comply with any applicable requirements of Maryland Department of Health.

Regulation .03 Application Procedures.Link Copy Citation

In order to obtain an Individual Exchange navigator certification, the applicant shall submit to the Exchange:

(1)

An application on the form provided by the Exchange;

(2)

An attestation that the applicant will notify the Exchange of any changes to information that the applicant provides or to which the applicant attests on the application form within 30 days of such change;

(3)

An application fee if permitted by law and in the manner specified by the Exchange;

(4)

Evidence of the written consent required under COMAR 31.03.12, if applicable; and

(5)

Evidence that the applicant has successfully completed the Individual Exchange navigator certification training program.

The Exchange may not consider an application to be complete until it has received all required materials.

If the application is not completed with all required materials within 45 days after the Exchange receives the signed application form, the Exchange may consider the application withdrawn.

Regulation .04 Training Standards.Link Copy Citation

Scope of Training. The training shall include information on:

(1)

Commercial health insurance;

(2)

The Medicaid and MCHP programs;

(3)

Eligibility, enrollment, renewal and disenrollment;

(4)

Advanced premium tax credits;

(5)

Consumer assistance and protection;

(6)

Quality assurance standards; and

(7)

Ethics.

Conduct.

(1)

The Exchange shall conduct training in geographically diverse locations across the State.

(2)

The training shall be conducted in examination facilities equipped to provide access in accordance with the Americans with Disabilities Act of 1990 as amended under 42 USC §12101, et seq.

Type of Training. The training shall be administered in-person and online.

Examination.

(1)

The training shall include a final examination.

(2)

The examination shall be multiple choice.

(3)

The examination shall be scored and reported in accordance with a passing score established by the Exchange.

(4)

Applicants must successfully pass the examination within 45 calendar days of completing the training described under §A of this regulation.

(5)

Applicants are allowed three attempts to pass the examination in a 12-month period.

(6)

If the applicant does not pass the examination on the third attempt, they must wait 12 months before they are eligible to train and test again.

Training Frequency. The Exchange shall conduct trainings:

(1)

At least monthly during all months; and

(2)

At least weekly for the 3 months immediately preceding the open enrollment period.

Assessment. The Exchange, in consultation with the Maryland Department of Health and with the approval of the Commissioner, shall review, and as appropriate update, the content of the training on a schedule established by the Exchange.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 03. Individual Exchange Navigator Certification — Renewal, Reinstatement, Deactivation, and Suspension or Revocation of Certification

Regulation .01 Term.Link Copy Citation

An Individual Exchange navigator certification expires 2 years after the date it is issued unless it is renewed.

Regulation .02 Renewal.Link Copy Citation

Notice.

(1)

At least 60 days before the expiration of an Individual Exchange navigator certification, the Exchange shall notify the Individual Exchange navigator, either directly at the address, including email address, on file with the Exchange, or by contacting the navigator entity by whom the Individual Exchange navigator is employed or engaged, of the expiration date of an Individual Exchange navigator certification.

(2)

The notification shall include:

(a)

A renewal application;

(b)

The date by which the Exchange must receive the renewal application for the renewal to be issued before the certification expires; and

(c)

The amount of the renewal fee, if any.

Eligibility for Renewal. An Individual Exchange navigator certification may be renewed for an additional 2-year term if the holder:

(1)

Is otherwise entitled to receive Individual Exchange navigator certification, in accordance with the eligibility requirements set forth in COMAR 14.35.02.02;

(2)

Files a renewal application on the form provided by the Exchange either by mail or electronically before expiration of the certification;

(3)

Pays to the Exchange a renewal fee if permitted by law and in the manner specified by the Exchange; and

(4)

Has completed the Exchange annual training and the continuing education requirements under §C of this regulation.

Continuing Education. A certified Individual Exchange navigator shall complete at least 16 hours of Exchange-approved continuing education per renewal term.

Annual Training.

(1)

The Exchange shall:

(a)

Schedule the Continuing Education Training on an annual basis; and

(b)

Notify certified Individual Exchange navigators of the annual training.

(2)

A certified Individual Exchange navigator shall complete the annual training, including any examination, within 60 days before the open enrollment period during each year of the certification term, including any renewal term.

Regulation .03 Reinstatement.Link Copy Citation

In order to obtain a reinstatement of an Individual Exchange navigator certification, the applicant shall submit to the Exchange an application as required under COMAR 14.35.02.03.

Regulation .04 Inactive Certification.Link Copy Citation

An Individual Exchange navigator shall provide evidence satisfactory to the Exchange of employment or engagement by a navigator entity before the navigator may become certified.

The Exchange may deactivate an individual’s Individual Exchange navigator certification whenever the:

(1)

Individual fails to complete the annual training;

(2)

Individual has not provided evidence satisfactory to the Exchange of employment or engagement by a navigator entity, as set forth under §A of this regulation; or

(3)

The Exchange is informed, either by the individual or a navigator entity, that the individual is not employed or engaged by the navigator entity.

If certification is deactivated due to reasons listed under §B(2) or (3) of this regulation, the Exchange may waive the fees listed under Regulation .02B(3) of this chapter.

Regulation .05 Suspension or Revocation.Link Copy Citation

The Commissioner may suspend or revoke an Individual Exchange navigator certification for the reasons listed under Insurance Article, §31-113(l)(1), Annotated Code of Maryland.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 04. Insurance Producer Authorization to Sell Qualified Plans in the SHOP Exchange and Individual Exchange

Regulation .01 Scope.Link Copy Citation

This chapter sets forth the qualifications, training, and authorization standards for an individual who applies to receive a Small Business Health Options (SHOP) insurance producer authorization or an Individual Exchange insurance producer authorization and is required under Insurance Article, §§31-112(g)(2) and 31-113(n)(2), Annotated Code of Maryland, to hold such an authorization to sell qualified plans within the SHOP Exchange or Individual Exchange.

Regulation .02 Eligibility Requirements.Link Copy Citation

To be eligible to apply for initial insurance producer authorization, an applicant shall:

Be licensed by the Maryland Insurance Commissioner as an insurance producer authorized to sell health insurance; and

Successfully complete and comply with any ongoing requirements of the training programs set forth under Regulation .04 of this chapter.

Regulation .03 Application Procedures.Link Copy Citation

In order to obtain a SHOP Exchange insurance producer authorization or Individual Exchange insurance producer authorization, the applicant shall submit to the Exchange:

(1)

An application on the form provided by the Exchange;

(2)

An attestation that the applicant will notify the Exchange of any changes to information the applicant provides or to which the applicant attests on the application form within 30 days of such change;

(3)

An application fee if permitted by law and in the manner specified by the Exchange;

(4)

Evidence that the applicant is licensed by the Maryland Insurance Commissioner as an insurance producer authorized to sell health insurance;

(5)

Evidence of the written consent required under COMAR 31.03.12, if applicable; and

(6)

Evidence that the applicant has successfully completed the:

(a)

SHOP Exchange insurance producer authorization training if the applicant is applying for a SHOP Exchange insurance producer authorization; or

(b)

Individual Exchange Producer Authorization training if the applicant is applying for an Individual Exchange insurance producer authorization.

The Exchange may not consider an application to be complete until it has received all required materials.

If the application is not completed with all required materials within 45 days after the Exchange receives the signed application form, the Exchange may consider the application withdrawn.

Regulation .04 Training.Link Copy Citation

An applicant for the SHOP Exchange insurance producer authorization shall complete the Exchange-approved SHOP insurance producer authorization training.

An applicant for the Individual Exchange insurance producer authorization shall complete the Commissioner-approved Individual Exchange insurance producer authorization training.

The Exchange shall review, and as appropriate update, the content of the SHOP insurance producer authorization training program on a schedule established by the Exchange.

The Exchange, with the approval of the Commissioner, shall review, and as appropriate update, the content of the Individual Exchange insurance producer authorization training program at least every 2 years.

An applicant for Individual Exchange or SHOP insurance producer authorization shall meet the examination requirements specified under COMAR 14.35.02.04D.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 05. Insurance Producer Authorization — Renewal, Reinstatement, and Suspension or Revocation of Authorization

Regulation .01 Term.Link Copy Citation

An insurance producer authorization expires 2 years after the date it is issued unless it is renewed.

Regulation .02 Renewal.Link Copy Citation

Notice.

(1)

At least 60 days before the expiration of an insurance producer authorization, the Exchange shall notify the authorized insurance producer of the expiration of the authorization.

(2)

The notification shall include:

(a)

A renewal application;

(b)

The date by which the Exchange must receive the renewal application for the renewal to be issued before the authorization expires; and

(c)

The amount of the renewal fee, if any.

Eligibility for Renewal. An insurance producer authorization may be renewed for an additional 2-year term if the holder:

(1)

Is otherwise entitled to receive insurance producer authorization, in accordance with the eligibility requirements set forth in COMAR 14.35.04.02;

(2)

Files a renewal application on the form provided by the Exchange before the expiration of the authorization;

(3)

Pays to the Exchange a renewal fee if permitted by law and in the manner specified by the Exchange;

(4)

Completes the annual training requirements set forth in COMAR 14.35.04.04; and

(5)

Is not denied by the Exchange for reasons set forth under §E of this regulation.

Exchange Annual Training.

(1)

The Exchange shall:

(a)

Schedule the Exchange Annual Training; and

(b)

Notify authorized insurance producers of the annual training.

(2)

Authorized insurance producers shall complete the annual training, including any examination, within 60 days before the open enrollment period.

Timely Receipt of Application:

(1)

Before the date of expiration of the authorization, a holder of an insurance producer authorization shall complete and return to the Exchange a renewal application and a renewal fee according to the renewal instructions.

(2)

A holder of an expired insurance producer authorization may not sell qualified plans in the SHOP Exchange or Individual Exchange.

Denial.

(1)

The Exchange may deny a renewal application if the insurance producer has:

(a)

Committed any act described in Insurance Article, §31-113(l)(1), Annotated Code of Maryland; or

(b)

Had any professional license or certification suspended or revoked for a fraudulent or dishonest practice.

(2)

Denial of a renewal application is subject to the contested case hearing provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Regulation .03 Reinstatement.Link Copy Citation

For up to 1 year after the expiration date, an individual whose insurance producer authorization has expired may apply to reinstate the expired authorization by:

(1)

Filing a reinstatement application, either by mail or electronically, on the form approved by the Exchange;

(2)

Paying to the Exchange the renewal fee if permitted by law and in the manner specified by the Exchange;

(3)

Paying to the Exchange a reinstatement fee if permitted by law and in the manner specified by the Exchange; and

(4)

Submitting evidence to the Exchange that the individual has successfully completed the Exchange annual training and the continuing education requirements under Regulation .02C of this chapter.

An individual who does not file for reinstatement within 1 year after the expiration date of the insurance producer authorization shall apply for an authorization under the application procedures set forth in COMAR 14.35.04.03.

Regulation .04 Suspension or Revocation.Link Copy Citation

The Exchange may suspend or revoke an insurance producer authorization for a licensed producer authorized to sell qualified plans in the SHOP Exchange as set forth under Insurance Article, §31-112(f)(3)(i), Annotated Code of Maryland.

The Exchange may suspend or revoke an insurance producer authorization for a licensed producer authorized to sell qualified plans in the Individual Exchange as set forth under Insurance Article, §31-113(m)(3)(i), Annotated Code of Maryland.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 06. Exchange Consumer Services Center

Regulation .01 Exchange Call Center.Link Copy Citation

The Exchange shall:

Maintain a consumer services call center at least during normal business hours;

Operate its consumer services call center as a triage device to handle or properly refer consumers' questions or complaints; and

Provide a consumer with information about how to use the consumer services call center to obtain information and assistance when appropriate.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 07. Eligibility Standards for Enrollment in a Qualified Health Plan, Eligibility Standards for APTC and CSR, and Eligibility Standards for Enrollment in a Catastrophic Qualified Health Plan in the Individual Exchange

Regulation .01 Scope.Link Copy Citation

This chapter sets forth the eligibility standards for enrollment in a qualified health plan and qualified health plans with advance payments of the premium tax credit and cost-sharing reductions in the Individual Exchange. This chapter does not address the verification of eligibility or redeterminations of eligibility for enrollment in the Individual Exchange or eligibility for enrollment in the SHOP Exchange. This chapter does not address eligibility and enrollment in qualified dental plans or qualified vision plans.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Applicant” means an individual who submits an application through the Individual Exchange for the individual and the individual’s tax household, and is seeking eligibility for:

(a)

Enrollment in a QHP through the Individual Exchange; or

(b)

Enrollment in an insurance affordability program through the Individual Exchange.

(2)

“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985 (Pub. L. 99-272).

(3)

“CSR plan for up to 150 percent FPL” means a QHP available through the Individual Exchange with an actuarial value of 94 percent plus or minus the de minimis variation for a silver plan variation.

(4)

“CSR plan for 151—200 percent FPL” means a QHP available through the Individual Exchange with an actuarial value of 87 percent plus or minus the de minimis variation for a silver plan variation.

(5)

“CSR plan for 201—250 percent FPL” means a QHP available through the Individual Exchange with an actuarial value of 73 percent plus or minus the de minimis variation for a silver plan variation.

(6)

“Dependent,” for the purposes of Regulations .12—.19 of this chapter, has the meaning stated in 26 CFR §54.9801-2 with respect to eligibility for coverage under an individual QHP because of a relationship to a qualified individual or enrollee.

(7)

“Employer group health insurance coverage” means health coverage offered by an employer to an employee and the employee’s dependents, if eligible, under:

(a)

Government health coverage, such as the Federal Employees Health Benefit program;

(b)

Health coverage offered in the small or large group market by an employer within a state; or

(c)

Grandfathered health coverage offered by an employer in a group market.

(8)

“Federal poverty level (FPL)” means the most recently published federal poverty level guidelines, updated periodically in the Federal Register by the Secretary of HHS as set forth in 42 U.S.C. §9902(2), as of the first day of the open enrollment period for QHPs offered through the Individual Exchange for a calendar year.

(9)

Household income” has the meaning stated in §36B(d)(2) of the Internal Revenue Code.

(10)

“Indian” means an individual who is a member of an Indian tribe, band, nation, or other organized group or community, including any Alaska Native village, or regional or village corporation as defined in or established under the Alaska Native Claims Settlement Act (85 Stat. 688), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(11)

“Institution” means:

(a)

A medical institution under COMAR 10.09.24.02—.37; or

(b)

A public institution under COMAR 10.09.24.02—.46.

(12)

“Insurance affordability program” means a program that is one of the following:

(a)

The Maryland State Medicaid Program;

(b)

The Maryland Children’s Health Insurance Program (CHIP), including the Maryland Children’s Health Program (MCHP) Premium;

(c)

A program that makes available to qualified individuals coverage in a QHP through the Individual Exchange with APTC credit under §1.36B(2)(c) of the Internal Revenue Code;

(d)

A program that makes available coverage in a QHP through the Individual Exchange with CSR under §1402 of the ACA; and

(e)

The State-Based Young Adult Health Insurance Subsidies Program established under Insurance Article, §31-122, Annotated Code of Maryland.

(13)

“Non-applicant” means an individual who is not seeking eligibility for enrollment in a QHP or an insurance affordability program through the Individual Exchange.

(14)

“Qualifying eligible employer-sponsored plan” means a health benefit plan that meets the requirements set forth in 26 CFR §1.36B-2(c)(2)(i).

(15)

“Rescission” means a cancellation or discontinuance of coverage that has retroactive effect.

(16)

“Tax filer” means an individual or married couple who indicates that the tax filer expects:

(a)

To file an income tax return for the benefit year, as set forth in 26 U.S.C. §§6011, 6012, and implementing regulations;

(b)

If married, as set forth in 26 CFR §1.7703-1, to file a joint tax return for the benefit year, except if the spouse is a victim of domestic violence or spousal abandonment;

(c)

To not be claimed as a tax dependent by any other taxpayer for the benefit year; and

(d)

To claim a personal exemption deduction set forth in §151 of the Internal Revenue Code on the tax filer’s return for one or more applicants, even if the tax filer is not an applicant.

Regulation .03 Applying for Coverage Through the Individual Exchange.Link Copy Citation

Individuals may apply to enroll in a QHP or an insurance affordability program through the Individual Exchange using the single, streamlined application form approved by the Individual Exchange.

An individual may submit the application:

(1)

By telephone;

(2)

On the Individual Exchange’s internet website;

(3)

Using in-person assistance, including with the provision of reasonable accommodations; or

(4)

By mail.

An applicant shall provide the following information on the application:

(1)

The applicant’s and applicable dependents’ Social Security numbers, provided that the applicant and applicable dependents have Social Security numbers;

(2)

An authorization for the Exchange to verify attested information through electronic means;

(3)

An election indicating whether the applicant is seeking an eligibility determination for enrollment in a QHP or insurance affordability program;

(4)

If the applicant is applying for enrollment in a QHP, sufficient information to determine eligibility for enrollment in a QHP;

(5)

If the applicant is applying for enrollment in an insurance affordability program, sufficient information to determine eligibility for enrollment in such insurance affordability program;

(6)

If the applicant is applying for enrollment in an insurance affordability program as defined in Regulation .02B and the applicant files for an income tax return as a married couple, the applicant shall complete an attestation that the applicant intends to file a joint income tax return for the benefit year in which the individual is seeking coverage, except:

(a)

If a spouse is the victim of domestic violence or spousal abandonment, the attestation may provide that the applicant intends to file a single income tax return for the benefit year in which the individual is seeking coverage; or

(b)

If the individual in a married couple qualifies to file as head of household, the attestation may provide that the applicant intends to file a single income tax return as head of household for the benefit year in which the individual is seeking coverage; and

(7)

The applicant’s signature, including either an electronic or telephonic signature, under penalties of perjury.

Non-applicant.

(1)

A non-applicant who applies for insurance affordability programs on behalf of a member in the non-applicant’s tax filing household shall provide the following information on the application:

(a)

The non-applicant’s name; and

(b)

The non-applicant’s Social Security number, if the applicant attests that the tax filer:

(i)

Has a Social Security number; and

(ii)

Filed a tax return for the year for which tax data would be used to verify the applicant’s household income and family size.

(2)

A non-applicant is required to provide the following information on the application if the only members of the individual’s household seeking coverage are younger than 18 years old and are not emancipated minors:

(a)

The non-applicant’s name; and

(b)

The non-applicant’s address.

(3)

Non-applicants are not required to provide information about the non-applicant’s citizenship, status as a national, or immigration status.

An individual who applies for an insurance affordability program shall receive an eligibility determination for all of the insurance affordability programs.

An individual may submit an application to the Individual Exchange and receive an eligibility determination at any time during the year.

Incomplete Applications.

(1)

If an individual submits an incomplete application, the Individual Exchange shall send the individual a notice under Regulation .04D of this chapter.

(2)

The individual shall have 90 days to complete the application and receive an eligibility determination from the date the notice is sent to the individual under Regulation .04D of this chapter.

(3)

If an individual does not complete and submit an application within the 90 days under §G(2) of this regulation, the Individual Exchange shall close the application and the individual shall begin a new application.

An individual shall complete and submit an application to enroll in coverage through the Exchange.

Regulation .04 Notice Requirements.Link Copy Citation

The Individual Exchange shall provide timely written notice to an applicant of any eligibility determination made under this chapter as set forth in 45 CFR §155.230 and a notification of the right to request a fair hearing as set forth in COMAR 14.35.11.04.

If an employee enrolls in a QHP with APTC or CSR, the Individual Exchange shall notify the employee’s employer at the employer’s address provided by the employee to the Individual Exchange that the employee has been determined eligible for APTC or CSR.

The notice under §B of this regulation shall:

(1)

Identify the employee by including:

(a)

The employee’s name;

(b)

The employee’s date of birth;

(c)

The last four digits of the employee’s Social Security number, if available; and

(d)

The employee’s Individual Exchange identification number;

(2)

Indicate that the employee has been determined eligible for APTC or CSR and has enrolled in a QHP;

(3)

Indicate that if the employer has 50 or more full-time employees, the employer may be liable for the shared responsibility payment assessment set forth in §4980H of the Internal Revenue Code; and

(4)

Notify the employer of the employer’s right to appeal the determination to HHS.

The Exchange shall send a notice to an applicant who submits an application containing insufficient information for the Exchange to conduct an eligibility determination, which shall:

(1)

Indicate that the information necessary to complete an eligibility determination is missing;

(2)

Specify the missing information;

(3)

Provide instructions on how to provide the missing information to the Individual Exchange; and

(4)

Specify that the applicant shall have 90 days to provide the missing information to the Individual Exchange beginning by the date of the notice.

If the applicant or enrollee has designated an authorized representative under Regulation .20 of this chapter, the Individual Exchange shall provide:

(1)

Information regarding the powers and duties of authorized representatives to both the applicant or enrollee and to the authorized representative; and

(2)

Notices to the applicant or enrollee and to the authorized representative.

The Individual Exchange shall provide written notice electronically to the individual if:

(1)

The individual elects to receive notices electronically;

(2)

The individual is mailed confirmation of the individual’s election to receive notices electronically;

(3)

The individual is informed of the right to change the election;

(4)

The Individual Exchange posts notices in the individual’s online Individual Exchange account within 1 business day of generation of the electronic notice; and

(5)

Within 1 business day of generating the electronic notice, the Individual Exchange alerts the individual, via email to the individual’s verified email address, to the existence of the electronic notice in the individual’s online Individual Exchange account.

If the electronic communication under §F(5) of this regulation fails to be sent to the individual, the Individual Exchange shall mail a written notice of the failed electronic communication to the individual’s mailing address.

An individual may request a written copy of any electronic notice the individual receives from the Individual Exchange.

Regulation .05 Eligibility Requirements for Enrollment in a Qualified Health Plan Through the Individual Exchange.Link Copy Citation

An applicant shall be determined eligible for enrollment in a QHP through the Individual Exchange if the applicant is:

(1)

A citizen or national of the United States, a non-citizen who is lawfully present in the United States, and reasonably expected to be a citizen, national, or a non-citizen who is lawfully present for the entire period for which enrollment is sought;

(2)

A resident of the Individual Exchange service area; and

(3)

Not incarcerated, other than incarceration pending the disposition of charges.

Eligibility under this regulation is contingent upon verification of the applicant’s attestation that the applicant meets the criteria stated in §A(1) of this regulation, or upon receipt of the applicant’s attestation that the applicant meets the criteria stated in §A(2) and (3) of this regulation.

For the purpose of determining eligibility for enrollment in a QHP under §A(1) of this regulation, “lawfully present” means a non-citizen individual as defined in 45 CFR §152.2.

Regulation .06 General Eligibility Requirements — Citizenship and Immigration Status.Link Copy Citation

For the purpose of determining eligibility for enrollment in a QHP under Regulation .05A(1) and (2) of this chapter, an individual shall be considered a citizen or national of the United States if the individual is:

A citizen of the United States, including:

(1)

An individual who was born in:

(a)

One of the 50 states;

(b)

The District of Columbia;

(c)

Puerto Rico;

(d)

Guam;

(e)

The Northern Mariana Islands; or

(f)

The U.S. Virgin Islands; or

(2)

A child born outside of the United States if:

(a)

The federal requirements, including the requirements in the Child Citizenship Act of 2000 (Public Law 106-395), are met for the child to automatically acquire United States citizenship upon the child's lawful admission to the United States for permanent residence;

(b)

At least one of the child's natural or adoptive parents or stepparents is a United States citizen by birth or naturalization;

(c)

The child is younger than 18 years old;

(d)

The child resides in the United States in the legal and physical custody of the citizen or naturalized parent; and

(e)

The child is a lawful permanent resident of the United States;

A naturalized United States citizen; or

A national from American Samoa or Swain's Island.

Regulation .07 General Eligibility Requirements — Residency in Individual Exchange Service Area.Link Copy Citation

For the purpose of determining eligibility for enrollment in a QHP under Regulation .05(A)(2) of this chapter, an individual shall be considered a resident of the Exchange service area if:

(1)

An individual is 21 years old or older, is not living in an institution, is capable of indicating intent, and is not receiving an optional State supplementary payment and the individual lives in the Individual Exchange service area, including without a fixed address; or

(2)

An individual is younger than 21 years old, is not living in an institution, is not eligible for Medicaid based on receipt of assistance under Title IV-E of the Social Security Act, is not emancipated, is not receiving an optional State supplementary payment, and the individual either:

(a)

Resides in the Exchange service area, including without a fixed address; or

(b)

Resides with a parent or caretaker who resides in the service area of the Individual Exchange under §A(1) of this regulation.

For individuals not described in §A of this regulation, an individual shall be considered a resident of the Individual Exchange service area if the individual meets the State residency requirements set forth in COMAR 10.09.24.05-3.

If members of the tax household are not residents of the same Individual Exchange service area, the tax household may indicate any Individual Exchange service area for which one of the tax filers meets the regulation as the tax household’s residency.

If both spouses in a tax household enroll in a QHP through the same Individual Exchange, a tax dependent may only enroll in a QHP through the Individual Exchange, or through a different health benefit exchange for which the dependent meets the residency standard.

The Individual Exchange may not deny or terminate an individual's eligibility for enrollment in a QHP through the Individual Exchange if the individual meets the residency standard under this regulation but for a temporary absence from the service area of the Individual Exchange and the individual intends to return when the purpose of the absence has been accomplished.

The service area of the Individual Exchange is Maryland.

Regulation .08 Eligibility Requirements for Advance Payments of the Premium Tax Credit.Link Copy Citation

A tax filer shall be determined eligible for APTC if:

(1)

The tax filer attests to a household income, as defined in 26 CFR §1.36B-1(e), greater than or equal to 100 percent but not more than 400 percent of the FPL for the benefit year for which coverage is requested; and

(2)

One or more applicants for whom the tax filer attests to claiming a personal exemption deduction on the applicant’s federal tax return for the benefit year:

(a)

Meet the requirements for eligibility for enrollment in a QHP through the Individual Exchange, as specified in Regulation .05 of this chapter; and

(b)

Are not eligible for minimum essential coverage, with the exception of coverage in the individual market as set forth in 26 CFR §1.36B-2(a)(2) and (c).

A non-citizen tax filer who is lawfully present and ineligible for Medicaid or MCHP by reason of immigration status, and is not otherwise eligible for APTC, shall be eligible for APTC if:

(1)

The tax filer meets the requirements specified in §A(2) of this regulation;

(2)

The tax filer attests to household income of less than 100 percent of the FPL for the benefit year for which coverage is requested; and

(3)

One or more applicants for whom the tax filer attests to claiming a personal exemption deduction on the tax filer’s return for the benefit year is a non-citizen who is lawfully present and ineligible for Medicaid or MCHP by reason of immigration status.

A tax filer is eligible for APTC for another qualified individual only if one or more qualified individuals, for whom the tax filer attests that the tax filer expects to claim a personal exemption deduction for the benefit year, including the tax filer and the tax filer’s spouse, is enrolled in a QHP that is not a catastrophic plan through the Individual Exchange.

If one or more APTC amounts are to be made on behalf of a tax filer, or two tax filers covered by the same plan or plans, and individuals in the tax filers’ tax households are enrolled in more than one QHP, or stand-alone dental plan, then the APTC amounts shall be allocated as follows:

(1)

That portion of the APTC that is less than or equal to the aggregate adjusted monthly premiums, as set forth in 26 CFR §1.36B-3(e), and that is properly allocated to essential health benefits shall be allocated among the QHPs according to the premium level appropriate for each individual’s age-rating band premium; and

(2)

Any remaining APTC may be allocated to the essential health benefit portion of any stand-alone dental plans.

For 2024 and prior years, a tax filer may not be eligible for APTC if:

(1)

HHS notifies the Individual Exchange that APTC was made on behalf of the tax filer, or either spouse if the tax filer is a married couple, for a year for which tax data would be utilized for verification of household income and family size set forth in 45 CFR §155.320(c)(1)(i); and

(2)

The tax filer or spouse did not file a federal income tax return and reconcile the APTC received for that year, or previous years.

Beginning 2025, a tax filer may not be eligible for APTC if:

(1)

HHS notifies the Individual Exchange that APTC was made on behalf of the tax filer, or either spouse if the tax filer is a married couple, for 2 consecutive years for which tax data would be utilized for verification of household income and family size as set forth in 45 CFR §155.320(c)(1)(i); and

(2)

The tax filer or spouse did not file a federal income tax return and reconcile the APTC received for that year and for the previous year.

APTC shall be calculated in accordance 26 CFR §1.36B-3.

To receive the APTC, the tax filer shall attest that:

(1)

No other tax filer will claim the tax filer as a tax dependent for the benefit year; and

(2)

The tax filer will claim a personal exemption deduction on the income tax return for the applicants identified as members of the tax filer’s family, including the tax filer, who:

(a)

Meet the requirements for eligibility for enrollment in a QHP through the Individual Exchange, under Regulation .05 of this chapter; and

(b)

Are not eligible for minimum essential coverage elsewhere.

An enrollee may accept less than the full amount of the APTC for which the enrollee is determined eligible.

Effective Dates for Changes in Eligibility for APTC for Enrollees.

(1)

Except as otherwise specified under this regulation, changes in eligibility for APTC determined by the Individual Exchange are effective the first day of the month following the date on which the determination is made.

(2)

When an enrollee is determined newly eligible for Medicaid or MCHP, the enrollee shall be ineligible for APTC beginning the first of the month after the enrollee is determined newly eligible for Medicaid or MCHP.

(3)

When an applicant or enrollee is eligible for a special enrollment period under Regulations .12—.19 of this chapter, the applicant or enrollee shall be in accordance with the applicable effective date specified for each special enrollment period under Regulations .12—.19 of this chapter.

(4)

When an enrollee’s enrollment is terminated by the enrollee as set forth in 45 CFR §155.430(b)(1) or terminated by the Exchange under 45 CFR §155.430(b)(2)(i)—(vii), the applicant or enrollee shall be in accordance with the applicable effective date of the termination set forth in 45 CFR §155.430(d).

Eligibility under this regulation is contingent upon verification of the applicant’s attestation that the applicant meets the criteria stated in this regulation.

Regulation .09 Eligibility Requirements for Cost — Sharing Reductions.Link Copy Citation

An applicant shall be determined eligible for cost-sharing reductions if the applicant:

(1)

Meets the requirements for eligibility for enrollment in a QHP through the Exchange under Regulation .05 of this chapter;

(2)

Meets the requirements for APTC under Regulation .08 of this chapter; and

(3)

Except as provided under §E of this regulation, attests to household income that does not exceed 250 percent of the FPL for the benefit year for which coverage is requested.

An applicant is eligible for:

(1)

A CSR plan for up to 150 percent FPL for an individual who attests to household income greater than or equal to 100 percent of the FPL and less than or equal to 150 percent of the FPL for the benefit year for which coverage is requested, or, for an individual who is eligible for advance payments of the premium tax credit under Regulation .07B of this chapter, a household income less than 100 percent of the FPL for the benefit year for which coverage is requested;

(2)

A CSR plan for 151—200 percent FPL for an individual who attests to household income greater than 150 percent of the FPL and less than or equal to 200 percent of the FPL for the benefit year for which coverage is requested;

(3)

A CSR plan for 201—250 percent FPL for an individual who attests to household income greater than 200 percent of the FPL and less than or equal to 250 percent of the FPL for the benefit year for which coverage is requested; or

(4)

Except as provided under §E of this regulation, any coverage level for an individual who attests to household income greater than 250 percent for the FPL for the benefit year for which coverage is requested.

To the extent that an enrollment in a QHP under a single policy covers two or more individuals who, if the individuals were to enroll in separate individual policies, would be eligible for different CSR plan variations, the individuals under the policy are collectively eligible only for the category of eligibility listed below for which all the individuals covered by the policy would be eligible:

(1)

Individuals not eligible for changes to cost sharing;

(2)

Individuals described in §E(2) of this regulation;

(3)

Individuals described in §B(3) of this regulation;

(4)

Individuals described in §B(2) of this regulation;

(5)

Individuals described in §B(1) of this regulation; and

(6)

Individuals described in §E(1) of this regulation.

Except as set forth in §E of this regulation, to receive cost-sharing reductions, an applicant shall enroll in a silver-plan variation of a QHP.

Special Cost-Sharing Rules for Indians.

(1)

An applicant who is an Indian is eligible for the zero cost sharing plan variation of a QHP if the applicant:

(a)

Meets the requirements for eligibility for enrollment in a QHP through the Individual Exchange pursuant to Regulation .05 of this chapter;

(b)

Meets the requirements for APTC pursuant to Regulation .08 of this chapter; and

(c)

Attests to household income, set forth in 26 CFR §1.36B-1(e) that does not exceed 300 percent of the FPL for the benefit year for which coverage is requested.

(2)

An applicant who is an Indian and is enrolled in a QHP shall owe no cost-sharing under the plan for items or services furnished directly by the Indian Health Service, an Indian Tribe, Tribal Organization, or Urban Indian Organization or through referral under contract health services.

Changes in enrollment in a plan with a CSR under this regulation are effective based on the effective dates under Regulation .08I of this chapter.

Eligibility under this regulation is contingent upon verification of the applicant’s attestation that the applicant meets the criteria stated in this regulation.

Regulation .10 Eligibility Requirements for Enrollment in a Catastrophic Plan.Link Copy Citation

An applicant shall be determined eligible for enrollment through the Individual Exchange in a catastrophic plan if the applicant has met the requirements for eligibility for enrollment in a QHP through the Individual Exchange under Regulation .05 of this chapter and either:

(1)

Is younger than 30 years old before the beginning of the plan year; or

(2)

Has a certification in effect for any plan year that the applicant is exempt from the requirement to maintain minimum essential coverage set forth in §5000A of the Internal Revenue Code by reason of:

(a)

Section 5000A(e)(1) of the Internal Revenue Code, regarding individuals without affordable coverage; or

(b)

Section 5000A(e)(5) of the Internal Revenue Code, regarding individuals with hardships.

The certification described in §A(2) of this regulation may be provided by the U.S. Department of Health and Human Services or the Individual Exchange.

Changes in enrollment in a catastrophic plan under this regulation are effective based on the effective dates under Regulation .08I of this chapter.

Eligibility under this regulation is contingent upon verification of the applicant’s attestation that the applicant meets the criteria stated in this regulation.

Regulation .11 Enrollment in a QHP or Insurance Affordability Program Through the Individual Exchange.Link Copy Citation

A qualified individual may enroll in a QHP or an insurance affordability program under Regulation .02B(12)(c) and .02B(12)(d) of this chapter, through the Individual Exchange only during:

(1)

The annual open enrollment period of the Individual Exchange, or

(2)

A special enrollment period for which the Individual Exchange has determined that the qualified individual is eligible.

The annual open enrollment period for the Individual Exchange shall be:

(1)

For the benefit year beginning on January 1, 2019, November 1, 2018 through December 15, 2018;

(2)

For the benefit years beginning on January 1, 2020 and on January 1, 2021, November 1 through December 15 of the calendar year preceding the benefit year; and

(3)

For the benefit years beginning on January 1, 2022 and after, November 1 of the calendar year preceding the benefit year through January 15 of the benefit year.

The Individual Exchange may modify or extend the annual open enrollment period each year with the approval of the Board of Trustees and consistent with 45 CFR §155.410.

Coverage selected during an open enrollment period shall:

(1)

For the benefit year beginning on January 1, 2019, be effective on:

(a)

January 1, 2019, for QHP selections received by the Individual Exchange on or before December 15, 2018; and

(b)

January 1, 2019, or later as determined by the Board of Trustees, for QHP selections received by the Individual Exchange on or after December 16, 2018 and on or before December 31, 2018 if the Board of Trustees modifies or extends the annual open enrollment period under Regulation .11C of this chapter; and

(2)

For the benefit year beginning on January 1, 2020 and after, be effective on:

(a)

January 1 for QHP selections received by the Individual Exchange on or before December 15 of the calendar year preceding the benefit year;

(b)

January 1 or later, for QHP selections received by the Individual Exchange on or after December 16 and on or before December 31 of the calendar year preceding the benefit year if the Board of Trustees modifies or extends the annual open enrollment period under Regulation .11C of this chapter; and

(c)

February 1 for QHP selections received by the Individual Exchange on or after January 1 or before January 15 of the benefit year.

If an individual enrolls in a QHP, the Individual Exchange shall promptly and without undue delay transmit to the carrier of the QHP the information necessary to enable the QHP’s carrier to enroll the qualified individual in the QHP selected by the qualified individual, including:

(1)

The qualified individual’s selected QHP;

(2)

The qualified individual’s eligibility or change in eligibility for APTC or a CSR plan, if applicable;

(3)

Whether the carrier should apply, remove, or change the total amount of the qualified individual’s APTC, if applicable;

(4)

The dollar amount of the APTC, if any;

(5)

The advance payment amount of the CSR plan, if any; and

(6)

The effective date of the QHP enrollment.

Payment of First Month’s Premium.

(1)

A qualified individual shall pay the first month's premium to the carrier of the QHP to effectuate enrollment in the QHP when the individual has:

(a)

Enrolled in a QHP after coverage from a previous enrollment in a QHP the individual had was terminated;

(b)

Enrolled for the first time in a QHP in the Individual Exchange; or

(c)

Enrolled in a QHP offered by a different carrier of the same holding company in the Individual Exchange.

(2)

The first month’s premium payment to effectuate prospective coverage for QHP selections made during an annual open enrollment period or during a special enrollment period under Regulations .13E(4), .18D(1)—(2) and .19I of this chapter shall be due on a uniformly applied date specified by the authorized carrier of the QHP that is no earlier than the coverage effective date but no later than 30 calendar days from the coverage effective date.

(3)

The first month’s premium payment to effectuate prospective coverage for QHP selections made during a special enrollment period under Regulations .12F, .13E(1) and (3), .14F, .15G, .16F, .17F, .18D(3), and .19A of this chapter shall be due on a date specified by the authorized carrier of the QHP and uniformly applied that is no earlier than the coverage effective date or no later than 30 calendar days from the date the carrier receives the enrollment transaction from the Exchange or the coverage effective date, whichever is later.

(4)

Payment to effectuate retroactive coverage shall include the premium due for all months of retroactive coverage and shall also include the full premium amount of the first prospective month of coverage.

(5)

Payment to effectuate retroactive coverage for QHP selections made during a special enrollment period shall be due on a uniformly applied date specified by the authorized carrier that is no earlier than the coverage effective date and no later than 30 calendar days from the date the carrier receives the enrollment transaction from the Individual Exchange or the coverage effective date, whichever is later.

(6)

Effective January 1, 2020, payment to effectuate retroactive coverage for QHP selections made during a special enrollment period under Regulations .13E(2), .14F, .15G, .16F, and .17F of this chapter shall be due on the first day of the first full prospective coverage month.

(7)

An authorized carrier may choose to extend the premium due date under §F of this regulation if the carrier does so in a uniform and consistent manner for all similarly situated applicants.

Premium Payment Threshold Policy.

(1)

An authorized carrier may establish a premium payment threshold policy.

(2)

Under the premium payment threshold policy the authorized carrier may consider the individual or enrollee to have paid all amounts due if the enrollee pays an amount sufficient of the total premium owed equal to or greater than a level determined by the carrier.

(3)

If an authorized carrier establishes a premium payment threshold policy, the authorized carrier shall:

(a)

Determine a premium payment level that is reasonable; and

(b)

Apply the premium payment level and the premium payment threshold policy in a uniform manner to all qualified individuals and enrollees.

(4)

If a qualified individual satisfies the authorized carrier’s premium payment threshold policy, the authorized carrier shall effectuate an enrollment based on payment of the initial premium payment under §F of this regulation;

(5)

If an enrollee satisfies the authorized carrier’s premium payment threshold policy, the authorized carrier may not:

(a)

Trigger a grace period for non-payment of premium set forth in:

(i)

Insurance Article, §15-1315(c)—(e), Annotated Code of Maryland, if the enrollee is receiving APTC; or

(ii)

Insurance Article, §15-209, Annotated Code of Maryland (for insurers), COMAR 31.10.25.04C (for nonprofit health services plans), or COMAR 31.12.07.05D (for HMOs) if the enrollee is not receiving APTC; or

(b)

Terminate the enrollment for non-payment of premium under 45 CFR §155.430(b)(2)(ii).

An authorized carrier shall accept and process an enrollment for a qualified individual that does not include a Social Security number.

The Individual Exchange shall maintain records of all enrollments through the Individual Exchange.

Regulation .12 Special Enrollment Periods — Loss of Minimum Essential Coverage or Termination of Other Specified Coverage Through the Individual Exchange.Link Copy Citation

A qualified individual and, when specified in this regulation, an enrollee, a qualified individual’s dependent, or an enrollee’s dependent are eligible for a special enrollment period for loss of minimum essential coverage or other specified coverage if:

(1)

The qualified individual or the qualified individual’s dependent loses minimum essential coverage;

(2)

A qualified individual or a qualified individual’s dependent was enrolled in coverage through a non-calendar year group health plan, individual health insurance coverage, or qualified small employer health reimbursement arrangement (as defined in §9831(d)(2) of the Internal Revenue Code) and the policy or plan year ends in the middle of the calendar year, even if the qualified individual or the qualified individual’s dependent has the option to renew the coverage;

(3)

A qualified individual or the qualified individual’s dependent loses pregnancy-related coverage described in COMAR 10.09.24.03A(2) and 45 CFR §155.420(d)(1)(iii) or loses access to health care services through coverage provided to a pregnant women’s unborn child based on the definition of a child in 42 CFR §457.10; or

(4)

A qualified individual or the qualified individual’s dependent loses the medically needy coverage under COMAR 10.09.24.03E.

(1)

The qualified individual or the qualified individual’s dependent loses eligibility for qualifying eligible employer-sponsored minimum coverage that is not COBRA continuation coverage for reasons including:

(a)

Legal separation;

(b)

Divorce;

(c)

Cessation of dependent status;

(d)

Death of an employee;

(e)

Termination of employment;

(f)

Reduction in the number of hours of employment;

(g)

The individual’s coverage does not provide benefits to individuals who no longer reside, live, or work in a service area and the individual no longer resides, lives, or works in the service area;

(h)

The individual incurs a claim that would meet or exceed a lifetime limit on all benefits;

(i)

The individual’s plan no longer offers any benefits to the class of similarly situated individuals that includes the individual;

(j)

The employer terminates employer contributions to the individual’s coverage; or

(k)

The qualified individual or qualified individual’s dependent, who is enrolled in an employer-sponsored plan, is determined newly eligible for APTC because the employer-sponsored plan is no longer considered minimum essential coverage set forth in 26 CFR §1.36B-2(c)(3), including as a result of the qualified individual’s employer discontinuing or changing available coverage within the next 60 days, if the qualified individual or qualified individual’s dependent is permitted by the employer and applicable federal laws to terminate enrollment in the employer-sponsored plan;

(2)

A qualified individual or the qualified individual’s dependent loses eligibility for employer-sponsored coverage that is COBRA continuation coverage or continuation coverage under State law because:

(a)

The individual exhausted COBRA continuation coverage or continuation coverage under State law;

(b)

The individual’s employer was paying all or part of the premiums and completely ceased contributions to the individual or dependent’s coverage; or

(c)

A governmental entity was subsidizing coverage and completely ceased contributions to the individual or dependent’s coverage; or

(3)

An enrollee or an enrollee’s dependent loses coverage in a QHP because the QHP is decertified.

Loss of minimum essential coverage does not include termination or loss due to:

(1)

Failure to pay premiums on a timely basis, including failure to pay COBRA premiums prior to expiration of COBRA coverage;

(2)

A change in eligibility status under 45 CFR §155.315(f)(5) because the individual does not meet the requirement specified under Regulation .05 of this chapter;

(3)

An authorized carrier’s valid rescission of coverage;

(4)

A loss in coverage from a short-term limited duration insurance plan as stated in Insurance Article, §15-1301(s), Annotated Code of Maryland; or

(5)

A loss in coverage from an association health plan as stated in Insurance Article, §15-1301(c), Annotated Code of Maryland that does not meet the definition for minimum essential coverage as stated in Insurance Article, §15-1301(p), Annotated Code of Maryland.

The date of loss of minimum essential coverage or other coverage is the date the qualified individual, the enrollee, the qualified individual’s dependent, or the enrollee’s dependent:

(1)

Loses eligibility for minimum essential coverage under the previous plan; or

(2)

The coverage under §A(1)—(4) of this regulation terminates.

To be eligible for a special enrollment period under this regulation, a qualified individual, an enrollee, a qualified individual’s dependent or an enrollee’s dependent shall:

(1)

Report the loss of minimum essential coverage or the termination of coverage under §A(1)—(4) of this regulation;

(2)

Select a QHP:

(a)

Up to 60 days before or within 120 days after the loss of minimum essential coverage through the Maryland State Medicaid Program or the Maryland Children’s Health Insurance Program (CHIP), including the Maryland Children’s Health Program (MCHP) Premium, on August 1, 2024, and beyond; or

(b)

Up to 60 days before or within 60 days after the loss of any other form of minimum essential coverage or the termination of coverage; and

(3)

Provide attestation or documentary evidence from an employer, carrier, legal/court proceeding, public health coverage program, death certificate, or the qualified individual that, together, indicates the date of coverage loss and the qualified individuals losing coverage.

Enrollment in a QHP selected by a qualified individual, an enrollee, or a qualified individual’s dependent during a special enrollment period for loss of minimum essential coverage or termination of coverage under §A(1)—(4) of this regulation shall be effective on:

(1)

The first day of the month following the loss of minimum essential coverage or termination of coverage if the Individual Exchange receives the QHP selection before the loss of minimum essential coverage or the coverage terminates;

(2)

The first day of the month after the Individual Exchange receives the QHP selection if the Individual Exchange receives the QHP selection after the loss of minimum essential coverage or the coverage terminates; or

(3)

Notwithstanding §F(1) and (2), at the option of the consumer, the first day of the month in which the triggering event occurs if the loss of minimum essential coverage occurs mid-month and the plan selection is made on or before the last day of the month preceding the triggering event.

The eligibility for the special enrollment period under §A(4) of this regulation shall only be available once per calendar year for the qualified individual and the qualified individual’s dependent.

Notwithstanding the standards outlined in this regulation and in Regulations .13—.19 of this chapter, if a qualified individual is eligible for advance payments of the premium tax credit or cost-sharing reductions, the advance payment of the premium tax credit or the cost-sharing reduction shall be effective on the qualified individual’s enrollment date.

Regulation .13 Special Enrollment Periods — Change in Family Status Through the Individual Exchange.Link Copy Citation

A qualified individual, an enrollee, a qualified individual’s dependent, and an enrollee’s dependent are eligible for a special enrollment period for change in family status if the qualified individual or enrollee gains a dependent or becomes a dependent through:

(1)

Marriage;

(2)

Birth;

(3)

Adoption;

(4)

Placement for adoption;

(5)

Placement in foster care;

(6)

A child support order; or

(7)

Other court order.

An enrollee is eligible for a special enrollment period for change in family status if the enrollee loses a dependent or is no longer considered a dependent through:

(1)

Divorce;

(2)

Legal separation; or

(3)

Death.

Family status changes shall be determined in accordance with the law of the state where the change in family status occurred.

If eligible for a special enrollment period under this regulation, a qualified individual, an enrollee, a qualified individual’s dependent or an enrollee’s dependent shall select a QHP within 60 days of the change in family status under §§A and B of this regulation.

Enrollment in a QHP selected by a qualified individual, an enrollee, the qualified individual’s dependent, or the enrollee’s dependent during a special enrollment period under this regulation shall be effective:

(1)

For marriages, the first day of the month following the date that the Individual Exchange receives the QHP selection;

(2)

For birth, adoption, placement for adoption, placement in foster care, or court order, on a date chosen by the qualified individual or enrollee that is either:

(a)

The date of birth, adoption, placement for adoption, placement in foster care, or effective date of court order; or

(b)

The first day of the month following the date that the Individual Exchange receives the QHP selection;

(3)

In the case of death, the first day of the month following the date that the Individual Exchange receives the QHP selection; and

(4)

For divorces or legal separation:

(a)

Before January 1, 2025:

(i)

The first date of the following month for QHP selections received by the Individual Exchange between the first and the 15th day of the month; or

(ii)

The first day of the next following month for QHP selections received by the Individual Exchange between the 16th and the last day of a month; or

(b)

On or after January 1, 2025, the first day of the month following the date that the Individual Exchange receives the QHP selection.

Regulation .14 Special Enrollment Period — Error, Misrepresentation, or Inaction through the Individual Exchange.Link Copy Citation

Prior to January 1, 2020, a qualified individual or a qualified individual’s dependent shall be eligible for the special enrollment period set forth in 45 CFR §155.420(c)(3) if the triggering event set forth in 45 CFR §155.420(d)(4) occurs.

Effective January 1, 2020, as evaluated and determined by the Individual Exchange, a qualified individual or qualified individual’s dependent is eligible for a special enrollment period when the individual or dependent’s enrollment or non-enrollment in a QHP is:

(1)

Unintentional, inadvertent, or erroneous; and

(2)

The result of the error, misrepresentation, or inaction of an officer, employee, or agent of the Individual Exchange its instrumentalities, or a non-Exchange entity providing enrollment assistance or conducting enrollment activities.

Effective January 1, 2020, a qualified individual or a qualified individual’s dependent shall notify the Individual Exchange of the alleged error, misrepresentation, or inaction by the later of:

(1)

30 days of the alleged error, misrepresentation, or inaction; or

(2)

30 days from when the qualified individual reasonably should have known about the alleged error, misrepresentation, or inaction.

Notification to the Individual Exchange under §C of this regulation shall be satisfied if the qualified individual or qualified individual’s dependent provides notice:

(1)

To an Individual Exchange-certified navigator, an Individual Exchange-authorized broker or an Individual Exchange-certified consolidated service center representative; and

(2)

Using any of the methods of communication listed under Regulation .03B of this chapter.

Effective January 1, 2020, the length of the special enrollment period shall be 60 days from the date that the Individual Exchange notifies the qualified individual or qualified individual’s dependent of their eligibility for a special enrollment period under this regulation.

The effective date of coverage for a qualified individual or the qualified individual’s dependent who is determined eligible for a special enrollment period under this regulation and selects a QHP during the special enrollment period under §E of this regulation:

(1)

Shall be a date determined by the Individual Exchange as appropriate based on the circumstances of the error, misrepresentative, or inaction;

(2)

Shall be no earlier than the date the qualified individual’s or qualified individual’s dependent’s coverage would have begun or continued but for the error, misrepresentation, or inaction; and

(3)

May be retroactive or prospective depending on the nature of the error, misrepresentation, or inaction.

Plan Display Errors.

(1)

A qualified individual, an enrollee, or their dependent is eligible for a special enrollment period if their decision to purchase a QHP through the Exchange was influenced by a material error related to plan benefits, cost sharing, service area, or premium.

(2)

Notwithstanding §§C and D of this regulation, the burden of proof for an error under this section may not fall on the qualified individual or qualified individual’s dependent.

(3)

The length of the special enrollment period under this section shall adhere to the guidance in §E of this regulation.

(4)

The effective date of coverage under this section shall adhere to the guidance in §F of this regulation.

Regulation .15 Special Enrollment Period — Misconduct Through the Individual Exchange.Link Copy Citation

Prior to January 1, 2020, a qualified individual or qualified individual’s dependent is eligible for a special enrollment period set forth in 45 CFR §155.420(c)(3) if the triggering event set forth in 45 CFR §155.420(d)(4) occurs.

Effective January 1, 2020, a qualified individual or qualified individual’s dependent is eligible for a special enrollment period if:

(1)

The Individual Exchange determines, in collaboration and coordination with the Maryland Insurance Administration that, as a result of misconduct on the part of the Individual Exchange, or a non-Exchange entity providing enrollment assistance or conducting enrollment activities, the qualified individual or qualified individual’s dependent:

(a)

Was not enrolled in a QHP;

(b)

Was not enrolled in the QHP selected by the qualified individual, enrollee, or dependent; or

(c)

Is eligible for, but is not receiving APTC or CSR; and

(2)

The qualified individual or qualified individual’s dependent notifies the Individual Exchange or the Maryland Insurance Administration of the alleged misconduct by the later of:

(a)

30 days of the misconduct; or

(b)

30 days of when the qualified individual reasonably should have known about the misconduct.

Misconduct under this regulation means the failure of an officer, employee, or agent of the Individual Exchange, its instrumentalities, or a non-Exchange entity providing enrollment assistance or conducting enrollment activities to comply with applicable standards set forth in COMAR 14.35 or other applicable State or federal laws as determined by the Individual Exchange, or the Maryland Insurance Administration.

Notification to the Individual Exchange under §B(2) of this regulation shall be satisfied if the qualified individual or qualified individual’s dependent provides notice:

(1)

To an Individual Exchange-certified navigator, an Individual Exchange-authorized broker, or an Individual Exchange-certified consolidated service center representative, and

(2)

Using any of the methods of communication listed under Regulation .03B of this chapter.

Notification to the Maryland Insurance Administration under §B(2) of this regulation shall be satisfied if the qualified individual or the qualified individual’s dependent files a complaint with the Maryland Insurance Administration.

Effective January 1, 2020, the length of the special enrollment period shall be 30 days from the date that the Individual Exchange notifies the qualified individual or the qualified individual’s dependent that the qualified individual or the qualified individual’s dependent is eligible for a special enrollment period under this regulation.

(1)

Shall be determined by the Individual Exchange as appropriate based on the circumstances of the misconduct;

(2)

Shall be no earlier than the date the qualified individual or dependent’s coverage would have begun or continued, but for the misconduct; and

(3)

May be retroactive or prospective depending on the nature of the misconduct.

The Individual Exchange’s determination that an individual is eligible for a special enrollment period under this regulation may be made prior to the completion of the Maryland Insurance Administration’s review of the alleged misconduct.

Regulation .16 Special Enrollment Period — Violation of Material Provision Through the Individual Exchange.Link Copy Citation

Prior to January 1, 2020, an enrollee or an enrollee’s dependent shall be eligible for a special enrollment period set forth in 45 CFR §155.420(c)(3) if the triggering event set forth in 45 CFR §155.420(d)(5) occurs.

Effective January 1, 2020, an enrollee or an enrollee’s dependent is eligible for a special enrollment period if the enrollee or the enrollee’s dependent:

(1)

Demonstrates, as determined by the Individual Exchange in collaboration and coordination with the Maryland Insurance Administration, that the carrier of the QHP in which the enrollee or dependent is enrolled substantially violated a material provision of its contract in relation to the enrollee or the enrollee’s dependent; and

(2)

Notifies the Exchange or the Maryland Insurance Administration of the alleged violation by the later of:

(a)

30 days of the violation; or

(b)

30 days of when the enrollee or dependent reasonably should have known about the violation.

Notification to the Individual Exchange under §B(2) of this regulation shall be satisfied if the enrollee or the enrollee’s dependent provides notice:

(1)

To an Individual Exchange-certified navigator, an Individual Exchange-authorized broker, or an Individual Exchange-certified consolidated service center representative; and

(2)

Using any of the methods of communication listed under Regulation .03B of this chapter.

Notification to the Maryland Insurance Administration under §B(2) of this regulation shall be satisfied if the enrollee or enrollee’s dependent files a complaint with the Maryland Insurance Administration.

Effective January 1, 2020, the length of the special enrollment period shall be 30 days from the date that the Individual Exchange notifies the enrollee or the enrollee’s dependent that the enrollee or enrollee’s dependent is eligible for a special enrollment period under this regulation.

The effective date of coverage for an enrollee or an enrollee’s dependent who is determined eligible for a special enrollment period under this regulation and selects a QHP during the special enrollment period under §E of this regulation:

(1)

Shall be a date determined by the Individual Exchange as appropriate based on the circumstances of the material violation;

(2)

Shall be no earlier than the date the enrollee or enrollee’s dependent’s coverage would have begun or continued, but for the material violation; and

(3)

May be retroactive or prospective depending on the nature of the material violation.

Regulation .17 Special Enrollment Period — Exceptional Circumstances Through the Individual Exchange.Link Copy Citation

Prior to January 1, 2020, an individual, an enrollee or an enrollee’s dependent is eligible for a special enrollment period set forth in 45 CFR §155.420(c)(3) if the triggering event set forth in 45 CFR §155.420(d)(9) occurs.

Effective January 1, 2020, a qualified individual, enrollee, qualified individual’s dependent, or enrollee’s dependent is eligible for a special enrollment period if:

(1)

The Individual Exchange determines that, at the time of the qualified individual’s, enrollee’s, qualified individual’s dependent’s, or enrollee’s dependent’s application for coverage, the individual experienced exceptional circumstances that prevented the qualified individual, enrollee, qualified individual’s dependent or the enrollee’s dependent from enrolling during open enrollment or a special enrollment period, if the individual was determined eligible for the special enrollment period by the Individual Exchange; and

(2)

The qualified individual, the enrollee, the qualified individual’s dependent, or the enrollee’s dependent notifies the Exchange within 30 calendar days of the exceptional circumstances.

The Exchange, at its discretion, may waive the 30-calendar-day reporting requirement under §B(2) of this regulation if the exceptional circumstance prevented the qualified individual from providing notice.

Exceptional circumstances may include, but are not limited to:

(1)

A serious medical condition, such as an unexpected hospitalization or temporary cognitive disability;

(2)

Domestic abuse or violence;

(3)

Spousal abandonment;

(4)

A natural disaster, such as an earthquake, a massive flooding, or a hurricane;

(5)

A significant life event resulting in lack of access to the qualified individual’s or enrollee’s Individual Exchange application or account and the qualified individual, the enrollee, the qualified individual’s dependent, or the enrollee’s dependent has experienced a change in situation or status that now requires that the qualified individual, the enrollee, the qualified individual’s dependent, or the enrollee’s dependent obtain minimum essential coverage; or

(6)

Policy action that would result in a premium change of prospective coverage that would adversely impact the qualified individual and the qualified individual did not receive reasonable notice to act upon the material change.

Notification to the Individual Exchange under §B(2) of this regulation shall be satisfied if the qualified individual, the enrollee, the qualified individual’s dependent, or the enrollee’s dependent provides notice:

(1)

To an Individual Exchange-certified navigator, an Individual Exchange-authorized broker, or an Individual Exchange-certified consolidated service center representative; and

(2)

Using any of the methods of communication listed under Regulation .03B of this chapter.

The effective date of coverage for a qualified individual, an enrollee, a qualified individual’s dependent, or an enrollee’s dependent who is determined eligible for a special enrollment period under this regulation and selects a QHP during the special enrollment period under §B of this regulation:

(1)

Shall be a date determined by the Individual Exchange as appropriate based on the circumstances of the qualified individual’s, the enrollee’s, the qualified individual’s dependent’s, or the enrollee’s dependent’s exceptional circumstances;

(2)

Shall be no earlier than the date the qualified individual’s, the enrollee’s, the qualified individual’s dependent’s, or the enrollee’s dependent’s coverage would have begun or continued, but for the exceptional circumstances; and

(3)

May be retroactive or prospective dependent on the nature of the exceptional circumstance.

Regulation .18 Special Enrollment Period — Permanent Move.Link Copy Citation

A qualified individual, enrollee, qualified individual’s dependent, or enrollee’s dependent is eligible for a special enrollment period if the qualified individual, enrollee, qualified individual’s dependent, or enrollee’s dependent:

(1)

Gains access to a new QHP as a result of a permanent move;

(2)

Was enrolled in minimum essential coverage for one or more days in the 60 days prior to the move, unless the qualified individual, enrollee, qualified individual’s dependent, or enrollee’s dependent:

(a)

Lived in a foreign country or a United States territory for 1 or more days during the 60 days preceding the date of the move;

(b)

Is moving from a state that did not expand Medicaid or MCHP eligibility set forth in §2001 of the ACA and the individual was not eligible for APTC or CSR in the individual’s previous state of residence because the individual’s household income was below 100 percent of the FPL; or

(c)

Is leaving incarceration, except if the individual was incarcerated pending disposition; and

(3)

Notifies the Individual Exchange within 60 days from the date of the permanent move that the qualified individual, the enrollee, the qualified individual’s dependent, or the enrollee’s dependent has gained access to a new QHP as a result of that move.

A permanent move does not include:

(1)

A short-term or temporary move where the qualified individual, the enrollee, the qualified individual’s dependent, or the enrollee’s dependent does not intend to remain in the individual’s new location; or

(2)

A move solely for the purpose of obtaining medical treatment.

A qualified individual, enrollee, qualified individual’s dependent, or enrollee’s dependent may select a qualified health plan within 60 days of the date of the permanent move if the individual is otherwise eligible for the special enrollment period.

The effective date of coverage for a qualified individual, enrollee, qualified individual’s dependent, or enrollee’s dependent who is determined eligible for the special enrollment period under this regulation and selects enrollment in a QHP during the special enrollment period under §C of this regulation shall be:

(1)

Before January 1, 2025:

(a)

The first day of the following month for QHP selections received by the Individual Exchange on or before the date of the permanent move;

(b)

The first day of the following month for QHP selections received by the Individual Exchange after the date of the permanent move between the first and 15th day of a month; or

(c)

The first day of the second following month for QHP selections received by the Individual Exchange after the date of the permanent move between the 16th and the last day of a month; or

(2)

On or after January 1, 2025, the first day of the month following the date that the Individual Exchange receives the QHP selection.

Regulation .19 Special Enrollment Period — Other.Link Copy Citation

An enrollee or an enrollee’s dependent enrolled in the same plan is eligible for a special enrollment period if the enrollee or enrollee’s dependent:

(1)

Is determined newly eligible or ineligible for APTC; or

(2)

Has a change in eligibility for cost-sharing reductions.

A qualified individual or a qualified individual’s dependent is eligible for a special enrollment period if the qualified individual or qualified individual’s dependent:

(1)

Experiences a decrease in household income;

(2)

Is newly determined eligible by the Individual Exchange for APTC; and

(3)

Had minimum essential coverage as described in 26 CFR §1.5000A-1(b) for one or more days during the 60 days preceding the date of the financial change.

A qualified individual, a qualified individual’s dependent, or an enrollee’s dependent is eligible for a special enrollment period through the Maryland Easy Enrollment Health Insurance Program as codified in Md. Code, Ins. §31.202 if they indicate on a state tax return that they:

(1)

Attest to not having health care coverage; and

(2)

Authorize the Comptroller of Maryland to share information from the qualified individual’s tax return with the Maryland Health Benefit Exchange.

A qualified individual or qualified individual’s dependent is eligible for a special enrollment period if the qualified individual or qualified individual’s dependent is confirmed to be pregnant by a health care practitioner.

A qualified individual who is an Indian, or becomes a dependent of an Indian, may enroll in a QHP or change from one QHP to another, no more than once per month.

A qualified individual or a qualified individual’s dependent is eligible for a special enrollment period if the qualified individual or qualified individual’s dependent who was not previously a U.S. citizen, a U.S. national, or lawfully present in the U.S. becomes a U.S citizen, a U.S. national, or lawfully present in the U.S.

A qualified individual or a qualified individual’s dependent is eligible for a special enrollment period if the qualified individual or qualified individual’s dependent who was previously incarcerated becomes newly eligible for a QHP due to satisfying the requirements under 45 CFR §155.305(a)(2).

A qualified individual or qualified individual’s dependent is eligible for a special enrollment period if the qualified individual receives a certificate of exemption under Regulation .20 of this chapter for a hardship based on the eligibility standards set forth in 45 CFR §155.605(d)(i)(iii) for a month or months during the coverage year, and based on the circumstances of the hardship attested to, the qualified individual is no longer eligible for a hardship exemption within a coverage year but outside of an open enrollment period.

A qualified individual or a qualified individual’s dependent is eligible for a special enrollment period if a qualified individual with a certificate of exemption under Regulation .20 of this chapter for a hardship based on the eligibility standards for an exemption, as set forth in 45 CFR §155.620(b), the change resulting from a redetermination is implemented, and the qualified individual or the qualified individual’s dependent is no longer eligible for an exemption.

Individual Coverage Health Reimbursement Arrangements and Qualified Small Employer Health Reimbursement Arrangements.

(1)

A qualified individual, an enrollee, a qualified individual’s dependent, or an enrollee’s dependent is eligible for a special enrollment period if they newly gain access to an individual coverage health reimbursement arrangement (HRA) (as defined in 45 CFR §146.123(b)) or are newly provided a qualified small employer health reimbursement arrangement (QSEHRA) (as defined in §9831(d)(2) of the Internal Revenue Code).

(2)

The triggering event is the first day on which coverage for the qualified individual, enrollee, qualified individual’s dependent, or enrollee’s dependent under the individual coverage HRA can take effect, or the first day on which coverage under the QSEHRA takes effect.

(3)

A qualified individual, an enrollee, a qualified individual’s dependent, or an enrollee’s dependent qualifies for this special enrollment period regardless of whether they were previously offered or enrolled in an individual coverage HRA or previously provided a QSEHRA, if the qualified individual, enrollee, qualified individual’s dependent, or enrollee’s dependent is not enrolled in the individual coverage HRA or covered by the QSEHRA on the day immediately prior to the triggering event.

A qualified individual or qualified individual’s dependent is eligible for a special enrollment period if the qualified individual or qualified individual’s dependent:

(1)

Applies for coverage on the Exchange during the annual open enrollment period or due to a qualifying event;

(2)

Is assessed by the Exchange as potentially eligible for Medicaid or MCHP; and

(3)

Is determined ineligible for Medicaid or MCHP by the Department either after open enrollment has ended or more than 60 days after the qualifying event.

A qualified individual, an enrollee, a qualified individual’s dependent or an enrollee’s dependent is eligible for a special enrollment period if the qualified individual or qualified individual’s dependent experiences a change or triggering event not included in this regulation under 45 CFR §155.420.

A qualified individual, an enrollee, a qualified individual’s dependent, or an enrollee’s dependent is eligible to enroll during any month of the year if:

(1)

They are eligible for APTC; and

(2)

Their household income does not exceed 150 percent of the federal poverty line.

Eligibility Windows.

(1)

A qualified individual, an enrollee, a qualified individual’s dependent, or an enrollee’s dependent shall notify the Individual Exchange of the change in circumstances and select a QHP within the following time frames:

(a)

For §§A, B, F, and K of this regulation, 60 days after the date of the event that triggers the special enrollment period;

(b)

For §§E and G—I of this regulation, 60 days before or after the date of the event that triggers the special enrollment period;

(c)

For §C of this regulation (Maryland Easy Enrollment Health Insurance Program), 35 days after the date specified on the SEP notification letter sent to the qualified individual;

(d)

For §D of this regulation (pregnancy), 90 days after the date of confirmation of pregnancy by a health care practitioner; and

(e)

For §J of this regulation, 60 days before the triggering event, unless the HRA or QSEHRA was not required to provide the notice setting forth its terms to such individual or enrollee at least 90 days before the beginning of the plan year, as specified in 45 CFR §146.123(c)(6), 26 CFR §54.9802–4(c)(6), and 29 CFR §2590.702–2(c)(6) or §9831(d)(4) of the Internal Revenue Code, as applicable, in which case the qualified individual, enrollee, or dependent of the individual or enrollee has 60 days before or after the triggering event to select a QHP.

(2)

If a qualified individual, an enrollee, a qualified individual’s dependent or an enrollee’s dependent did not receive timely notice of an event that triggers eligibility for a special enrollment period under this chapter, and otherwise was reasonably unaware that a triggering event described in this chapter occurred, the Exchange shall allow the qualified individual, enrollee, or, when applicable, their dependent to select a new plan within 60 days of the date that they knew, or reasonably should have known, of the occurrence of the triggering event.

(1)

For the special enrollment period under §A of this regulation (newly eligible or ineligible for APTC), §E of this regulation (qualified individual or dependent is an Indian) and §F of this regulation (changes in citizenship status):

(a)

Before January 1, 2025:

(i)

The first day of the month after the Individual Exchange receives the QHP selection when the plan has been selected between the first and the 15th of the month; or

(ii)

The first day of the following month after the Individual Exchange receives the QHP selection when the plan has been selected between the 16th and the last day of the month; or

(b)

On or after January 1, 2025, the first day of the month following the date that the Individual Exchange receives the QHP selection.

(2)

For the special enrollment period under §D of this regulation (pregnancy):

(a)

The first day of the month in which pregnancy is confirmed, including retroactive coverage dates; or

(b)

The first day of the month in which the QHP selection is received by the Individual Exchange;

(3)

For the special enrollment period under §G of this regulation (previously incarcerated) and §J of this regulation (newly eligible for an individual coverage HRA or a QSEHRA):

(a)

Before January 1, 2025:

(i)

The first day of the month following the triggering event for QHP selections received by the Individual Exchange before the release date or before the triggering event; or

(ii)

The first day of the following month for QHP selections received by the Individual Exchange after the release date or the triggering event; or

(b)

On or after January 1, 2025:

(i)

The first day of the month following the date that the Individual Exchange receives the QHP selection; or

(ii)

On the date of the triggering event, if the triggering event is on the first day of a month;

(4)

For the special enrollment period under §K of this regulation (Medicaid or MCHP ineligibility determination), an appropriate date determined by the Exchange based on the circumstances of the special enrollment period; and

(5)

For special enrollment periods under §B, §C (Maryland Easy Enrollment Health Insurance Program), §L (change or triggering event not included in this regulation under 45 CFR §155.420), and §M (eligible for APTC and household income does not exceed 150 percent of the federal poverty line), the first day of the month following the date that the Individual Exchange receives the QHP selection.

Notwithstanding §O, in the case of untimely notice of a triggering event as described in §N(2) of this regulation, a qualified individual, enrollee, qualified individual’s dependent, or enrollee’s dependent shall have the option of the earliest effective date that would have been available based on the applicable triggering event under this chapter.

Regulation .20 Exemptions.Link Copy Citation

As set forth in 45 CFR §155.625(b), the Individual Exchange has delegated administration of all exemption determinations for Maryland residents to HHS.

An applicant shall follow:

(1)

The procedures specified by HHS to apply for an exemption set forth in 45 CFR Part 155, Subpart G; and

(2)

The procedures specified by the Internal Revenue Service to apply for an exemption under 26 CFR §1.5000A-3.

The Individual Exchange may administer exemption determinations for Maryland residents.

If §C becomes effective, applicants shall follow the procedures specified by the Individual Exchange to apply for an exemption set forth in 26 CFR §1.5000A-3 and 45 CFR Part 155, Subpart G.

Regulation .21 Authorized Representative.Link Copy Citation

An applicant or enrollee in the Individual Exchange may designate an individual or an organization to act as the applicant or enrollee’s representative as set forth in COMAR 14.35.11.14.

Regulation .22 Medicaid to Private Plan Enrollment Program.Link Copy Citation

To the extent permissible by federal law, the Exchange shall enroll an individual into a QHP if the individual was enrolled in Medicaid or MCHP through the Exchange and loses Medicaid or MCHP eligibility after:

(1)

A redetermination based on a change in circumstances reported after April 15, 2023, pursuant to which the individual is determined eligible for a QHP but does not enroll in a QHP following receipt of the QHP eligibility determination; or

(2)

A renewal conducted between April 15, 2023, and April 30, 2024, provided the Exchange verifies that the individual’s most recent attested income exceeds the Medicaid-eligible amount as described in Health-General Article, §15-103(a)(2), Annotated Code of Maryland, and the individual meets eligibility requirements under this chapter to enroll in a QHP.

The Exchange shall select a plan for an individual described in §A(1) of this regulation on a date no earlier than the seventh day after the date of the QHP eligibility determination.

To the extent permissible by federal law, the Exchange shall select a plan for an individual described in §A(2) of this regulation on a date no earlier than the day immediately following the day that the individual’s Medicaid coverage terminates.

The QHP into which the Exchange enrolls an individual shall be determined by the Exchange using the following guidance:

(1)

For an individual who has tax household members who are already enrolled in a QHP, the Exchange shall enroll the individual into the household QHP.

(2)

For an individual who is eligible for a CSR plan for up to 150 percent FPL or a CSR plan for 151—200 percent FPL and does not have tax household members already enrolled in a QHP, the Exchange shall enroll the individual in:

(a)

The lowest-cost Silver plan in the individual's region, if the individual’s former managed care organization does not have an affiliate offering QHPs in that region; or

(b)

The lowest-cost Silver plan offered by an affiliate of the individual’s former managed care organization, if an affiliate offers a QHP in the individual’s region.

(3)

For an individual who is not eligible for a CSR plan for up to 150 percent FPL or a CSR plan for 151—200 percent FPL and does not have tax household members already enrolled in a QHP, the Exchange shall enroll the individual in a plan based on the following guidance:

(a)

If an affiliate of the individual’s former managed care organization offers QHPs in the individual’s region, the Exchange shall enroll the individual in the lower-cost option of either:

(i)

The lowest-cost Gold plan offered by the managed care organization affiliate; or

(ii)

The lowest-cost Silver plan offered by the managed care organization affiliate.

(b)

If an affiliate of the individual’s former managed care organization does not offer QHPs in the individual’s region, the Exchange shall enroll the individual in the lower-cost option of either:

(i)

The lowest-cost Gold plan in the region; or

(ii)

The lowest-cost Silver plan in the region.

For plans selected for an individual under §A(1) of this regulation, enrollment shall be effective on:

(1)

The first day of the month following the date of QHP selection pursuant to §B of this regulation, if the selected plan has a premium greater than zero dollars; or

(2)

The first day of the month following the individual’s confirmation of enrollment, if the selected plan has a premium of zero dollars.

To the extent permissible by federal law, for plans selected for an individual under §A(2) of this regulation, enrollment shall be effective on:

(1)

The first day of the month following the date of QHP selection pursuant to §C of this regulation, if the selected plan has a premium greater than zero dollars; or

(2)

The first day of the month following the individual’s confirmation of enrollment, if the selected plan has a premium of zero dollars.

References to “cost” under this regulation mean premium cost to the consumer after APTCs and State-based subsidies are applied.

Regulation .23 QHP Re-Enrollments—In General.Link Copy Citation

The Exchange shall redetermine the eligibility of a qualified individual on an annual basis as specified in 45 CFR §155.335.

The Exchange shall provide a qualified individual with an annual redetermination notice as specified in 45 CFR §155.335(c) that adheres to the timing specified in 45 CFR §155.335(d).

If an enrollee remains eligible for enrollment in a QHP through the Exchange upon annual redetermination, the Exchange shall re-enroll the enrollee according to 45 CFR §155.335(j), except as provided for in §E of this regulation.

Consumers eligible for re-enrollment may:

(1)

Change their plan during open enrollment;

(2)

If ineligible for automatic re-enrollment, manually re-enroll coverage by:

(a)

Re-enrolling online through the Maryland Health Connection Consumer Portal;

(b)

Re-enrolling with the assistance of an Individual Exchange Navigator, certified application counselor, or insurance producer; or

(c)

Calling the MHC call center; or

(3)

Decline re-enrollment.

Re-Enrollment into Higher Value Plans.

(1)

Unless the enrollee terminates coverage, including termination of coverage in connection with voluntarily selecting a different QHP in accordance with 45 CFR §155.430, the exchange shall follow the procedure detailed in §E(2) of this regulation to re-enroll an enrollee into a plan other than the enrollee's original plan or plan identified by the carrier pursuant to §F of this regulation if the enrollee:

(a)

Remains eligible for enrollment in a QHP through the Exchange upon annual redetermination;

(b)

Is determined, upon annual redetermination, eligible for cost-sharing reductions in accordance with 45 CFR §155.305(g);

(c)

Is currently enrolled in a bronze level QHP that is not a high deductible health plan compatible with a health savings account as defined in 26 U.S.C. §223; and

(d)

Would be re-enrolled in a bronze level QHP that is not a high deductible health plan compatible with a health savings account as defined in 26 U.S.C. §223 under §B of this regulation.

(2)

The Exchange shall re-enroll enrollees that meet the criteria of §E(1) of this regulation in the QHP:

(a)

With the highest actuarial value available;

(b)

Within the same product;

(c)

With the same provider network; and

(d)

Which, compared to the original bronze level QHP into which the Exchange would otherwise re-enroll the enrollee under §B of this regulation, and after the application of advance payment of the premium tax credit and young adult subsidy under COMAR 14.35.19, has a premium that is:

(i)

Lower; or

(ii)

Equivalent.

For QHPs that carriers plan to discontinue, enrollees in those QHPs shall be re-enrolled into QHPs determined by carrier-submitted plan re-enrollment templates according to COMAR 14.35.15.05O.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 08. Captive Producer Training and Authorization Standards

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 09. Consolidated Service Center Employee Training and Permit Standards

Regulation .01 Scope.Link Copy Citation

This chapter sets forth the qualifications, training, and permit standards for an individual who applies to receive a Consolidated Service Center enrollment permit for the Individual Exchange and is required under Insurance Article, §31-113.1(c), Annotated Code of Maryland, to hold an Individual Exchange enrollment permit.

Regulation .02 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Administration” means Maryland Insurance Administration.

(2)

“Commissioner” means the Maryland Insurance Commissioner.

(3)

“Consolidated Service Center” or “CSC” has the meaning stated in Insurance Article, §31-101(c-2), Annotated Code of Maryland.

(4)

“Department” means the Maryland Department of Health.

(5)

“Exchange” has the meaning stated in Insurance Article, §31-101(c), Annotated Code of Maryland.

(6)

“Individual Exchange” has the meaning stated in Insurance Article, §31-101(h), Annotated Code of Maryland.

Regulation .03 Eligibility Requirements.Link Copy Citation

To qualify for an Individual Exchange CSC enrollment permit, an applicant shall meet the requirements set forth under Insurance Article, §31-113.1(c)(3), Annotated Code of Maryland.

Regulation .04 Application Procedures.Link Copy Citation

In order to obtain an Individual Exchange CSC enrollment permit, the applicant shall submit to the Exchange all required materials set forth under COMAR 14.35.02.03A.

The Exchange may not consider an application to be complete until it has received all required materials.

If the application is not completed with all required materials within 45 days after the Exchange receives the signed application form, the Exchange may consider the application withdrawn.

Regulation .05 Training Requirements.Link Copy Citation

In order to obtain an Individual Exchange CSC enrollment permit, an individual shall:

Complete the training program specified under Insurance Article, §31-113(k), Annotated Code of Maryland, and COMAR 14.35.02.04A; and

Successfully pass the examination specified under COMAR 14.35.02.04D.

Regulation .06 General Permit Requirements.Link Copy Citation

Term. An Individual Exchange CSC enrollment permit expires 2 years after the date it is issued unless it is renewed.

Renewal. A CSC employee holding an Individual Exchange CSC enrollment permit shall apply for renewal of the permit in accordance with the requirements set forth under COMAR 14.35.03.02.

Suspension or Revocation.

(1)

The Commissioner may suspend or revoke an Individual Exchange CSC enrollment permit for the reasons listed under Insurance Article, §31-113(l)(1), Annotated Code of Maryland.

(2)

An Individual Exchange CSC enrollment permit is no longer valid upon an individual’s voluntary or involuntary termination from employment or engagement by the Consolidated Services Center.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 10. Appeals from Determinations Regarding Producer Authorization or Individual Exchange Navigator Certification

Regulation .01 Scope.Link Copy Citation

This chapter applies to contested case hearings delegated by the Board to the Office in accordance with State Government Article, §10- 205(a)(1)(ii), Annotated Code of Maryland.

Except as explicitly stated in this chapter, COMAR 28.02.01 governs the conduct of a hearing before the Office of Administrative Hearings.

Determinations entitled to contested case appeals. This chapter applies only to the appeal of an Exchange determination regarding:

(1)

Suspension of SHOP Exchange producer authorization;

(2)

Revocation of SHOP Exchange producer authorization;

(3)

Renewal of SHOP Exchange producer authorization;

(4)

Suspension of Individual Exchange producer authorization;

(5)

Revocation of Individual Exchange producer authorization;

(6)

Renewal of Individual Exchange producer authorization; and

(7)

Denial of Individual Exchange initial navigator certification.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Administrative law judge” has the meaning set forth under COMAR 28.02.01.02B(1).

(2)

“Board means the Maryland Health Benefit Exchange Board of Trustees.

(3)

Contested Case.

(a)

Contested case” has the meaning stated in State Government Article, §10-202(d), Annotated Code of Maryland.

(b)

“Contested case” includes a proceeding:

(i)

Arising out of a determination made by the Board;

(ii)

Regarding an authorization, certification, or permit issued by the Exchange; or

(iii)

Arising out of any act of or failure to act by the Board, involving an authorization or a certification issued by the Exchange, that aggrieves a person.

(c)

“Contested case” does not include any other quasi-legislative hearing.

(4)

Determination.

(a)

“Determination” means a decision by the Board that requires the Board to provide the opportunity for a hearing to a person aggrieved by the decision.

(b)

“Determination” includes:

(i)

A decision as to whether a person against whom an administrative complaint has been received violated a law, regulation, or order; and

(ii)

An order issued pursuant to the Board’s authority.

(5)

“Exchange” means the Maryland Health Benefit Exchange.

(6)

“Executive Director” means the Executive Director of the Maryland Health Benefit Exchange, appointed pursuant to Insurance Article, §31-105, Annotated Code of Maryland.

(7)

“Hearing officer” means the Board or the Board’s authorized designee.

(8)

“Maryland Health Benefit Exchange” has the meaning set forth under Insurance Article, §31-101(e), Annotated Code of Maryland.

(9)

“Office” means the Office of Administrative Hearings.

(10)

“Person” has the meaning set forth under COMAR 28.02.01.02B(12).

Regulation .03 Request for Hearing — In General.Link Copy Citation

Scope. This regulation applies to all requests for a hearing permitted under Regulation .01C of this chapter.

A person aggrieved may request a hearing by submitting a written statement to the Office, signed by the requesting person and containing the following information:

(1)

The action or nonaction of the Exchange causing the person requesting the hearing to be aggrieved;

(2)

The facts related to the incident or incidents about which the person requests the Exchange to act or not to act; and

(3)

The ultimate relief requested.

Request to Be Received Within 30 Calendar Days.

(1)

The request shall be received by the Office within 30 days of the date of the letter notifying the party of the Exchange’s action, intention to act, or failure to act.

(2)

In calculating the 30-day period, the date of the letter notifying the party of the Exchange’s action, intention to act, or failure to act is not included.

(3)

The end of a day is considered to be 11:59 p.m. Eastern Time.

(4)

The last day of the 30-day period is included unless it is a Saturday, Sunday, legal holiday, or day that the Office of Administrative Hearings is closed for a part of the day.

(5)

If the last day of the 30-day period is a Saturday, Sunday, legal holiday, or a day that the Office of Administrative Hearings is closed for a part of the day, the 30-day period runs until the end of the next day which is not a Saturday, Sunday, legal holiday, or day that the Office of Administrative Hearings is closed for a part of the day.

(6)

Intermediate Saturdays, Sundays, legal holidays, and days that the Office of Administrative Hearings is closed for a part of the day shall be counted toward the 30-day period.

Upon receipt of a proper request, the Office shall grant a hearing unless, in viewing the facts set forth by the person making the request, in the light most favorable to that person, the Office determines that:

(1)

The Office has no authority to take action;

(2)

The request does not contain the information required by these regulations;

(3)

The request is untimely; or

(4)

The request is moot.

Regulation .04 Delegation of Authority.Link Copy Citation

Scope. This regulation applies to all requests for a hearing permitted under Regulation .01C of this chapter.

In accordance with State Government Article, §10-205(a)(1)(ii), Annotated Code of Maryland, the Board delegates to the Office the authority to:

(1)

Conduct a contested case hearing; and

(2)

Issue:

(a)

Final findings of fact and conclusions of law; and

(b)

A proposed order.

The Board may revoke all or part of a delegation of authority to preside over a hearing if:

(1)

The case:

(a)

Involves novel or unanticipated factual or legal issues;

(b)

Has significant social, fiscal, or legal issues;

(c)

Involves policy issues; or

(d)

Requires further investigation; or

(2)

The Board determines that revocation of all or part of the delegation of authority is otherwise in the public interest.

Procedure for Revocation.

(1)

The Board shall provide written notice of a revocation of hearing authority to all parties and the entity conducting the contested case hearing under State Government Article, §10-205(a)(1)(ii), Annotated Code of Maryland.

(2)

The written notice shall contain a brief statement of the reason for the revocation.

(3)

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 entity delegated authority to conduct a contested case hearing under §A of this regulation on a substantive issue; or

(b)

Taking of oral testimony from the first witness.

(4)

The Board shall specify whether all or part of the delegation to hear a contested case has been revoked.

(5)

If only part of the delegation has been revoked, the Board shall specify in the written notice of revocation the portions of the contested case for which the delegation has been revoked.

(6)

On revocation of the delegation, the Board shall:

(a)

Cause further investigation;

(b)

Set the contested case for a hearing with the Board or the Board's designee acting as the hearing officer as permitted under State Government Article, §10-205(a)(1)(ii), Annotated Code of Maryland; or

(c)

Dismiss the contested case.

Regulation .05 Service of Notices, Decisions, Orders, and Other Documents.Link Copy Citation

The Office shall provide notice of a hearing, decisions, orders and other documents issued by the Office pursuant to State Government Article, §§10-208 and 10-209, Annotated Code of Maryland.

A hearing may be rescheduled if there is satisfactory showing that the notice was sent not less than 30 calendar days before the hearing, or upon agreement of all parties.

Regulation .06 Default Orders.Link Copy Citation

With respect to hearings conducted on behalf of the Exchange, a hearing officer may issue a proposed default order against a party other than the Exchange that, after receiving proper notice, fails to appear at a hearing if:

(1)

Notice is issued by the Office, and the party failing to appear is the person against whom the notice was issued; or

(2)

In any other contested case hearing, the party failing to appear is the person that requested the hearing.

In a hearing arising out of a notice or determination issued by the Exchange, the proposed default order shall:

(1)

State the facts supporting the finding of proper notice to the person against whom the notice or determination was issued;

(2)

Adopt the facts and violations of law as alleged by the Exchange in its notice or determination as if by admission of the person against whom the charging document, order or notice was issued; and

(3)

Adopt the sanction requested by the Exchange at the hearing.

The hearing officer shall serve the proposed default order directly on the parties by certified mail.

Within 15 calendar days after service of a proposed default order, the party in default may submit to the Board a written motion:

(1)

Requesting that the proposed default order be vacated or modified; and

(2)

Stating the grounds for the request.

If the Board finds that there is:

(1)

Good cause to excuse the default, the Board may:

(a)

Vacate or modify the default order; and

(b)

Schedule the case for further appropriate proceedings; or

(2)

No good cause to excuse the default, the Board shall:

(a)

Deny the motion; and

(b)

Affirm the proposed default order as the final order.

Regulation .07 Administrative Decisions.Link Copy Citation

Contents. The hearing officer shall submit to the Board a decision that contains:

(1)

Final findings of fact and conclusions of law; and

(2)

A proposed order.

Effect of Regulations, Bulletins, and Preexisting Policies. In making a decision, the Office is bound by any regulation, bulletin, final order, or settled and preexisting policy of the Board to the same extent that the Board is or would have been bound if the Board were hearing the case.

Distribution of Decision. The Office shall send its decision directly to the parties and the Board.

Regulation .08 Exceptions.Link Copy Citation

On receipt of a decision that contains proposed findings of fact, proposed conclusions of law, or a proposed order, the parties affected have:

(1)

20 calendar days after receipt to request to present argument, file exceptions to the proposed order with the Board, or both of these; or

(2)

10 calendar days to:

(a)

File a written request for a transcript, at the party’s own expense, with the Board in order to file exceptions; or

(b)

File with the Board a copy of that party's written request to its stenographer, at the party’s own expense, for the party's preparation of a transcript based on its own record of the testimony in order to file exceptions.

Receipt under §A of this regulation is presumed to occur 3 calendar days after the mailing of the proposed order.

Filing Exceptions After Receipt of Transcript.

(1)

If a party requests a transcript under §A(2) of this regulation, the party shall have 30 calendar days after the filing of the transcript to file a request to present argument, exceptions, or both of these with the Board.

(2)

Unless extended by order of the Board, the party requesting the transcript shall file the transcript with the Board within 60 calendar days after the date on which the transcript was requested.

Exceptions shall be in writing unless specified otherwise by the Board.

If a party elects not to offer argument or file exceptions, another party may not raise the defense of failure to exhaust this administrative remedy on appeal to circuit court.

If a party requests the opportunity to offer argument, the Board shall grant the request and allow the party to present argument to a majority of the Board.

The record before the Board for the exceptions shall consist of:

(1)

The Office’s findings and conclusions, including the findings of fact, conclusions of law, and proposed order;

(2)

Any exceptions filed by a party;

(3)

Any response to exceptions filed by a party;

(4)

Any evidence submitted by a party;

(5)

Notice to the parties of the hearing;

(6)

Any documentary evidence admitted into evidence by the Office; and

(7)

The transcript of the hearing before the Office, if requested and filed by one of the parties or the Board.

Transcripts.

(1)

A party who desires to have the transcript made part of the record shall, at the party's own expense, file three copies of the transcript, or its relevant portions, with the Board on receipt of the transcript.

(2)

If a transcript has already been prepared, the Board shall make the transcript part of the record in the contested case.

(3)

If a transcript is prepared based on the Office’s record of the testimony and a transcript is prepared based on a party's own record of the testimony, the transcript based on the Office’s record of the testimony is:

(a)

The official transcript; and

(b)

Controlling in the event of any conflict between the two transcripts.

(4)

If the transcript is not filed or otherwise made part of the record in the contested case, parties may not refer in their exceptions to any testimony before the Office not incorporated into the Office’s findings and conclusions.

(5)

If all parties agree that the questions presented for review to the final decision maker can be determined without an examination of the entire transcript, the parties may file a statement showing how the questions arose and setting forth the facts or allegations that are essential to a determination of those issues.

Regulation .09 Final Order Following Proposed Decision.Link Copy Citation

Issuance. After consideration of the Office’s proposed order, and any exceptions filed by the parties, the Board shall issue a final order or a remand order.

Effect of Proposed Order. In reviewing the Office’s proposed order, the Board is:

(1)

Bound by the findings of fact that are supported by competent, material, and substantial evidence; and

(2)

Not bound by any legal analysis, conclusions of law, or proposed order.

Types of Action by the Board. The Board may affirm, reverse, or modify the findings of fact that are supported by competent, material, and substantial evidence, conclusions of law, or proposed order, or remand the case to the Office for further proceedings by setting forth, with particularity, the basis for the Board’s reversal, modification, or remand.

Procedure When Case Remanded. If the Board remands the case for further proceedings, the Board may:

(1)

Refer the case back to the Office; or

(2)

Retain the case to be heard by the Board.

Rehearing. The Board may, on the Board's own motion, hold a rehearing.

Service of Order. The Board shall serve a copy of the final order or remand order on the parties, the parties' attorneys of record, and the entity by first-class mail.

Effect of Summary Affirmance.

(1)

If the Board issues a final order that summarily affirms the proposed order of the Office without discussing the facts and legal issues and without expressly adopting the Office’s legal analysis and conclusions of law, neither the final order nor the proposed order is precedent within the rule of stare decisis.

(2)

Notwithstanding §G(1) of this regulation, a final order of the Board that summarily affirms the proposed order of the Office without discussing the facts and legal issues and without expressly adopting the Office’s legal analysis and [proposed] conclusions of law may be cited and relied on in a proceeding before the Board, the Office, or a court:

(a)

When relevant under the doctrine of the law of the case, res judicata, or collateral estoppel; or

(b)

In any subsequent disciplinary proceeding involving a party to the final order.

(3)

If a party appeals from a final order of the Board that summarily affirms the proposed order of the Office, in addition to filing the final order of the Board with the court in which the appeal is pending, the Board also shall file a copy of the proposed order of the Office.

Regulation .10 Decisions.Link Copy Citation

The Board shall sign the final order, and the order is effective when issued unless a different date is specified in the decision. A copy of the final order shall be filed with the Exchange and served on all parties to the hearing.

Regulation .11 Mistake or Error in the Final Order.Link Copy Citation

The Board may correct an order if, upon review, the final order was issued as a result of fraud, mistake, or inadvertence or contains a clerical error.

Regulation .12 Judicial Review.Link Copy Citation

A party adversely affected by a final decision of the Board, or the entity delegated authority to make the final decision, may obtain judicial review of the decision as provided by law.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 11. Fair Hearings of Individual Exchange Eligibility Determinations

Regulation .01 Scope.Link Copy Citation

This chapter applies to eligibility determinations and redeterminations for enrollment in qualified health plans, advance payments of the premium tax credit, cost-sharing reductions, and State-based subsidies offered through the Individual Exchange, as well as for MAGI-based eligibility determinations and redeterminations for the Maryland State Medicaid program and the Maryland Children’s Health Insurance Program.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Administrative law judge” means an individual appointed by the Chief Administrative Law Judge under State Government Article, §9-1604, Annotated Code of Maryland, or designated by the Chief Administrative Law Judge under State Government Article, §9-1607, Annotated Code of Maryland, to adjudicate contested cases at the Maryland Office of Administrative Hearings.

(2)

“Affordable Care Act” means the Patient Protection and Affordable Care Act of 2010 (Pub.L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub.L. 111-152), as amended by the Three Percent Withholding Repeal and Job Creation Act (Pub.L. 112-56).

(3)

“Appellant” means any individual who requests a fair hearing for the reasons specified in Regulation .03 of this chapter or that individual’s authorized representative, whether regarding an initial determination or a redetermination.

(4)

“Authorized representative” has the same meaning as in Regulation .14 of this chapter.

(5)

“Catastrophic plan” means a plan established under §1302(e) of the Affordable Care Act.

(6)

“Consolidated Services Center” means the call center operated by the Maryland Health Benefit Exchange to assist consumers who apply for, or participate in, a qualified health plan or the insurance affordability programs offered through the Maryland Health Connection.

(7)

“Delegate agency” means the Department of Human Services and its affiliate local departments which, under contractual agreements with the Department, determine initial and continuing eligibility in the Program.

(8)

“Department” means the Maryland Department of Health, the single State agency which, pursuant to Title XIX of the Social Security Act, implements fair hearing requirements for Program applicants and recipients.

(9)

“Individual Exchange” has the meaning stated in Insurance Article, §31-101(h), Annotated Code of Maryland.

(10)

“Insurance affordability program” means a program that is one of the following:

(a)

The Maryland State Medicaid program;

(b)

The Maryland Children’s Health Insurance Program (CHIP), including the program known as Maryland Children’s Health Program (MCHP) Premium;

(c)

A State basic health program established under §1331 of the Affordable Care Act;

(d)

A program that makes available to eligible individuals coverage in a qualified health plan through the Maryland Health Benefit Exchange with advance payments of the premium tax credit established under §36B of the Internal Revenue Code;

(e)

A program that makes available to eligible individuals coverage in a qualified health plan through the Maryland Health Benefit Exchange with cost-sharing reductions established under §1402 of the Affordable Care Act; or

(f)

The State-Based Young Adult Health Insurance Subsidies Program established under Insurance Article, §31-122, Annotated Code of Maryland.

(11)

“MAGI” means modified adjusted gross income, as calculated for purposes of determining or redetermining eligibility for insurance affordability programs under the Affordable Care Act, as defined in 26 CFR §1.36B-1(e)(2).

(12)

“Maryland Health Benefit Exchange” or “Exchange” means the unit of State government that determines initial and continuing eligibility for the MAGI-based insurance affordability programs, including, by delegation, certain eligibility in the Program.

(13)

“Maryland Health Connection” means the electronic eligibility system maintained by the Maryland Health Benefit Exchange.

(14)

“Program” means the Department’s Medical Assistance Program.

(15)

Qualified Health Plan.

(a)

“Qualified health plan” means a health benefit plan that has been certified by the Maryland Health Benefit Exchange to meet the criteria for certification described in §1311(c) of the Affordable Care Act and Insurance Article, §31-115, Annotated Code of Maryland.

(b)

“Qualified health plan” includes a catastrophic plan.

Regulation .03 Opportunity for a Fair Hearing.Link Copy Citation

An opportunity for a fair hearing shall be granted if an applicant claims that:

(1)

The determination or redetermination received from the Exchange of the applicant’s eligibility for enrollment in a qualified health plan is incorrect;

(2)

The determination or redetermination received from the Exchange of the applicant’s eligibility for an insurance affordability program is incorrect; or

(3)

The determination or redetermination received from the Exchange of the applicant’s eligibility for enrollment in a qualified health plan or an insurance affordability program is untimely as set forth in applicable law.

The administrative law judge need not grant a fair hearing if the sole issue is a federal or State law requiring an automatic change adversely affecting some or all applicants.

Regulation .04 Notification of Right to Request a Fair Hearing.Link Copy Citation

The Exchange shall notify an individual and the individual’s authorized representative, if previously designated by the individual or recognized as valid by the Exchange, in writing:

(1)

Of the right to obtain a fair hearing;

(2)

Of the method to obtain the hearing;

(3)

That the individual may represent the individual or use an authorized representative at a fair hearing;

(4)

Of the circumstances under which the individual’s eligibility may be maintained or reinstated pending an appeal decision; and

(5)

That an appeal decision for one household member may result in a change in eligibility for other household members, and that such a change will be handled as a redetermination of eligibility for other household members.

The notification specified in §A of this regulation shall:

(1)

Be provided by the Exchange when:

(a)

The individual applies for enrollment in a qualified health plan and, if applicable, for an insurance affordability program; or

(b)

Any Exchange action affects the individual’s claim to enrollment in a qualified health plan, or to eligibility for, or the amount of, an insurance affordability program.

(2)

Include a statement of the action the Exchange intends to take;

(3)

Include the reasons for the intended action;

(4)

Include the specific regulations that support, or the change in federal or State law that requires, the action;

(5)

To the extent required by law for Program benefits, include an explanation of the individual’s right to request a fair hearing, including that expenses incurred in connection with a fair hearing, such as transportation and baby-sitting costs, but not including attorney’s fees, shall be paid by the Department when incurred by the appellant and may be paid by the Department when incurred by the appellant’s witnesses;

(6)

Include information about fair hearings;

(7)

Include an explanation of the circumstances under which Program benefits are continued if a fair hearing is requested as provided in Regulation .05 of this chapter;

(8)

Identify who may act as an authorized representative of the appellant in the fair hearing process, explain how an applicant may designate an authorized representative, and provide information about designation procedures under Regulation .14 of this chapter;

(9)

Specify that the appellant or the appellant’s authorized representative may examine the appellant’s records upon reasonable notice to the Exchange; and

(10)

For termination of Program benefits, be mailed at least 10 days before the date of action except as specified under COMAR 10.01.04.03C.

The notice specified in §A of this regulation shall be mailed in accordance with 45 CFR §155.310(g) if the action is a determination or redetermination regarding eligibility for enrollment in a qualified health plan or eligibility for an insurance affordability program described in Regulation .02B(10)(d) or (e) of this chapter.

Regulation .05 Request for Fair Hearing.Link Copy Citation

Statement of Request.

(1)

Any individual, either personally or through an authorized representative, may request a fair hearing by giving a clear statement, oral, electronic, or written, that the individual desires an opportunity to present for review any matter which is the proper subject of a fair hearing as provided in Regulation .03 of this chapter. The request shall be made by:

(a)

Contacting the Exchange in writing, by mail, telephone, email, or fax;

(b)

Contacting the Consolidated Services Center maintained by the Exchange by mail, telephone, or fax;

(c)

Contacting the delegate agency in person or by mail, telephone, or fax;

(d)

Contacting the Department’s Office of Health Services in person or by mail, telephone, or fax; or

(e)

Contacting the Office of Administrative Hearings in person, or by mail or fax.

(2)

The Program’s Office of Health Services, the Exchange, the Consolidated Services Center, or the delegate agency that is contacted by an appellant or the appellant’s authorized representative about requesting a hearing shall assist the appellant or the appellant’s authorized representative in preparing the request.

(3)

The Program’s Office of Health Services, the Exchange, the Consolidated Services Center, or the delegate agency that receives or prepares a written statement on behalf of the appellant or the appellant’s authorized representative requesting an appeal shall:

(a)

Immediately forward an applicant’s statement to the Office of Administrative Hearings;

(b)

Indicate whether the appeal is for a determination or redetermination of eligibility to enroll in a qualified health plan or eligibility for an insurance affordability program, if known; and

(c)

Note in its correspondence with the Office of Administrative Hearings if the appeal:

(i)

Concerns an immediate need for health services where the appellant’s life, health, or ability to attain, maintain, or regain maximum function would be jeopardized by the standard appeal process; and

(ii)

To the extent required by applicable law, must be heard and decided within 3 working days after the Office of Administrative Hearings receives the fair hearing request.

(4)

If a request for a hearing is made by someone other than the applicant, the Office of Administrative Hearings shall:

(a)

Treat the appeal as timely noted if it complies with §D of this regulation, provided documentation pursuant to §A(4)(b) is provided on or before the hearing date, except that no documentation shall be required for representation pursuant to §A(4)(c) of this regulation;

(b)

Accept appropriate documentation, up to and including the date of the fair hearing, demonstrating that the representative is authorized; and

(c)

Accept the representation of any member of the bar of Maryland that the individual appellant is the member’s client without further documentation.

Acknowledgement. The Office of Administrative Hearings shall:

(1)

Send timely acknowledgement to the appellant, and the appellant’s authorized representative, if applicable, of the receipt of the fair hearing request;

(2)

Give advance notice in writing of the date, time, and place of the fair hearing;

(3)

Provide the appellant with the information specified in Regulation .04A(4) of this chapter; and

(4)

Provide an explanation that any advance payments of the premium tax credit paid on behalf of the appellant pending appeal are subject to reconciliation pursuant to 26 CFR §1.36B-4.

Postponements.

(1)

If any party notifies the Office of Administrative Hearings that either the time or place designated by the Office of Administrative Hearings is not convenient to the party, and requests a different time or place for the fair hearing, the administrative law judge shall designate another time or place convenient to the parties if the administrative law judge deems that the party has sufficient reason for requesting the change.

(2)

If the appellant is employed during the periods when fair hearings are normally held, the administrative law judge shall attempt to schedule the hearing so that the appellant will not be required to miss employment.

Timeliness of Appeal. A request for a fair hearing may not be granted unless the request pursuant to §A of this regulation is filed within 90 days of the receipt of the notification specified in Regulation .04A of this chapter, in one of the following methods:

(1)

Postmarked, delivered in person, or faxed to the Office of Administrative Hearings;

(2)

Postmarked, emailed, telephoned, or faxed to the Exchange;

(3)

Postmarked, telephoned, or faxed to the Consolidated Services Center;

(4)

Postmarked, delivered in person, telephoned, or faxed to the delegate agency; or

(5)

Postmarked, delivered in person, telephoned, or faxed to the Department’s Office of Health Services.

Dismissal.

(1)

The Exchange or the Office of Administrative Hearings may dismiss a request for a fair hearing when the appeal has been:

(a)

Withdrawn in writing, either electronically or in hard copy; or

(b)

Abandoned.

(2)

An appellant shall be deemed to have abandoned the appellant’s request for a fair hearing if the appellant fails to appear for the fair hearing on the established date without good cause as determined by the administrative law judge.

Program’s Response. In responding to timely filed requests for a fair hearing, the Office of Administrative Hearings:

(1)

May respond to a series of individual requests for hearing by conducting a single group hearing;

(2)

May consolidate hearings only in cases in which the sole issue involved is one of federal or State law or policy; and

(3)

Shall permit each applicant to present the appellant’s own case or be represented by the appellant’s authorized representative.

Regulation .06 Prehearing Procedures.Link Copy Citation

A hearing summary shall be prepared containing pertinent information detailing the specific action that is the basis for the appeal. The summary shall be forwarded to the appellant or the appellant’s authorized representative and to the Office of Administrative Hearings at least 6 days before the hearing date.

The appellant and the Exchange may request the names of all witnesses that the other party intends to call at the fair hearing.

Regulation .07 Hearing Procedures.Link Copy Citation

The appellant and the Exchange shall have the opportunity to:

(1)

Present witnesses;

(2)

Present documentary evidence;

(3)

Present oral and written argument without undue interference;

(4)

Establish all facts and circumstances the administrative law judge judges to be relevant; and

(5)

Question or refute any testimony or evidence, including an opportunity to confront and cross-examine all witnesses the administrative law judge judges to be adverse.

All parties that wish to call a witness at the hearing shall subpoena the witness in accordance with Office of Administrative Hearings procedures in COMAR 28.02.01.14. The appellant or authorized representative may subpoena any employee of the Exchange whose action is being contested by the appellant or whose testimony may be relevant to the issues under consideration as determined by the administrative law judge.

Right to Review Record.

(1)

If the Exchange introduces as evidence documents from the case record, special investigation file, or other sources, the appellant shall have the opportunity to examine the:

(a)

Persons who prepared the documents; and

(b)

Case record or special investigation file for the purpose of discovering information favorable to the appellant’s case.

(2)

The Exchange shall have access to relevant portions of the appellant’s medical record in accordance with Health-General Article, 4-305, Annotated Code of Maryland, to the extent required by law.

To the extent required by law, when a hearing involves a medical issue, such as a diagnosis, an examining physician’s report, or a medical review team’s decision, an additional medical assessment of the appellant’s condition shall be obtained and made part of the record if the administrative law judge considers it necessary. Any additional medical assessment shall be made by a person other than the person who made the original medical assessment and shall be obtained at the Exchange’s expense.

Regulation .08 The Record.Link Copy Citation

A verbatim recording of the fair hearing shall be made. Nonrecorded or confidential information, which the appellant does not have an opportunity to hear or see, may not be made a part of the hearing record. One transcribed copy of the recording shall be supplied to the appellant at no cost if the appellant takes a further appeal.

The following shall constitute the exclusive record of the hearing:

(1)

The transcript or recording of testimony and exhibits, or an official report containing the substance of what happened at the hearing;

(2)

All papers and requests, including those maintained electronically, filed in the proceeding; and

(3)

The administrative law judge’s decision.

The recording of testimony shall remain in the custody of the Office of Administrative Hearings for a period not to exceed 2 years, or until all litigation involving the decision is terminated. All other components of the record shall remain in the custody of the Exchange for a period not to exceed 2 years, or until all litigation involving the decision is terminated.

Regulation .09 Findings, Timing of Decision, and Effect of Decision.Link Copy Citation

Findings.

(1)

The administrative law judge shall:

(a)

Prepare a written summary of findings and conclusions based exclusively on the record; and

(b)

Make a decision based on his findings and conclusions.

(2)

The summary of findings and conclusions shall:

(a)

State the evidence, policies, regulations, or laws upon which the administrative law judge’s decision is based; and

(b)

Provide written notice to the appellant that, if they are not satisfied with the decision, they may seek additional appeals as specified in §C of this regulation.

Timing of Hearing Decision.

(1)

The administrative law judge shall forward to the appellant, and to appellant’s authorized representative, if applicable, a copy of the findings, conclusions, and decision within 90 days from the date the appellant or appellant’s representative filed a request for a fair hearing pursuant to Regulation .05A of this chapter.

(2)

If the date of the fair hearing is postponed at the appellant’s request, the length of the postponement may not be counted as part of any of the time period specified in §B(1) of this regulation.

Appeal Rights.

(1)

Any party may seek judicial review as provided in State Government Article, §10-222, Annotated Code of Maryland.

(2)

An administrative law judge’s decision:

(a)

Related to Program benefits:

(i)

Shall be implemented immediately, if adverse to the appellant.

(ii)

If favorable to the appellant, shall be implemented retroactively to the date the incorrect action was taken; or

(b)

Related to eligibility for enrollment in a qualified health plan, advance payments of the premium tax credit, cost-sharing reductions, or State-based subsidies shall be implemented in accordance with 45 CFR §155.545(c)(1).

(3)

To the extent an administrative law judge’s decision upholds the determination or redetermination of the Exchange with respect to an applicant for eligibility for enrollment in a qualified health plan or for an insurance affordability program described in Regulation .02B(10)(d) or (e), the applicant may appeal to the United States Department of Health and Human Services pursuant to 45 CFR §155.520(c).

Effect of Decision.

(1)

When the decision requires action by the Department, the Exchange shall notify the Department.

(2)

When the decision is favorable to the appellant, or when the Exchange grants the appellant the relief the appellant requests before the decision, the Exchange, where applicable, shall authorize corrected payments or relief retroactive to the date the incorrect action was taken and redetermine eligibility for household members whose eligibility may be affected by the appeals decision.

(3)

Any payment or action by the Exchange under §D(2) of this regulation may not constitute a waiver of the Exchange’s sovereign immunity from suit.

Regulation .10 Confidentiality.Link Copy Citation

If the appellant waives in writing his privilege of confidentiality as to the fair hearing, the administrative law judge shall permit members of the public to attend the hearing.

The administrative law judge may cause the removal of any member of the public whose conduct impedes the orderly progress of the hearing, or recess the hearing until it may proceed in orderly fashion.

The administrative law judge may exclude from the hearing individuals who have not given the Exchange advance notice of their intention to attend if the size of the hearing room is too small to accommodate them.

Regulation .11 Program Benefits During Appeals Process.Link Copy Citation

Benefits Pending Outcome of the Hearing.

(1)

The Program may terminate or reduce services effective as of the date specified in the notice if the Program timely mails the notice as required under Regulation .04 of this chapter and:

(a)

The appellant or the appellant’s authorized representative does not timely request a hearing in accordance with Regulation .05 of this chapter; or

(b)

The appellant or the appellant’s authorized representative withdraws in writing or abandons a request for a fair hearing.

(2)

Except as provided in §A(3) of this regulation, the Program may not terminate or reduce services until a decision is rendered after the hearing if:

(a)

The Program timely mails the notice as required under Regulation .04 of this chapter; and

(b)

The appellant requests a hearing before the date of the action.

(3)

The Program may terminate or reduce services before an administrative law judge renders a decision after a hearing if:

(a)

The administrative law judge determines at the hearing that the sole issue is one of federal or State law or policy, or the request for a fair hearing is withdrawn in writing or abandoned; and

(b)

The Program includes in the notification required by Regulation .04 of this chapter that services are to be terminated or reduced pending the hearing decision.

Reinstating Benefits.

(1)

If the Program terminates or reduces services pursuant to §A of this regulation, the Program may reinstate services if a Program recipient requests a hearing not more than 10 days after the date of action.

(2)

The reinstated services shall continue until a hearing decision, unless, at the hearing, the administrative law judge determines that the sole issue is one of federal or State law or policy.

(3)

The Program shall reinstate and continue services until a decision is rendered after a hearing if:

(a)

Action is taken without the advance notice being given to the recipient as required by Regulation .04 of this chapter;

(b)

The recipient requests a hearing within 10 days of the mailing of the notice of action; and

(c)

The Program determines that the action resulted from other than the application of federal or State law or policy.

(4)

If a recipient’s whereabouts are unknown, as indicated by the return of unforwardable Program mail directed to the recipient, any discontinued services shall be reinstated if the recipient’s whereabouts become known during the time the recipient is eligible for services.

(5)

The administrative law judge may provide for an additional period during which time the request for a fair hearing will result in reinstatement of a recipient’s assistance to be continued until the hearing decision.

Regulation .12 Eligibility for Enrollment in a Qualified Health Plan, for Advance Payments of Premium Tax Credit, for Cost-Sharing Reductions, and for the State-Based Young Adult Health Insurance Subsidies Program Pending Appeal.Link Copy Citation

Eligibility for Enrollment in a Qualified Health Plan.

(1)

If, upon initial determination, an applicant has been determined to be ineligible to enroll in a qualified health plan, the applicant may not enroll in a qualified health plan pending the outcome of the appeal.

(2)

Except where the applicant does not appeal a redetermination of eligibility within 90 days of such redetermination, an applicant enrolled in a qualified health plan who, upon redetermination, is found ineligible to remain enrolled in the qualified health plan may remain enrolled in the qualified health plan pending the outcome of the appeal.

Eligibility for Advance Payments of the Premium Tax Credit, Cost-Sharing Reduction, and/or the State-Based Young Adult Health Insurance Subsidies Program.

(1)

Except where the applicant does not appeal an initial determination of eligibility within 90 days of such determination, an applicant who, upon initial determination, has been determined to be eligible to enroll in a qualified health plan may enroll in a qualified health plan within 90 days of the determination of eligibility for a qualified health plan notwithstanding ineligibility for or the amount of Advance Payments of the Premium Tax Credit, Cost-Sharing Reduction, or State-based subsidy for which the applicant was determined to be eligible.

(2)

Pending the outcome of the appeal, the applicant under §B(1) of this regulation will receive only the amount of the advance payments of the premium tax credit, cost-sharing reduction, and/or State-based subsidy if any, for which applicant was determined to be eligible upon initial determination.

(3)

Except where the applicant does not appeal a redetermination of eligibility within 90 days of such redetermination, an applicant who is receiving advance payments of the premium tax credit and/or cost-sharing reduction and is found to be ineligible for, or subject to a reduced amount of, advance payments of the premium tax credit and/or cost-sharing reduction during a redetermination may elect to continue to receive the advance payments of the premium tax credit and/or cost-sharing reduction that the applicant had been receiving immediately prior to the redetermination pending the outcome of the appeals process, provided that the applicant attests to understanding that by continuing to receive the advance payments of the premium tax credit the applicant may incur a liability to the Internal Revenue Service pursuant to 26 U.S.C. §36B.

Regulation .13 Applicability of Regulations.Link Copy Citation

If a conflict exists between this chapter and the Rules of Procedure of the Office of Administrative Hearings in COMAR 28.02.01, this chapter shall govern.

Regulation .14 Authorized Representatives.Link Copy Citation

Definitions.

(1)

“Authorized representative” means an individual or organization acting responsibly on behalf of the applicant in accordance with this regulation, in assisting with an applicant’s application, renewal of eligibility, appeals, and other ongoing communications with the Exchange.

(2)

“Signature” includes electronic, including telephonically recorded, signatures and handwritten signatures transmitted by facsimile or other electronic transmissions.

Designating an Authorized Representative.

(1)

An applicant may designate any individual or organization to serve as authorized representative.

(2)

An authorized representative may be designated either:

(a)

In writing, including the applicant’s signature; or

(b)

By providing proof of legal authority to act on behalf of an applicant.

(3)

Legal authority includes, but is not limited to the:

(a)

Applicant’s parent, if the applicant is a minor;

(b)

Applicant’s legal guardian, if one has been appointed, or a person who has in good faith filed an application to be appointed the applicant’s legal guardian but who has not yet been appointed the applicant’s legal guardian;

(c)

Applicant’s healthcare surrogate as defined in Health-General Article, §5-605, Annotated Code of Maryland;

(d)

Personal representative of applicant’s estate, or a person who has in good faith filed an application to be appointed the personal representative of the applicant’s estate but who has not yet been appointed the personal representative of the applicant’s estate;

(e)

Individual appointed to make legal or medical decisions on behalf of the applicant pursuant to a validly executed power of attorney; or

(f)

Attorney or paralegal retained by the applicant.

(4)

For individuals who lack the capacity to designate an authorized representative and for whom no other individual or organization has the legal authority to act under §B(2) of this regulation, an authorized representative can be any individual or organization acting responsibly on behalf of the applicant who:

(a)

In good faith, is acting in the best interest of the applicant; and

(b)

Declares the applicant lacks legal capacity, and for organizations, declares that its directors, employees, officers or employers, if any, do not have a direct financial interest in the outcome of the fair hearing.

(5)

For individuals who lack the capacity to designate an authorized representative, for whom no other individual or organization has the legal authority to act under §B(2) of this regulation, and on behalf of whom no individual or organization covered by §B(4) of this regulation is willing and able to act, an authorized representative can be any individual or organization with a direct financial interest in the outcome of the hearing or whose employer has a direct financial interest in the outcome of the hearing who:

(a)

In good faith is acting in the best interest of the applicant;

(b)

Declares that the applicant lacks legal capacity; and

(c)

Declares that to the best of the authorized representative’s belief, no other individual or organization is willing and able to act on the applicant’s behalf.

Time for Authorization. Designation of an authorized representative, or the declarations by an individual or organization required under §B(4) or (5) of this regulation to become an authorized representative, can take place at any time, including, but not limited to, the time of application, upon redetermination, upon filing an appeal, and at the appeal hearing.

Duration of Representation. The power to act as an authorized representative is valid until the applicant modifies the authorization or notifies the Exchange that the representative is no longer authorized to act on his or her behalf, there is a change in the legal authority upon which the individual or organization’s authority was based, or the authorized representative informs the Exchange, as required by 45 CFR §155.227(d)(2), that the representative no longer has legal authority to act on behalf of the applicant. Such notice shall be in writing and shall include the applicant’s signature or the authorized representative’s signature, as appropriate.

Powers of Authorized Representative. Authorized representatives may be authorized to perform all, or fewer than all, of the following:

(1)

Sign an application on the applicant’s behalf;

(2)

Complete and submit an update or a renewal form or respond to a request for redetermination;

(3)

Receive copies of the applicant’s notice and other communications from the Exchange; and

(4)

Act on behalf of the applicant in all matters with the Exchange including appeals.

Obligations of Authorized Representative. An authorized representative:

(1)

Is responsible for fulfilling all the responsibilities encompassed within the scope of the authorized representation as described in §E of this regulation to the same extent as the individual the representative represents;

(2)

Shall agree to maintain, or be legally bound to maintain, the confidentiality of any information regarding the applicant provided by the Exchange.

Authorized Representatives Through an Organization. A provider, staff member, or volunteer of an organization shall sign an agreement to adhere to the federal regulations governing authorized representatives as laid out in 42 CFR §435.923 or 45 CFR §155.227, as applicable, as well as relevant State and federal laws concerning conflicts of interest and confidentiality of information.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 12. Application Counselor Sponsoring Entity Designation Standards

Regulation .01 Scope.Link Copy Citation

In General. This chapter applies to any community-based organization, health care provider, unit of State or local government, or other entity seeking designation as an application counselor sponsoring entity by the Maryland Health Benefit Exchange.

Regulation .02 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Applicant” means a community-based organization, health care provider, unit of State or local government, or other entity applying for designation as an application counselor sponsoring entity.

(2)

“Application counselor sponsoring entity” or “sponsoring entity” has the meaning set forth in Insurance Article, §31-101(a-2), Annotated Code of Maryland.

(3)

“Certified application counselor” has the meaning set forth in Insurance Article, §31-101(a-1), Annotated Code of Maryland.

(4)

“Commissioner” means the Maryland Insurance Commissioner.

(5)

“Consolidated Services Center” has the meaning set forth in Insurance Article, §31-101(c-2), Annotated Code of Maryland.

(6)

“Individual Exchange” or “Exchange” has the meaning set forth in Insurance Article, §31-101(h), Annotated Code of Maryland.

(7)

“Individual Exchange connector entity” has the meaning set forth in Insurance Article, §31-101(k), Annotated Code of Maryland.

(8)

“Individual Exchange navigator” has the meaning set forth in Insurance Article, §31-101(i), Annotated Code of Maryland.

(9)

“Maryland Health Benefit Exchange” has the meaning set forth in Insurance Article, §31-101(e), Annotated Code of Maryland.

Regulation .03 Eligibility Requirements.Link Copy Citation

To be eligible for designation as an application counselor sponsoring entity, an applicant shall:

Complete and submit to the Maryland Health Benefit Exchange the application counselor sponsoring entity application set forth under Regulation .05 of this chapter;

Agree to comply with the requirements set forth in the application counselor sponsoring entity application, including the requirements for oversight of its certified application counselors;

Comply with any applicable requirements of the Maryland Department of Health and the Commissioner; and

Enter into a formal written agreement with all employed or engaged certified application counselors whereby certified application counselors agree to comply with the provisions of the application counselor training and certification standards under COMAR 14.35.13 and 45 CFR §155.225.

Regulation .04 Scope of Authority.Link Copy Citation

A designated application counselor sponsoring entity may employ or engage certified application counselors to:

(1)

Provide information to consumers about the full range of qualified health plan and qualified dental plan options and insurance affordability programs, including advance premium tax credits and cost-sharing subsidies, the Maryland Medical Assistance Program, and the Maryland Children’s Health Program, for which they are eligible;

(2)

Assist consumers with the application process for determining eligibility for insurance affordability programs, including advance premium tax credits and cost-sharing subsidies, the Maryland Medical Assistance Program, and the Maryland Children’s Health Program;

(3)

Facilitate plan selection and enrollment of eligible individuals in qualified health plans, qualified dental plans, and access to advance premium tax credit and other cost-sharing subsidies; and

(4)

Provide to consumers uniform, factual, and unbiased information approved by the Maryland Medical Assistance Program about all participating managed care organizations, including report cards, lists of enhanced benefits and covered services, and participating providers.

A designated application counselor sponsoring entity may not permit certified application counselors to:

(1)

Enroll Maryland Medical Assistance Program/Maryland Children’s Health Program eligible individuals into managed care organizations; or

(2)

Express a personal or professional assessment about which Maryland Medical Assistance Program/Maryland Children’s Health Program managed care organization may be most appropriate for an eligible individual, may not make a managed care organization selection on the applicant’s behalf, and may not otherwise counsel an applicant about the selection of a managed care organization.

If a Maryland Medical Assistance Program/Maryland Children’s Health Program eligible consumer seeks further counseling or additional assistance in choosing a managed care organization, a designated application counselor sponsoring entity shall instruct the certified application counselor to refer the consumer to the Consolidated Services Center or to a local agency caseworker.

An Individual Exchange connector entity may also be a designated application counselor sponsoring entity only under the following conditions:

(1)

No agent, employee, or volunteer of the Individual Exchange connector entity may hold more than a single certification as either an Individual Exchange navigator or a certified application counselor;

(2)

All Individual Exchange connector entity grant funds must be wholly segregated from certified application counselor program funding, if applicable;

(3)

No certified application counselor may be compensated in whole or in part from Individual Exchange connector entity grant funding, and no Individual Exchange navigator may be compensated in whole or in part from application counselor program funding, if applicable; and

(4)

All utilities, computer systems, and other components of operations which are utilized jointly by both the Individual Exchange connector and application counselor programs, including executive and administrative staff, shall be cost allocated as directed by the Maryland Health Benefit Exchange and Maryland Department of Health in relation to the percentage of consumers served by the entity who are determined eligible for Maryland Medical Assistance Program/Maryland Children’s Health Program, advance premium tax credits, or cost-sharing subsidies, and who are enrolled in qualified health plans and managed care organizations.

Regulation .05 Application Procedures.Link Copy Citation

In order to obtain an application counselor sponsoring entity designation, the applicant shall submit to the Maryland Health Benefit Exchange:

(1)

An application on the form approved by the Maryland Health Benefit Exchange in consultation with the Commissioner and the Maryland Department of Health;

(2)

An attestation that the applicant will notify the Maryland Health Benefit Exchange of any changes in information the applicant provides or to which the applicant attests on the application form within 30 days of such change;

(3)

An attestation that the applicant will not impose a fee on individuals for services provided by certified application counselors employed or engaged by the applicant;

(4)

An attestation that the applicant will disclose to the Maryland Health Benefit Exchange and to individuals to whom certified application counselors employed or engaged by the applicant provide services any relationships it has with a carrier, an insurance producer, or a third-party administrator or a managed care organization that participates in the Maryland Medical Assistance Program/Maryland Children’s Health Program;

(5)

An attestation that the applicant will act in the best interest of the individuals for whom the certified application counselors employed or engaged by the applicant are authorized to provided services;

(6)

An attestation that the applicant will not receive compensation from a carrier, insurance producer, managed care organization, or a third-party administrator for application counselor services provided by certified application counselors employed or engaged by the applicant;

(7)

An attestation that the applicant will compensate employed or engaged certified application counselors in the manner approved by the Maryland Health Benefit Exchange working in consultation with the Commissioner and the Maryland Department of Health;

(8)

An attestation that the applicant will not directly or through employed or engaged certified application counselors provide monetary or other financial incentives to individuals to apply for health insurance coverage through Maryland Health Connection;

(9)

An attestation that the applicant will not receive compensation from the Maryland Health Benefit Exchange for certified application counselor services;

(10)

An attestation that the applicant will monitor the performance of its certified application counselors in accordance with the requirements set forth by the Maryland Health Benefit Exchange;

(11)

An attestation that the applicant will enforce the required agreement set forth under Regulation .03D of this chapter;

(12)

An attestation that the applicant will oversee employed or engaged certified application counselors pursuant to the oversight plan approved by the Maryland Health Benefit Exchange, in consultation with the Commissioner and the Maryland Department of Health;

(13)

An attestation that the applicant will comply with all applicable federal and State privacy and security standards, and will ensure that its certified application counselors also comply with these standards;

(14)

An attestation that the applicant will operate within its scope of authority and ensure that it and its certified application counselors comply with the requirements set forth under Regulation .04 of this chapter;

(15)

An attestation that the applicant will comply with any applicable requirements of the Maryland Department of Health and the Commissioner; and

(16)

An application fee to the extent permitted by law and in the manner specified by the Maryland Health Benefit Exchange, if applicable.

The Maryland Health Benefit Exchange may not consider an application to be complete until it has received all required materials.

If the application is not completed with all required materials within 45 days after the Maryland Health Benefit Exchange receives the signed application form, the Maryland Health Benefit Exchange may consider the application withdrawn.

The Maryland Health Benefit Exchange shall approve or deny an application within 45 days after its completion and receipt of all required materials.

Approval of an application will be contingent on the applicant’s execution of a designation agreement, in the form presented by the Maryland Health Benefit Exchange working in consultation with the Commissioner and the Maryland Department of Health.

The Maryland Health Benefit Exchange may exercise its discretion in approving an application and designating an entity as an application counselor sponsoring entity, taking into consideration:

(1)

The applicant’s ability to satisfy the requirements set forth in the application; and

(2)

The resources, oversight capacity, and needs of the Maryland Health Benefit Exchange, the Connector Program, the Maryland Insurance Administration, the Maryland Department of Health, and other outreach and enrollment efforts.

Regulation .06 Designation Term and Renewal.Link Copy Citation

Term. An application counselor sponsoring entity designation expires 2 years after the date it is issued unless it is renewed or revoked prior to that time.

Renewal.

(1)

Notice.

(a)

At least 60 days before the expiration of an application counselor sponsoring entity designation, the Maryland Health Benefit Exchange shall notify the application counselor sponsoring entity directly at the entity’s address on file, including email address, with the Maryland Health Benefit Exchange, of the expiration date of an application counselor sponsoring entity designation.

(b)

The notification shall include:

(i)

A renewal application;

(ii)

The date by which the Maryland Health Benefit Exchange must receive the renewal application for the renewal to be issued before the designation expires; and

(iii)

The amount of any renewal fee.

(2)

Eligibility for Renewal. An application counselor sponsoring entity designation may be renewed for an additional 2-year term if the holder:

(a)

Is otherwise entitled to receive application counselor sponsoring entity designation, in accordance with the eligibility requirements set forth under Regulation .03 of this chapter;

(b)

Files a timely renewal application on the form approved by the Maryland Health Benefit Exchange, either by mail or electronically; and

(c)

Pays to the Maryland Health Benefit Exchange a renewal fee to the extent permitted by law and in the manner specified by the Maryland Health Benefit Exchange.

Regulation .07 Revocation of Designation.Link Copy Citation

The Maryland Health Benefit Exchange, in consultation with the Commissioner and Maryland Department of Health, shall revoke an application counselor sponsoring entity designation for any failure to act in accordance with the application counselor sponsoring entity attestations set forth under Regulation .05A of this chapter pursuant to the procedures for withdrawal or revocation set forth under the agreement between the Maryland Health Benefit Exchange and the application counselor sponsoring entity.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 13. Application Counselor Training and Certification Standards

Regulation .01 Scope.Link Copy Citation

This chapter sets forth the qualifications, training, and certification standards for an agent, employee, or volunteer of an application counselor sponsoring entity who applies to receive an application counselor certification and is required under Insurance Article, §31-113(r)(1)(ii), Annotated Code of Maryland, to hold an application counselor certification to provide the services set forth below.

Regulation .02 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Applicant” means a community-based organization, health care provider, unit of State or local government, or other entity applying for designation as an application counselor sponsoring entity.

(2)

“Application counselor sponsoring entity” or “sponsoring entity” has the meaning set forth in Insurance Article, §31-101(a-2), Annotated Code of Maryland.

(3)

“Certified application counselor” has the meaning set forth in Insurance Article, §31-101(a-1), Annotated Code of Maryland.

(4)

“Commissioner” means the Maryland Insurance Commissioner.

(5)

“Consolidated Services Center” has the meaning set forth in Insurance Article, §31-101(c-2), Annotated Code of Maryland.

(6)

“Individual Exchange connector entity” has the meaning set forth in Insurance Article, §31-101(k), Annotated Code of Maryland.

(7)

“Individual Exchange navigator” has the meaning set forth in Insurance Article, §31-101(i), Annotated Code of Maryland.

(8)

“Insurance affordability programs” has the meaning set forth in 42 CFR §435.4.

(9)

“Maryland Health Benefit Exchange” has the meaning set forth in Insurance Article, §31-101(e), Annotated Code of Maryland.

Regulation .03 Eligibility Requirements.Link Copy Citation

To qualify for an application counselor certification, an applicant shall:

Be of good character and trustworthy;

Be at least 18 years old;

Be an agent, employee, or volunteer of an application counselor sponsoring entity;

Not be an Individual Exchange navigator;

Enter into a formal written agreement with an application counselor sponsoring entity agreeing to comply with the provisions of this chapter and 45 CFR §155.225;

Successfully complete and comply with any ongoing requirements of the training program set forth under Regulation .06 of this chapter;

Complete and submit to the Maryland Health Benefit Exchange an application counselor application set forth under Regulation .05 of this chapter;

Agree to comply with the requirements set forth in the application counselor application; and

Comply with any applicable requirements of the Maryland Department of Health and the Commissioner.

Regulation .04 Scope of Authority.Link Copy Citation

A certified application counselor may:

(1)

(2)

(3)

Facilitate plan selection and enrollment of eligible individuals in qualified health plans, qualified dental plans, and access to advance premium tax credit and other cost-sharing subsidies; and

(4)

A certified application counselor may not express a personal or professional assessment about which Maryland Medical Assistance Program/Maryland Children’s Health Program managed care organization may be most appropriate for an eligible individual, may not make a managed care organization selection on the applicant’s behalf, and may not otherwise counsel an applicant about the selection of a managed care organization.

If a Maryland Medical Assistance Program/Maryland Children’s Health Program eligible consumer seeks further counseling or additional assistance in choosing a managed care organization, a certified application counselor shall refer the consumer to the Consolidated Services Center or a local agency caseworker.

A certified application counselor may not concurrently hold an Individual Exchange navigator certification.

Regulation .05 Application Procedures.Link Copy Citation

In order to obtain an application counselor certification, the applicant shall submit to the Maryland Health Benefit Exchange:

(1)

An application, on the form approved by the Maryland Health Benefit Exchange in consultation with the Commissioner and the Maryland Department of Health;

(2)

An attestation that the applicant will notify the Maryland Health Benefit Exchange of any changes to information that the applicant provides or to which the applicant attests on the application form within 30 days of such change;

(3)

An attestation that the applicant will not impose a fee on individuals to whom the applicant provides services;

(4)

An attestation that the applicant will disclose to the Maryland Health Benefit Exchange, the application counselor sponsoring entity, and individuals to whom the applicant provides services any relationships the applicant has with a carrier, an insurance producer, a third-party administrator, or a managed care organization that participates in the Maryland Medical Assistance Program/Maryland Children’s Health Program, as well as other potential conflicts of interest;

(5)

An attestation that the applicant will act in the best interest of the individuals for whom the applicant is authorized to provide services;

(6)

An attestation that the applicant will not receive compensation from a carrier, insurance producer, managed care organization or third-party administrator for application counselor services;

(7)

An attestation that the applicant will not receive compensation from the Maryland Health Benefit Exchange;

(8)

An attestation that the applicant will accept compensation for application counselor-related duties only from its application counselor sponsoring entity, as approved by the Maryland Health Benefit Exchange in consultation with the Commissioner and the Maryland Department of Health;

(9)

An attestation that the applicant will not provide monetary or other financial incentives to individuals to apply for health insurance coverage through Maryland Health Connection;

(10)

An attestation that the applicant will comply with the oversight plan adopted by its application counselor sponsoring entity approved by the Maryland Health Benefit Exchange, in consultation with the Commissioner and the Maryland Department of Health;

(11)

An attestation that the applicant will comply with all State requirements, restrictions, and conflict of interest rules applicable to Individual Exchange navigators;

(12)

An attestation that the applicant will comply with the required agreement set forth under Regulation .03A(5) of this chapter;

(13)

An attestation that the applicant will comply with all applicable federal and State privacy and security standards;

(14)

An attestation that the applicant will operate within the applicant’s scope of authority and ensure that he or she complies with the requirements set forth under Regulation .04 of this chapter;

(15)

An attestation that the applicant will comply with any applicable requirements of the Maryland Department of Health and the Commissioner;

(16)

An application fee if permitted by law and in the manner specified by the Maryland Health Benefit Exchange; and

(17)

Evidence that the applicant has successfully completed the Maryland Health Benefit Exchange application counselor certification training program specified under COMAR 14.35.02.04A and passed the examination specified under COMAR 14.35.02.04D.

The Exchange may not consider an application to be complete until it has received all required materials.

Regulation .06 Training Requirements.Link Copy Citation

In order to obtain application counselor certification, an individual shall meet the training and examination requirements specified under COMAR 14.35.02.04.

Regulation .07 Term.Link Copy Citation

An application counselor certification expires 2 years after the date it is issued unless it is renewed.

Regulation .08 Renewal.Link Copy Citation

Notice.

(1)

At least 60 days before the expiration of an application counselor certification, the Maryland Health Benefit Exchange shall notify the application counselor using the address on file, including email address, with the Maryland Health Benefit Exchange, of the expiration date of an application counselor certification.

(2)

The notification shall include:

(a)

A renewal application;

(b)

The date by which the Maryland Health Benefit Exchange must receive the renewal application for the renewal to be issued before the certification expires; and

(c)

The amount of any renewal fee.

Eligibility for Renewal. An application counselor certification may be renewed for an additional 2-year term if the holder:

(1)

Is otherwise entitled to receive application counselor certification, in accordance with the eligibility requirements set forth under Regulation .03 of this chapter;

(2)

Files a timely renewal application on the form approved by the Maryland Health Benefit Exchange, either by mail or electronically;

(3)

Pays to the Maryland Health Benefit Exchange a renewal fee to the extent permitted by law and in the manner specified by the Maryland Health Benefit Exchange; and

(4)

Has completed the education requirements set forth under COMAR 14.35.03.02B(4), 14.35.03.02C, and 14.35.03.02D, where determined to be applicable by the Maryland Health Benefit Exchange.

Regulation .09 Suspension or Revocation.Link Copy Citation

The Commissioner may suspend or revoke an application counselor certification for any reason set forth under Insurance Article, §31-113(l)(1), Annotated Code of Maryland, made applicable to application counselors pursuant to Insurance Article, §31-113(r), Annotated Code of Maryland, or for any reason set forth under 45 CFR §155.225.

An application counselor’s certification is automatically suspended if his or her application counselor sponsoring entity’s designation expires or is withdrawn by the Maryland Health Benefit Exchange.

An application counselor’s certification that has been suspended under §B of this regulation may be reinstated if the application counselor becomes an agent, employee, or volunteer of another application counselor sponsoring entity with a valid designation and executes the agreement required under Regulation .03A(5) of this chapter.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 14. Termination, Cancellation, and Rescission of Qualified Health Plan

Regulation .01 Scope.Link Copy Citation

This chapter describes the events that may result in the termination, cancellation, or rescission of the enrollment of an individual enrolled in a QHP through the Individual Exchange.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Cancellation” means an action that ends a qualified individual's enrollment through the Exchange on the date such enrollment became effective resulting in enrollment through the Exchange never having been effective.

(2)

“Product” has the meaning stated in Insurance Article, §15-1309(a)(3)(i), Annotated Code of Maryland.

(3)

“Reinstatement” means a correction of an erroneous termination or cancellation action that results in restoration of an enrollment with no break in coverage.

(4)

“Same QHP policy” means that one enrollee is enrolled under the same QHP contract as another enrollee.

(5)

“Termination” means an action taken after a coverage effective date that ends an enrollee's enrollment through the Exchange for a date after the original coverage effective date resulting in a period during which the individual was enrolled in coverage through the Exchange.

Regulation .03 Terminations in General.Link Copy Citation

An enrollee who is the contract holder of a QHP who terminates enrollment in a QHP also terminates the enrollment of the other enrollees in the household.

Each enrollee, who is not the contract holder, may terminate enrollment in a QHP without affecting the enrollment status of the enrollee’s household or each individual member of the enrollee’s household other than the enrollee.

A carrier shall process a request from the contract holder of a QHP to terminate coverage under Regulation .04 of this chapter for all enrollees promptly and without undue delay.

A carrier shall process the Exchange’s termination determination under Regulation .06 of this chapter promptly and without undue delay.

A carrier shall maintain records of termination of enrollment in a QHP in the format specified by the Exchange in an electronic data interchange format for a period of 10 years.

A carrier shall make reasonable accommodations for all individuals with disabilities (as defined by the Americans with Disabilities Act), including head-of-household and non-head-of-household enrollees, before terminating the individual's enrollment.

A carrier shall send an electronic transaction to the Exchange documenting, or acknowledging, each termination of coverage carried out under this chapter, promptly and without undue delay.

In cases of retroactive termination dates, the carrier shall accept the Exchange’s adjusted calculations of APTC, and premiums and changes to the plan variation of the QHP.

A carrier shall confirm the termination of an enrollee’s coverage with a notice provided to the contract holder indicating the enrollees affected by the termination and the effective date of the termination.

Regulation .04 Enrollee-Initiated Terminations — In General.Link Copy Citation

An enrollee may terminate the enrollee’s coverage in a QHP at any time within a month for a termination effective at the end of the month.

An enrollee may request a termination of the enrollee’s coverage in a QHP by providing notice to the Exchange or the enrollee’s QHP carrier as follows:

(1)

Enrollees seeking to terminate coverage for an enrollee or enrollees on a QHP shall provide notice to the Exchange; and

(2)

Enrollees seeking to terminate coverage for the enrollee’s household may notify either the Exchange or the QHP carrier.

Date of Terminations. If the enrollee provides notice to the Exchange or the carrier on any day within the month, the date of termination is the end of the month.

If an enrollee terminates coverage in one QHP because the enrollee elects enrollment in a different QHP, coverage in the original qualified health plan ends at midnight the day before the effective date of coverage in the enrollee’s new QHP.

Death.

(1)

In the case of a termination due to death, the last day of enrollment in a QHP through the Exchange is the date of death.

(2)

Any applicable premium refund, or premium due, shall be processed by the deceased enrollee's QHP in accordance with State law.

(3)

Notice of the enrollee’s death may be provided to the Exchange or the deceased enrollee’s QHP by:

(a)

The policyholder under COMAR 31.10.01.02B(7), or subscriber under COMAR 31.12.02.02B(11), of the deceased enrollee’s QHP;

(b)

An enrollee who is 18 years or older and enrolled in the same QHP policy of the deceased enrollee; or

(c)

The authorized representative of an enrollee under COMAR 14.35.11.14.

Retroactive Terminations.

(1)

An enrollee may retroactively terminate or cancel the enrollee's coverage or enrollment in a QHP when the enrollee:

(a)

Demonstrates to the Exchange that the enrollee enrolled in Medicare Part A or B coverage with a retroactive effective date; and

(b)

Requests retroactive termination of QHP coverage within 60 days of the enrollment.

(2)

The effective date of the retroactive termination must be no earlier than the later of the day before the first day of coverage under Medicare Part A or B, and the day that is 6 months before the retroactive termination in QHP coverage is requested.

(3)

A retroactive termination date as described in this section is not available for enrollments in stand-alone dental plans.

Regulation .05 Enrollee-Initiated Terminations — Due to Error, Misconduct, or Enrollment without Knowledge or Consent.Link Copy Citation

An enrollee may retroactively terminate the enrollee’s coverage when:

(1)

The enrollee attempted to terminate the enrollee’s coverage and the enrollee experienced a technical error that did not allow the enrollee to terminate the enrollee’s coverage;

(2)

The enrollee’s enrollment in a QHP through the Exchange was unintentional, inadvertent, or erroneous and was the result of the error or misconduct of an officer, employee, or agent of the Exchange, its instrumentalities, or a non-Exchange entity providing enrollment assistance or conducting enrollment activities; or

(3)

The enrollee was enrolled in a QHP without the enrollee’s knowledge or consent by any third party, including third parties who have no connection with the Exchange.

Misconduct under §A(2) of this regulation means the failure of an officer, employee, or agent of the Exchange, its instrumentalities, or a non-Exchange entity providing enrollment assistance or conducting enrollment activities to comply with applicable standards under COMAR 14.35.14 or other applicable State or federal laws as determined by the Exchange.

Except as specified in §D of this regulation, the enrollee shall request termination under §A of this regulation by notifying the Exchange of the request:

(1)

Within 60 days of discovering the technical error under §A(1) of this regulation;

(2)

Within 60 days of discovering the unintentional, inadvertent, or erroneous enrollment under §A(2) of this regulation; or

(3)

Within 60 days of discovering the enrollment under §A(3) of this regulation.

If the enrollee discovers an enrollment under §A of this regulation in the previous calendar year, the enrollee shall request termination under §A of this regulation by notifying the Exchange of the request by the end of March the calendar year immediately following the calendar year with the enrollment under §A of this regulation.

Notification to the Exchange under §§C and D of this regulation shall be satisfied if the enrollee provides notice:

(1)

To an Exchange-certified navigator, an Exchange-authorized broker, or an Exchange-certified consolidated service center representative; and

(2)

Using any of the methods of communication listed under COMAR 14.35.07.03B.

The effective date of the termination under §A of this regulation shall be:

(1)

For a retroactive termination under §A(1) of this regulation, no later than the end of the month when the enrollee contacted the Exchange to request termination of the enrollee’s enrollment through the Exchange; and

(2)

For a retroactive termination under §A(2) or (3) of this regulation:

(a)

The original coverage effective date; or

(b)

A later date, as determined appropriate by the Exchange, based on the circumstances of the termination.

Regulation .06 Termination by the Exchange.Link Copy Citation

A carrier shall terminate an enrollee’s coverage in a qualified health plan upon receiving an electronic data transaction from the Exchange directing that the enrollee’s coverage be terminated.

The Exchange shall direct the carrier to terminate an enrollee’s enrollment in a QHP if:

(1)

The enrollee is no longer eligible for coverage in a QHP through the Exchange;

(2)

The enrollee requests termination under Regulations .04 and .05 of this chapter;

(3)

The enrollee’s coverage is rescinded under 45 CFR §147.128;

(4)

The QHP terminates or is decertified under 45 CFR §155.1080;

(5)

The Exchange determines that:

(a)

An enrollee was enrolled in a QHP without the enrollee’s knowledge or consent by a third party, including by a third party with no connection with the Exchange; and

(b)

Where possible, the Exchange has provided reasonable notice to the enrollee of the Exchange’s determination;

(6)

The enrollee changes from one QHP to another QHP during an annual open enrollment period under COMAR 14.35.07.11A(1) or a special enrollment period under COMAR 14.35.07.12—.19; and

(7)

The enrollee moves outside of the service area under 45 CFR §155.430(b)(2)(vii) in reference to 45 CFR §147.106(b)(5).

If the enrollee becomes eligible for other minimum essential coverage but does not request termination in accordance with Regulation .04 of this chapter at the time of plan renewal, the enrollee may choose to remain enrolled in a QHP without the provision of financial assistance through APTC or CSR payments.

If the enrollee does not choose to remain enrolled in the QHP through the Exchange when the enrollee becomes eligible for other minimum essential health coverage under §C of this regulation, the Exchange shall initiate termination of the enrollee’s coverage upon completion of the redetermination process specified in 45 CFR §155.330.

Upon termination by the Exchange, the last day of coverage by a QHP is:

(1)

The last day of the enrollee’s eligibility, if the Exchange determines an enrollee to be no longer eligible for coverage in a QHP through the Individual Exchange;

(2)

The last day of the coverage month in which coverage is rescinded, if the enrollee’s coverage is rescinded in accordance with 45 CFR §147.128;

(3)

The last day of the coverage month in which the QHP is terminated or decertified, if the QHP terminates or, as described in 45 CFR §155.1080, is decertified;

(4)

The last day of the coverage month in which the enrollee is determined newly eligible for enrollment in Medicaid or MCHP, if the enrollee chooses to terminate the QHP;

(5)

The day before the first day of enrollment in the new QHP if an enrollee terminates coverage in a previous QHP and selects a new QHP during an annual open enrollment period under COMAR 14.35.07.11A(1) or a special enrollment period under COMAR 14.35.07.12—.19;

(6)

The original coverage effective date for a cancellation under §B(5) of this regulation;

(7)

The date of death, if the enrollee is terminated because of the enrollee’s death; or

(8)

The day before the change in the enrollee’s circumstance if the enrollee is terminated because of a circumstance where the enrollee could not have prevented the disruption of the QHP enrollment.

For an enrollee’s dependent turning age 26, the carrier may not terminate coverage of the dependent before the end of the coverage year in which the dependent reaches age 26.

Regulation .07 Termination by Carrier.Link Copy Citation

A carrier may only terminate an individual’s coverage in a QHP before receiving an instruction from the Exchange to terminate coverage:

(1)

If the enrollee requests termination of the enrollee’s enrollment to the carrier, and the termination follows the procedures in Regulation .04 of this chapter;

(2)

If the enrollee’s coverage is rescinded under 45 CFR §147.128;

(3)

If the carrier is decertified by the Exchange under COMAR 14.35.16.11;

(4)

If the carrier ceases to offer the QHP that an enrollee is enrolled in through the Exchange under 45 CFR §147.106(b)(4) and the carrier follows the requirements under 45 CFR §147.106(c);

(5)

If the carrier ceases to offer any QHPs through the Exchange under 45 CFR §147.106(b)(4) and the carrier follows the requirements under 45 CFR §147.106(d);

(6)

If the enrollee has performed an act or practice that constitutes fraud or intentional misrepresentation of material fact in connection with the coverage under 45 CFR §147.106(b)(2); or

(7)

For nonpayment of premiums as specified in §B of this regulation.

Termination for Nonpayment.

(1)

A carrier may terminate coverage for nonpayment of premium if the enrollee has not made applicable premium payments and at the time the enrollee first fails to pay premiums:

(a)

The enrollee is receiving APTC, and the 3-month grace period under Insurance Article, §15-1315(c)—(e), Annotated Code of Maryland, has been exhausted; or

(b)

The enrollee is not receiving APTC and all other applicable grace periods under State law have been exhausted.

(2)

A carrier may not terminate coverage for failure to make a premium payment if:

(a)

Through a renewal of the plan under 45 CFR §155.335, the enrollee maintains coverage in the same QHP or same product that is a uniform modification of coverage under Insurance Article, §15-1309(a)(4), Annotated Code of Maryland; and

(b)

The applicable grace period has not been exhausted under:

(i)

Insurance Article, §15-1315(c)—(e), Annotated Code of Maryland; or

(ii)

Another applicable grace period under State law if the enrollee is not receiving APTC.

(3)

The last day of coverage is:

(a)

The last day of the first month of the 3-month grace period when terminating an individual after exhaustion of the 3-month grace period for individuals receiving APTC; and

(b)

31 days after the missed premium payment was due when terminating an individual after the exhaustion of any other applicable grace period.

Notice of Non-Payment of Premiums. If an enrollee is delinquent on premium payment, the carrier shall provide the enrollee with notice of such payment delinquency. A carrier shall provide such notices promptly and without undue delay, within 10 business days of the date the issuer should have discovered the delinquency.

Regulation .08 Cancellation.Link Copy Citation

An individual’s enrollment in a QHP may be canceled only if:

(1)

The enrollee requests voluntary cancellation of the enrollee’s enrollment to the Exchange or the carrier under §C of this regulation;

(2)

The enrollee’s coverage is rescinded under 45 CFR §147.128; or

(3)

The enrollee does not provide the first month’s premium required to effectuate an enrollment by the due dates set forth at COMAR 14.35.07.11F.

To request cancellation of the individual’s enrollment under §A of this regulation, the individual shall notify the Exchange or the carrier of the request to cancel before or on the last day of the month prior to the date the coverage begins.

An enrollee may retroactively cancel the enrollee’s coverage if:

(1)

The enrollee attempted to cancel the enrollee’s coverage and the enrollee experienced a technical error that did not allow the enrollee to cancel the enrollee’s coverage;

(2)

(3)

The enrollee was enrolled in a QHP without the enrollee’s knowledge or consent by any third party, including third parties who have no connection with the Exchange.

Misconduct under §C(2) of this regulation means the failure of an officer, employee, or agent of the Exchange or HHS, its instrumentalities, or a non-Exchange entity providing enrollment assistance or conducting enrollment activities to comply with applicable standards under COMAR 14.35.14 or other applicable State or federal laws as determined by the Exchange.

Except as specified in §F of this regulation, the enrollee shall request cancellation under §C of this regulation by notifying the Exchange of the request:

(1)

Within 60 days after the enrollee discovered the technical error under §C(1) of this regulation;

(2)

Within 60 days of discovering the unintentional, inadvertent, or erroneous enrollment under §C(2) of this regulation; or

(3)

Within 60 days of discovering of the enrollment under §C(2) of this regulation.

If the enrollee discovers an enrollment under §C of this regulation in the previous calendar year, the enrollee shall request termination under §C of this regulation by notifying the Exchange of the request by the end of March in the calendar year immediately following the calendar year with the enrollment under §C of this regulation.

Notification to the Exchange under §§E and F of this regulation shall be satisfied if the enrollee provides notice:

(1)

To an Exchange-certified navigator, an Exchange-authorized broker or an Exchange-certified consolidated service center representative; and

(2)

Using any of the methods of communication listed under COMAR 14.35.07.03B.

The effective date of the cancellation under §C of this regulation shall be:

(1)

For a retroactive cancellation under §C(1) or (2) of this regulation:

(a)

The day before the original coverage effective date; or

(b)

A later date, as determined appropriate by the Exchange, based on the circumstances of the cancellation; and

(2)

For a retroactive cancellation under §C(3) of this regulation, the day before the original coverage effective date.

Regulation .09 Reinstatement.Link Copy Citation

An individual’s enrollment shall be reinstated:

(1)

If applicable, under QHP provisions required by COMAR 31.10.25.04;

(2)

If the Exchange determines an error was made by the Exchange that led to an improper termination or cancellation;

(3)

If the carrier determines an error was made by the carrier that led to an improper termination or cancellation; or

(4)

If the Exchange is ordered to reinstate the enrollee by the Maryland Insurance Administration, Office of Administrative Hearings, or a State or federal court.

If the carrier erroneously terminates or cancels an enrollee’s coverage, including if the coverage was terminated or canceled for non-payment of premiums, a carrier shall process a reinstatement transaction from the Exchange.

Regulation .10 Sanctions.Link Copy Citation

A carrier that fails to follow the requirements of this chapter may:

Be denied certification as an authorized carrier;

Be denied certification for a QHP offered for sale by the carrier on the Individual Exchange;

Have the carrier’s certification suspended or revoked;

Have the certification for a QHP offered for sale by the carrier on the Exchange suspended or revoked; or

Be subject to other penalties under Insurance Article, §31-115(k), Annotated Code of Maryland, and COMAR 14.35.16.11.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 15. Carrier Certification Standards

Regulation .01 Scope.Link Copy Citation

This chapter describes the standards a carrier shall meet to be certified as a carrier authorized to participate on the Maryland Health Benefit Exchange under Insurance Article, §31-115(b)(5), Annotated Code of Maryland, in the Individual and SHOP Exchanges. This chapter does not apply to certification of Individual or SHOP Exchange qualified plans.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Active carrier business agreement” means the most recent version of the carrier business agreement provided by the Exchange, signed by the Exchange and the carrier, and on file with the Exchange.

(2)

“Active non-exchange entity agreement” means the most recent version of the non-exchange entity agreement provided by the Exchange, signed by the Exchange and the carrier, and on file with the Exchange.

(3)

“Authorized carrier” means a carrier that holds a current certification of authorization issued by the Exchange as set forth in Regulation .03 of this chapter.

(4)

“Carrier business agreement” means the agreement between the Exchange and the carrier that contains terms and conditions governing compliance with the Annotated Code of Maryland, Exchange policies, and State and federal regulations.

(5)

“Carrier reference manual” means the document developed by the Exchange that provides business rules and operational instructions to authorized carriers participating on the Exchange.

(6)

“Health maintenance organization (HMO)” has the meaning stated in Health-General Article, §19-701(g), Annotated Code of Maryland.

(7)

“Member” means a qualified individual or qualified employee enrolled in a QHP with a particular authorized carrier through the Exchange.

(8)

Member Level Report.

(a)

“Member level report” means a report of the carrier's QHP member enrollment files with the Exchange at a specified time.

(b)

“Member level report” includes:

(i)

Information demonstrating the member enrolled through the Exchange;

(ii)

The coverage effective date;

(iii)

The coverage termination date, if applicable;

(iv)

The termination reason, if applicable;

(v)

The premium amount; and

(vi)

The amount of advanced premium tax credits, if applicable.

(9)

“Metal level” means a QHP at the bronze, silver, gold, or platinum coverage level.

(10)

“Non-exchange entity agreement” means the agreement between the Exchange and the carrier that contains privacy and security provisions.

(11)

“SERFF binder” means the portfolio of information that State laws and regulations require carriers to submit to the Exchange through SERFF.

(12)

“System companion guide” means the document developed by the Exchange that provides instructions to authorized carriers to process enrollment information through electronic data transactions between the Exchange and the carrier.

(13)

“System for Electronic Rate and Form Filing (SERFF)” means the online system the Exchange and the Administration use to accept, review, and approve carrier product and rate filings.

Regulation .03 Carrier Conditions for Participation and Certification — Generally.Link Copy Citation

In order to participate in the Exchanges, carriers must hold a current certificate of authorization issued by the Exchange.

To receive a certificate of authorization from the Exchange, carriers shall:

(1)

Possess a certificate of authority to:

(a)

Act as an insurer and engage in the business of health insurance under Insurance Article, Title 4, Subtitle 1, Annotated Code of Maryland;

(b)

Operate a health maintenance organization under Health-General Article, §19-707, Annotated Code of Maryland;

(c)

Operate as a dental plan organization under Insurance Article, Title 14, Subtitle 4, Annotated Code of Maryland; or

(d)

Operate as a nonprofit health service plan under Insurance Article, §14-108, Annotated Code of Maryland;

(2)

If offering health plans, demonstrate evidence that the carrier:

(a)

Is accredited by the National Committee for Quality Assurance (NCQA) or the Utilization Review Accreditation Commission (URAC); and

(b)

Meets data sharing requirements with the Exchange under the federal accreditation standard at 45 CFR §156.275(c)(5);

(3)

Have a current active carrier business agreement in place, in the form designated by the Exchange;

(4)

Have a current active non-Exchange entity agreement in place, in the form designated by the Exchange; and

(5)

By submitting its application, agree that it will:

(a)

Retain records related to participation in the Exchange for a period of 10 years after participation in the Exchange has ceased; and

(b)

Allow reasonable inspection by the Exchange and, to the extent required by law, other governmental entities including HHS.

The carrier shall remain an authorized carrier until:

(1)

The certificate of authorization expires;

(2)

The Exchange suspends or revokes the authorized carrier’s certification;

(3)

The authorized carrier discontinues offering health benefit plans in the Exchange under Insurance Article, §§15-1212 and 15-1308, Annotated Code of Maryland; or

(4)

The authorized carrier loses its certificate of authority to act as a carrier in the State of Maryland.

When an authorized carrier that offers one or more qualified plans in the Exchange merges into or is acquired by another entity and the merger or acquisition is approved by the Commissioner, the authorized carrier shall:

(1)

Notify the Exchange of the change in a manner to be specified by the Exchange;

(2)

Provide the legal name and Taxpayer Identification Number of the new entity and the effective date of the change at least 30 days prior to the effective date of the merger or acquisition;

(3)

Be deemed to adhere to the requirements of this chapter for the remainder of the affected benefit year; and

(4)

Complete any required modifications to interfaces with the Exchange without undue delay such that operations with the Exchange are not affected or interrupted.

Regulation .04 Application for Authorization.Link Copy Citation

Carriers shall submit an application to the Exchange each year, in the form specified by the Exchange, no later than the first business day of July of the year before the certification is effective.

An application will not be deemed complete until a carrier submits all of the required application elements under §A of this regulation.

The Exchange, within 45 days of receipt of a completed application, shall notify a carrier of the decision to approve or deny the application.

If the Exchange does not provide a carrier notice of a decision to approve or deny a carrier’s application within 45 days of application submission, then the carrier may appeal to MHBE Board of Trustees through a written letter to request an expedited decision within 14 days of the appeal.

An application subject to an expedited decision under §D of this regulation shall be deemed denied by the Exchange if the appeal is not ruled upon by the Board within 14 days.

Regulation .05 Conditions for Participation—Authorized Carrier Conduct.Link Copy Citation

An authorized carrier may not discriminate on the basis of race, color, national origin, disability, age, sex, gender identity, or sexual orientation in the administration of a qualified plan.

An authorized carrier shall offer insurance producer compensation for qualified plans offered through the Exchange equal to insurance producer compensation for qualified plans offered outside of the Exchange.

An authorized carrier shall comply with any applicable State laws and regulations regarding marketing by carriers, including:

(1)

Any fair marketing standards developed jointly by the Exchange and the Commissioner under Insurance Article, §31-115(k)(2)(x), Annotated Code of Maryland;

(2)

Insurance Article, §§27-202—27-205, Annotated Code of Maryland, for insurers, nonprofit health service plans, and dental plan organizations; and

(3)

Health-General Article, §19-729, Annotated Code of Maryland, for health maintenance organizations.

An authorized carrier and its officials, employees, agents, and representatives:

(1)

Shall comply with any applicable State laws and regulations regarding marketing by carriers;

(2)

Shall offer plans and plan variations with marketing names that include correct information, without omission of material fact, and do not include content that is misleading; and

(3)

May not employ marketing practices or benefit designs that will have the effect of discouraging the enrollment of individuals with significant health needs in qualified plans.

An authorized carrier shall allow all qualified individuals and qualified employees to enroll in qualified health plans during open enrollment periods designated by the Exchange for the Individual Exchange or the employer for the SHOP Exchange.

An authorized carrier shall allow qualified individuals and qualified employees determined eligible for special enrollment periods by the Exchange to enroll in qualified health plans outside the open enrollment periods.

An authorized carrier shall implement the effective dates of coverage for the Individual Exchange established by the Exchange in accordance with COMAR 14.35.07 and COMAR 14.35.14.14 as specified in enrollment information received from the Exchange.

An authorized carrier shall terminate an enrollee’s coverage in the Individual Exchange only in those circumstances permitted by COMAR 14.35.14.

An authorized carrier shall process and acknowledge enrollment and eligibility information transmitted from the Exchange in accordance with Exchange standards detailed in the System Companion Guide.

An authorized carrier shall reconcile enrollment and eligibility information with the Exchange no less than once a month and upon request of the Exchange in a form and manner designated by the Exchange and detailed in the system companion guide.

An authorized carrier shall provide a member level report to the Exchange no less than once per month, upon request of the Exchange, and in a form and manner designated by the Exchange and detailed in the system companion guide.

An authorized carrier shall notify the Exchange 60 days in advance of a carrier system or data change that may affect the transmission or receipt of data from the Exchange to the carrier.

If an applicant initiates enrollment directly with the authorized carrier for enrollment through the Individual Exchange, the authorized carrier shall direct the individual to file an application through the Individual Exchange.

An authorized carrier shall accept and process an enrollment for a qualified individual or qualified employee that does not include a Social Security number.

Designation of Plans for Re-Enrollment.

(1)

If a carrier terminates a plan in accordance with 45 CFR 147.106(c), the carrier shall submit to the Exchange a template that designates a plan that is an appropriate substitute for the plan that will no longer be available in the next plan year.

(2)

The substitute plan designated by the carrier shall be determined in accordance with COMAR 14.35.07.23C.

Regulation .06 Conditions for Participation — Individual Exchange Premium Payment.Link Copy Citation

An authorized carrier shall follow the premium payment procedures and deadlines under COMAR 14.35.07.11F.

An authorized carrier may establish a premium payment threshold policy under COMAR 14.35.07.11G.

An authorized carrier may not use a payment made to effectuate coverage under COMAR 14.35.07.11F(1) to pay outstanding balances attributed to previously terminated coverage of the qualified individual.

An authorized carrier in the Individual Exchange shall calculate that the premium for coverage lasting less than 1 month equals the product of:

(1)

The premium for 1 month of coverage divided by the number of days in the month; and

(2)

The number of days for which coverage is being provided in the month.

An authorized carrier shall accept premium and cost-sharing payments from the following third-party entities:

(1)

Ryan White HIV/AIDS Program under Title XXVI of the Public Health Service Act;

(2)

Indian tribes, tribal organizations, or urban Indian organizations; and

(3)

State and federal government programs.

Establishment of Standard Policies for Termination of QHPs Due to Non-payment of Premiums.

(1)

An authorized carrier shall establish a standard policy for termination of enrollment of enrollees through the Exchange due to non-payment of premiums under COMAR 14.35.14.06B.

(2)

The authorized carrier’s standard policy shall:

(a)

Include the grace period for enrollees receiving Advanced Premium Tax Credits set forth in Insurance Article, §15-1315(c)—(e), Annotated Code of Maryland;

(b)

Include the grace period for enrollees not receiving an Advanced Premium Tax Credit set forth in Insurance Article, §15-209, Annotated Code of Maryland, COMAR 31.10.25.04C, and COMAR 31.12.07.05D;

(c)

Be applied uniformly to enrollees in similar circumstances;

(d)

Specify whether the authorized carrier has a premium payment threshold policy under COMAR 14.35.07.11G; and

(e)

If the carrier has a premium payment threshold policy, specify the authorized carrier’s premium payment threshold policy.

Location of Premium Payment Information.

(1)

An authorized carrier shall make information available to enrollees through an Internet link that is displayed prominently in the enrollee’s authorized carrier’s monthly premium payment billing notice.

(2)

This information shall be available on:

(a)

The authorized carrier’s enrollee website;

(b)

The authorized carrier’s enrollee Internet portal; and

(c)

Upon request by an enrollee.

Regulation .07 Conditions for Participation — Individual Exchange Carrier Notice Requirements.Link Copy Citation

An authorized carrier shall provide enrollees newly effectuating coverage an enrollment information package that is written in plain language and in a manner that is accessible to individuals living with disabilities and individuals who have limited English proficiency.

If an enrollee is delinquent on premium payment, the carrier shall provide the enrollee with notice of such payment delinquency.

If an authorized carrier terminates an enrollee's coverage or enrollment in a qualified plan through the Exchange in accordance with COMAR 14.35.14 and 45 CFR §155.430(b)(2)(i), (ii), or (iii), the authorized carrier shall, promptly and without undue delay provide the enrollee with a notice of termination that includes:

(1)

The termination effective date; and

(2)

The reason for termination.

An authorized carrier shall follow all other carrier notice requirements under Insurance Article, Titles 15 and 31, Annotated Code of Maryland, pertaining to the individual and small group Exchanges, and 45 CFR Parts 147, 154, 155, and 156.

Regulation .08 Requirements for Qualified Plans.Link Copy Citation

The authorized carrier shall offer in the Exchange only plans that the Exchange certifies as qualified plans under COMAR 14.35.16.

The authorized carrier shall ensure that each of its plans comply with the plan certification requirements in COMAR 14.35.16 on an ongoing basis.

An authorized carrier shall offer no more than:

(1)

Four benefit designs per metal level in the Individual Exchange and four benefit designs per metal level in the SHOP Exchange in plan year 2024 and prior plan years; and

(2)

Three benefit designs per metal level in the Individual Exchange and four benefit designs per metal level in the SHOP Exchange beginning in plan year 2025.

An authorized carrier offering stand-alone dental plans shall offer no more than one benefit design at the same actuarial value per network type.

As set forth in Insurance Article, §31-115(b)(5), Annotated Code of Maryland, the authorized carrier:

(1)

Shall offer in each Exchange, the Individual and the SHOP, in which the authorized carrier participates, at least one qualified health plan:

(a)

At a bronze coverage level;

(b)

At a silver coverage level; and

(c)

At a gold coverage level;

(2)

If the authorized carrier participates in the Individual Exchange and offers any health benefit plan in the individual market outside the Exchange, shall offer at least one qualified health plan at the silver level and one at the gold level in the individual market outside the Exchange;

(3)

Shall charge the same premium rate for the same qualified health plan regardless of whether the qualified health plan is offered through the Exchange, through an insurance producer outside the Exchange, or directly from a carrier;

(4)

May not vary rates for a SHOP qualified employer during the employer's plan year; and

(5)

Shall comply with the prohibition on cancellation fees and penalties for termination of coverage, as set forth in the Insurance Article, §31-108(d), Annotated Code of Maryland.

Regulation .09 Network Adequacy.Link Copy Citation

For each qualified plan that the authorized carrier seeks to offer for sale through the Individual Exchange or the SHOP Exchange, the authorized carrier shall:

Follow the Maryland Insurance Administration network adequacy and network reporting regulations set forth under COMAR 31.10.44 or COMAR 31.10.45;

Complete an attestation in the carrier application under Regulation .04 of this chapter indicating carrier compliance with COMAR 31.10.44 or COMAR 31.10.45; and

Submit a document providing consumers with information on the carrier’s network that is suitable for publishing in qualified plan shopping in the Individual Exchange in a form and manner detailed by the Individual Exchange.

Regulation .10 Waiver Authority.Link Copy Citation

The Exchange, with the approval of the Exchange Board of Trustees, and for reasons solely within the discretion of the Exchange, may grant a waiver to a specific provision of the application for certification, with or without conditions.

A waiver may only be granted to the extent it does not conflict with the provisions of Insurance Article, Annotated Code of Maryland, or applicable federal and State law.

A carrier may submit a request for a waiver on a form developed by the Exchange.

Carriers who are newly seeking accreditation from outside entities and have not yet received such accreditation by the Exchange’s application deadline should use the waiver process to seek waiver or modification of this condition.

The request shall state:

(1)

The provision from which a waiver is sought;

(2)

The reason the carrier is unable to comply with the provision; and

(3)

The reason that compliance with the provision will impose a substantial hardship.

The Exchange may grant a waiver if:

(1)

The Exchange determines that compliance with the provision from which the waiver is sought cannot be accomplished without substantial hardship;

(2)

The waiver will not conflict with applicable State and federal law; and

(3)

The waiver is in the best interests of the State.

Final Written Decisions on Requests for Waivers.

(1)

The Exchange shall issue a final written decision on a request for a waiver that is submitted under §A of this regulation within 45 days from receipt of the request and all supporting information for the waiver by the Exchange.

(2)

If the Exchange grants a waiver, the decision shall include:

(a)

The duration of the waiver; and

(b)

Any conditions imposed by the Exchange.

(3)

A request for a waiver may be denied if:

(a)

The Exchange determines that the conditions of §D of this regulation are not satisfied;

(b)

A waiver is not in the best interests of the State; or

(c)

The waiver will conflict with applicable State or federal laws.

(4)

A denial may not be appealed.

(5)

The Exchange shall notify the carrier of the decision by mail or electronically.

The Exchange may revoke a waiver if it appears that the reasons for granting the waiver have ceased to exist.

The Exchange’s decision and the request for waiver shall be subject to public disclosure.

Regulation .11 Authorization Renewals.Link Copy Citation

The Exchange shall review the performance of authorized carriers on an annual basis.

Authorized carriers shall submit information in a form and manner required by the Exchange about Exchange-specific complaints and grievances, upon request.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 16. Plan Certification Standards

Regulation .01 Scope.Link Copy Citation

This chapter describes the standards a qualified health plan shall meet in order to be certified as a QHP by the Maryland Health Benefit Exchange under Insurance Article, §31-115, Annotated Code of Maryland. This chapter addresses standards for QHP certification for both the Individual and SHOP Exchanges, unless otherwise noted. Standards for carrier certification for the Exchange are addressed in COMAR 14.35.15. This chapter does not address plan certification standards for QDPs or QVPs.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

Annual Letter to Issuers.

(a)

“Annual Letter to Issuers” means a written communication, issued by the Exchange, which should be interpreted in the same manner as the Annual Letter to Issuers that is distributed by the federally facilitated Exchange.

(b)

“Annual Letter to Issuers” includes instruction on how issuers shall meet compliance with QHP certification standards, establishes timelines on implementation, details Exchange expectations of issuer compliance with such certification standards, and alerts issuers of policy developments.

(2)

“Essential community provider” means:

(a)

An essential community provider as defined in 45 CFR §156.235(c);

(b)

A local health department;

(c)

An outpatient mental health center, as described in COMAR 10.21.20, or a substance use disorder treatment provider, as described in COMAR 10.09.80.03B(1) and (3), that is licensed or approved by the State Department of Health and Mental Hygiene as a program or facility; or

(d)

A school-based health center.

(3)

“Similarly situated” means alike in all relevant ways.

Regulation .03 Qualified Health Plan Certification — In General.Link Copy Citation

An authorized carrier shall apply for a certificate of authorization for each health benefit plan the carrier intends to offer on the Exchange.

The authorized carrier shall no longer offer a QHP on the Exchange, if:

(1)

The plan’s certification of authorization expires;

(2)

The plan is decertified by the Exchange;

(3)

The carrier elects to withdraw from the market with the Exchange, under 45 CFR §156.290; or

(4)

The carrier elects not to offer or renew the QHP on the Exchange in accordance with Insurance Article, Annotated Code of Maryland.

With respect to per-member premium rating for family coverage offered through a QHP on the Exchange, a carrier shall cap the premium rating for non-spousal dependents at three non-spousal dependents under the age of 21 for all plans authorized for sale under this chapter.

Regulation .04 Qualified Health Plan Certification — Application.Link Copy Citation

Each authorized carrier shall annually submit an application, in a form specified by the Annual Letter to Issuers, for each health benefit plan intended to be certified as a QHP to be offered on the Exchange.

A carrier shall submit a completed application, including all required information and submissions under this regulation, to the Exchange.

The Exchange shall notify a carrier of the application status within 45 days of receipt of a completed application.

If an application is determined incomplete, the Exchange shall notify a carrier of the application status within 45 days of the initial submission.

Information Submission.

(1)

An authorized carrier shall submit an initial submission containing the information required under §§E and F of this regulation and Regulations .04—.10 of this chapter as part of the application under §B of this regulation and detailed through the Annual Letter to Issuers.

(2)

If requested by the Exchange, an authorized carrier shall submit a supplement to its initial submission under §E(1) of this regulation.

In accordance with Insurance Article, §31-115(g)(2), Annotated Code of Maryland, upon request, an authorized carrier shall provide in its application a description of the health benefit plan, in plain language and in a form specified by the Annual Letter to Issuer, that includes:

(1)

Claims payment policies and practices;

(2)

Data on enrollment, disenrollment, number of claims denied (including in whole and in part), and rating practices, if applicable;

(3)

Information on cost sharing and payments with respect to any out-of-network coverage; and

(4)

Any other information as determined appropriate by the Exchange.

An authorized carrier shall provide in its application, in a form specified in the Annual Letter to Issuers, the following information about the health benefit plan:

(1)

Plan, benefit, and cost sharing;

(2)

Plan information for the renewal of QHP enrollment;

(3)

Unified rate review template;

(4)

Prescription drug cost sharing and formulary;

(5)

Provider network;

(6)

Service area, including justifications for partial county service areas;

(7)

Rate and premiums;

(8)

Actuarial information required to be submitted to the Exchange under 45 CFR §155.1030(b);

(9)

Provider directory data as specified in Regulation .07 of this chapter;

(10)

Summaries of benefits and coverage, under 45 CFR §147.200, for each cost-sharing reduction variation;

(11)

Essential community providers contracted to participate within the health benefit plan’s provider network; and

(12)

Any other information the carrier would like to provide to the Exchange to supplement the application.

An authorized carrier shall comply with the rate and form review procedures, including review of compliance with essential health benefits requirements, established by the Commissioner.

Data and information submitted to the Exchange may be provided to the Commissioner, if requested, for consideration in the Commissioner’s annual QHP rate and form review process.

The authorized carrier shall provide to the Exchange the rate justification forms filed with the Commissioner for each QHP certification application the authorized carrier submits to the Exchange.

Regulation .05 Qualified Health Plan Certification — Plan Service Areas.Link Copy Citation

As part of a QHP certification application, an authorized carrier shall submit:

(1)

A description of the boundaries of the service area of any health benefit plan that is smaller than the State of Maryland; and

(2)

For any service area smaller than the State of Maryland, an explanation of the reason for the smaller service area, including a justification that the boundaries are not designed to discriminate against individuals excluded from the health benefit plan’s service area.

Carriers submitting a justification under §A(2) of this regulation are not required to submit a justification in subsequent years, after the initial justification submission, if there has been no change in the carrier’s health benefit plan service areas.

After the initial data submission under Regulation .04E of this chapter, a change to a health benefit plan’s service area shall be made only by petition to the Exchange and:

(1)

Because the carrier cannot secure enough providers; or

(2)

Because of an Exchange request to serve an unmet need.

After the final data submission under Regulation .04E of this chapter, a change to the health benefit plan’s service area shall be permitted only if the change is an expansion of the health benefit plan’s service area.

Regulation .06 Qualified Health Plan Certification — Provider Directories Specific to Individual Exchange.Link Copy Citation

An authorized carrier shall submit to the Individual Exchange the health benefit plan’s provider directory information for each QHP’s network.

Provider directory data shall include the requirements specified in Insurance Article, §15-112(n)(3), Annotated Code of Maryland, as well as be current, accurate, and complete.

Provider directory data may include:

(1)

Program and community health center names;

(2)

Providers’ affiliations with certain facilities, programs, and centers; and

(3)

Any other information that may assist consumers in searching for specific programs or centers by name.

Updated provider directory data requested in §B of this regulation shall be submitted in the format required by the Individual Exchange at least once every 15 calendar days.

Regulation .07 Qualified Health Plan Certification — Essential Community Providers.Link Copy Citation

For each health benefit plan that a carrier seeks to offer through the Exchange, the carrier shall make all good faith efforts to contract with at least 35 percent of available essential community providers in the plan’s service area as part of each plan’s provider network, except as specified in §C of this regulation.

Additional Essential Community Providers.

(1)

Included with its application for certification and in the form provided by the Exchange, the carrier may write in additional essential community providers that are not included in the definition for essential community provider under Regulation .02B of this chapter.

(2)

If available, the carrier shall include the following information when writing in additional essential community health providers:

(a)

The provider’s zip code reflecting a provider location within a low-income zip code or Health Professional Shortage Areas included on the “Low-Income and Health Professional Shortage Area Zip Code Listing” from CMS;

(b)

The provider’s service street address, which may not be a Post Office Box number; and

(c)

The National Provider Identifier (NPI) number, if the provider has such a number, or an alternate identification, such as a Tax Identification Number, if the provider does not have such a number.

(3)

The authorized carrier shall provide information under this section as part of the application submitted under Regulation .04 of this chapter.

Carriers Who Are Unable to Meet Contracting Requirements.

(1)

If the authorized carrier cannot meet the standard under this section, the authorized carrier may satisfy this requirement under the alternative standard.

(2)

To meet the alternative standard, the authorized carrier shall provide a narrative explanation of the authorized carrier’s justification that the carrier includes access to sufficient essential community providers within the health benefit plan’s network.

(3)

The narrative explanation shall describe the extent to which the authorized carrier’s provider sites are accessible to, and have services that meet the needs of, specific underserved populations, including:

(a)

Individuals with HIV/AIDS, including those with co-morbid behavioral health conditions;

(b)

American Indians and Alaska Natives;

(c)

Low-income and underserved individuals seeking women’s health and reproductive health services; and

(d)

Other specific populations served by essential community providers in the plan’s service area.

(4)

The narrative explanation shall demonstrate that low-income members receive appropriate access to care and satisfactory service, including performance on provider quality and patient satisfaction metrics, as specified in the Annual Letter to Issuers.

For each health benefit plan that a carrier seeks to offer through the Exchange, the carrier shall make all good faith efforts to contract with at least one available essential community provider of each essential community provider type, under §E of this regulation, in each county, or partial county, of the plan’s service area as part of each plan’s provider network.

Authorized carriers shall offer the same provider contract terms in good faith to the following essential community providers that a willing, similarly situated, non-essential community provider would accept or has accepted from the authorized carrier to the following provider types:

(1)

All available Indian Health Care Providers in the plan’s service area;

(2)

Willing local health departments under Insurance Article, §15-112(b)(3)(iii), Annotated Code of Maryland, in the plan’s service area; and

(3)

For each county in the plan’s service area, at least one provider from the following provider types, if such a provider is available and provides the medical or dental services, as applicable to plan type:

(a)

A health care provider defined in §340B(a)(4) of the Public Health Services Act;

(b)

An outpatient mental health center as described in COMAR 10.21.20;

(c)

A substance use disorder treatment provider as described at COMAR 10.09.80.03B(1) and (3);

(d)

A school based-health center;

(e)

A health care provider described in §1927(c)(1)(D)(i)(IV) of the Social Security Act; and

(f)

A State-owned, government-owned, or not-for-profit family planning services site that does not receive federal funding.

An authorized carrier shall submit verification of essential community provider contract offers to the Exchange upon request.

Regulation .08 Qualified Health Plan Certification — Network Adequacy.Link Copy Citation

Each health benefit plan shall meet the network adequacy standards stated in 45 CFR §156.230, Insurance Article, §15-112, Annotated Code of Maryland, and COMAR 31.10.44.

Each health benefit plan shall meet the provider panel sufficiency requirements under COMAR 31.10.34.04A.

Regulation .09 Qualified Health Plan Certification — Covered Prescription Drugs and Formularies.Link Copy Citation

An authorized carrier’s application under Regulation .04A of this chapter shall identify drugs covered under the health benefit plan’s medical benefit.

Drug Formulary List Location.

(1)

An authorized carrier shall provide the Internet address for the drug formulary for each health plan with the application submitted for the health benefit plan to the Exchange under Regulation .04A of this chapter.

(2)

The Internet address required under §B(1) of this regulation shall link directly to the health benefit plan’s list of covered drugs without further navigation.

(3)

The health benefit plan’s list of covered drugs shall:

(a)

Include plain language drug category information for each drug category;

(b)

Include information on utilization management tools such as prior authorization, step therapy, quantity limitations, and generic substitutions; and

(c)

Be up to date, accurate, and complete.

An authorized carrier may classify a covered drug as a preventative drug covered at zero cost and shall identify any drugs so covered in its formulary.

Drug Exception Process.

(1)

An authorized carrier shall establish a drug exception process by which an enrollee can request access to a drug not on the plan’s formulary list in standard situations, as required by Insurance Article, §15-831(c), Annotated Code of Maryland, and 45 CFR §156.122(c).

(2)

A carrier shall notify the enrollee of its coverage decision no later than 72 hours after receipt of the request for exception.

A carrier shall follow the external review process established by the Administration for advice from an independent review organization for denied requests as described in COMAR 31.10.19.

A carrier shall establish a process for the emergency review of denials that is compliant with State and federal statute and regulation.

Regulation .10 Qualified Health Plan Certification — Waiver Authority.Link Copy Citation

The Exchange, with the approval of the Board, may grant a waiver to a specific provision of this chapter, with or without conditions, under the procedure in COMAR 14.35.15.10.

Regulation .11 Qualified Health Plan Denial, Suspension, and Revocation of Certification and Other Remedies.Link Copy Citation

If the Exchange determines that a carrier has failed to comply with this chapter, Insurance Article, Title 31, Annotated Code of Maryland, or any other federal or State laws or regulations applicable to carrier offerings in the Exchange that are not otherwise specified in Insurance Article, §31-115(k), Annotated Code of Maryland, the Exchange may initiate one or more of the following actions against the carrier:

(1)

Deny certification for participation in the Exchange;

(2)

Suspend the carrier’s certification for participation in the Exchange;

(3)

Revoke the carrier’s certification for participation in the Exchange; or

(4)

Another remedy defined under §D of this regulation.

Subject to the contested case hearing provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and the limitations stated in Insurance Article, §31-115(k), Annotated Code of Maryland, the Exchange may deny certification to a health benefit plan, or suspend or revoke the certification of a qualified health plan, based on a finding that the health benefit plan or qualified health plan does not satisfy requirements or has otherwise violated standards for certification that are established under this regulation and interim policies adopted by the Exchange, and not otherwise under the regulatory and enforcement authority of the Commissioner, including requirements and standards related, but not limited, to:

(1)

Enrollment;

(2)

Essential community providers;

(3)

Complaints and grievances involving the Individual Exchange;

(4)

Network adequacy;

(5)

Quality;

(6)

Transparency;

(7)

Race, ethnicity, language, interpreter need, and cultural competency (RELICC);

(8)

Plan service area, including demographics;

(9)

Accreditation;

(10)

Authorization of the plan’s sponsoring carrier; and

(11)

Fair marketing standards developed jointly by the Individual Exchange and the Commissioner.

Instead of or in addition to denying, suspending, or revoking plan certification, the Exchange may impose other remedies or take other actions, and to the extent not otherwise under the regulatory and enforcement authority of the Commissioner, including:

(1)

Requiring a corrective action to remedy a violation of or failure to comply with standards for certification; and

(2)

Imposing a penalty not exceeding $5,000 for each violation of or failure to comply with standards for certification.

In determining the amount of a penalty under §C of this regulation, the Exchange shall consider:

(1)

The type, severity, and duration of the violation;

(2)

Whether the plan or carrier knew or should have known of the violation;

(3)

The extent to which the plan or carrier has a history of violations; and

(4)

Whether the plan or carrier corrected the violation as soon as they knew or should have known of the violation.

The penalties available to the Exchange under this regulation shall be in addition to any criminal or civil penalties imposed for fraud or other violation under any other State or federal law.

Regulation .12 Qualified Health Plan Certification — On-going Compliance with Qualified Health Plan Certification Standards.Link Copy Citation

The Exchange may conduct compliance reviews of a QHP during the plan benefit year.

The Exchange may require an authorized carrier to develop, submit for approval, and follow, as amended by the Exchange, a corrective action plan for compliance issues noted by the Exchange during its compliance review of a QHP.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 17. State Reinsurance Program

Regulation .01 Scope.Link Copy Citation

This chapter sets forth the structure, implementation, and eligibility standards for the State Reinsurance Program, as required under Insurance Article, §31-117, Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

(2)

“Annual Letter to Issuers” means a written communication, issued by the Individual and SHOP Exchange, that:

(a)

Provides guidance on how the Exchange will interpret laws and regulations, issues reminders regarding requirements of and compliance with relevant laws and regulations, and provides notification of policy developments; and

(b)

Instructs issuers on how to meet compliance with QHP certification standards, establishes timelines on implementation, and details Exchange expectations of issuer compliance with such certification standards.

(3)

“Attachment point” means the threshold dollar amount for claims costs incurred by a health insurance carrier for an enrolled individual’s covered benefits in a benefit year, after which threshold the claims costs for such benefits are eligible for reinsurance payments.

(4)

“Benefit year” means a calendar year for which a health plan provides coverage for health benefits.

(5)

“Board” has the meaning stated in Insurance Article, §31-101, Annotated Code of Maryland.

(6)

“Carrier business agreement” means the annual agreement between the Exchange and the carrier that contains terms and conditions governing compliance with the Annotated Code of Maryland, and State and federal regulations.

(7)

“Carrier Reference Manual” means the document developed by the Exchange that provides business rules and operational instructions to authorized carriers participating on the Individual and SHOP Exchange.

(8)

“Carrier-specific adjustment factors” means a set of coefficients that modify payments under the State Reinsurance Program and that replicate the modified payments that would occur by applying the Dampening Factor to the Federal Risk Adjustment Program.

(9)

“Claims-to-premium ratio” means the resulting ratio produced by dividing total claims incurred (less State Reinsurance Program payments, federal risk adjustment payments, and federal high risk pool reinsurance payments) by the premium amount collected for a reinsurance-eligible plan.

(10)

“Coinsurance rate” means the rate at which the applicable reinsurance entity will reimburse the health insurance issuer for claims costs incurred for an enrolled individual’s covered benefits in a benefit year after the attachment point and before the reinsurance cap.

(11)

“Dampening factor” means a coefficient that modifies payments under the State Reinsurance Program to account for RA/RI program interaction to the extent that the claims-to-premium ratio between payers and receivers under the risk adjustment is normalized.

(12)

“Individual Exchange” has the meaning stated in Insurance Article, §31-101(h), Annotated Code of Maryland.

(13)

Payment Parameters.

(a)

“Payment parameters” means the attachment point, coinsurance rate, and reinsurance cap for reinsurance payments.

(b)

“Payment parameters” includes a dampening factor, if determined appropriate by the Board.

(14)

“Qualified health plan (QHP)" has the meaning stated in Insurance Article, §31-101, Annotated Code of Maryland.

(15)

“RA/RI program interaction” refers to payments received by a carrier for the enrolled population whose risk and claims experience would be eligible for payments under both the Federal Risk Adjustment Program and the State Reinsurance Program, such that the resulting full payment would result in a normalized claims-to-premium ratio, for the enrolled population identified in this definition, that is less than one.

(16)

“Reinsurance cap” means the threshold dollar amount for total claims costs paid by a health insurance issuer for an enrolled individual’s covered benefits, after which, the claims costs for such benefits are no longer eligible for reinsurance payments.

(17)

“Reinsurance-eligible plan” means any health benefit plan offered in the individual market, except for the limitations and exceptions provided in Regulation .03 of this chapter.

(18)

“Risk adjustment covered plan” means, for the purpose of the risk adjustment program, any health insurance coverage offered in the individual or small group market with the exception of grandfathered health plans, group health insurance coverage described in 45 CFR §146.145(c), individual health insurance coverage described in 45 CFR §148.220, and any plan determined not to be a risk adjustment covered plan in the applicable federally certified risk adjustment methodology.

(19)

“Section 1332 State Innovation Waiver” means the waiver for state innovation filed by the State of Maryland, pursuant to 42 U.S. Code §18052.

(20)

“State Reinsurance Program” means the market stabilization program identified in Insurance Article, §31-117, Annotated Code of Maryland.

Regulation .03 Eligibility for Receipt of Reinsurance Payments.Link Copy Citation

Except as provided in §B of this regulation, a qualified health plan is eligible to receive reinsurance payments from the State Reinsurance Program, provided that the qualified health plan is offered by a carrier that:

(1)

Is authorized to offer individual non-Medigap health benefit plans in Maryland;

(2)

Complies with the assessment under Insurance Article, §6-102.1, Annotated Code of Maryland; and

(3)

Meets all obligations set forth in the Carrier Business Agreement.

The following health benefit plans are not eligible to receive reinsurance payments:

(1)

Grandfathered health benefit plans as defined in §1251 of the Affordable Care Act;

(2)

Health benefit plans that are not required to submit reinsurance contributions under Insurance Article, §6-102.1, Annotated Code of Maryland;

(3)

Group health insurance plans, including but not limited to those identified in Insurance Article, §15-1202, Annotated Code of Maryland;

(4)

Short-term, limited duration insurance plans, including but not limited to those identified in Insurance Article, §15-1301, Annotated Code of Maryland; and

(5)

Association health plans, including but not limited to those offered by associations identified in Insurance Article, §15-1301, Annotated Code of Maryland.

Carrier State Reinsurance Program Accountability Report. For each year a carrier which offers a reinsurance-eligible plan participates in the State Reinsurance Program, the carrier shall submit to the Board a report on a date no later than that provided in the Annual Letter to Issuers, to be made publically available on the Individual Exchange website upon review of the Board, detailing carrier action to manage the costs and utilization of enrollees whose claims are reimbursable under the State Reinsurance Program. At minimum, the report shall include information related to the following:

(1)

The initiatives and programs the carrier administers to manage cost and utilization of enrollees whose claims are reimbursable under the State Reinsurance Program in a narrative summary format;

(2)

The total population of enrollees whose claims are reimbursable under the State Reinsurance Program, the allocation of these enrollees across each of the initiatives and programs identified in §C(1) of this regulation, and the allocation of these enrollees who do not participate in the initiatives and programs identified in §C(1) of this regulation;

(3)

The effectiveness of the initiatives and programs identified in §C(1) of this regulation as measured by the estimated reduction of claims and utilization by the enrollees identified in §C(1) of this regulation;

(4)

The actions the carrier will take to improve on the effectiveness estimates identified in §C(3) of this regulation;

(5)

The estimated savings to the State Reinsurance Program based upon the effectiveness identified in §C(3) of this regulation;

(6)

The estimated rate impact of the initiatives and programs identified in §C(1) of this regulation;

(7)

The methodology utilized to determine which programs to include in §C(1) of this regulation, estimated effectives in §C(3) of this regulation, and estimated savings to the State Reinsurance Program in §C(5) of this regulation; and

(8)

Population health initiatives and outcomes for Individual Exchange enrollment.

Regulation .04 Calculation of Reinsurance Payments Under the State Reinsurance Program.Link Copy Citation

A carrier of a reinsurance-eligible plan, as provided for in Regulation .03 of this chapter, becomes eligible for reinsurance payments from the State Reinsurance Program when its claims costs for individual enrollees’ covered benefits in a benefit year exceed the attachment point established under the process identified in §B of this regulation.

Each year the Board shall set the payment parameters for the State Reinsurance Program by determining the following factors:

(1)

An attachment point;

(2)

A coinsurance rate;

(3)

A reinsurance cap; and

(4)

A market-level dampening factor provided by the Commissioner, if determined necessary by the Board.

For each benefit year after 2019, the Board shall set the estimated payment parameters for the State Reinsurance Program on or before April 1 of the calendar year proceeding the applicable plan year.

For each benefit year after 2019, the Board shall set the final payment parameters for the State Reinsurance Program before December 31 of the calendar year proceeding the applicable plan year.

The Exchange shall calculate each reinsurance payment made from the State Reinsurance Program as the product of the coinsurance rate multiplied by the carrier’s claims costs for an individual enrollee’s covered benefits that the carrier incurs in the applicable benefit year between the attachment point and reinsurance cap. The Exchange shall apply the carrier-specific adjustment factor provided in §B(4) of this regulation to the product calculated above to determine the adjusted reinsurance payment.

If the Individual Exchange determines that all reinsurance payments requested under the State Reinsurance Program by reinsurance-eligible plans in the State for a benefit year will not be equal to the amount of funding allocated to the State Reinsurance Program, the Individual Exchange shall determine a uniform pro rata adjustment to be applied to all such requests for reinsurance payments in the State.

Regulation .05 Data Collection and Maintenance for Reinsurance Payments.Link Copy Citation

The carriers of reinsurance-eligible plans shall submit to the Exchange data required to determine reinsurance payments as described in Regulation .06 of this chapter, or shall provide access to such data, according to the data requirements specified by the Exchange in the Annual Letter to Issuers.

The Individual Exchange shall establish a process through which an issuer of a reinsurance-eligible plan that does not generate individual enrollee claims in the normal course of business may use estimated claims costs to make a request for payment, or to submit data to be considered for reinsurance payments, in accordance with the requirements of Regulation .09 of this chapter. The State shall ensure that such requests for reinsurance payment, or a subset of such requests, are subject to validation.

The Individual Exchange shall maintain documents and records relating to the State Reinsurance Program, whether paper, electronic, or in other media, for each benefit year for at least 10 years. The documents and records shall be sufficient to enable the evaluation of the State Reinsurance Program’s compliance with federal standards.

The Individual Exchange shall ensure that the collection of personally identifiable information is limited to information reasonably necessary for use in the calculation of reinsurance payments. Any use and disclosure of personally identifiable information shall be limited to those purposes for which the personally identifiable information was collected, including for purposes of data validation.

The Individual Exchange shall maintain standards that provide administrative, physical, and technical safeguards for the personally identifiable information consistent with applicable State and federal standards.

Regulation .06 Disbursement of Reinsurance Payments.Link Copy Citation

The Individual Exchange shall make reinsurance payments to the carrier of a reinsurance-eligible plan after it receives a valid claim for payment from that carrier in accordance with the processes established in Regulation .07 of this chapter.

For each applicable benefit year, the Individual Exchange shall:

(1)

Notify carriers annually of reinsurance payments under the State Reinsurance Program payment parameters to be made for the applicable benefit year no later than September 30 of the year following the applicable benefit year; and

(2)

Provide to each issuer of a reinsurance-eligible plan the calculation of total reinsurance payment requests made under the State Reinsurance Program payment parameters.

Regulation .07 Request for Reinsurance Payment.Link Copy Citation

A carrier may make a request for payment when a carrier’s claims costs for an enrollee of a reinsurance-eligible plan has met the criteria for reinsurance payment set forth by the Board for the applicable benefit year.

A carrier of a reinsurance-eligible plan shall make requests for payment in accordance with the requirements of the Annual Letter to Issuers for the applicable benefit year.

Regulation .08 Document Retention and Audits.Link Copy Citation

A carrier of a reinsurance-eligible plan shall maintain documents and records, whether paper, electronic, or in other media, sufficient to substantiate the requests for reinsurance payments made pursuant to Regulation .07 of this chapter for a period of at least 10 years and shall make those documents and records available upon request by the Board or the Individual Exchange or its designee to any such entity for purposes of verification, investigation, audit, or other review of reinsurance payment requests.

The Individual Exchange may audit a carrier of a reinsurance-eligible plan to assess its compliance with the requirements of this chapter. The issuer shall ensure that its relevant contractors, subcontractors, or agents cooperate with any audit under this section. If an audit results in a finding of material weakness or significant deficiency with respect to compliance with any requirement of these regulations, the carrier shall complete all of the following:

(1)

Within 30 calendar days of the issuance of the final audit report, provide a written corrective action plan to the Exchange for approval;

(2)

Implement the corrective action plan; and

(3)

Provide to the Exchange written documentation of the corrective actions once taken.

Regulation .09 State Reinsurance Program Surplus.Link Copy Citation

For the Benefit Year 2019 and after, the Individual Exchange shall reserve any surplus, after all reinsurance payments have been remitted, for claims in future years of the State Reinsurance Program.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 18. Small Business Health Options Program

Regulation .01 Scope.Link Copy Citation

This chapter sets forth the requirements for the Small Business Health Options Program. This chapter does not address the individual exchange or qualified dental plans or qualified vision plans.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Common law employee” has the meaning stated in 20 CFR §404.1007.

(2)

“Date of enrollment’’ means the date of enrollment of an individual covered under a group health plan or, if earlier, the first day of the waiting period for such enrollment.

(3)

“Employer group health insurance coverage” means health coverage offered by an employer to an employee and the employee’s dependents, if eligible, under:

(a)

Government health coverage, such as the Federal Employees Health Benefit program;

(b)

Health coverage offered in the small or large group market by an employer within a state; or

(c)

Grandfathered health coverage offered by an employer in a group market.

(4)

“Full-time employee” means a common law employee working on average, at least 30 hours per week.

(5)

“Independent contractor” means a 1099 employee working 30 or more hours per week.

(6)

“Member” means any person enrolled in a health benefit plan.

(7)

“Part-time employee” means a common law employee working fewer than 30 hours per week, or seasonal worker working more than 120 days per year.

(8)

“Participation rate” means the percentage of eligible employees electing to participate in a health benefit plan out of all eligible employees.

(9)

“Participation requirement” means a policy provision, or a carrier’s underwriting guideline if there is no such provision, which requires that a group attain a certain participation rate in order for a carrier to accept the group for enrollment in the plan.

(10)

“Qualified employee’’ means an employee who:

(a)

Works on a full-time basis with a normal work week of thirty or more hours, but does not include an employee who works on a temporary or substitute basis; and

(b)

Is hired to work for a period of not less than 5 months.

(11)

“Qualified employer” means a small employer that elects to make its full-time employees and, at the option of the employer, some or all of its part-time employees eligible for one or more qualified health plans offered through the SHOP Exchange, provided that the employer:

(a)

Has its principal place of business in the State and elects to provide coverage through the SHOP Exchange to all of its eligible employees, wherever employed; or

(b)

Elects to provide coverage through the SHOP Exchange to all of its eligible employees who are principally employed in the State.

(12)

“Rescission” means a cancellation or discontinuance of coverage that has retroactive effect.

(13)

“Waiting period” means the period of time that must pass before coverage for a qualified employee who is otherwise eligible to enroll under the terms of a small group health plan can become effective.

Regulation .03 Eligibility for SHOP Exchange.Link Copy Citation

Nondiscrimination. No policy shall exclude a qualified employee or dependent on the basis of age, sex, sexual orientation, gender identity, occupation, actual or expected health condition, claims experience, duration of coverage, or medical condition.

SHOP Exchange Employer Eligibility.

(1)

An employer is eligible to purchase insurance on the SHOP Exchange if it meets the following requirements as established by Insurance Article, §31-101(aa), Annotated Code of Maryland:

(a)

Has, on average, 50 or fewer employees during the preceding calendar year;

(b)

Has at least one full-time employee who is not the spouse or other dependent of the owner;

(c)

Has its principal place of business in Maryland;

(d)

Elects to offer, at a minimum, all full-time employees coverage in a qualified health plan through the SHOP Exchange; and

(e)

Either:

(i)

Elects to provide coverage through the SHOP to all eligible employees, wherever employed; or

(ii)

Elects to provide coverage through the SHOP to all of its eligible employees who are principally employed in Maryland.

(2)

For the purpose of determining the number of qualified employees, a business shall be considered to be one qualified small business or group if:

(a)

It is eligible to file a combined tax return for purpose of State taxation; or

(b)

It comprises two or more companies that are part of the same parent-subsidiary controlled group, as defined by 26 CFR §1.1563-1(a)(2).

New Employers. An employer that was not in existence for the entirety of the preceding calendar year shall have eligibility determined as established by Insurance Article, §31-101, Annotated Code of Maryland.

Eligibility Application. All qualified small businesses shall submit an eligibility application in accordance with relevant provisions of 45 CFR §155.716.

Duration of Eligibility. A determination of an employer’s eligibility to participate in SHOP remains valid until the employer makes a change that could end its eligibility under 45 CFR §155.710(b), or until the employer withdraws from participation in the SHOP.

Eligible Employee.

(1)

Full-time common law employees are eligible for SHOP participation.

(2)

An employer who elects to cover part-time and seasonal employees working more than 120 days per year shall calculate full-time equivalency of the employee’s hours by:

(a)

Calculating the total number of hours worked by all part-time and seasonal employees per month; and

(b)

Dividing the total number of hours worked by 120.

Groups with Non-Common Law Employees. The following groups are eligible for SHOP participation if at least one common law full-time employee is also employed and elects to enroll in SHOP coverage:

(1)

A corporate partner;

(2)

An S corporation shareholder with more than 2 percent ownership;

(3)

A business that employs contractual 1099 employees; and

(4)

A sole proprietor.

Household Employers. A household employer is eligible for SHOP participation, under the following conditions:

(1)

Relevant eligibility requirements pursuant to this regulation are met; and

(2)

The employer has filed, or will file for the subsequent tax year, an appropriate Schedule H (Form 1040) or Form 941 demonstrating that a household employee is employed, and all appropriate taxes have been paid or withheld.

Minimum Participation. A qualified employer shall meet the following minimum participation requirements:

(1)

At least 60 percent minimum participation is required for qualified employers; and

(2)

Minimum participation is determined prior to initial plan enrollment, and annually prior to plan renewal.

Participation Determination. In applying a minimum participation requirement to determine whether the applicable percentage of participation is met, a carrier may not consider as eligible employees:

(1)

Employees who are enrolled in coverage through another group health plan, governmental coverage (such as Medicare, Medicaid, or TRICARE), coverage sold through the individual market, or other minimum essential coverage; or

(2)

Employees who are under the age of 26 years who are covered under their parent’s health benefit plan.

Waiver of Minimum Participation Period. Small employers that cannot comply with minimum participation requirements may apply for coverage during the period that begins on November 15 and extends through December 15 of any year.

Determination Outcomes.

(1)

A group shall be enrolled once it has been determined that the group satisfied the minimum participation requirement.

(2)

If a group becomes enrolled as the result of an error in computing participation level, enrollment shall continue until the end of the month following the month in which a termination notice is sent.

(3)

The determination of an employer’s eligibility to participate in the SHOP remains valid until the employer makes a change that ends or alters its eligibility, or the employer withdraws from participation in the SHOP.

Eligibility Redetermination.

(1)

The SHOP Exchange may request new eligibility applications from employers in order to conduct eligibility redetermination.

(2)

Requests shall be made by the SHOP Exchange no later than 60 prior to the employer’s renewal date.

Eligibility Adjustment Period. When information submitted on the SHOP single employer application is inconsistent with information collected from third-party data sources through the verification process or otherwise received by the SHOP Exchange, the SHOP Exchange shall:

(1)

Make a reasonable effort to identify and address any causes of typographical errors or clerical errors;

(2)

Notify the employer of the inconsistency;

(3)

Provide the employer with a period of 30 days from the date the notice is sent, to present satisfactory documentary evidence to support the employer’s application, or resolved the inconsistency; and

(4)

If after the 30-day period described in §N(3) of this regulation the SHOP Exchange has not received satisfactory documentary evidence:

(a)

Notify the employer of its denial or termination of eligibility and of the employer’s right to appeal such determination; and

(b)

If the employer was enrolled pending the confirmation or verification of eligibility information, discontinue the employer’s participation in the SHOP at the end of the month following the month in which the ineligibility notice is sent.

Employer Eligibility Appeal.

(1)

An employer has the right to appeal:

(a)

A notice of denial or termination of eligibility; and

(b)

A failure by the SHOP Exchange to provide a timely eligibility determination or a timely notice of an eligibility determination.

(2)

All appeals shall be requested within 90 days from the date of the notice of denial or termination of eligibility.

(3)

The SHOP Exchange shall provide a written notice of the right to appeal a denial of eligibility which includes:

(a)

The reason for the denial or termination of eligibility, including a citation to the applicable regulations; and

(b)

The procedure by which the employer may request an appeal of the denial or termination of eligibility.

(4)

The SHOP Exchange shall issue written notice of the appeal decision to the employer within 90 days of the date the appeal request is received.

(5)

If an employer is found eligible following the appeal decision, then, at the employer’s option, the effective date of coverage or enrollment through the SHOP Exchange under the decision is:

(a)

Retroactive to the effective date of coverage or enrollment through the SHOP Exchange that the employer would have had if the employer had been correctly determined eligible; or

(b)

Prospective to the first day of the month following the date of the notice of the appeal decision.

(6)

If the employer is found ineligible under the appeal decision, then the appeal decision is effective as of the date of the notice of the appeal decision.

Safe Harbor. The SHOP Exchange and participating carriers shall treat a qualified small business which ceases to be eligible solely by reason of an increase in the number of employees, as an eligible small business until it otherwise fails to meet the eligibility criteria of this section, or it elects to terminate coverage for qualified employees through the SHOP Exchange.

Reporting. Employers shall submit a new application within 30 days of any change made to the business structure that could alter its SHOP Exchange eligibility.

Regulation .04 Enrollment.Link Copy Citation

Rolling Enrollment Period. A qualified employer may purchase coverage for its small group at any point during the year.

Length of Plan Year. The employer’s plan year shall consist of the 12-month period beginning with the qualified employer’s effective date of coverage.

Effective Coverage Dates.

(1)

The effective date of coverage is:

(a)

No later than the first day of the following month for a group enrollment received on the first through the fifteenth day of any month; or

(b)

No later than the first day of the second following month for a group enrollment received on the sixteenth though the last day of any month.

(2)

A qualified employer may opt for a later effective date within a quarter for which small group market rates are available.

Newly Hired Employees.

(1)

The effective date of coverage for a qualified health plan selection received by the SHOP from a newly qualified employee is the first day of the month following the end of the waiting period.

(2)

If the newly qualified employee makes a plan selection on the first day of the month and any applicable waiting period has ended by that date, coverage shall be effective on that date.

Annual Open Enrollment Period Standards. A carrier shall establish an open enrollment period that meets the requirements established under Insurance Article, §§15-1208.1 and 15-1208.2, Annotated Code of Maryland.

Eligibility Requirement Waiver Period. If a small group health plan cannot comply with group participation rules for the offering of health insurance coverage, a carrier may restrict the availability of such coverage to an annual enrollment period that begins November 15 and extends through December 15 of each calendar year.

Special Enrollment Periods. Special enrollment periods shall be established in accordance with the requirements of Insurance Article, §§15-1208.1 and 15-1208.2, Annotated Code of Maryland.

Waiting Period.

(1)

A small employer may implement a waiting period of no more than 60 days for any qualified employee.

(2)

Coverage will be effective the first of the month following the end of the waiting period.

Payment of First Month’s Premium.

(1)

A small employer shall pay the first month’s premium to the carrier of the qualified health plan to effectuate enrollment when the small employer has:

(a)

Enrolled in a qualified health plan after coverage from a previous enrollment in a qualified health plan the individual had was terminated;

(b)

Enrolled for the first time in a qualified health plan in the SHOP Exchange; or

(c)

Enrolled in a qualified health plan offered by a different carrier of the same holding company in the SHOP Exchange.

(2)

The first month’s premium payment to effectuate prospective coverage for qualified health plan selections made during an annual open enrollment period or during a special enrollment period shall be due from the employer on a uniformly applied date specified by the authorized carrier of the qualified health plan that is no earlier than the coverage effective date but no later than 30 calendar days from the coverage effective date.

(3)

The first month’s premium payment to effectuate prospective coverage for qualified health plan selections made during a special enrollment period under §G of this regulation shall be due from the employer on a uniformly applied date specified by the authorized carrier of the qualified health plan that is no earlier than the coverage effective date but no later than 30 calendar days from the date the carrier receives the enrollment transaction from the SHOP.

(4)

Payment to effectuate retroactive coverage shall include the premium due from the employer for all months of retroactive coverage and the full premium amount of the first prospective month of coverage.

(5)

Payment to effectuate retroactive coverage for qualified health plan selections made during a special enrollment period shall be due on a uniformly applied date specified by the authorized carrier that is no earlier than the coverage effective date and no later than 30 calendar days from the date the carrier receives the enrollment transaction from the SHOP Exchange or the coverage effective date, whichever is later.

(6)

An authorized carrier may choose to extend the premium due date if the carrier does so in a uniform and consistent manner for all similarly situated applicants.

Group Installation.

(1)

A carrier shall install groups upon enrollment.

(2)

Employee choice groups shall be effective on the date the group first effectuated coverage.

Renewal. A health insurance issuer offering SHOP coverage shall renew or continue in force the coverage in the manner prescribed under Insurance Article, §15-1212, Annotated Code of Maryland.

Regulation .05 Termination, Cancellation, and Renewal of Qualified Health Plan.Link Copy Citation

Termination.

(1)

A qualified employer who participates in the SHOP and who terminates SHOP coverage terminates the enrollment of the employees enrolled in plans under the SHOP.

(2)

An employee who is the certificate holder of a qualified health plan purchased through the SHOP, who terminates enrollment in a qualified health plan also terminates the enrollment of the other enrollees in the employee’s household.

(3)

Each enrollee who is not the certificate holder may terminate enrollment in a qualified health plan without affecting the enrollment status of the employee’s household or each individual member of the employee’s household other than the enrollee.

(4)

A carrier shall process the SHOP Exchange’s termination determination promptly and without undue delay.

(5)

A carrier shall maintain records of termination of enrollment in a qualified health plan in the format specified by the SHOP Exchange in an electronic data interchange format for a period of 10 years.

(6)

(7)

A carrier shall send an electronic transaction to the SHOP Exchange documenting, or acknowledging, each termination of coverage carried out under this chapter, promptly and without undue delay.

Termination by the SHOP Exchange.

(1)

Termination Due to Failure to Pay.

(a)

If payment for a group is not received by the end of the grace period stated in the group contract, the SHOP Exchange may terminate the group’s coverage.

(b)

The last day of coverage shall be the last day of the grace period stated in the group contract or first day of the coverage month.

(2)

Termination Due to Error, Misconduct, Fraud, or Misrepresentation of a Group. Coverage may be retroactively terminated if:

(a)

The enrollment in a qualified health plan through the SHOP Exchange was unintentional, inadvertent, or erroneous and was the result of the error or misconduct of an officer, employee, or agent of the SHOP Exchange, its instrumentalities, or a non-Exchange entity providing enrollment assistance or conducting enrollment activities;

(b)

The employee or group was enrolled in a qualified health plan without the employee or group’s knowledge or consent by any third party, including third parties who have no connection with the SHOP Exchange; or

(c)

The eligibility determination was made based on information regarding the group that is false or misrepresentative of the actual composition of the group.

(3)

Notification of Termination.

(a)

If any employee’s coverage or enrollment through the SHOP is terminated due to nonpayment of premiums or due to a loss of the employee’s eligibility to participate in the SHOP, including the coverage of an employee who loses eligibility because a qualified employer has lost its eligibility, the SHOP shall notify the employee of the termination.

(b)

Such notice of termination shall include the termination effective date and reason for termination, and shall be sent within 3 business days if an electronic notice is sent, and within 5 days if a mailed hard copy notice is sent.

Renewal, Nonrenewal, and Cancellation. Renewal, nonrenewal, and cancellation shall be conducted in accordance with the requirements of Insurance Article, §15-1212, Annotated Code of Maryland.

Regulation .06 Coverage Models.Link Copy Citation

Employer Choice Model Requirements. A qualified employer may elect to make available to qualified employees a choice of qualified health plans offered through the SHOP Exchange by:

(1)

A single issuer across all available coverage levels; or

(2)

One or more qualified health plans offered by a single issuer.

Employee Choice Model Requirements. A qualified employer may select two consecutive metal levels of coverage, and employees may choose any SHOP plan across all the insurance companies that offer plans at those metal levels.

Regulation .07 Employer Contribution.Link Copy Citation

An employer is not required to contribute to the qualified health plan premiums of its employees.

If an employer chooses to contribute to the qualified health plan premiums of its employees, the employer shall:

(1)

Select a reference plan on which the contributions will be based;?and

(2)

Make a contribution that is:

(a)

A fixed percentage of the premium of the reference plan, based on the coverage level selected by the qualified employee and the qualified employee’s job classification; or

(b)

A dollar amount that ensures that all of the qualified employer’s employees with the same coverage level and job classification would pay the same amount if they purchased the reference plan.

A reference plan selected under this regulation:

(1)

If under the employer choice model established under Regulation .06A of this chapter, shall be a qualified plan that is:

(a)

Offered by the carrier or insurance holding company system selected by the qualified employer; and

(b)

Among the qualified plans of the carrier or insurance holding company system selected by the qualified employer; or

(2)

If under the employee choice model established under Regulation .06B of this chapter, shall be a qualified plan offered by any carrier at the metal level selected by the qualified employer.

Regulation .08 Premium Rating.Link Copy Citation

Premium Rating.

(1)

The total premium charged to a small group shall be developed using a per-member rating method.

(2)

For each covered employee and their covered dependents, the premium shall be determined as follows:

(a)

For each adult age 21 and over, multiply the base rate by the applicable age and geographic area factors; and

(b)

For each covered child age 0—20, multiply the base rate of the oldest three children by the applicable age and geographic area factors.

Composite Billing.

(1)

Composite billing is available only under the employer choice model set forth in Regulation .06A of this chapter.

(2)

The SHOP Exchange will determine premiums under composite billing based on instructions issued by the Commissioner.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 19. State-Based Young Adult Health Insurance Subsidies Program

Regulation .01 Scope.Link Copy Citation

This chapter sets forth the structure, implementation, and eligibility standards for the State-Based Young Adult Health Insurance Subsidies Program, as required under Insurance Article, §31-117 Annotated Code of Maryland.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Enrollee” means a qualified individual who is enrolled in a qualified health plan through the Individual Exchange.

(2)

“Essential health benefit” has the meaning set forth in Insurance Article, §31-116(a), Annotated Code of Maryland, and 42 U.S.C. §18022(b).

(3)

(4)

“Program” means the State-Based Young Adult Health Insurance Subsidies Program.

Regulation .03 Eligibility Requirements for Subsidies Through the Program.Link Copy Citation

An enrollee is eligible to receive subsidies from the Program during a month if:

(1)

The enrollee is a member of a tax filer’s tax household and the tax filer has met the eligibility requirements for APTC in accordance with the requirements in COMAR 14.35.07.08A—C, E, and G;

(2)

The enrollee is a member of a tax filer’s tax household and the tax filer attests to a household income, as defined in 26 CFR §1.36B-1(e), greater than or equal to 138 percent but not more than 400 percent of the FPL for the benefit year for which coverage is requested;

(3)

The enrollee is at least 18 years old; and

(4)

The enrollee is under the age of 35 years.

Eligibility under this regulation is contingent upon verification of the enrollee’s attestation that the enrollee meets the criteria in §A of this regulation.

The enrollee’s age as of the effective date of coverage shall be used in determining the enrollee’s eligibility to receive subsidies from the Program.

In any calendar year of the program:

(1)

The Board may limit the availability of subsidies, regardless of eligibility, if the costs of the program are projected to exceed the budgeted allowance for that calendar year;

(2)

The limit described in §D(1) of this regulation may take the form of:

(a)

A limit on the number of enrollees eligible for the subsidy;

(b)

A limit on increases in subsidies during a plan year for enrollees after enrollment; or

(c)

Any other limit or combination of limits as the Board deems appropriate;

(3)

Any limit on the availability of subsidies for enrollees in the program shall be applied uniformly to all enrollees after the effective date of the Board’s decision; and

(4)

The Exchange shall monitor the data outlined in Regulation .05 of this chapter to determine, in consultation with the Maryland Insurance Administration, the recommended limits to the Program.

Effective Dates for Changes in Subsidy Eligibility.

(1)

Except as otherwise specified under this regulation, changes in eligibility for subsidies determined by the Individual Exchange are effective the first day of the month following the date on which the determination is made.

(2)

When an applicant is determined newly eligible for Medicaid or MCHP, the applicant shall be ineligible for subsidies beginning the first of the month after the enrollee is determined newly eligible for Medicaid or MCHP.

(3)

When an applicant is eligible for a special enrollment period under COMAR 14.35.07.12—.19, the applicant or enrollee shall be in accordance with the applicable effective date specified for each special enrollment period under COMAR 14.35.07.12—.19.

(4)

When an enrollee’s enrollment is terminated by the enrollee as set forth in 45 CFR §155.430(b)(1) or terminated by the Exchange under 45 CFR §155.430(b)(2)(i)—(vii) the applicant or enrollee shall be in accordance with the applicable effective date of the termination set forth in 45 CFR §155.430(d).

Regulation .04 Calculation of Subsidies Under the Program.Link Copy Citation

The subsidy may not exceed the enrolle’s premium amount.

The subsidy shall be calculated for eligible enrollees in a tax household and applied to the premium for each eligible enrollee.

The subsidy shall be applied to the premium balance remaining after application of the Advance Premium Tax Credit.

Basis of Calculation.

(1)

For enrollees with a greater than 0 percent premium contribution based on the payment parameters set by the Board, the subsidy shall be calculated based on, and applied only to, the portion of premium allocated to essential health benefits.

(2)

For enrollees with a 0 percent premium contribution based on the payment parameters set by the Board, the subsidy shall also be applied to nonessential health benefits so that the enrollee’s total premium responsibility is equal to $0.

For each benefit year after 2022, the Board shall set the payment parameters for the Program before December 31 of the calendar year preceding the applicable plan year.

Regulation .05 Exchange Data Collection, Reporting, and Maintenance.Link Copy Citation

The Exchange shall track data on the Program including:

(1)

On a monthly basis, or more frequently as required to appropriately monitor enrollment and spending under the program, the average number of young adults receiving subsidies under the Program;

(2)

On a monthly basis, or more frequently as required to appropriately monitor enrollment and spending under the program, the average subsidy amount received by young adults under the Program; and

(3)

The impact the Program has on rates in the individual insurance market.

Information tracked in §A of this regulation shall be posted monthly on the website of the Individual Exchange and included in the Annual Report required under Insurance Article, §31–119(d), Annotated Code of Maryland.

The Individual Exchange shall maintain documents and records relating to the Program, whether paper, electronic, or in other media, for each benefit year for at least 10 years.

The Individual Exchange shall ensure that the collection of personally identifiable information is limited to information reasonably necessary for use in the calculation of subsidies. Any use and disclosure of personally identifiable information shall be limited to those purposes for which the personally identifiable information was collected, including for purposes of data validation.

Regulation .06 Disbursement of Subsidies.Link Copy Citation

The Individual Exchange shall transmit subsidies directly to the carrier with whom the recipient is enrolled, to be applied to the recipient’s premium.

A carrier that receives notice from the Individual Exchange that an individual enrolled in the carrier’s QHP is eligible for subsidies shall:

(1)

Reduce the portion of the premium charged to or for the individual for the applicable month or months by the amount of the subsidy;

(2)

Notify the Exchange of the reduction in the portion of the premium charged to the individual in accordance with 45 CFR §156.265(g); and

(3)

Include with each billing statement, as applicable, to or for the individual the amount of the subsidy for the applicable month or months, and the remaining premium owed.

Refunds.

(1)

If a carrier discovers that it did not reduce the portion of the premium charged to or for an enrollee for the applicable month or months by the amount of the subsidy in accordance with §B(1) of this regulation, the carrier shall notify the enrollee of the improper reduction within 45 calendar days of the carrier’s discovery of the improper reduction and refund any excess premium paid by or for the enrollee.

(2)

Unless a refund is requested by or for the enrollee, the carrier shall, within 45 calendar days of discovery of the error, apply the excess premium paid by or for the enrollee to the enrollee’s portion of the premium or refund the amount directly.

(3)

If any excess premium remains after application of premium as described in §C(2) of this regulation:

(a)

The carrier shall apply the excess premium to the enrollee’s portion of the premium for each subsequent month for the remainder of the period of enrollment or benefit year until the excess is fully applied or refund the remaining amount directly; and

(b)

At the end of the period of enrollment or benefit year, the carrier shall refund any excess premium within 45 calendar days of the end of the period of enrollment or benefit year, whichever comes first.

(4)

If a refund is requested by or for the enrollee, the refund shall be provided within 45 calendar days of the date of the request.

A carrier may not refuse to commence coverage under a policy or terminate coverage on account of any delay in payment of a subsidy on behalf of an enrollee if the carrier has been notified by the Exchange that the carrier will receive such advance payment.

Carriers shall participate in the payment and reconciliation process established by the Individual Exchange to ensure that appropriate payments are received by the carriers and that excess payments are returned by the carriers to the Individual Exchange.

Regulation .07 Document Retention and Audits.Link Copy Citation

Carriers shall maintain documents and records, whether paper, electronic, or in other media, sufficient to substantiate the disbursement of subsidies made pursuant to Regulations .03 and .06 of this chapter for a period of at least 10 years and shall make those documents and records available upon request by the Board or its designee to any such entity for purposes of verification, investigation, audit, or other review of subsidy disbursement.

The Individual Exchange or its designee may audit a carrier offering subsidies through the program to assess its compliance with the requirements of this chapter. The carrier shall ensure that its relevant contractors, subcontractors, or agents cooperate with any audit under this section. If an audit results in a finding of material weakness or significant deficiency with respect to compliance with any requirement of these regulations, the carrier shall complete all of the following:

(1)

Within 30 calendar days of the issuance of the final audit report, provide a written corrective action plan to the Individual Exchange for approval;

(2)

Implement the corrective action plan; and

(3)

Provide to the Individual Exchange written documentation of the corrective actions once taken.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 20. Hearings by the Board of Trustees

Regulation .01 Scope.Link Copy Citation

In General. This chapter applies to hearings conducted by the Board of Trustees of the Maryland Health Benefit Exchange.

Determinations Entitled to Hearings. This chapter applies only to the appeal of an Exchange determination regarding:

(1)

The amount of State-based subsidy paid by the Exchange to carriers pursuant to COMAR 14.35.19;

(2)

Contested cases under COMAR 14.35.10 in which the Board has revoked delegation authority;

(3)

Rehearings held pursuant to COMAR 14.35.10.11E; and

(4)

Any other matter in which the Board has the authority to conduct hearings, and the Board has determined that a hearing is necessary.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Board” means the Maryland Health Benefit Exchange Board of Trustees.

(2)

“Board Secretary” means the Secretary for the Board of Trustees.

(3)

Contested Case.

(a)

“Contested case” has the meaning stated in State Government Article, §10-202(d), Annotated Code of Maryland.

(b)

“Contested case” includes a proceeding:

(i)

Arising out of a determination made by the Exchange;

(ii)

Regarding an authorization, certification, or permit issued by the Exchange; or

(iii)

Arising out of any act of or failure to act by the Exchange, involving an authorization or a certification issued by the Exchange, that aggrieves a person.

(c)

“Contested case” does not include any other quasi-legislative hearing.

(4)

Determination.

(a)

“Determination” means a decision by the Exchange that requires the Board to provide the opportunity for a hearing to a person aggrieved by the decision.

(b)

“Determination” includes:

(i)

A decision as to whether a person against whom an administrative complaint has been received violated a law, regulation, or order; and

(ii)

An order issued pursuant to the Board's authority.

(5)

“Exchange” means the Maryland Health Benefit Exchange.

(6)

“Executive Director” means the Executive Director of the Maryland Health Benefit Exchange, appointed pursuant to Insurance Article, §31-105, Annotated Code of Maryland.

(7)

“Maryland Health Benefit Exchange” has the meaning set forth under Insurance Article, §31-101(e), Annotated Code of Maryland.

(8)

“Office” means the Office of Administrative Hearings.

(9)

“Person” has the meaning set forth under COMAR 28.02.01.02B(12).

(10)

“Presiding officer” means the Board member selected by the board to conduct, manage, and oversee the hearing and the administrative matters of an appeal on behalf of the Board of Trustees of the Maryland Health Benefit Exchange.

Regulation .03 Request for Hearing—In General.Link Copy Citation

Scope. This regulation applies to all requests for a hearing permitted under Regulation .01B of this chapter.

Except as provided in §D of this regulation, a person aggrieved may request a hearing by submitting a written statement to the Board Chair, signed by the requesting person and containing the following information:

(1)

The action or nonaction of the Exchange causing the person requesting the hearing to be aggrieved;

(2)

The facts related to the incident or incidents about which the person requests the Board to act or not to act; and

(3)

The ultimate relief requested.

Hearing Requests—Timing.

(1)

Except as provided in §D of this regulation, a request for a hearing shall be received by the Board within 30 calendar days of the date of the letter notifying the party of the Exchange’s action, intention to act, or failure to act.

(2)

In calculating the 30-day period, the date of the letter notifying the party of the Exchange's action, intention to act, or failure to act is not included.

(3)

The end of a day is considered to be 11:59 p.m. Eastern Time.

(4)

The last day of the 30-day period is included unless it is a Saturday, Sunday, legal holiday, or day that the Maryland Health Benefit Exchange is closed for a part of the day.

(5)

If the last day of the 30-day period is a Saturday, Sunday, legal holiday, or a day that the Maryland Health Benefit Exchange is closed for a part of the day, the 30-day period runs until the end of the next day which is not a Saturday, Sunday, legal holiday, or day that the Maryland Health Benefit Exchange is closed for a part of the day.

(6)

Intermediate Saturdays, Sundays, legal holidays, and days that the Maryland Health Benefit Exchange is closed for a part of the day shall be counted toward the 30-day period.

Request for Hearing—Appeals of Procurement Bid Protests.

(1)

A person aggrieved may request a hearing under this subparagraph by submitting a written statement to the Board Chair postmarked within 10 calendar days after issuance of the decision resolving the protest, and containing the following information:

(a)

Each ground on which the protestor claims that the protest was resolved in error; and

(b)

A copy of the initial protest and the decision of the Executive Director or designated procurement officer resolving the protest

(2)

Ten copies of all required materials shall be submitted.

Except as provided in §F of this regulation, upon receipt of a proper request, the Board shall grant a hearing unless, in viewing the facts set forth by the person making the request, in the light most favorable to that person, the Board determines that:

(1)

The Board has no authority to take action;

(2)

The request does not contain the information required by this chapter;

(3)

The request is untimely; or

(4)

The request is moot.

For appeals of procurement bid protests, instead of granting a hearing, the Board may:

(1)

Resolve the appeal without granting a hearing;

(2)

Elect to refer the matter for a hearing and recommended decision to a single member of the Board; or

(3)

Elect to refer the matter for a hearing and recommended decision to a panel consisting of two or more members of the Board.

Regulation .04 Service of Notices, Decisions, Orders, and Other Documents.Link Copy Citation

The Board Secretary shall provide notice of a hearing pursuant to State Government Article, §10-209, Annotated Code of Maryland.

The notice shall state:

(1)

The date, time, place, and nature of the hearing;

(2)

The right to call witnesses and submit documents or other evidence under State Government Article, §10-213(f), Annotated Code of Maryland;

(3)

Any applicable right to request subpoenas for witnesses and evidence and specify the costs, if any, associated with such a request;

(4)

That a copy of the hearing procedure is available on request and specify the costs associated with such a request;

(5)

Any right or restriction pertaining to representation;

(6)

That failure to appear for the scheduled hearing may result in an adverse action against the party; and

(7)

That, unless otherwise prohibited by law, the parties may agree to the evidence and waive their right to appear at the hearing.

Notices, decisions, orders, and other documents issued by the Board may be served on a person by:

(1)

Personal delivery to the person;

(2)

Mailing a copy of the document, first class, postage prepaid, to the person's address of record on file with the Exchange;

(3)

Mailing a copy of the document, first class, postage prepaid, to the person's last known address if different from the person's address of record on file with the Exchange;

(4)

Mailing a copy of the document by certified mail to the person's address of record on file with the Exchange or last known address; or

(5)

Delivering or mailing a copy of the document, first class, postage prepaid, to the person's attorney, if the person is represented by counsel.

Notice of a hearing is sufficient if the initial notice of a hearing is sent by regular mail to a party at the party's business and resident addresses, as applicable, on file with the Exchange.

A hearing may be rescheduled if there is satisfactory showing that the notice was sent not less than 30 calendar days before the hearing, or upon agreement of all parties.

The Board shall maintain a record stating:

(1)

To whom the initial notice was sent;

(2)

The address to which the initial notice was sent;

(3)

The date the initial notice was sent;

(4)

The manner of service; and

(5)

The name of the person who sent the initial notice.

Regulation .05 Discovery.Link Copy Citation

By written request served on other parties and filed with the presiding officer not later than 30 calendar days before the scheduled hearing, a party may require any other party to produce, within 15 calendar days, for inspection or copying, any file, memorandum, correspondence, document, object, or tangible item:

(1)

Relevant to the subject matter of the case; and

(2)

Not privileged.

Unless provided by agreement of the parties, no other discovery procedure is allowed.

Copies.

(1)

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

(2)

The charge for copies of requested documents and records may be waived by the custodian of the documents in accordance with State Government Article, §10-621(e), Annotated Code of Maryland, or other applicable law.

Objection to Production.

(1)

A party may object to the production of a file, memorandum, correspondence, document, object, or tangible item by filing a motion to quash discovery or for other relief.

(2)

The presiding officer, for cause shown, may issue any order that justice requires to protect the party from annoyance, embarrassment, oppression, or undue burden or expense.

A party who has responded to a request for production and who obtains or discovers, before the hearing, additional files, memoranda, correspondence, documents, objects, or tangible things that are relevant to the request for production shall supplement the response to the request promptly.

If a party fails to comply with a request for production, the presiding officer, either on the presiding officer's own motion or by motion of the party requesting the production, may issue an order:

(1)

Refusing to allow the party to support or oppose designated claims or defenses;

(2)

Prohibiting the party from introducing designated matters into evidence;

(3)

Striking any allegations or charges made by the party failing to produce;

(4)

Staying further proceedings until the discovery is provided; or

(5)

Dismissing the action or any part of it.

Regulation .06 Subpoenas.Link Copy Citation

On request of a party, the presiding officer may issue subpoenas requiring the attendance and testimony of witnesses and the production, at the hearing, of any tangible items in the possession or under the control of a witness.

Subpoena Requests.

(1)

A request for a subpoena shall:

(a)

Be made, in writing, to the Board Chair; and

(b)

Specify the:

(i)

Name and full address of the person to be subpoenaed; and

(ii)

Name, full address, and telephone number of the party requesting the subpoena.

(2)

A subpoena that requests the production of tangible items, books, papers, or other documents shall describe those items with particularity.

(3)

A subpoena request need not be served on all parties.

Service of Subpoenas.

(1)

Except as provided in §C(2) of this regulation, subpoenas shall be served by hand delivery by an individual 18 years old or older who is not a party to the proceeding. For subpoenas requested 15 calendar days or less before the scheduled hearing, the requester shall provide service.

(2)

In a case where the individual to be served resides outside Maryland, the subpoena may be served by certified mail.

Return of service shall be made by:

(1)

Affidavit, if hand delivered; or

(2)

Return receipt, if mailed.

A person may object to a subpoena by filing a motion to quash or for other relief.

If a request for a subpoena was filed less than 15 calendar days before the hearing date, the presiding officer may refuse to postpone the hearing based on the party's inability to serve the subpoena.

Regulation .07 Conduct of Hearing—In General.Link Copy Citation

A hearing conducted under this chapter shall be audio recorded and presided over by a quorum of the Board.

The presiding officer will determine whether a hearing will be open to the public, unless otherwise required by law.

Parties to Proceeding.

(1)

The necessary parties to a contested case proceeding or other matter for which a hearing is being held are:

(a)

The Exchange; and

(b)

A person who requests a hearing due to being aggrieved by:

(i)

A determination made by the Exchange; or

(ii)

Any other act of or failure to act by the Exchange, involving an authorization or a certification issued by the Exchange.

(2)

Not later than 15 calendar days before the earlier of the prehearing conference or the hearing date, a person who is not a necessary party under §C(1) of this regulation may seek to become a party by intervention by filing a motion to intervene, which shall state:

(a)

The basis for considering intervention to be timely; and

(b)

How the financial interests of the person will be directly and immediately affected by an order of the Board resulting from the hearing.

The presiding officer shall conduct the hearing and may allow the case to proceed in a manner necessary to ensure the fair resolution of the issues, including, but not limited to, placing reasonable limitations on the number of witnesses a party may call and the exclusion of evidence which is repetitive, irrelevant, immaterial, or otherwise not probative. The Maryland Rules of Civil Procedure may be used as a guide for resolving procedural issues regarding the conduct of the hearing.

The presiding officer shall rule on all procedural matters, including motions, objections, and offers of proof.

The Board may designate an attorney to represent the Exchange. Once the hearing is closed by the presiding officer, the individual presenting the case on behalf of the Exchange may not have a further role in the decision process of the Exchange.

Motion for Summary Decision.

(1)

A party may move for summary decision at any time on any appropriate issue in the case.

(2)

The Board may grant a final summary decision if the Board finds that:

(a)

There is no genuine issue of material fact; and

(b)

A party is entitled to prevail as a matter of law.

Motion to Dismiss. Upon motion, the Board may issue a final decision dismissing an initial pleading which fails to state a claim for which relief may be granted.

Motion for Judgment.

(1)

A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party. The moving party shall state all reasons why the motion should be granted. No objection to the motion for judgment shall be necessary. A party does not waive the right to make the motion by introducing evidence during the presentation of any opposing party's case.

(2)

When a party moves for judgment at the close of the evidence offered by an opposing party, the Board may:

(a)

Proceed to determine the facts and to render judgment against an opposing party; or

(b)

Decline to render judgment until the close of all evidence.

(3)

A party who moves for judgment at the close of the evidence offered by an opposing party may offer evidence if the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. In so doing, the party withdraws the motion.

Regulation .08 Postponements.Link Copy Citation

At the discretion of the presiding officer, a hearing may be postponed if a written request for postponement is filed with the presiding officer not later than 15 calendar days before the date of the hearing.

A hearing may not be postponed, except for good cause, when the request for postponement is filed within 15 calendar days of the date of the hearing.

Regulation .09 Default Orders.Link Copy Citation

The presiding officer may issue a default order against a party other than the Exchange that, after receiving proper notice, fails to appear at a hearing if:

(1)

Notice is issued by the Board, and the party failing to appear is the person against whom the notice was issued; or

(2)

In any other contested case hearing, the party failing to appear is the person that requested the hearing.

In a hearing arising out of a notice or determination issued by the Exchange, the default order shall:

(1)

State the facts supporting the finding of proper notice to the person against whom the notice or determination was issued;

(2)

Adopt the facts and violations of law as alleged by the Exchange in its notice or determination as if by admission of the person against whom the charging document, order, or notice was issued; and

(3)

Adopt the sanction requested by the Exchange.

The Board Secretary shall serve the default order directly on the parties by certified mail.

Within 15 calendar days after service of a default order, the party in default may submit to the Board a written motion:

(1)

Requesting that the default order be vacated or modified; and

(2)

Stating the grounds for the request.

If the presiding officer finds that there is:

(1)

Good cause to excuse the default, the presiding officer may:

(a)

Vacate or modify the default order; and

(b)

Schedule the case for further appropriate proceedings; or

(2)

No good cause to excuse the default, the presiding officer shall:

(a)

Deny the motion; and

(b)

Affirm the default order as the final order.

Regulation .10 Decisions.Link Copy Citation

The presiding officer shall:

(1)

Sign the final order following a hearing; and

(2)

File a copy of the final order with the Exchange and serve a copy on all parties to the hearing.

The final order is effective when issued, unless a different date is specified in the decision.

The decision of the Board is the final administrative decision of the case.

Regulation .11 Mistake or Error in the Final Order.Link Copy Citation

The Board may correct an order if, upon review, the final order was issued as a result of fraud, mistake, or inadvertence or contains a clerical error.

Regulation .12 Judicial Review.Link Copy Citation

A party adversely affected by a final decision of the Board may obtain judicial review of the decision as provided by law.

Subtitle 35 — Maryland Health Benefit Exchange

Chapter 21. State-Based Health Insurance Subsidies Program

Regulation .01 Scope.Link Copy Citation

This chapter sets forth the structure, implementation, and eligibility standards for the State-Based Health Insurance Subsidies Program, as required under Insurance Article, §31-117, Annotated Code of Maryland.

If the advance premium tax credits under 26 U.S.C. §36B(b)(3)(A)(iii) are extended for calendar years 2026 and 2027, the subsidy under this chapter shall be abrogated and of no further force and effect.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Enrollee” means a qualified individual who is enrolled in a qualified health plan through the Individual Exchange.

(2)

“Essential health benefit” has the meaning set forth in Insurance Article, §31-116(a), Annotated Code of Maryland, and 42 U.S.C. §18022(b).

(3)

“Federal poverty level (FPL)” means the most recently published federal poverty level guidelines, updated periodically in the Federal Register by the Secretary of HHS as set forth in 42 U.S.C. §9902(2), as of the first day of the open enrollment period for qualified health plans (QHPs) offered through the Individual Exchange for a calendar year.

(4)

“Program” means the State-Based Health Insurance Subsidies Program.

Regulation .03 Eligibility Requirements for Subsidies Through the Program.Link Copy Citation

An enrollee is eligible to receive subsidies from the Program during a month if:

(1)

The enrollee is a member of a tax filer’s tax household and the tax filer has met the eligibility requirements for APTC in accordance with the requirements in COMAR 14.35.07.08A(2), B— C, E, F and H; and

(2)

The enrollee experiences an increase in the applicable percentages established under 26 U.S.C. §36B(B)(3)(A)(iii) for premiums based on household income in calendar years 2026 and 2027, as compared to the applicable percentages in place for calendar year 2025.

The subsidy shall be automatically applied to eligible enrollees’ premiums.

In any calendar year of the program:

(1)

The Board may limit the availability of subsidies, regardless of eligibility, if the costs of the program are projected to exceed the budgeted allowance for that calendar year;

(2)

The limit described in §C(1) of this regulation may take the form of:

(a)

A limit on the number of enrollees eligible for the subsidy;

(b)

A limit on increases in subsidies during a plan year for enrollees after enrollment; or

(c)

Any other limit or combination of limits as the Board deems appropriate;

(3)

Any limit on the availability of subsidies for enrollees in the program shall be applied uniformly to all enrollees after the effective date of the Board’s decision; and

(4)

The Exchange shall monitor the data outlined in Regulation .05 of this chapter to determine, in consultation with the Maryland Insurance Administration, the recommended limits to the Program.

Effective Dates for Changes in Subsidy Eligibility.

(1)

(2)

(3)

When an applicant is eligible for a special enrollment period under COMAR 14.35.07.12—.19, the applicant or enrollee shall be determined eligible for subsidies as of the applicable effective date specified for each special enrollment period under COMAR 14.35.07.12—.19.

(4)

When an enrollee’s enrollment is terminated by the enrollee as set forth in 45 CFR §155.430(b)(1) or terminated by the Exchange under 45 CFR §155.430(b)(2)(i)—(vii) the subsidy shall be terminated in accordance with the applicable effective date of the termination set forth in 45 CFR §155.430(d).

Regulation .04 Calculation of Subsidies Under the Program.Link Copy Citation

The subsidy may not exceed the enrollee’s premium amount.

The subsidy shall be applied to the premium balance remaining after application of the Advance Premium Tax Credit.

Basis of Calculation.

(1)

(2)

For plan years 2026 and 2027, the Board shall set the payment parameters for each plan year of the Program before December 31 preceding the applicable plan year.

Regulation .05 Exchange Data Collection, Reporting, and Maintenance.Link Copy Citation

The Exchange shall track data on the Program including:

(1)

On a monthly basis, or more frequently as required to appropriately monitor enrollment and spending under the program, the average number of enrollees receiving subsidies under the Program;

(2)

On a monthly basis, or more frequently as required to appropriately monitor enrollment and spending under the program, the average subsidy amount received by enrollees under the Program; and

(3)

The impact the Program has on rates in the individual insurance market.

Information tracked in §A(1) and (2) of this regulation shall be posted on the website of the Individual Exchange and included in the Annual Report required under Insurance Article, §31-119(d), Annotated Code of Maryland.

The Individual Exchange shall maintain documents and records relating to the Program, whether paper, electronic, or in other media, for each benefit year for at least 10 years.

Regulation .06 Disbursement of Subsidies.Link Copy Citation

The Individual Exchange shall transmit subsidies directly to the carrier with whom the recipient is enrolled, to be applied to the recipient’s premium.

A carrier that receives notice from the Individual Exchange that an individual enrolled in the carrier’s QHP is eligible for subsidies shall:

(1)

Reduce the portion of the premium charged to or for the individual for the applicable month or months by the amount of the subsidy;

(2)

Notify the Exchange of the reduction in the portion of the premium charged to the individual in accordance with 45 CFR §156.265(g); and

(3)

Include with each billing statement, as applicable, to or for the individual the amount of the subsidy for the applicable month or months, and the remaining premium owed.

Failure to Timely Report Effectuations.

(1)

The Individual Exchange requires carriers to send 834 effectuation files to the Individual Exchange in a timely manner, and not more than 90 days after receiving an 834 enrollment file for a recipient.

(2)

Notwithstanding §A of this regulation, if a carrier sends an 834 effectuation file to the Individual Exchange more than 90 days after the coverage start date on the 834 enrollment file sent by the Individual Exchange to the carrier, the Individual Exchange will transmit subsidies to a carrier for a maximum of 3 months retroactively, including the month in which the effectuation file is transmitted to the Individual Exchange as one of the 3 retroactive months.

(3)

An individual enrolled in a carrier’s QHP shall be held harmless for any portion of premium not transmitted to the carrier under § C(2) of this regulation.

Refunds.

(1)

(2)

Unless a refund is requested by or for the enrollee, the carrier shall, within 45 calendar days of discovery of the error, either apply the excess premium paid by or for the enrollee to the enrollee’s portion of the premium or refund the amount directly.

(3)

If any excess premium remains after application of premium as described in §C(2) of this regulation:

(a)

(b)

(4)

If a refund is requested by or for the enrollee, the refund shall be provided within 45 calendar days of the date of the request.

A carrier may not refuse to commence coverage under a policy or terminate coverage on account of any delay of advance payment of a subsidy on behalf of an enrollee if the carrier has been notified by the Exchange that the carrier will receive such advance payment.

Regulation .07 Document Retention and Audits.Link Copy Citation

Carriers shall maintain documents and records, whether paper, electronic, or in other media, sufficient to substantiate the disbursement of subsidies made pursuant to Regulations .03 and .06 of this chapter for a period of at least 10 years and shall timely make those documents and records available upon request by the Board or its designee to any such entity for purposes of verification, investigation, audit, or other review of subsidy disbursement.

Audits.

(1)

The Individual Exchange may require a carrier offering subsidies through the program to participate in an audit to assess its compliance with the requirements of this chapter. For any audit under this section, the Individual Exchange shall determine whether the audit shall be conducted by:

(a)

The Individual Exchange,

(b)

A designee of the Individual Exchange; or

(c)

An independent, third-party auditor compensated by the carrier.

(2)

Timeliness of Audit Reports.

(a)

If the audit is conducted by an independent, third-party auditor as specified in §B(1)(c) of this regulation, the carrier must obtain the results no later than 6 months after an audit is requested by the Individual Exchange.

(b)

If the audit is conducted by an independent, third-party auditor as specified in §B(1)(c) of this regulation, the carrier shall send the audit report to the Individual Exchange within 15 days of receipt of the audit report by the carrier.

(3)

The carrier shall ensure that its relevant contractors, subcontractors, or agents cooperate with any audit under this section. If an audit results in a finding of material weakness or significant deficiency with respect to compliance with any requirement of these regulations, the carrier shall complete all of the following:

(a)

Within 30 calendar days of the issuance of the final audit report, provide a written corrective action plan to the Individual Exchange for approval;

(b)

Implement the corrective action plan; and

(c)

Provide to the Individual Exchange written documentation of the corrective actions once taken.

Subtitle 36 — Maryland Longitudinal Data System Center

Chapter 01. Inspection and Copying of Public Records

Regulation .01 Scope.Link Copy Citation

This chapter sets forth procedures for the disclosure, inspection, or copying of public records maintained by the Maryland Longitudinal Data System Center.

This chapter does not apply to aggregate data requests. The procedures for aggregate data requests by the public from data maintained by the Maryland Longitudinal Data System Center are set forth in COMAR 14.36.04.

Regulation .02 Policy.Link Copy Citation

It is the policy of the Maryland Longitudinal Data System Center to facilitate public access to the Center’s public records when access is authorized by law.

The Center’s policy is to make all public records easily accessible on the agency’s website.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.

(2)

“Applicant” has the meaning stated in General Provisions Article, §4-101(b), Annotated Code of Maryland.

(3)

“Center” means the Maryland Longitudinal Data System Center, its advisory boards, its committees, any other public bodies under the authority and acting on behalf of the Maryland Longitudinal Data System Center, and any employees, agents, or contractors acting on behalf of the Maryland Longitudinal Data System Center.

(4)

“Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

(5)

“Data partner” means a State agency, an industry certifier, or other entity that originally collects student and workforce data and provides that data to the Center under Education Article, §27-707, Annotated Code of Maryland.

(6)

“Executive Director” means the Executive Director of the Maryland Longitudinal Data System Center.

(7)

“Governing Board” has the meaning stated in Education Article, §24-701, Annotated Code of Maryland.

(8)

“Official custodian” has the meaning stated in General Provisions Article, §4-101(f), Annotated Code of Maryland.

(9)

“Person in interest” means:

(a)

A person or governmental unit that is the subject of a public record;

(b)

An authorized designee of the person or governmental unit that is the subject of a public record; or

(c)

If the person has a legal disability, a parent or legal representative of the person that is the subject of a public record.

(10)

“Public record” has the meaning stated in General Provisions Article, §4-101, Annotated Code of Maryland.

(11)

“Working day” means a day other than Saturday, Sunday, or a State holiday or service reduction day.

Regulation .04 Official Custodian.Link Copy Citation

The Executive Director shall designate an official custodian of public records for the Center.

The website for the Center shall provide the name and contact information for the custodian of public records.

Regulation .05 Who May Request Public Records.Link Copy Citation

Any person may request to inspect or copy public records of the Center.

Regulation .06 Necessity for Written Request.Link Copy Citation

Inspection.

(1)

Except as otherwise provided in this chapter, the custodian shall make public records of the Center available for inspection by an applicant without demanding a written request.

(2)

The custodian shall require a written request if the custodian reasonably believes that:

(a)

The Act or any other law may prohibit the disclosure of the public record to the applicant; or

(b)

A written request will materially assist the Center in responding.

Copies. If the applicant requests a copy of any public record of the Center, the custodian may require a written request.

Regulation .07 Contents of Written Request.Link Copy Citation

A written request shall:

Contain the applicant’s name and address;

Be signed by the applicant; and

Reasonably identify, by brief description, the public record sought.

Regulation .08 Addressee.Link Copy Citation

A request to inspect or copy a public record shall be addressed to the custodian of the record. If the custodian is unknown, the request may be addressed to the Executive Director.

Regulation .09 Response to Request.Link Copy Citation

If the custodian decides to grant a request for inspection, the custodian shall produce the public record for inspection, without unreasonable delay, as follows:

(1)

Immediately for records designated by the Center for inspection, as set forth in §B of this regulation; or

(2)

If additional time is needed to retrieve the public record and conduct any necessary review, within a reasonable time period, not to exceed 30 days after the date of the request.

The custodian shall designate the following public records for immediate inspection:

(1)

Bylaws of the Governing Board;

(2)

Minutes of the Governing Board; and

(3)

Data sharing agreements entered into by the Center and data partners.

If the custodian decides to deny a request for inspection, the custodian shall:

(1)

Do so within 30 days after the request; and

(2)

Immediately notify the applicant of the denial.

If a request is denied, the custodian shall provide the applicant, at the time of the denial or within 10 working days, a written statement that gives:

(1)

The reason for the denial;

(2)

The legal authority for the denial; and

(3)

Notice of the remedies available for review of the denial.

If a requested public record is not in the custody or control of the custodian to whom application is made, the custodian shall, within 10 working days after receipt of the request, notify the applicant:

(1)

That the custodian does not have custody or control of the requested public record; and

(2)

If the custodian knows:

(a)

The name of the custodian of the public record; and

(b)

The location or possible location of the public record.

With the consent of the applicant, any time limit imposed by §§A—C of this regulation may be extended for an additional period of up to 30 days.

Regulation .10 Notice to Person Possibly Affected by Disclosure.Link Copy Citation

Unless prohibited by law, the custodian may provide notice of a request for inspection or copying of any public record of the Center to any person who, in the judgment of the custodian, could be adversely affected by disclosure of the public record.

The custodian may consider the views of the possibly affected person before deciding whether to disclose the public record to an applicant.

Regulation .11 Public Record Temporarily Unavailable.Link Copy Citation

If a requested public record of the Center is not immediately available for inspection or copying, the custodian shall promptly:

Notify the applicant that the public record is not immediately available; and

Schedule a date within a reasonable time for inspection or copying.

Regulation .12 Public Record Destroyed or Lost.Link Copy Citation

If the custodian knows that a requested public record of the Center has been destroyed or lost, the custodian shall promptly:

Notify the applicant that the public record is not available; and

Explain the reasons why the public record cannot be produced.

Regulation .13 Review of Denial.Link Copy Citation

If the custodian denies a request to inspect or copy a public record of the Center, the applicant may file an action for judicial enforcement under General Provisions Article, §4-362, Annotated Code of Maryland, without pursuing the remedies set forth in §§B and C of this regulation.

If the custodian charges a fee of more than $350 under Regulation .15 of this chapter, the applicant may, within 90 days after the date the fee is imposed, file a written complaint with the State Public Information Act Compliance Board under General Provisions Article, §4-1A-05(a), Annotated Code of Maryland.

The applicant and the custodian each may contact the Public Access Ombudsman to resolve, under General Provisions Article, Title 4, Subtitle 1B, Annotated Code of Maryland, a dispute relating to requests for public records.

Regulation .14 Disclosure Against Public Interest.Link Copy Citation

Denial Pending Court Order.

(1)

If, in the opinion of the custodian, disclosure of a public record of the Center otherwise subject to disclosure under the Act would do substantial injury to the public interest, the custodian may temporarily deny the request to obtain a court order allowing nondisclosure.

(2)

A temporary denial shall be in writing.

Circuit Court Review.

(1)

Within 10 working days after the denial, the custodian shall apply to the appropriate circuit court for an order permitting continued denial or restriction of access.

(2)

Notice of the custodian’s complaint, on behalf of the Center, shall be served on the applicant in the manner provided for service of process under the Maryland Rules.

Regulation .15 Fees.Link Copy Citation

Except as provided in §§B and C of this regulation, the fee schedule for responding to requests of public records of the Center is as follows:

(1)

For each copy made by a photocopying machine within the Center, 25 cents per page;

(2)

For each copy made other than by a photocopying machine within the Center, the actual cost of reproduction;

(3)

For certification as a true copy of a public record, an additional fee of $1 per page or, if appropriate, per item; and

(4)

For electronic records provided in an electronic format, no fee.

Minimum Fee. A charge may not be made if the total fee is $1 or less.

If the fee for copies or certified copies of any public record of the Center is specifically set by a law other than the Act or this regulation, the custodian shall charge the prescribed fee.

If the custodian cannot copy a public record within the Center, the custodian shall make arrangements for the prompt reproduction of the record at public or private facilities outside the Center. The custodian shall:

(1)

Collect from the applicant a fee to cover the actual cost of reproduction; or

(2)

Direct the applicant to pay the cost of reproduction directly to the facility making the copy.

Before copying a public record of the Center, the custodian shall estimate the cost of reproduction and either:

(1)

Obtain the agreement of the applicant to pay the cost; or

(2)

Require prepayment of the cost.

Except as provided in §G of this regulation the custodian may charge a reasonable fee for time that an official or employee of the Center spends to:

(1)

Search for requested public records; or

(2)

Prepare public records for inspection and copying.

The custodian may not charge a search or preparation fee for the first 2 hours that an official or employee of the Center spends to respond to a request for public records.

The Center may charge a reasonable hourly fee based upon the actual cost to the Center for staff services for additional time required to search for or prepare public records for inspection or copying.

Waiver or Reduction of Fee.

(1)

The custodian may waive or reduce any fee under this regulation if:

(a)

The applicant requests a waiver; and

(b)

The custodian determines that the waiver or reduction is in the public interest.

(2)

In making a decision under this section, the custodian shall consider, among other relevant factors, the ability of the applicant to pay the fee.

If the applicant requests that copies of a public record be mailed or delivered to the applicant or to a third party, the custodian may charge the applicant for the actual cost of postage or delivery, and the cost of any electronic media used to provide the copies.

Regulation .16 Time and Place of Inspection.Link Copy Citation

An applicant may inspect any public record of the Center that the applicant is entitled to inspect, by appointment, during the normal working hours of the Center.

The inspection shall occur where the public record is located, unless the custodian, after taking into account the applicant’s expressed wish, determines that another place is more suitable and convenient.

Subtitle 36 — Maryland Longitudinal Data System Center

Chapter 02. Corrections of Public Record

Regulation .01 Scope.Link Copy Citation

This chapter sets out procedures under which a person in interest may request the correction or amendment of public records of the Maryland Longitudinal Data System Center.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Center” means the Maryland Longitudinal Data System Center.

(2)

“Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

(3)

“Official custodian” has the meaning stated in General Provisions Article, §4-101(f), Annotated Code of Maryland.

(4)

“Person in interest” has the meaning stated in General Provisions Article, §4-101(g), Annotated Code of Maryland.

(5)

“Public record” has the meaning stated in General Provisions Article, §4-101(g), Annotated Code of Maryland.

Regulation .03 Who May Request.Link Copy Citation

A person in interest may request that the Center correct or amend any public record that:

The Center created and maintains; and

The person in interest is authorized to inspect.

Regulation .04 Contents of Request.Link Copy Citation

A person in interest shall make a request to correct or amend a public record in writing.

The request shall:

(1)

Identify the public record to be corrected or amended;

(2)

State the precise correction or amendment requested;

(3)

State the reason for the correction or amendment; and

(4)

Include a statement that, to the best of the requester’s belief, the public record is inaccurate or incomplete.

Regulation .05 Addressee.Link Copy Citation

A request to correct or amend a public record shall be addressed to the custodian of the record. If the custodian is unknown, the request shall be addressed to the [Executive Director] official custodian.

Regulation .06 Return of Nonconforming Request.Link Copy Citation

The custodian shall accept a request to correct or amend a public record when it is received if it reasonably complies with Regulations .04 and .05 of this chapter.

If the request does not reasonably comply with Regulations .04 and .05 of this chapter, the custodian shall return the request to the requestor with:

(1)

An explanation of the reason for the return; and

(2)

A statement that, on receipt of a request that reasonably complies with Regulations .04 and .05 of this chapter, the request will be accepted.

Regulation .07 Response to Request.Link Copy Citation

Within 30 days after the custodian receives a request for correction or amendment that reasonably complies with Regulations .04 and .05 of this chapter, the custodian shall:

Make the requested correction or amendment, and inform the requester in writing of the action; or

Inform the requester in writing that the custodian will not:

(1)

Make the requested correction or amendment, and the reason for the refusal; or

(2)

Act on the request because:

(a)

The requester is not a person in interest;

(b)

The requester is not authorized to inspect the record; or

(c)

Of any other reason authorized by law.

Regulation .08 Response to Refusal of Request — Statement of Disagreement.Link Copy Citation

If the custodian refuses to make a requested correction or amendment, a person in interest may file with the Center a concise statement of the reasons for:

The requested correction or amendment; and

The person’s disagreement with the refusal of the custodian to make the correction or amendment.

Regulation .09 Requirements for Statement of Disagreement.Link Copy Citation

The statement submitted under Regulation .08 of this chapter:

Shall be submitted electronically or by mail on single-sided 8-1/2 x 11 inch paper; and

May not exceed 2,000 words.

Regulation .10 Disclosure of Statement of Disagreement.Link Copy Citation

If a requester files a statement of disagreement concerning a public record under Regulations .08 and .09 of this chapter, the custodian shall provide a copy of the statement whenever the custodian discloses the public record to a third party.

Regulation .11 Administrative Review.Link Copy Citation

A person may request administrative review under this regulation if the custodian:

(1)

Has refused the person’s request to correct or amend a public record under Regulation .07 of this chapter;

(2)

Has rejected the person’s statement of disagreement under Regulation .08 of this chapter; or

(3)

Has not provided a statement of disagreement to a third party under Regulation .10 of this chapter.

A request for review shall be filed with the official custodian of the Center within 30 days after the requester is advised of the custodian’s action.

The review proceedings shall be conducted in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Subtitle 36 — Maryland Longitudinal Data System Center

Chapter 03. Meetings.

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Center” means the Maryland Longitudinal Data System Center.

(2)

“Governing Board” has the meaning stated in Education Article, §24-701, Annotated Code of Maryland.

(3)

“Open session” means a meeting of the Governing Board 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.Link Copy Citation

The general public is invited to attend and observe any open sessions of the Governing Board.

Meetings shall be held in a manner or location that is reasonably accessible to individuals who would like to attend and observe an open session of the Governing Board.

Regulation .03 Public Participation Limited.Link Copy Citation

A member of the public attending an open session may not participate in the session unless:

The Governing Board expressly invites public testimony, questions, comments, or other forms of public participation;

The person is entitled by law to participate; or

As provided by the bylaws of the Governing Board, the individual has received prior approval from the chairman of the Governing Board to participate, subject to a time limit set by the chairman.

Regulation .04 Disruptive Conduct.Link Copy Citation

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.

Authority of the chair of the Governing Board.

(1)

The chair of the Governing Board may order an individual who violates §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 chair of the Governing Board may recess the session while order is restored.

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 .05 Recording, Photographing, and Broadcasting of Open Sessions.Link Copy Citation

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; or

(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.

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.

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

A member of the public who intends to record the discussions at an open session is requested to provide notice to the Executive Director of the Center in advance of the meeting advising of the intention to record the proceedings and specifying the type of equipment to be used to record the proceedings.

Regulation .06 Recordings Not Part of Record.Link Copy Citation

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.

Subtitle 36 — Maryland Longitudinal Data System Center

Chapter 04. Data Requests

Regulation .01 Scope.Link Copy Citation

Generally.

(1)

This chapter governs data requests received by the Maryland Longitudinal Data System Center under Education Article, §24-703(f)(6) and (7), Annotated Code of Maryland.

(2)

All other public information requests shall be processed in accordance with General Provisions Article, Title 4, Annotated Code of Maryland, and COMAR 14.36.01.

The Maryland Longitudinal Data System Center was created to provide analytical information to policy makers, researchers, parents, and students to guide education and workforce policy decisions and programs.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Center” means the Maryland Longitudinal Data System Center.

(2)

(3)

Data Request.

(a)

“Data request” means a request for an aggregate data set created by linking two or more data tables.

(b)

“Data request” does not include a request that requires:

(i)

Analysis or the application of advanced statistical methods; or

(ii)

Creation of constructed variables.

Regulation .03 Applications — General.Link Copy Citation

Application Form. The application shall be made in writing, in the form required by the Executive Director of the Maryland Longitudinal Data System Center.

The application form shall be made available to the public on the Center website.

Options. The application form shall require at a minimum:

(1)

The name, phone number, and email address for the requestor; and

(2)

The data request.

Regulation .04 Time for Applying, Responding.Link Copy Citation

An application for a data request from the Center may be made at any time by any member of the public, or any State agency.

The Executive Director of the Center, or staff member delegated by the Executive Director, shall provide the applicant with an acknowledgement of the receipt of the data request within 10 business days of receiving the application, and shall advise the applicant of the estimated time for completion of fulfillment of the data request and the estimated costs associated therewith within 30 days of receipt of the application.

Regulation .05 Fees.Link Copy Citation

The Executive Director shall assess fees for data requests in accordance with COMAR 14.36.01.15.

Regulation .06 Individual Records.Link Copy Citation

The Center receives data from data partners in accordance with its mandated responsibilities as set forth in Education Article, §24-701, et seq., Annotated Code of Maryland.

Individual Student Records.

(1)

The Center shall maintain education records that are incorporated into the Maryland Longitudinal Data System consistent with the protections established by the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g, as amended, and its accompanying regulations, located at 34 CFR §99, as amended, which are incorporated by reference.

(2)

As set forth in Education Article, §24-703(f)(3)—(4) and (h)(3), Annotated Code of Maryland, the Center shall:

(a)

Only use de-identified aggregate data in its research and reporting; and

(b)

Suppress data that may be identifiable based on the size or uniqueness of the population under consideration.

(3)

The Center shall restrict direct access to the data in the Maryland Longitudinal Data System to authorized staff of the Center as set forth in Education Article, §24-703(g), Annotated Code of Maryland.

(4)

The Center shall direct requests for access to individual student records to the agency supplying the records to the Center for consideration under the Maryland Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland, and any and all applicable State and federal statutes and regulations.

Individual Workforce Records.

(1)

The Center recognizes that workforce records incorporated into the Maryland Longitudinal Data System are protected under Labor and Employment Article, §8-625, Annotated Code of Maryland, and 20 CFR Part 603, which are incorporated by reference, and other State and federal privacy laws.

(2)

The Center shall ensure that workforce data is de-identified by removing or not disclosing any and all information that:

(a)

Reveals the name, address, social security number, or any other identifying particular of an individual or employer; or

(b)

Could foreseeably be combined with other publicly available information to reveal such particulars.

(3)

The Center shall use only de-identified aggregate data in its research and reporting as set forth in Education Article, §24-703(f)(3) and (g)(3), Annotated Code of Maryland.

(4)

(5)

Requests for access to individual workforce records shall be directed to the Maryland Department of Labor for that agency’s consideration under the Maryland Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland, and any and all applicable State and federal statutes and regulations.

The Center shall fulfill data requests made pursuant to Education Article, §24-703(f)(6) and (7), Annotated Code of Maryland:

(1)

Using de-identified aggregate data only, as set forth in Education Article, §24-703(g)(2) and (3), Annotated Code of Maryland; and

(2)

In compliance with:

(a)

The privacy and confidentiality provisions of the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g, as amended, and its accompanying regulations, located at 34 CFR §99, as amended;

(b)

The Federal-State Unemployment Compensation Program (UC), 20 CFR part 603, and Labor and Employment Article, §8-625, Annotated Code of Maryland; and

(c)

Any other applicable State or federal data privacy or confidentiality provisions.

The Center shall deny a data request if the data provided may be identifiable based on the size or uniqueness of the population under consideration, as required under Education Article, §24-703(a)(4), and Labor and Employment Article, §8-625, Annotated Code of Maryland, and 20 CFR Part 603.

Regulation .07 Requests for Nonlongitudinal Data Sets.Link Copy Citation

For purposes of this regulation, a data set is non-longitudinal if it contains data provided by only one of the following agencies that contribute data to the Center:

(1)

Maryland State Department of Education;

(2)

Maryland Department of Labor; or

(3)

Maryland Higher Education Commission.

The Center shall deny a request for a nonlongitudinal data set and refer the requestor to the appropriate agency.

Subtitle 36 — Maryland Longitudinal Data System Center

Chapter 05. Data Collection

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Center” means the Maryland Longitudinal Data System Center.

(2)

“Data” means student and workforce data as defined under Education Article, §24-701, Annotated Code of Maryland.

(3)

(4)

“Governing Board” has the meaning stated in Education Article, §24-701, Annotated Code of Maryland.

Regulation .02 Data Inventory.Link Copy Citation

General.

(1)

Except as provided in §A(2) of this regulation, the Center may not collect, use, or warehouse data that is not listed in a data inventory approved by the Governing Board.

(2)

The Center may temporarily collect limited data elements from a data partner for the purpose of determining if identify resolution is possible.

Data Inventory Requirements. The data inventory shall specify:

(1)

Each data element collected and warehoused in the system;

(2)

The data partner; and

(3)

The date range for the data.

Required Review. The Governing Board shall review and approve the data inventory:

(1)

Each December prior to the submission of the annual report required under Education Article, §24-705, Annotated Code of Maryland; and

(2)

Each time the Center proposes adding or removing a data element.

The Center shall annually report any data element that has been removed upon determination that it is no longer necessary to carry out the mission of the Center.

Regulation .03 Data Collection Schedule.Link Copy Citation

The Governing Board shall approve a data collection schedule that establishes deadlines for each data partner to transfer its data to the Center.

Regulation .04 Data Transmission.Link Copy Citation

The Center shall establish a data transmission method that each data partner shall follow when transferring data to the Center.

Regulation .05 Data Source.Link Copy Citation

State Data.

(1)

As provided in Education Article, §24-707(a), Annotated Code of Maryland, the Center may collect student and workforce data directly from local education agencies, community colleges, public senior higher education institutions, or State agencies.

(2)

The Center shall collect student and workforce data from a State agency if the State agency is already collecting that data or agrees to collect the data on behalf of the Center.

Private Secondary School Data.

(1)

As provided in Education Article, §24-707(b), Annotated Code of Maryland, a private secondary school may transfer student and workforce data to the Center.

(2)

If such data is transferred, the Center may designate the Maryland State Department of Education as its agent for collecting data from the private secondary schools.

For-Profit and Private Nonprofit Institutions of Higher Education Data.

(1)

As provided in Education Article, §24-707(c), Annotated Code of Maryland, certain for-profit and private nonprofit institutions of higher education are required to transfer student-level data to the Center.

(2)

The Center may designate the Maryland Higher Education Commission as its agent for collecting data from the for-profit and private nonprofit institutions of higher education.

Other Data Sources. The Center may collect and incorporate data from an entity other than a State or local agency, if the data collected by that entity:

(1)

Is permissible student data or workforce data;

(2)

Is determined to be accurate and reliable; and

(3)

Is approved for inclusion by the Governing Board.

Regulation .06 Medical and Health Records—Prohibited.Link Copy Citation

Definition.

(1)

For purposes of this regulation, the following term has the meaning indicated.

(2)

Medical and Health Records.

(a)

“Medical and health records” means records created by a health care provider for the purpose of providing care and treatment to an individual.

(b)

“Medical and health records” does not include information about a student that is:

(i)

Collected by a data partner that provides data to the MLDS under this subtitle; and

(ii)

Used solely to determine eligibility for or to administer educational services and programs to students.

Prohibition.

(1)

Under Education Article, §24-701(l)(3), Annotated Code of Maryland, medical and health records are not student data.

(2)

The Center may not collect medical and health records.

Subtitle 36 — Maryland Longitudinal Data System Center

Chapter 06. Center Staff

Regulation .01 Authorized Staff.Link Copy Citation

Scope. Education Article, §24-703(h), Annotated Code of Maryland, restricts access to data in the Maryland Longitudinal Data System to authorized staff of the Center. This regulation sets out a procedure for authorizing Center staff.

General. Authorized staff of the Center shall include:

(1)

State employees of the Center; and

(2)

Individuals authorized by the Executive Director pursuant to §C of this regulation.

Authorization by Executive Director.

(1)

Limitations.

(a)

The Executive Director may only authorize individuals to serve as staff of the Center who are necessary to carry out the mission of the Center.

(b)

Center staff shall be restricted in number for the purpose of maintaining control over access to the Maryland Longitudinal Data System in strict compliance with State and federal privacy laws.

(2)

The Executive Director may designate the following individuals as authorized staff of the Center:

(a)

Researchers, including:

(i)

Faculty staff, and graduate students, from a public senior higher education institution who are identified by the Director of the Research Services Branch to provide research and analysis as part of the Research Services Branch of the Center; and

(ii)

Additional researchers who, pursuant to the MLDS Center’s Project Approval and Management Procedures, have applied for and received approval to conduct a project using MLDS data consistent with Education Article, §24-703(f)(4) and (5), Annotated Code of Maryland.

(b)

Information technology experts and technicians necessary to:

(i)

Install, maintain, and repair data center equipment;

(ii)

Provide assistance in maintaining system security; or

(iii)

Provide system development support; and

(c)

A State agency employee or contractor as needed to provide information technology expertise to assist with data sharing or system administration.

Regulation .02 Background Investigations.Link Copy Citation

All staff of the Center shall have a State and federal criminal history background check within 5 business days of starting as staff of the Center.

An individual is not eligible to have access to the longitudinal data system until the individual has completed and passed the criminal history background investigation.

An individual is deemed to have an unsatisfactory criminal history background investigation if the individual:

(1)

Has been convicted of a felony of any nature; or

(2)

Within the last 10 years, has been convicted of a crime that qualifies as an infamous crime under Maryland law.

Regulation .03 Security Requirements.Link Copy Citation

General. The Center’s Executive Director shall require all authorized staff of the Center to:

(1)

Comply with the rules of security behavior that are provided to staff;

(2)

Receive and review the MLDS Center’s Data Security and Safeguarding Plan, data sharing agreements, the Maryland Department of Labor—Confidentiality Certification Form, and other documents required by the Executive Director; and

(3)

Periodically take security and privacy training classes.

Required Compliance. The Executive Director shall remove a staff member’s system access if the staff member fails to remain in compliance with the requirements in §A of this regulation.

Subtitle 37 — Office of the Public Ombudsman

Chapter 01. General Provisions

Regulation .01 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Act” means the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.

(2)

“Applicant” has the meaning stated in General Provisions Article, §4-101(b), Annotated Code of Maryland.

(3)

“Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

(4)

“Dispute” means a point of contention between an applicant and a custodian arising from a request for public records under the Act, including those matters stated in General Provisions Article, §4-1B-04(a), Annotated Code of Maryland.

(5)

“Exemption” means a denial of inspection of a public record or part of a public record pursuant to General Provisions Article, Title 4, Subtitle 3, Annotated Code of Maryland.

(6)

“Final determination” means the written document issued by the Public Access Ombudsman pursuant to General Provisions Article, §4-1B-04(b), Annotated Code of Maryland, stating that a specific dispute has been resolved or partially resolved or not resolved, or other disposition as provided in Regulations .06, .07, and .09 of this chapter.

(7)

“Identifying information” means any information that identifies a party or other person.

(8)

“Mediation” has the meaning stated in Courts and Judicial Proceedings Article, §3-1801(b), Annotated Code of Maryland.

(9)

“Mediation communication” has the meaning stated in Courts and Judicial Proceedings Article, §3-1801(c), Annotated Code of Maryland.

(10)

“Mediation Confidentiality Act” means the Maryland Mediation Confidentiality Act, Courts and Judicial Proceedings Article, Title 3, Subtitle 18, Annotated Code of Maryland.

(11)

“Mediation information” means all information made and received as part of the Ombudsman’s mediation process and the decision to participate in mediation, including documentary materials and mediation communications.

(12)

“Mediator” has the meaning stated in Courts and Judicial Proceedings Article, §3-1801(d), Annotated Code of Maryland.

(13)

“Office” means the Office of the Public Access Ombudsman.

(14)

“Ombudsman” means the person appointed to the position of the Public Access Ombudsman pursuant to General Provisions Article, §4-1B-03, Annotated Code of Maryland.

(15)

“Party” means a participant or potential participant in the Ombudsman’s mediation process, including an applicant and a custodian.

(16)

“Public record” has the meaning stated in General Provisions Article, §4-101(k), Annotated Code of Maryland.

(17)

“Sociological information” means any of the following information concerning a person that may be contained in a record of the Ombudsman:

(a)

Social security number;

(b)

Driver’s license number;

(c)

Personal mailing address;

(d)

Personal phone number;

(e)

Personal email address; and

(f)

Date of birth.

(18)

“Standards of Conduct for Mediators” means the Maryland Standards of Conduct for Mediators, Arbitrators and Other ADR Practitioners adopted by the Maryland Judiciary’s Mediation and Conflict Resolution Office.

(19)

“Written guidance” means nonbinding guidance that advises parties on the interpretation of the Act and the application of the Act to specific facts.

(20)

“Written mediation agreement” means a written agreement between the Ombudsman and the parties to a mediation that provides the specific terms under which that particular mediation will proceed.

Regulation .02 Objective.Link Copy Citation

The objective of the Office of the Public Access Ombudsman is to make reasonable attempts, including mediation, to resolve disputes between applicants and custodians relating to requests for public records under the Act.

Subtitle 37 — Office of the Public Ombudsman

Chapter 02. Process

Regulation .01 Requesting Dispute Resolution.Link Copy Citation

A party may request the Office’s assistance in resolving a dispute by contacting the Office via telephone, mail, email, or website submission.

If possible, an applicant or custodian shall complete the form entitled Request for Mediation Assistance available on the Office website.

Regulation .02 Documents.Link Copy Citation

An applicant or custodian requesting dispute resolution through the Office shall provide the Office with:

(1)

A copy of the applicant’s written request for public records;

(2)

The custodian’s 10-day letter, if applicable;

(3)

The custodian’s final response, if any; and

(4)

A brief description of the dispute.

An applicant or custodian may provide the Office with:

(1)

Any records produced to the applicant by the custodian; and

(2)

Any relevant correspondence between the applicant and custodian.

Upon the Office’s request, an applicant or custodian may provide the Office with any other documents that the Ombudsman believes may facilitate the mediation process.

Upon receipt of all necessary information and documents, and subject to Regulation .05 of this chapter, the Office shall open a file as soon as practicable.

The failure of an applicant or custodian who is requesting dispute resolution to provide the Office with the documents identified in §A of this regulation may result in the Office declining to open a file.

Regulation .03 Written Mediation Agreement.Link Copy Citation

The Ombudsman may request that the parties enter into a written mediation agreement if, in the Ombudsman’s discretion, such agreement would facilitate the mediation process.

Regulation .04 Timing.Link Copy Citation

Ordinarily, the Ombudsman will handle matters in the order in which a request for dispute resolution is received and the file is opened.

The Ombudsman has discretion to handle a matter out of order if there is a compelling reason to do so.

Time for Mediation.

(1)

The Ombudsman has up to 90 days from the date a file is opened with the Office in which to attempt to resolve a dispute and bring a matter to closure.

(2)

The 90-day deadline may be extended if:

(a)

An extension is needed and desirable in light of the progress that has already been made to resolve the dispute;

(b)

An extension is likely to result in the ultimate resolution of the dispute; and

(c)

The applicant, the custodian, and the Ombudsman agree to the extension and the extension is confirmed in writing.

Regulation .05 Repetitive Requests for Dispute Resolution.Link Copy Citation

Definitions.

(1)

In this regulation, the following terms have the meanings indicated.

(2)

Terms Defined.

(a)

“Repetitive request for dispute resolution” means a request:

(i)

For the Ombudsman’s assistance to resolve a dispute;

(ii)

That relates to a PIA request that in substance has been the subject of mediation between the same parties through the Office in the past; and

(iii)

For which the dispute is substantially the same.

(b)

“Significantly changed circumstances” means:

(i)

A change in the law, subsequent to mediation, that may affect the outcome of the mediation; or

(ii)

A change in the custodian or applicant’s position regarding the dispute.

The Ombudsman has discretion to decline to mediate repetitive requests for dispute resolution, absent significantly changed circumstances.

Regulation .06 Process Voluntary — Declining and Withdrawing Requests.Link Copy Citation

The Ombudsman’s mediation process is voluntary for each party.

If the applicant or custodian that is the subject of the request for dispute resolution declines to mediate the dispute, the Ombudsman shall, as soon as practicable, issue a final determination as provided in Regulation .11 of this chapter stating that the dispute was not resolved and indicating that mediation was declined.

Withdrawing a Request for Dispute Resolution.

(1)

A party requesting dispute resolution through the Ombudsman may withdraw the request.

(2)

If a request for dispute resolution is withdrawn after the Office has opened a file, then the Ombudsman shall issue a final determination as provided in Regulation .11 of this chapter stating that the request for dispute resolution was withdrawn.

(3)

Renewing a Request for Dispute Resolution.

(a)

A party that has withdrawn a request for dispute resolution through the Ombudsman may renew the request one time.

(b)

If a party renews the request for dispute resolution and withdraws that request again, the Ombudsman may decline to mediate a second or subsequent renewed request for dispute resolution.

Regulation .07 Conduct of Ombudsman.Link Copy Citation

The Ombudsman shall read and, consistent with State law, shall abide by the Standards of Conduct for Mediators during the mediation process.

The Ombudsman shall remain neutral, impartial, and independent during the mediation process.

Conflicts of Interest.

(1)

The Ombudsman shall disclose to the parties all actual and potential conflicts of interest reasonably known to the Ombudsman.

(2)

Notwithstanding an actual or potential conflict of interest, the Ombudsman may proceed to attempt to resolve a dispute if:

(a)

The Ombudsman is able to conduct the mediation in a neutral, impartial, and independent manner; and

(b)

The applicant and custodian have consented to proceed in writing.

(3)

If the Ombudsman is unable to proceed in a neutral, impartial, and independent manner, or if the parties have not consented to proceed in light of an actual or potential conflict, then the Ombudsman shall:

(a)

Withdraw from that mediation; and

(b)

Issue a final determination as provided in Regulation .11 of this chapter stating that the dispute was not resolved through the Ombudsman due to conflict.

(4)

If the Ombudsman withdraws from a mediation due to conflict, the Ombudsman may suggest to the parties an alternative dispute resolution resource.

In addition to or in lieu of mediation, the Ombudsman may engage in other reasonable efforts to resolve or prevent a dispute or potential dispute, such as by answering questions about the Act, by providing trainings on the Act, and by engaging in preliminary conversations with an applicant or custodian about the subject of a dispute or potential dispute.

Regulation .08 Conduct of Parties.Link Copy Citation

The Ombudsman may establish written standards of conduct with which the parties will be expected to comply during the mediation process.

The Ombudsman shall disclose all written standards of conduct to the parties at the outset of the mediation.

A party’s failure to abide by a written standard of conduct may result in termination of the mediation process.

Regulation .09 Termination of Mediation.Link Copy Citation

The Ombudsman may terminate the mediation process at any time if the Ombudsman determines that mediation will not reasonably lead to resolution of the dispute.

In making the decision whether to terminate a mediation, the Ombudsman may consider, among other factors:

(1)

The duration of the mediation process;

(2)

The parties’ efforts to resolve the dispute;

(3)

The Ombudsman’s efforts to resolve the dispute;

(4)

The likelihood that the parties will change their positions;

(5)

A party’s failure to abide by the written standards of conduct;

(6)

A party’s failure to abide by the party’s confidentiality obligations; and

(7)

A party’s use of the mediation process for purposes of delay or harassment.

Upon termination of a mediation, the Ombudsman shall issue a final determination as provided in Regulation .11 of this chapter and, without disclosing confidential mediation communications, indicate the reason why mediation was terminated.

Regulation .10 Identification of New Dispute.Link Copy Citation

If, during the course of attempting to resolve a dispute, a new and distinct dispute related to the same PIA request arises, a new file may be opened pursuant to Regulations .01 and .02 of this chapter.

Regulation .11 Final Determination.Link Copy Citation

Definitions.

(1)

In this regulation, the following terms have the meanings indicated.

(2)

Terms Defined.

(a)

“Not resolved” means that the parties were unable to reach a mutually agreeable resolution of a dispute.

(b)

“Partially resolved” means that the parties have reached a mutually agreeable resolution as to one or more, but not all, segregable sub-issues within a dispute.

(c)

“Resolved” means that the parties have reached a mutually agreeable resolution of a dispute.

At the conclusion of a mediation, the Ombudsman shall issue a written final determination stating that the dispute has been resolved, partially resolved, or not resolved.

The written final determination shall include:

(1)

The name of the applicant, the name of the custodian, and the Office file number;

(2)

A brief summary of the matter, including:

(a)

The date of the PIA request;

(b)

A description of the records sought;

(c)

The date of the custodian’s response, if any; and

(d)

A summary of the custodian’s response, if any;

(3)

A brief description of the dispute for which dispute resolution was sought;

(4)

The date and length of an extension, if one was granted; and

(5)

Notice of PIA Compliance Board procedures and contact information.

The Ombudsman shall send the final determination to the relevant applicant and custodian.

Board.

(1)

The Ombudsman does not automatically provide the final determination to the Board.

(2)

If a complaint is filed with the Board, the Ombudsman may provide the final determination to the Board upon the Board’s request.

Subtitle 37 — Office of the Public Ombudsman

Chapter 03. Confidentiality of Mediation Information

Regulation .01 General Confidentiality Provisions.Link Copy Citation

Except as provided in Regulation 02 of this chapter, the Ombudsman shall maintain the confidentiality of all mediation information in accordance with the Act, the Standards of Conduct for Mediators, and the Mediation Confidentiality Act.

The Ombudsman may not disclose or be compelled to disclose mediation information in any judicial, administrative, or other proceeding, in accordance with the Act and with the Mediation Confidentiality Act.

A party may not disclose or be compelled to disclose mediation information in any judicial, administrative, or other proceeding, in accordance with the Mediation Confidentiality Act.

Regulation .02 Exceptions to Confidentiality of Mediation Information.Link Copy Citation

The Ombudsman may disclose mediation information, including mediation communications, in the following situations:

(1)

With Office staff, including an Assistant Attorney General who represents the Office, the Administrative Officer, or any other person working under the direction of the Ombudsman, to carry out the duties of the Office; and

(2)

To third parties, if the parties to the mediation have consented to the disclosure.

The Ombudsman may transfer basic information about a dispute, including the identity of the applicant and custodian and the nature of the dispute, to the Board if appropriate steps have been taken to protect the confidentiality of mediation communications.

Subtitle 37 — Office of the Public Ombudsman

Chapter 04. Disputed Public Records

Regulation .01 Ombudsman’s Review of Disputed Public Records.Link Copy Citation

When the dispute involves a custodian’s application of an exemption to a public record or part of a public record, the Ombudsman may request the custodian to submit the disputed public record or part of a public record to the Ombudsman for review.

A custodian may not be compelled to disclose to the Ombudsman a public record or part of a public record in the custodian’s custody.

A custodian’s voluntary submission of a public record or part of a public record for review under this chapter may not be construed as a waiver of:

(1)

Any privilege held by the custodian; or

(2)

Any assertion of confidentiality under the Act.

Regulation .02 Confidentiality of Disputed Public Records.Link Copy Citation

The Ombudsman shall strictly maintain the confidentiality of any public record or part of a public record submitted for review under this chapter, and may not disclose any such public record or part of a public record to another party without the written permission of the custodian.

The Ombudsman shall take reasonable steps to segregate confidential records in such a way that their confidence is maintained.

Upon the conclusion of a mediation involving the Ombudsman’s review of disputed public records, the Ombudsman shall return or destroy the disputed public records.

Subtitle 37 — Office of the Public Ombudsman

Chapter 05. Written Guidance

Regulation .01 Ombudsman May Provide.Link Copy Citation

The Ombudsman may provide written guidance to parties in furtherance of the mediation process.

Written guidance may not disclose information that any party claims is confidential.

Regulation .02 Ombudsman May Publish.Link Copy Citation

In the Ombudsman’s sole discretion, and to the extent that the Ombudsman believes publication will promote understanding of the Act, the Ombudsman may publish written guidance.

Before publishing written guidance, the Ombudsman shall remove all identifying information.

Subtitle 38 — Maryland State Library

Chapter 01. Programs for Library Media Services

Regulation .01 Librarians in County Public Libraries.Link Copy Citation

Each librarian employed by a county public library in Maryland shall hold a professional certificate issued by the State Superintendent.

There shall be Professional Public Librarian Certification and Public Library Director Certification.

(1)

Professional Public Librarian Certification.

(a)

An applicant for Public Librarian Certification shall have a master's degree from a library school accredited by the American Library Association.

(b)

This certificate shall be valid for 5 years and shall be renewed by the State Superintendent for an additional 5 years if the certificate holder has completed 6 semester hours or their equivalent in an accredited institution or in an in-service program in one of the following areas:

(i)

Management and supervision;

(ii)

Information technology;

(iii)

Reference or technical services; or

(iv)

Other subjects that are relevant to the professional assignment of the librarian.

(2)

Professional Library Director Certification.

(a)

An applicant for Professional Library Director Certification shall have:

(i)

A master's degree from a library school accredited by the American Library Association; and

(ii)

5 years of experience as a professional librarian with at least 2 years of experience in an administrative or supervisory capacity.

(b)

This certificate shall be valid for 5 years and may be renewed by the State Superintendent for an additional 5 years if the certificate holder has completed 6 semester hours or their equivalent in an accredited institution or in an in-service program in the areas of library management or administration, and other subjects that are relevant to the professional assignment of a Professional Library Director.

An in-service program that forms the basis for credit under this regulation shall meet the standards for approval promulgated by the Maryland State Library Agency.

Conditional Degree Certificate. The State Superintendent may issue a Conditional Degree Certificate at the request of a county public library if the State Superintendent determines that an applicant's preparation or experience, or both, are adequate to justify issuance of a conditional certificate. A conditional certificate:

(1)

Shall be valid for 2 years from the date of its issuance; and

(2)

May not be renewed.

Certificates shall be issued by the State Superintendent upon a written application supported by official transcripts of the applicant's record and other documentation that may be required by the State Department of Education.

An application shall contain payment for processing in accordance with the fee schedule that is established by the State Department of Education.

The requirements for certification under these regulations are for the purposes of State certification. A county public library may, as a condition for employment, establish additional requirements.

An application for renewal of a certificate under these regulations shall be made in writing to the State Superintendent not later than 90 days before the expiration date of the certificate. If the certificate has expired, a holder of a former certificate shall meet the certification requirements of the State Board that are in effect at the time of the application for the new certificate.

Regulation .02 Public Library Associate.Link Copy Citation

Definition. The public library associate provides support services requiring rudimentary knowledge of library service, the library collections, and the policies and regulations governing the library.

Job Responsibilities.

(1)

The library associate works under the direction of an experienced professional librarian.

(2)

Examples of appropriate job responsibilities are:

(a)

Assisting library patrons in locating information through the library;

(b)

Providing information to the public on library services, policies, and procedures;

(c)

Collecting, recording, and compiling information and statistics;

(d)

Assisting in the preparation and presentation of library programs;

(e)

Operating a small library branch or service outlet;

(f)

Assisting in the review and selection of library materials;

(g)

Checking and transcribing bibliographic and cataloging information as required; and

(h)

Assisting in the development and maintenance of information technology.

Education and Training.

(1)

To be appointed to a public library associate position, an applicant shall have:

(a)

A bachelor's degree from an accredited institution; and

(b)

Completed a minimum of 90 clock hours of approved in-service training or 9 hours of formal academic course work in library science.

(2)

An appointee with only a bachelor's degree shall have 2 years from the date of appointment to complete the training requirements in §C(1)(b) of this regulation.

(3)

Upon completion of the training requirements in §C(1) and (2) of this regulation, Library Associates shall complete 6 semester hours or their equivalent in an accredited institution or in an in-service program in subjects that are relevant to the assignment of a Library Associate every 5 years.

An in-service program that forms the basis for credit under this regulation shall meet the standards for approval promulgated by the Maryland State Library Agency.

Requirements and Responsibilities of Public Library Administrators and Boards of Trustees. Public libraries shall:

(1)

File with the State Department of Education a letter of assurance of compliance with these regulations; and

(2)

Maintain personnel records on each library associate to include:

(a)

Job description;

(b)

Formal education;

(c)

Experience;

(d)

In-service training; and

(e)

Academic courses completed.

Requirements and Responsibilities of the Maryland State Library Agency. The State Library:

(1)

May perform periodic review and evaluation of the library associate personnel records in each public library system and report to the State Librarian on compliance with these requirements;

(2)

Shall develop or assist libraries in the development of in-service education and staff development programs appropriate for the training of library associates;

(3)

Shall publish criteria for the approval of in-service training and the awarding of library associate credits; and

(4)

Shall approve in-service training for the awarding of library associate credits.

Regulation .03 Library Programs Involving Federal Funds.Link Copy Citation

The regulations for the acceptance and administration of federal funds for the further development of public library and cooperative library services as provided in Public Law 104-208, as amended, shall be those set forth in the State Plan for the administration of the Library Services and Technology Act.

Regulation .04 Special Library Services.Link Copy Citation

Definitions.

(1)

In this regulation, the following terms have the meanings indicated.

(2)

Terms Defined.

(a)

“LBPD” means the Maryland Library for the Blind and Print Disabled.

(b)

“MSL” means the Maryland State Library Agency.

(c)

“NLS” means the National Library Service for the Blind and Print Disabled of the Library of Congress.

Responsibilities of MSL and LBPD.

(1)

MSL shall provide specialized library services to the blind and print disabled individuals in this State through the LBPD.

(2)

LBPD shall:

(a)

Serve as the primary source of books, periodicals, and other information in formats such as Braille, large print, recorded books and digital material;

(b)

Provide reading material, information, programming, and instruction, in cooperation with local organizations and agencies, to eligible citizens; and

(c)

Coordinate library services to the blind and print disabled with those of public libraries and other educational institutions so as to provide an effective Statewide program.

Population Served. The population served by LBPD includes all Maryland citizens who are unable to read standard-sized print due to conditions including blindness, low vision, learning disorders, or physical conditions.

Services Provided.

(1)

LBPD shall provide reading material, information, programming, and instruction, in cooperation with local organizations and agencies, to eligible citizens.

(2)

LBPD is responsible for the Maryland Accessible Textbook Program under Education Article, §§11-901—11-906, Annotated Code of Maryland. The Program coordinates the Statewide availability of textbooks and supplementary materials in electronic format to eligible blind or print disabled students who are enrolled in institutions of higher education and institutions of postsecondary education in the State. The population served includes students with print disabilities attending postsecondary educational institutions in the State.

Funding for Expenses.

(1)

MSL shall receive and utilize the resources of federal agencies, including the National Library Service for the Blind and Print Disabled of the Library of Congress, in accordance with the policies governing these resources.

(2)

LBPD shall receive funding from the State as outlined in Education Article, §23-205(e), Annotated Code of Maryland.

Regulation .05 Free Public Library Services.Link Copy Citation

The board of public library trustees for each county, including Washington County and Baltimore City, shall develop and submit to the Maryland State Library Agency a statement of its policies relating to the provision of free library services to the public. Each statement shall state the board's policies with respect to:

(1)

Limits to be placed on the amount of free services, such as limits on the number of books or other materials borrowed at one time, or time limits on borrowing;

(2)

Online database searches, including a statement of:

(a)

Reasonable time limitations on Internet or database searches; and

(b)

Charges to users for additional online searches;

(3)

Charges for utilities or conveniences available to library users, such as copying machines, printers, fax machines, or other equipment.

The Maryland State Library Agency shall report to the Maryland State Library Board any statements submitted pursuant to this regulation which are not in compliance with State laws and regulations regarding free library services.

“Free library services” is defined to include the use of all library materials and services available for reference/information and for circulation to library users regardless of format, including printed materials, media, computer software, Internet, online databases, or other forms of electronic storage of information.

A public library may not charge usage fees for circulation or use of any materials, excluding late return and excess use charges authorized in this regulation.

Regulation .06 Audits of County Public Libraries.Link Copy Citation

Audit Required. Each board of library trustees for a county public library shall have an audit made of its financial statements for each fiscal year.

Qualifications and Approval of Auditor. The auditor shall meet the qualifications in COMAR 13A.02.07.04B. The director of the county public library shall submit to the State Librarian for approval, by May 1 of the fiscal year to be audited, the name of the auditor.

Audit Standards and Report. The auditor shall conduct the audit in accordance with the standards in COMAR 13A.02.07.04D and the audit reporting package shall include the information in COMAR 13A.02.07.04E.

Submission of Report. The director of the county public library shall submit a copy of the audit reporting package to the State Librarian and appropriate county governing body by November 1 after the close of the fiscal year, except that a county having a population of more than 500,000 and having a county library agency as provided by Education Article, §23-401(b), Annotated Code of Maryland, shall submit the audit report by January 1 after the close of the fiscal year.

Audits of Federal Awards. Each county public library that expends $500,000 or more in federal awards in any fiscal year shall have an audit made in accordance with COMAR 13A.02.07.05.

Additional Provisions. The provisions of COMAR 13A.02.07.06—.10 shall apply to audits conducted under this regulation.

Exemptions. This regulation does not apply to county public libraries which:

(1)

Do not receive, account for, control, and supervise the spending of any public funds for the library;

(2)

Do not prepare separate financial statements; and

(3)

Are audited as a part of the county government.

Regulation .07 County Library Capital Project Grants Program.Link Copy Citation

In this regulation, the following terms have the meanings indicated.

Terms Defined.

(1)

“LLA” means local library agency or county library system.

(2)

“MSL” means the Maryland State Library Agency.

(3)

“Project completion” means:

(a)

Construction work has been completed in accordance with the contract documents;

(b)

The project architect has issued a certificate of completion;

(c)

The contractor has submitted the application for final payment; and

(d)

The building has been accepted by the LLA.

Responsibilities of MSL. MSL shall:

(1)

Develop and administer a grant program for county library capital projects to provide a uniform and objective analysis of proposed capital projects and support projects that address the library needs in the State;

(2)

Evaluate and prioritize grant requests to provide a uniform and objective analysis of proposed capital projects, including the review of each applicant's library facilities master plan;

(3)

Review proposed county library construction grants and issue approvals that are specific to a definite project with a prescribed scope and cost; and

(4)

Use the following criteria to evaluate capital project requests:

(a)

The public necessity and urgency of a project;

(b)

The need for additional sources of funding for a project;

(c)

The estimated cost and timeliness of executing a project;

(d)

The viability of matching funds for a project;

(e)

Geographic diversity; and

(f)

Other factors that may give priority to a project.

Library Facilities Master Plan.

(1)

By July 1 of each year, as a condition of receiving State project approval, each LLA shall submit to MSL or its designee:

(a)

Countywide library plan, which includes:

(i)

A mission statement;

(ii)

A needs statement; and

(iii)

Multiyear goals and objectives; and

(b)

Library facilities master plan, which includes:

(i)

A description of the capital project approved by the applicant's governing body;

(ii)

An updated and detailed capital improvement program for the following fiscal year; and

(iii)

A library capital improvement program for the following 5 years.

(2)

The annual and subsequent 5-year capital improvement program shall be consistent with the current library facilities master plan of record.

Capital Improvement Projects Grants Program.

(1)

By July 15 of each year, an LLA may submit up to 3 applications to MSL to receive grants for capital projects for the next fiscal year.

(2)

An application shall include:

(a)

A description of the scope and purpose of the project;

(b)

A building plan that includes the estimated total cost of the project, including matching funds; and

(c)

Any other information required by MSL.

(3)

On or before October 1 of each year, MSL shall make a recommendation to the State Library Board regarding LLA capital project grants for the following fiscal year that:

(a)

Identifies capital projects for funding approval; and

(b)

Recommends a maximum State construction allocation for each project.

(4)

On or before November 1 of each year, on approval of the State Library Board, MSL shall forward the list of approved LLA capital projects to the Department of Budget and Management.

(5)

By December 1 of each year, each local library board shall submit documentation that:

(a)

The local government has approved the LLA request for State funds and agreed to provide the required matching funds; and

(b)

The requested State funding will be expended within the fiscal year following the fiscal year in which the funds are requested.

(6)

Amendments to the State capital improvement program that a local library board considers necessary to submit during the course of the year shall be reviewed and approved by MSL and the State Library Board before an amendment may be implemented.

(7)

State and Local Cost Share Formula.

(a)

The State share percentage for a county library capital project approved under this section shall be calculated by dividing the State share of the minimum program for a county calculated under Education Article, §23-505(b), Annotated Code of Maryland, by the library program amount for a county calculated under Education Article, §23-503(b), Annotated Code of Maryland, and multiplying this quotient by 1.25.

(b)

The minimum State share of a county library capital project is 50 percent and the maximum State share of a county library capital project is 90 percent of the project expenses that are approved by MSL pursuant to this regulation and Education Article, §23-502, Annotated Code of Maryland.

(c)

Grants under this program may not be for an amount less than $20,000.

Planning and Design of Capital Projects.

(1)

Land or buildings for a capital project shall be acquired by the board of library trustees or, in Montgomery County, the Department of Public Library Services.

(2)

Architects and Engineers.

(a)

The plans, specifications, and related documents for each construction project shall be developed under the supervision and responsibility of a licensed architect or engineer.

(b)

The LLA shall select the architect or engineer.

(c)

The LLA shall notify MSL of the architect or engineer selected.

Grant Close-Out.

(1)

Within 180 days after project completion, the LLA shall submit a close-out summary to MSL using a form provided by MSL.

(2)

MSL may conduct financial and procedural compliance audits.

Rescinding Funding Approval.

(1)

If, within 2 years after funding is made available for a project, no part of the project is under contract, MSL may determine the project to be abandoned and rescind the funding approval.

(2)

When MSL rescinds funding approval, MSL shall transfer the allocation to the Statewide Contingency Account for the fiscal year in which the project was approved for funding.

(3)

Funds transferred to the Statewide Contingency Account may be used for any project approved in a future LLA capital improvement program.

(4)

After a project approval is rescinded, to be considered for reinstatement, the project shall be submitted as a new project request in a succeeding fiscal year's annual LLA capital improvement program.

(5)

MSL may approve a request to extend the allowable time for placing a project under contract if the extension is justified by unusual circumstances.

Subtitle 38 — Maryland State Library

Chapter 02. Freedom to Read Act

Regulation .01 Purpose.Link Copy Citation

The purpose of this chapter is to establish as a matter of policy and priority that:

Library materials, services, and resources exist and should be provided for the interest, information, and enlightenment of all persons the library serves;

A library should not exclude material from its catalog because of the origin, background, or views of a person who created the material; and

A library should not prohibit or remove material from its catalog because of partisan, ideological, or religious disapproval.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined:

(1)

“County” means any county of the State and Baltimore City.

(2)

Library.

(a)

“Library” includes:

(i)

The State Library Resource Center;

(ii)

A Regional Resource Center;

(iii)

A correctional facility library;

(iv)

A county library system and the Enoch Pratt Free Library in Baltimore;

(v)

The Maryland State Library for the Blind and Print Disabled;

(vi)

The Maryland Deaf Culture Digital Library; and

(vii)

A metropolitan cooperative service program.

(b)

“Library” does not include a school library media program established by a local school system.

(3)

“Objection” means a formal challenge submitted to a library for the purpose of removing, reconsidering, or restricting the presence of materials in a library collection.

(4)

“School library media program” means a library in a school in the public elementary and secondary education system of this State.

Regulation .03 Library Policies and Procedures.Link Copy Citation

Each library shall adopt and follow a written policy for operation of the library that is consistent with the State standards for libraries set forth in Regulation .01 of this chapter.

Each policy adopted pursuant to §A of this regulation shall include:

(1)

An acknowledgement that all Marylanders have the freedom to read;

(2)

An affirmation that it is the responsibility of the library to provide adequate library services to satisfy the diverse needs of their users;

(3)

A policy and procedures for librarians and library staff to identify materials that meet users’ needs;

(4)

A requirement that librarians and library staff curate and develop collections that provide access to the widest possible array of books and other materials that support learning; and

(5)

A materials reconsideration policy and procedures.

A materials reconsideration policy and procedures shall:

(1)

Establish a uniform process to submit an objection to materials in the library;

(2)

Require material under review due to an objection to remain available for use by the public and library staff until the review process has concluded; and

(3)

Establish a reasonable timeline to conduct and conclude the review process in a timely manner.

A library board of trustees or other governing body of a library may not dismiss, suspend, discipline, demote, reassign, transfer, or otherwise retaliate against an employee for performing their job duties consistent with the library’s written policy adopted under §A of this regulation.

Regulation .04 State Funding.Link Copy Citation

The State Library Board shall ensure that each library that receives State funding is operated in a manner consistent with the State standards for libraries set forth in Regulation .01 of this chapter.

Receipt of State funding by a public library is contingent upon the library board of trustees or other governing body for the library adopting a written policy that is consistent with the State standards for libraries and conducting the operation of the library in a manner consistent with the written policy.

If the State Library Board certifies that a library has failed to meet the State standards for libraries, the State Library Board shall notify the Comptroller to withhold all State funds from that library.

The Comptroller shall continue to withhold funds until the State Library Board certifies that the library has adopted a written policy consistent with the State standards for libraries.

Subtitle 39 — Interagency Commission on School Construction

Chapter 01. Terminology

Regulation .01 Definitions.Link Copy Citation

In this subtitle, the following terms have the meanings indicated.

Terms Defined.

(1)

“Alternative education” means a public elementary or secondary school or program that addresses the needs of students that typically cannot be met in a regular school program and is designed to meet the needs of students with academic difficulties and/or discipline problems, and temporarily provide students with specialized instructional and/or behavioral supports for a specified time period before returning to their home school.

(2)

“Best value” means the expected outcome of a procurement that provides the greatest overall benefit in response to the requirement with consideration given to the quantities involved, the time required for delivery, the purpose for which required, the competency and responsibility of the bidder, the ability of the bidder to perform satisfactory service, the plan for utilization of minority contractors, and the price offered by the bidder.

(3)

“Bid” means a statement of price, terms of sale, schedule, and description of the supplies, services, construction, or construction-related services offered by a bidder in response to an invitation for bids.

(4)

“Capital maintenance” means projects that involve the major repair, alteration, and replacement of building systems, equipment, finishes, and components, including their removal and disposal, and are sometimes referred to as “systemic renovation” projects.

(5)

Competitive Negotiation.

(a)

“Competitive negotiation” means a method of source selection that permits offerors to:

(i)

Demonstrate creativity, experience, and knowledge; and

(ii)

Submit proposals that vary widely in scope, cost, and other factors.

(b)

“Competitive negotiation” allows negotiating between the LEA and the qualified offerors with the objective that the final proposal should be the most advantageous to the LEA.

(6)

“Competitive sealed bidding” means a process of procurement in which bidders provide fixed prices in response to a scope of work established by the LEA that is defined in advance.

(7)

Construction.

(a)

“Construction” means the process of building, altering, repairing, improving, or demolishing any structure, building, or other improvement to real property.

(b)

“Construction” includes any major work necessary to repair, replace, prevent damage to, or sustain existing components of an improvement to real property.

(c)

“Construction” does not include:

(i)

The maintenance or routine operation of an existing improvement to real property; or

(ii)

Activities related to an energy performance contract.

(8)

“Construction management agency (CMA)” means a project delivery method in which the LEA:

(a)

Directly contracts with trade contractors; and

(b)

Performs one of the following:

(i)

Engages a construction manager as its agent to manage the project; or

(ii)

Acts as the construction manager.

(9)

“Construction management at-risk (CMR)” means a project delivery method in which the LEA engages a construction manager to contract directly with trade contractors and provide a guaranteed maximum price for project procurement and construction.

(10)

“Constructor” means the builder of a facility.

(11)

“Cooperative-use space” means areas in a school that serve as shared or co-located spaces in which both the LEA and non-LEA organizations deliver programs and/or services.

(12)

“County” includes Baltimore City.

(13)

“Day” means calendar day unless otherwise designated.

(14)

Design-Build.

(a)

“Design-build” means a project delivery method in which a single entity is contractually responsible for both design and construction of a project.

(b)

“Design-build” may include finance-design-build and other contracts that include services in addition to design and construction.

(15)

“Donation” means a contribution of cash or gift in kind from a private entity to a public school system or a local government, with no consideration required of the recipient.

(16)

“eMaryland Marketplace” means the State electronic procurement system.

(17)

“Forward-funded project” means a school construction project that the State has approved for planning and for which the LEA has paid some portion of the State share with local funds.

(18)

“Free and reduced-price meal percentage” means the number of students eligible in the previous year for free and reduced-price meals, divided by the full-time equivalent enrollment from the previous year.

(19)

“Funding approval” means pending the availability of funds, the State commits to fund, in the next fiscal year, the entire or a portion of the State share of eligible costs for a school construction project.

(20)

“Furniture, Fixtures, and Equipment (FF&E)” means a category of items such as chairs, desks, movable equipment, and fixed components that are required for the delivery of education within a school facility and are normally not included in the construction contract.

(21)

“Gift in kind” means a contribution of materials, labor, services, equipment, or land from a private entity to a public school system or a local government, with no consideration required of the recipient.

(22)

“Guaranteed maximum price (GMP)” means an arrangement between the LEA and the construction manager at risk in which the total amount payable to the construction manager at risk for the project is restricted to a preagreed maximum and includes the cost of construction and construction management services that is generally determined before the design and construction documents are complete.

(23)

“High performance school” means a school building that satisfies the definition of a high performance building under State Finance and Procurement Article, §3-602.1, Annotated Code of Maryland, and is:

(a)

A school building that meets or exceeds the current version of the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) for schools green building rating system silver rating;

(b)

A school building that achieves at least a comparable numeric rating according to a nationally recognized, accepted, and appropriate numeric sustainable development rating system, guideline, or standard approved by the Secretary of Budget and Management and the Secretary of General Services; or

(c)

A school building that complies with a nationally recognized and accepted green building code, guideline, or standard reviewed and recommended by the Maryland Green Building Council and approved by the Secretary of Budget and Management and the Secretary of General Services.

(24)

“IAC” means the Interagency Commission on School Construction.

(25)

“IAC” or its designee means a member of the IAC or a staff member, respectively, of the Maryland State Department of Education, the Department of General Services, or the Maryland Department of Planning who has been specifically designated to act in the place of the IAC member, or the Executive Director of the Public School Construction Program.

(26)

“Invitation for bids (IFB)” means the document used for soliciting bids under procurement by competitive sealed bidding.

(27)

“Job order contracting (JOC)” means a project delivery method in which the LEA selects a contractor through a competitive procurement process based on a multiplier or coefficient that:

(a)

Reflects the bidder's determination of the actual cost to perform the work plus overhead and profit; and

(b)

Is applied to a fixed-price list of construction items and activities.

(28)

“LEA” means the local education agency or its designee.

(29)

“Local board” means the board of education of a county and includes the Baltimore City Board of School Commissioners

(30)

“Locally funded project” means a school construction project that has been designed, built, or occupied prior to the State approval of planning.

(31)

“Maintenance” means routine, preventative, or corrective activities that are performed to a facility to:

(a)

Continue operations or upkeep;

(b)

Prevent deterioration; or

(c)

Correct a deficiency.

(32)

Minority Business Enterprise (MBE).

(a)

“Minority business enterprise” means a legal entity, other than a joint venture, organized to engage in commercial transactions, that is:

(i)

At least 51 percent owned and controlled by one or more individuals who are socially and economically disadvantaged;

(ii)

Managed by, and whose daily business operations are controlled by, one or more of the socially and economically disadvantaged individuals who own it; and

(iii)

Certified as a Minority Business Enterprise by the Maryland Department of Transportation.

(b)

“Minority business enterprise (MBE)” includes a not-for-profit entity organized to promote the interests of physically or mentally disabled individuals.

(33)

“Multistep sealed bidding” means a multiphase process in which bidders submit a technical offer (statement of qualifications) and a second phase in which those bidders who are determined qualified during the first phase may have price bids considered.

(34)

“Offeror” means an entity that responds to a request for proposals.

(35)

“Planning approval” means, pending the availability of funds, the State commits to fund the State share of eligible costs for a school construction project in some future fiscal years.

(36)

“Prevailing wage rate” means the hourly rate of wages paid in the locality as determined by the State Commissioner of Labor and Industry under State Finance and Procurement Article, §17-208, Annotated Code of Maryland.

(37)

“Priority funding” area means an area designated by a county or a municipal corporation in accordance with State Finance and Procurement Article, §§5-7B-02 and 5-7B-03, Annotated Code of Maryland.

(38)

“Proposal” means the response by an offeror to a request for proposals.

(39)

“Quality based selection” means a method of source selection based on a combination of qualification and cost factors.

(40)

“Renewal” means a capital improvement project for an existing school that, on completion, results in a like-new operational condition for the school as defined by the Commission.

(41)

“Renovation” means a construction project to upgrade an existing building and site, or a portion of a building and site, to improve a school facility’s educational, building performance, and/or aesthetic qualities but which does not achieve a renewal or like-new condition.

(42)

“Responsible” means an entity that has:

(a)

The capability in all respects to perform fully the contract requirements; and

(b)

The integrity and reliability that shall assure good faith performance.

(43)

“Responsive” means a bid submitted in response to an invitation for bids that conforms in all material respects to the requirements contained in the invitation for bids.

(44)

Request for Proposals.

(a)

“Request for proposals” means any documents used for soliciting proposals from offerors.

(b)

“Request for proposals” may request the offeror's price and terms for the proposed contract, a description of technical expertise, work experience, and any other information.

(45)

“Request for qualifications” means any documents used to solicit statements of qualifications including experience, references, team composition, financial stability and condition, and availability of equipment from bidders.

(46)

“Solicited” means an invitation for bid, request for proposals, request for qualifications, or other formal notification to the public of the owner's interest in receiving prices, other information, or both, for a proposed public school construction project or related services, which contains all relevant information to allow members of the public to submit responsive and responsible bids, offers, or proposals.

(47)

“Special education classroom” means a classroom that is used primarily for students who are instructed for more than 60 percent of the day outside of regular classrooms.

(48)

“State” means the government of the State of Maryland.

(49)

“Trade contract” means a contract for specialized construction work including, but not limited to, electrical, plumbing, and carpentry.

(50)

“Trade package” means solicitation documents for a trade contract.

(51)

“Unsolicited proposal” means a written proposal for an original or innovative idea that is submitted on the initiative of the offeror for the purpose of obtaining a contract with the LEA.

Subtitle 39 — Interagency Commission on School Construction

Chapter 02. Administration of the Public School Construction Program

Regulation .01 Incorporation by Reference.Link Copy Citation

The Interagency Commission on School Construction Gross Area Baseline Per Student Square Footage Allowances (September 14, 2023) is incorporated by reference.

Regulation .02 Facility Database.Link Copy Citation

The LEA shall update the IAC facility inventory when a State-funded project is substantially complete.

Regulation .03 Local Educational Facilities Master Plan.Link Copy Citation

A local educational facilities master plan is a written plan that includes:

(1)

Educational goals, standards, and guidelines;

(2)

Community analysis, concluding that the plan conforms to the adopted county and municipal comprehensive plan and growth management strategies;

(3)

An inventory and evaluation of existing school buildings;

(4)

Current and projected enrollment data;

(5)

Analysis of future school facility needs;

(6)

Policies for co-location, shared use, and shared cost of existing and planned school facilities;

(7)

Policies to address school capacity needs in planned growth areas or to address adequate public facilities ordinance requirements; and

(8)

Policies addressing current and planned transportation for students, administrators, and teachers per school.

Annually by the date the IAC specifies, each LEA shall submit to the IAC an educational facilities master plan that its local board has approved.

The IAC or its designee shall:

(1)

Review each local educational facilities master plan; and

(2)

Notify the LEA in writing of objections or exceptions to the plan.

The local educational facilities master plan together with any LEA amendments and IAC or its designee comments is the plan of record.

The IAC may disapprove any school construction project that is not consistent with the plan of record.

Regulation .04 Capital Improvement Program.Link Copy Citation

Local Submissions.

(1)

Annually by the date the IAC specifies, each LEA with approval from its local board shall submit to the IAC a local capital improvement program for the next fiscal year that identifies and prioritizes:

(a)

New construction projects, including replacement schools and additions, renewal projects, renovation projects, and capital maintenance projects, that are proposed for local planning approval;

(b)

New construction projects, including replacement schools and additions, renewal projects, and renovation projects, that are proposed for project development and design funding;

(c)

New construction projects, including replacement schools and additions, renewal projects, renovation projects, capital maintenance projects, and relocatable facilities that are proposed for funding approval; and

(d)

New construction projects, including replacement schools and additions, renewal projects, and renovation projects, that the LEA has locally funded and for which the LEA seeks planning approval and funding approval.

(2)

Annually by the date the IAC specifies, each LEA with approval from its local board shall submit to the IAC a local capital improvement program which shall be:

(a)

Consistent with the educational facilities master plan of record; and

(b)

Approved by the county governing body.

IAC Review.

(1)

Project Development and Design Funding Approval. The IAC or its designee shall evaluate the merits of project development and design funding requests contained in the local capital improvement programs using the following factors as applicable and rank the requests on a Statewide basis using the following factors:

(a)

State educational priorities;

(b)

Enrollment projections, that is, the extent to which 7-year enrollment projections exceed the State-rated capacity for the applicable schools;

(c)

Average year of completed construction of the building;

(d)

The rehabilitation of existing schools to ensure that facilities in established neighborhoods are of equal quality to new schools, including location of a new school or a replacement school that adds capacity within a priority funding area;

(e)

The number of students who receive special education services, who are eligible for free and reduced price meals, or who are English-language learners;

(f)

Analysis of the feasibility studies required for projects in which an LEA seeks to abandon an existing school building or demolish more than 50 percent of the gross square footage;

(g)

Documentation for renovation projects for which the State has provided funding for projects within the past 15 years;

(h)

Adequacy of maintenance programs;

(i)

Justification for the transfer of a school building in the same geographic area by a local board to the county government because the property was determined no longer needed for school purposes;

(j)

Progress on previously approved projects;

(k)

Evidence of high performance school design;

(l)

For locally funded projects for which State planning and funding approval is sought, application of the State's Minority Business Enterprise Program and prevailing wage rates;

(m)

Statewide needs measured against the potential for future capacity for State funding; and

(n)

Other factors considered appropriate.

(2)

Local Planning Approval. The IAC or its designee shall evaluate the merits of local planning approval requests contained in the local capital improvement programs using the factors in §B(1) of this regulation as applicable and rank the requests on a Statewide basis using the factors in §B(1)(a)—(e) of this regulation.

(3)

Funding Approval. The IAC shall evaluate funding approval requests contained in the local capital improvement programs using the following factors when applicable:

(a)

Status of planning approval.

(b)

Enrollment projections, that is, the extent to which 7-year enrollment projections exceed the State-rated capacity for the applicable schools;

(c)

Adequacy of maintenance programs;

(d)

Adequacy of project description;

(e)

Adequacy of project cost estimate;

(f)

Progress on project design and anticipated bid date;

(g)

The rehabilitation of existing schools to ensure that facilities in established neighborhoods are of equal quality to new schools;

(h)

Location of a new school or a replacement school that adds capacity within a priority funding area;

(i)

Statewide needs measured against the capacity for State funding;

(j)

For relocatable facilities, the review criteria in Regulation .16 of this chapter;

(k)

Progress on previously approved projects;

(l)

Evidence of high performance school design;

(m)

For locally funded projects for which State planning and funding approval is sought, application of the State's Minority Business Enterprise Program and prevailing wage rates;

(n)

Recurring or unresolved audit exceptions; and

(o)

Other factors considered appropriate.

(4)

After initial review of the local capital improvement programs, the IAC shall:

(a)

Notify the LEAs of preliminary recommendations; and

(b)

Allow LEA representatives to present information pertaining to projects that were not recommended for approval by IAC staff for inclusion in the State capital improvement program.

Priority Funding Area Review.

(1)

Except as provided in §C(3) of this regulation, when an LEA proposes to build a new school or to increase the State-rated capacity of a replacement school outside of a priority funding area, the LEA shall request a waiver in accordance with Regulation .29 of this chapter for approval of planning and funding.

(2)

Unless a waiver is granted under Regulation .30 of this chapter, a new school or a replacement school that adds capacity proposed for planning and funding approval shall be in a priority funding area.

(3)

The following school construction projects are not subject to the requirement of §C(1) of this regulation:

(a)

A locally funded project that was funded by an LEA prior to or in Fiscal Year 2012;

(b)

A public school construction project that was approved for planning in an annual capital improvement program prior to or in Fiscal Year 2012;

(c)

A replacement school on the same site when there is no increase of capacity; or

(d)

A renewal, renovation, addition, or capital maintenance renovation project.

Preliminary State Capital Improvement Program.

(1)

By December 31 annually, the IAC shall approve a preliminary State capital improvement program for the following fiscal year that:

(a)

Identifies new construction projects, including replacement schools and additions, renewal projects, renovation projects, capital maintenance renovation projects, and relocatable facilities recommended for local planning approval, project development and design funding approval, or funding approval;

(b)

Identifies a maximum State construction allocation for each project; and

(c)

Totals 75 percent of the preliminary school construction allocation, as determined under State Finance and Procurement Article, §8-113, Annotated Code of Maryland.

(2)

A capital maintenance project solicited before IAC approval is eligible for State funding if it has design development and construction document approvals by the IAC and was deemed eligible but deferred due to fiscal constraints in a prior year CIP.

Interim State Capital Improvement Program.

(1)

Before March 1 of each year, the IAC shall submit to the presiding officers and the budget committees of the General Assembly and the Department of Legislative Services an interim State capital improvement program that totals 90 percent of the anticipated final capital budget by proposing:

(a)

New construction projects, including replacement schools and additions;

(b)

Renewal projects;

(c)

Renovation projects;

(d)

Capital maintenance projects;

(e)

Relocatable facilities; and

(f)

A maximum State construction allocation for each project.

(2)

The IAC shall take into account:

(a)

The preliminary State capital improvement program;

(b)

Additional information the LEAs provide;

(c)

The anticipated final capital budget for public school construction;

(d)

Funds added from the Statewide contingency account; and

(e)

Other information the IAC considers appropriate.

(3)

Final State Capital Improvement Program IAC Approval.

(1)

After May 1 and before June 1, provided that the capital budget is approved during the regular General Assembly Session, the IAC shall approve a final State capital improvement program that identifies new construction projects, including replacement schools and additions, renewal projects, renovation projects, capital maintenance projects, and relocatable facilities recommended for planning approval or funding approval and that identifies a maximum State construction allocation for each project.

(2)

The approval shall take into account:

(a)

The preliminary State capital improvement program;

(b)

Additional information the LEAs provide;

(c)

The final capital budget for public school construction;

(d)

Funds added from the Statewide contingency account;

(e)

Requirements in the capital budget bill; and

(f)

Other information the IAC considers appropriate.

(3)

A systemic renovation project solicited before IAC approval is eligible for State funding if it has design development and construction document approvals by the IAC and was deemed eligible but deferred due to fiscal constraints in a prior year CIP.

Revisions. After IAC approval of the final State capital improvement program, the program may be revised only upon IAC review and approval.

Regulation .05 State-Rated Capacity.Link Copy Citation

Definition. In this regulation, State-rated capacity means the number of students that the IAC or its designee determines that an individual school has the physical capacity to enroll.

Elementary Schools.

(1)

For the purposes of determining State-rated capacity, elementary schools are schools enrolling students in one or more grades from prekindergarten through grade 6, but no grades higher than grade 6.

(2)

An elementary-school classroom is a space in which the majority of the school day is spent in instruction of the core curriculum.

(3)

Elementary school students who circulate through the school to different classrooms for their core curriculum, rather than spending the majority of the school day in a single classroom and leaving the classroom only for special courses (art, music, physical education, and similar), should be considered middle school students for the purposes of calculating State-rated capacity.

(4)

For the purposes of measuring utilization of facilities and allocating State capital dollars for projects in a manner most equitable to the local school systems of the State, the IAC shall count capacity of elementary school classrooms as follows:

(a)

Prekindergarten classroom — 20;

(b)

Kindergarten classroom — 22;

(c)

Grades 1 through 5 classroom — 23;

(d)

Grade 6 classroom:

(i)

If located in an elementary school—23; or

(ii)

If located in an elementary/middle school, or a secondary school—25;

(e)

Special education classroom—10; and

(f)

Alternative education classroom—10.

(5)

State rated capacity for an individual elementary school is calculated according to the following formula:

(a)

Multiply the number of classrooms in each grade by the approved capacity for that grade; and

(b)

Then add the resulting products.

(6)

Open-space classroom capacity is calculated according to the following formula:

(a)

Divide the open space area by a square foot number the IAC determines;

(b)

Next, round the quotient to the nearest whole number; and

(c)

Then, multiply the rounded quotient by the State-approved capacity for the elementary grade.

Secondary Schools.

(1)

For purposes of determining State-rated capacity, secondary schools are schools enrolling students in one or more grades from 6 through 12.

(2)

Classrooms.

(a)

A secondary-school classroom is a space in which any scheduled instruction takes place.

(b)

Secondary-school classrooms include but are not limited to laboratories, career technology rooms, music rooms, art rooms, consumer science rooms, gymnasiums, and auxiliary physical education classrooms. One physical education classroom up to 2,500 net square feet which contains specialized equipment hat cannot be stored or relocated may be excluded in facilities functioning as a high school serving grades 9—12, or a middle high school serving grades 6—12, upon application to and approval of the IAC or its designee.

(c)

Auxiliary gymnasiums up to 6,000 net square feet count as one teaching station. A gymnasium over 6,000 net square feet and up to 13,000 net square feet counts as two classrooms. A gymnasium exceeding 13,000 net square feet counts as three classrooms.

(3)

(a)

Grades 6 through 12 classroom—25;

(b)

Special education classroom—10; and

(c)

Alternative education classroom—10.

(4)

State-rated capacity for an individual secondary school is calculated according to the following formula:

(a)

For regular classrooms:

(i)

Multiply the number of regular classrooms by the approved capacity;

(ii)

Next, add the resulting products; and

(iii)

Then, multiply this sum by 85 percent;

(b)

For special education classrooms, multiply the number of special education classrooms by the approved capacity; and

(c)

Then, add results from §C(4)(a) and (b) of this regulation.

(5)

Open-space classroom capacity is calculated according to the following formula:

(a)

Divide the open space area by a square foot number the IAC determines;

(b)

Next, round the quotient to the nearest whole number;

(c)

Then, multiply the rounded quotient by the State-approved capacity for the secondary grade; and

(d)

Finally, multiply by 85 percent.

Career and Technology Programs.

(1)

Career and technology programs are occupational programs approved by the Maryland State Department of Education.

(2)

The approved capacity for a career and technology classroom is as the IAC or its designee determines on a case-by-case basis.

(3)

State-rated capacity for an individual career and technology program is calculated according to the following formula:

(a)

Multiply the number of classrooms by the approved capacity for that career and technology classroom;

(b)

Next, add the resulting products; and

(c)

Then, multiply by 85 percent.

The IAC or its designee shall determine on a case-by-case basis the State-rated capacity for a school that is not defined in §§B, C, and D of this regulation.

Cooperative use space dedicated in a written agreement to use by a non-LEA entity may not be included in the State-rated capacity unless that space is used for LEA educational purposes during the LEA’s standard school operating hours.

Regulation .06 State Cost Share Percentage.Link Copy Citation

The State may fund eligible costs of approved public school construction projects according to the State cost share percentage established in this regulation.

Percentages.

(1)

The minimum State share of public school construction funding for eligible costs of approved projects is 50 percent.

(2)

Reductions in the cost share may not exceed 5 percent.

(3)

Reduction in the cost share of 4 percent or more shall be phased in over the 2-year period with a reduction of 2 percentage points in the first year and the remaining 2 or 3 percentage points in the second year.

(4)

The maximum State share of public school construction funding is 100 percent of eligible costs of approved projects.

(5)

The State share percentage for the Maryland School for the Blind shall be 93 percent of eligible costs of approved projects.

Revisions to Percentages.

(1)

By October 2018 and every 2 years thereafter, the IAC shall update, approve, and publish to the IAC’s website the cost share percentage to be applied to projects submitted for approval in the Fiscal Year.

(2)

The IAC shall use the formula in §D of this regulation to recommend revisions to the State cost share percentage for each county.

LEA State Cost Share. The IAC shall add the following amounts to calculate the recommended revised cost share amounts:

(1)

The LEA's current State share of the Foundation program divided by the Foundation program of the LEA as defined under Education Article, §5-202, Annotated Code of Maryland;

(2)

The current amount of State aid provided to the LEA by the guaranteed tax base program as defined under Education Article, §5-210, Annotated Code of Maryland, divided by the Foundation program of the LEA;

(3)

20 percent of the amount by which the LEA's free and reduced price meal percentage exceeds the Statewide free and reduced price meal percentage in the prior school year;

(4)

5 percent if the county where the LEA is located is a Tier I county that has an unemployment rate greater than the average rate or number of percentage points identified in Economic Development Article, §1-101, Annotated Code of Maryland, or has met the average rate or number of percentage points identified in Economic Development Article, §1-101, Annotated Code of Maryland, at some time during the preceding 24-month period;

(5)

5 percent if the county where the LEA is located is a Tier I county that has a median household income level below the level identified in Economic Development Article, §1-101, Annotated Code of Maryland, or has had a median household income level below the level identified in Economic Development Article, §1-101, Annotated Code of Maryland, at some time during the preceding 24-month period;

(6)

The difference between the percent growth in the LEA's full-time equivalent enrollment, as defined by Education Article, §5-202, Annotated Code of Maryland, from the 6th prior year to the prior year, and the percent growth in the Statewide full-time equivalent enrollment from the 6th prior year to the prior year, provided this calculation results in a positive number; and

(7)

10 times the amount by which the county's and local board’s total outstanding school construction debt at the end of the 2nd prior fiscal year plus the county's total school construction expenditures from its operating budget from the 4th to the 2nd prior fiscal years exceeds 1 percent of the county wealth, as defined by Education Article, §5-202, Annotated Code of Maryland, for the prior fiscal year.

Project Based Add-Ons to State Cost Share. The IAC shall add the following amounts to an LEA’s State Cost share of a proposed school construction project as applicable:

(1)

10 percentage points if the proposed school construction project, when the LEA submits the project for approval to the IAC, is at a school with a concentration of poverty level, as defined in Education Article, §5-223, Annotated Code of Maryland, of 80 percent or greater;

(2)

5 percentage points if the proposed school construction project, when the LEA submits the project for approval to the IAC, is at a school with a concentration of poverty level, as defined in Education Article, §5-223, Annotated Code of Maryland, of less than 80 percent but greater than 55 percent;

(3)

5 percentage points if the proposed school construction project is at a school that, in the most recent school maintenance effectiveness assessment by the IAC, received an assessment rating of:

(a)

Good;

(b)

Superior; or

(c)

Adequate and the school's most recent school facility assessment average percentage of expected useful lifespan is at least 120 percent; and

(4)

5 percentage points if the proposed school construction project is a net-zero school.

For FY 2025 and 2026, the State share percentages of public school construction funding for eligible costs of approved projects are as follows:

Regulation .07 Maximum State Construction Allocation.Link Copy Citation

The maximum State construction allocation is the maximum amount the State may fund of eligible costs for each public school construction project.

The maximum State construction allocation for each approved public school construction project is set in the State capital improvement program.

The maximum State construction allocation is set at the first year of construction funding approval.

The actual funding is based on the costs of approved contracts and may be less than the maximum State construction allocation.

Gross Area Baselines.

(1)

The gross area baseline is the product of the approved student enrollment and the baseline gross square footage per student, and may be adjusted by the IAC on a case-by-case basis, based upon presented evidence of program need.

(2)

The approved student enrollment may be reduced only if the sum of available seat count in all adjacent schools is 15 percent or more of the project school’s enrollment.

(3)

The baseline gross square footage per student is set by the IAC and may be adjusted by the IAC on a case-by-case basis, based upon presented evidence of program need.

(4)

Gross Area Baseline Concentration of Poverty Add-On. School projects with a concentration of poverty level above 55 percent are eligible for a concentration of poverty square footage add-on, upon submission of a concentration of poverty square footage usage plan, based upon the following:

(a)

School projects with an eligible enrollment of fewer than 600 students are eligible for a concentration of poverty add-on of up to 1,000 square feet plus the concentration of poverty level percentage points above 55 percent multiplied by 60 square feet, up to a maximum of 1,500 square feet.

(b)

School projects with an eligible enrollment between 600 and 900 students are eligible for a concentration of poverty add-on of up to 1,500 square feet plus the concentration of poverty level percentage points above 55 percent multiplied by 60 square feet, up to a maximum of 2,000 square feet.

(c)

School projects with an eligible enrollment of more than 900 students are eligible for a concentration of poverty add-on of up to 2,000 square feet plus the concentration of poverty level percentage points above 55 percent multiplied by 60 square feet, up to a maximum of 2,500 square feet.

(5)

Gross Area Baseline English Learner Add-On. School projects with an English learner population above 10 percent are eligible for an English learner square footage add-on, based upon the following:

(a)

School projects with an eligible enrollment of fewer than 600 students are eligible for an English learner add-on of 500 square feet plus the number of percentage points of the project school populations of English learners above 10 percent, multiplied by 25 square feet, up to a maximum of 1,500 square feet.

(b)

School projects with an eligible enrollment between 600 and 900 students are eligible for an English learner add-on of 1,000 square feet plus the number of percentage points of the project school populations of English learners above 10 percent, multiplied by 25 square feet, up to a maximum of 2,000 square feet.

(c)

School projects with an eligible enrollment of more than 900 students are eligible for an English learner add-on of 1,500 square feet plus the number of percentage points of the project school populations of English learners above 10 percent, multiplied by 25 square feet, up to a maximum of 2,500 square feet.

(6)

Gross Area Baseline Career and Technology Education Add-On. School projects approved for Career and Technology Education programs are eligible for a Career and Technology Education square footage add-on based upon the program size. Program sizes shall be regularly reviewed and updated by the IAC and published to the IAC website. Square footage allocations for program sizes are as follows:

(a)

Extra small Career and Technology Education programs receive an add-on of 500 gross square feet.

(b)

Small Career and Technology Education programs receive an add-on of 1,000 gross square feet.

(c)

Medium Career and Technology Education programs receive an add-on of 3,000 gross square feet.

(d)

Large Career and Technology Education programs receive an add-on of 4,000 gross square feet.

(e)

Extra large Career and Technology Education programs receive an add-on of 6,000 gross square feet.

The average Statewide per-square-foot school building cost that applies to each annual capital improvement program:

(1)

Is established by July of the calendar year in which applications are submitted;

(2)

Is based on:

(a)

Bids received for new school construction in the prior year; and

(b)

Cost information derived from industry sources;

(3)

May be adjusted by the IAC to reflect market conditions before submission of the final State capital improvement program; and

(4)

Projects that qualify for the Net-zero State Cost Share add-on pursuant to COMAR 14.39.02.06E(4) for which the applicant project receives a State cost share of 96 percent or greater in accordance with COMAR 14.39.02.06F and including the State Cost Share add-ons pursuant to COMAR 14.39.02.06E(1)—(3), may be eligible for an increase to the cost-per-square-foot described in this regulation equal to the value of a 5 percentage point increase in the State Cost Share for the project minus the value of the difference between 100 percent and the applicant project State cost share including add-ons pursuant to COMAR 14.39.02.06E(1)—(3).

New Construction. The maximum State construction allocation for new construction is calculated according to either:

(1)

The following formula:

(a)

Multiply the lesser of the gross area baseline or the actual project gross area by the average Statewide per square foot school building cost, which is based on bids received for new school construction in the prior year and cost information derived from industry sources;

(b)

Next, add site development costs, figured as a percentage of the building cost set forth in §F(1)(a) of this regulation;

(c)

Finally, multiply by the State cost share percentage; or

(2)

The estimated or actual cost of construction multiplied by the State cost share percentage, not to exceed the amount calculated in §G(1) of this regulation.

Renewal.

(1)

The maximum State construction allocation for projects proposed to renew buildings or portions of buildings, 16 years or older, is calculated according to either:

(a)

The following formula:

(i)

Beginning with the oldest portion of the building, and using the gross area baseline as the upper limit, determine the eligible square footage of the renewal categorized according to the age group of the building portion containing the renewal;

(ii)

Multiply the eligible square footage for each age group by the average Statewide per square-foot building cost, and then multiply each product by the percentage in §H(1)(a)(iii) of this regulation;

(iii)

Age of building portion containing the renewal as measured from January 1 following the IAC December 31 submission of the preliminary State capital improvement program: 40 years or older—100 percent;31 to 39 years—85 percent; 26 to 30 years—75 percent; 21 to 25 years—65 percent; 16 to 20 years—50 percent; and 0 to 15 years—0 percent.

(iv)

Add the products calculated in §H(1)(a)(ii) of this regulation;

(v)

Next, add site development costs, figured as a percentage of total building costs set forth in §H(1)(a)(iv) of this regulation; and

(vi)

Finally, multiply by the State cost share percentage; or

(b)

The estimated or actual cost of construction multiplied by the State cost share percentage, not to exceed the amount calculated in §H(1)(a) of this regulation.

(2)

Adjustments to the Maximum State Construction Allocation for Renovation Projects. The IAC may:

(a)

Subtract funding from the maximum State construction allocation that the State has approved for other projects less than 16 years old at that school; and

(b)

Adjust the maximum State construction allocation for renovation of a building that exceeds the gross area baseline.

(3)

The State may not further participate in funding projects in the school within 15 years after the project is placed in service.

Renovation.

(1)

The estimated cost of construction of a renovation may not exceed the estimated cost of construction for a renewal.

(2)

The maximum State construction allocation for a renovation is calculated by multiplying the estimated costs of construction, including site work, by the State cost share percentage.

(3)

At the time of contract award, the actual funding is based on the costs of items eligible for State participation, up to the maximum State construction allocation.

(4)

Adjustments to Maximum State Construction Allocation for a Renovation.

(a)

The IAC may subtract from the maximum State construction allocation funding approved for other projects not older than 15 years old at that school.

(b)

If projects in the school have been funded within the previous 15 years, the LEA shall provide documentation to identify all previously funded scopes of work that may be replaced or upgraded in the renovation.

(5)

For a renovation, the new average year of completed construction of the building or portion of the building is determined by the average year of completed construction of the original building, plus the year of completed construction of the renovation, divided by 2.

(6)

The State may further participate in funding projects in the school within 15 years after the project is placed in service.

Addition. When a project involves an addition only, the IAC at its discretion may calculate the maximum State construction allocation according to either:

(1)

The following formula:

(a)

Subtract the existing square footage from the gross area baseline; and

(b)

Then use the lesser of that amount or the actual area of the addition when calculating the maximum State construction allocation according to §E of this regulation; or

(2)

The estimated or actual cost of construction multiplied by the State cost share percentage.

Addition in Conjunction with Renewal or Renovation. When an addition involves both an addition and a renovation or a renewal, the maximum State construction allocation is established by adding the renewal or renovation maximum State construction allocation calculated according to §G or H of this regulation and the addition (new construction) maximum State construction allocation calculated according to §J of this regulation.

Replacement.

(1)

An LEA that proposes to abandon a facility or demolish more than 50 percent of the gross square footage of a facility shall submit a feasibility study to the reasonable satisfaction of the IAC.

(2)

Based on the review of the feasibility study, the IAC may set the maximum State construction allocation for a replacement school based on the cost of renovating an existing school according to §H of this regulation, or the cost of building a new school according to §G of this regulation.

(3)

If the State approves renovating or renewing an existing school and the LEA builds a replacement school, the IAC may reduce the maximum State construction allocation for that project by 15 percent.

(4)

The IAC or its designee may waive the requirement for a feasibility study on submission of supporting documentation.

Forward-Funded Project. If the maximum State construction allocation for a forward-funded project is calculated according to the formulas in §G, H, or I of this regulation, the following factors shall be applied:

(1)

Gross area baseline that applied on the bid-opening date, using the 7-year enrollment projections applied as follows:

(a)

If the bid opening was between October 1 and March 31, the prior September 30 enrollment is used as the approved student enrollment; and

(b)

If the bid opening was between April 1 and September 30, the September 30 enrollment at the end of that time frame is used as the approved student enrollment;

(2)

Average square foot school building cost published by the IAC or its designee for the July that falls within the calendar year of the bid-opening date;

(3)

State cost share percentage that applied on the bid-opening date; and

(4)

For a renovation project, the amount of the awarded scope of work, not to exceed the maximum State construction allocation as developed in §H(1)(a) of this regulation.

Cooperative Use Space.

(1)

The maximum State construction allocation for an approved project may include the State's share of eligible costs to construct or renovate up to 3,000 gross square feet of co-located or shared space to support LEA or community initiatives to serve school children and the general community.

(2)

This cooperative use space is in addition to the size of typical school-function areas provided by the LEA.

(3)

There shall be a written agreement between the county board and the space occupant that establishes the term and conditions.

Regulation .08 Changes to the Maximum State Construction Allocation.Link Copy Citation

After the IAC sets the maximum State construction allocation in the State capital improvement program:

The IAC may reduce the maximum State construction allocation if a local board changes a board decision which served as justification for setting the approved scope of the project.

The IAC may increase the maximum State construction allocation for a capital maintenance project when:

(1)

The LEA submits:

(a)

The final project scope of work; and

(b)

A cost estimate developed by a design professional licensed in the State of Maryland or the bid tabulation for the project;

(2)

The LEA documents that the:

(a)

LEA has taken reasonable actions to reduce construction costs; and

(b)

Construction costs have resulted from exceptional circumstances; and

(3)

The IAC determines that:

(a)

The requested scope of work is eligible for State funding; and

(b)

The scope of work and associated costs are reasonable.

The IAC may increase the maximum State construction allocation for a project other than a capital maintenance project if the LEA documents that the:

(1)

Project has critical impact on the LEA's budget;

(2)

LEA has taken reasonable actions to reduce construction costs; and

(3)

Construction costs that have resulted from exceptional circumstances or circumstances that are different from those that confront most projects in the State or region.

The IAC may increase the maximum State construction allocation for a project that qualifies for the net zero add-on as described in COMAR 14.39.02.06E(4) after the establishment of the maximum State construction allocation upon submission of acceptable documentation to become eligible for the add-on, and only up to the amount that the project would have been eligible for had the net zero add-on been in place at the time of establishment of the maximum State construction allocation.

Regulation .09 Project Development and Design Funding Allocation.Link Copy Citation

The project development and design funding allocation is the maximum amount the State may fund of eligible project development and design costs for a public school construction project.

The project development and design funding allocation for each approved public school project is set in the State capital improvement program.

The project development and design funding allocation may not exceed 10 percent of a preliminary maximum State construction allocation as set forth in Regulation .06 of this chapter and as calculated in the year of the request for project development and design funding.

Regulation .10 Rescinding Planning Approval.Link Copy Citation

If, within 2 years after a project is approved for planning, no part of the project is under contract, the IAC may determine the project to be abandoned and rescind the planning approval.

An LEA that seeks reapproval of a project whose planning approval has been rescinded shall submit a new planning request in a future local capital improvement program.

Regulation .11 Rescinding Funding Approval.Link Copy Citation

If, within 2 years after funding is made available for a project, no part of the project is under contract, the IAC shall determine that the project is abandoned and rescind the funding approval.

When the IAC rescinds funding approval, the IAC shall reserve the funding for another eligible project in the county in the current fiscal year or for eligible projects in the county in the next fiscal year.

Funds reserved for a county that have not been used to place a project under contract within 2 years of the date the funds were reserved shall be available for any project approved in a future State capital improvement program.

An LEA that seeks reapproval of a project whose funding approval has been rescinded shall submit a new funding request in a future local capital improvement program.

Regulation .12 Eligible Expenditures.Link Copy Citation

The following expenditures may be eligible for State funding:

Planning, including feasibility studies, programs, educational specifications, equipment specifications, and other planning work that occurs prior to the start of design.

Design expenses and other ancillary costs, including architectural and engineering fees, construction management services, geotechnical surveys, and other services necessary to complete the architectural specifications for a school project.

New construction, as follows:

(1)

Construction of a new school facility, that is, work necessary to construct a new school facility, including building and site development;

(2)

Additions to an existing facility, that is, work necessary to increase space at an existing school facility, including:

(a)

Building and site development; and

(b)

Work to physically integrate the addition into the existing school;

(3)

Replacement of a building or building portion, that is, work necessary to reconstruct a school facility that cannot be economically repaired or renovated, including building and site development; and

(4)

Modular construction, that is, factory-fabricated structures that have the same quality systems and materials as used for permanent school construction and that meet the standards of the COMAR 05.02.04;

Renewal or renovation, that is, the work necessary to restore and modernize an existing school facility or a portion of a facility that is 16 years or older;

Capital maintenance projects as set forth in Regulation .16 of this chapter;

State-owned relocatable facilities as set forth in Regulation .16 of this chapter;

Temporary facilities, including utilities and relocatable facilities, that are necessary on-site during construction of a State-funded project;

Equipment and furnishings as defined by the IAC;

Real time utilities metering measurement and verification equipment as defined by the IAC;

Off-site development costs required by local, State, or federal agencies;

Emergency repairs as set forth in Regulation .17 of this chapter;

E-rate eligible special construction broadband infrastructure projects, including offsite development costs, for E-rate eligible applicants consistent with 47 C.F.R. 54.505, through the State funding of grants to local boards of education.

Regulation .13 Ineligible Expenditures.Link Copy Citation

The following expenditures are ineligible for State funding:

Site acquisition;

Offsite development costs except those listed as eligible in Regulation .10 of this chapter;

Master plans;

Projects proposed in buildings or portions of buildings that have been constructed or renovated within 15 years, except that building or portion of a building in which a renovation was performed is eligible for additional work within 15 years of the date that the renovation construction was completed;

Capital maintenance projects to replace, upgrade, or renovate building systems that have been replaced, upgraded, or renovated within 15 years;

Ancillary construction costs such as:

(1)

Permits;

(2)

Bid advertising;

(3)

Water and sewer connection charges;

(4)

Models; or

(5)

Renderings;

Leasing or purchasing school facilities except as provided in COMAR 14.39.05;

Construction inspection services;

Relocation costs for site occupants;

Salaries of local employees;

Construction of administrative or support facilities, including regional or central administrative offices, warehousing, resource, printing, vehicle storage, and maintenance facilities;

Equipment, furnishings, and artwork with a median useful life of less than 15 years as defined by the IAC;

Maintenance; and

Temporary storage.

Regulation .14 School Site Selection.Link Copy Citation

An LEA shall submit a proposed site to the Interagency Commission on School Construction for:

(1)

Acquisition of a new site planned for a new or replacement school that will be requested for Local Planning approval within 3 years;

(2)

Use of an existing site for a new school or a replacement school that adds capacity; or

(3)

Redesignation of an existing site for a new school or a replacement school that adds capacity.

Unless a waiver is granted in accordance with Regulation .31 of this chapter, a proposed site for a new school or a replacement school that adds capacity shall be in a priority funding area.

The IAC and State Superintendent of Schools shall approve or disapprove an LEA's school site selection based on:

(1)

Consistency with the county comprehensive plan;

(2)

The growth element of applicable municipal comprehensive plans;

(3)

Available sewer and water service;

(4)

Transportation options; and

(5)

The State's economic growth policies to ensure that facilities in established neighborhoods are of equal quality to new schools, including location of a new school or a replacement school that adds capacity within a priority funding area.

Before submitting the request for site approval to the IAC, the LEA shall:

(1)

Submit the school site selection to the Maryland Department of Planning for State Clearinghouse review; [and]

(2)

Resolve any issues brought up in the State Clearinghouse Review; and

(3)

Submit the school site selection to the State Superintendent for approval or disapproval in accordance with Education Article, §2-303(f), Annotated Code of Maryland.

When submitting the site for IAC approval, the LEA shall include:

(1)

The local board of education’s approval of the school site acquisition;

(2)

The State Superintendent’s approval of the school site acquisition; and

(3)

For a new school or a replacement school that adds capacity located outside of a priority funding area, a request for a waiver in accordance with Regulation .31 of this chapter.

The IAC may recommend including a project for planning approval in the State capital improvement program only if the school site has been approved or re-approved by the IAC and the State Superintendent in the preceding 3 years.

Priority Funding Area Review.

(1)

Except as provided in §G(2) of this regulation, priority funding area review shall be conducted by the IAC for sites for new schools and replacement schools that add capacity and are proposed outside of priority funding areas, including review of requests for:

(a)

Acquisition of new sites for new schools or replacement schools that add capacity;

(b)

Reapproval of existing sites that were initially approved after the effective date of this regulation; or

(c)

Redesignation of existing sites that were initially approved after the effective date of this regulation.

(2)

The following sites for school construction projects are not subject to priority funding area review:

(a)

A site for a replacement school when there is no increase of capacity; or

(b)

A site granted a Priority Funding Area Waiver in accordance with Regulation .31 of this chapter.

Regulation .15 New Construction, Renewal, and Renovation Projects.Link Copy Citation

This regulation applies to new construction, renewal, and renovation projects approved in the State capital improvement program.

Architects and Engineers. The LEA shall ensure that:

(1)

The plans, specifications, and related documents are developed under the supervision and responsibility of an architect or engineer who is licensed to practice in the State, unless waived by the IAC or its designee;

(2)

Unless waived by the IAC or its designee, the design of site development or structural, mechanical, or electrical systems includes the design services of a professional engineer licensed to practice in the State with experience in civil, structural, mechanical, or electrical engineering;

(3)

The architect/engineer agreement includes:

(a)

Cost control provisions;

(b)

Assurance that the project design is in accordance with the Department of General Services procedure manual for professional services standards for energy conservation, life cycle costs analysis, and roofing; and

(c)

IAC or its designee review and approval of the schematic, design development, and construction documents as required.

Educational Specifications.

(1)

Unless an LEA is certified to complete review of educational specifications as provided by Education Article §5-314, Annotated Code of Maryland, the LEA shall submit the projects educational specifications to the IAC for every new construction, renewal, renovation, and renovation addition project approved in the State capital improvement program.

(2)

The IAC or its designee shall notify the LEA of concerns and recommendations about the educational specifications.

(3)

The LEA shall resolve the IAC's issues to the reasonable satisfaction of the IAC or its designee.

Feasibility Studies.

(1)

An LEA that proposes to renew or renovate more than 25 percent of the gross square footage of a facility shall submit a feasibility study.

(2)

The IAC or its designee shall notify the LEA of concerns and recommendations about the feasibility study.

(3)

The LEA shall resolve the IAC’s issues to the reasonable satisfaction of the IAC or its designee.

Cost Analysis. An LEA that proposes to renew a facility shall produce evidence that the renewal is more cost effective than a new or replacement school.

Schematic Designs, Design Development Documents, and Construction Documents.

(1)

Unless the LEA is certified to complete review of schematic design, design development, and construction documents as provided by Education Article §5-314, Annotated Code of Maryland, the LEA shall submit to the IAC or its designee for review and approval of:

(a)

Schematic designs, before the LEA proceeds to design development documents;

(b)

Design development documents, before the LEA proceeds to construction documents; and

(c)

Construction documents, before the LEA issues the solicitation.

(2)

The LEA shall submit to the IAC or its designee for review and approval information regarding the consistency of the project with the Department of General Services procedure manual for professional services standards for energy conservation, life cycle cost analysis, and roofing.

(3)

Schematic designs, design development documents, and construction documents must be approved by local boards of education prior to their submission to the IAC.

For new school construction projects that utilize State funding, the LEA shall include waste disposal infrastructure in the design documents submitted to the commission that includes a sink for liquid waste and a place for the disposal of:

(1)

Trash;

(2)

Recyclables; and

(3)

Food scraps.

Pedestrian Safety Plans.

(1)

Definitions.

(a)

“High-Density county” refers to one of the following jurisdictions:

(i)

Anne Arundel County;

(ii)

Baltimore City;

(iii)

Baltimore County;

(iv)

Howard County;

(v)

Montgomery County; or

(vi)

Prince George’s County.

(b)

“Low-Density County” means any county in the State of Maryland not listed in §H(1)(a) of this regulation.

(2)

A County Board in a high-density county seeking State funds for a new school, renewal, or addition to an existing school that would increase the capacity of the school by more than 100 students shall submit a pedestrian safety plan to the IAC.

(3)

A County Board in a low-density county seeking State funds for a project in a city with more than 10,000 residents for a new school, renewal, or addition to an existing school that would increase the capacity by more than 100 students shall submit a pedestrian safety plan to the IAC.

(4)

A pedestrian safety plan shall:

(a)

Be developed in collaboration with:

(i)

The County Department of Transportation or equivalent agency of the jurisdiction of the County Board submitting the plan; and,

(ii)

The State Highway Administration;

(b)

Be limited to the area surrounding the school for which the County Board will not provide transportation to students;

(c)

Identify existing and potential safe routes for students to walk or bike to school;

(d)

Evaluate the infrastructure, including sidewalk infrastructure, along existing and potential pedestrian or cyclist routes to the school to determine whether increased capacity is necessary;

(e)

Analyze existing and potential school zones, including the need for expanding school zones on State and county roads; and

(f)

Include documentation of public participation and input related to the pedestrian safety plan, including minutes from a public hearing or meeting and written comments.

(5)

The IAC shall approve a pedestrian safety plan if the plan complies with §H(4) of this regulation.

Procurement. The LEA shall procure construction in compliance with COMAR 14.39.03. The IAC may rescind project approval if the procurement does not comply with these requirements.

Construction Inspection. The LEA shall ensure that each construction project is adequately inspected.

Change Orders. The LEA shall maintain contingency funds for change orders. The LEA may issue change orders without prior approval of the IAC or its designees.

State Payments.

(1)

The LEA shall submit to the IAC requests for payment.

(2)

The IAC or its designee shall review the request for payment for determination of whether the request constitutes an eligible expense and whether payment is within the maximum State construction allocation.

(3)

The State may:

(a)

Make payment directly to the contractor or vendor;

(b)

Reimburse the LEA if documentation indicates that the contractor or vendor has been paid the amount requested for reimbursement; or

(c)

Make payment to an entity identified by the LEA.

Project Close-Out. Not later than 180 days after final payment to the contractors, the LEA shall submit to the IAC:

(1)

A close-out cost summary using a form provided by the IAC; and

(2)

The following information:

(a)

Contractor's final requisition including a listing of all approved change orders;

(b)

The architect's certificate of completion; and

(c)

The LEA's certificate of acceptance.

Regulation .16 Capital Maintenance Projects.Link Copy Citation

This regulation applies to capital maintenance projects approved in the State capital improvement program. Capital maintenance projects may also be referred to as “systemic renovation” projects.

A capital maintenance project:

(1)

Extends for at least 15 years the life of a properly maintained school building or component that is 16 years old or older;

(2)

Installs, upgrades, replaces, or renovates one of the following building systems or system components:

(a)

Architectural and structural;

(b)

Mechanical;

(c)

Plumbing;

(d)

Electrical;

(e)

Fire safety;

(f)

Communications; and

(g)

Vertical conveying systems; and

(3)

May include reasonably related components of other building systems as determined by the IAC or its designee.

Requests.

(1)

An LEA may submit a request to the IAC to fund a capital maintenance project in the following circumstances:

(a)

The project has not been released for solicitation; or

(b)

The project has been released for solicitation after being deemed eligible but deferred due to fiscal constraints by the IAC in a prior fiscal year and has design development and construction document approvals by the IAC.

(2)

The request may only be for eligible expenditures in a project for which the total estimated construction cost is:

(a)

At least $200,000; or

(b)

Less than $200,000 but more than $100,000 when the LEA does not have any capital maintenance project requests that exceed $200,000 in estimated construction costs.

(3)

A county board may bundle, for approval and procurement purposes:

(a)

Similar capital maintenance projects at different schools; and

(b)

Interrelated capital maintenance projects at a single school.

Procedures. The requirements of Regulation .15B, F, and I—M of this chapter and COMAR 14.39.03 apply to capital maintenance projects approved in the State capital improvement program.

Regulation .17 State-Owned Relocatable Facilities.Link Copy Citation

This regulation applies to State-owned relocatable projects approved in the State capital improvement program.

A relocatable project is one in which the State:

(1)

Provides a relocatable facility to an LEA, including moving and installing the facility; and

(2)

Contributes funding only to the initial installation and the final removal of the relocatable facility.

Requests.

(1)

An LEA may submit a request to the IAC for relocatable facilities in its local capital improvement program.

(2)

The request may only be to fund installation of relocatables for the relief of overcrowding, special programs, interim classroom facilities while an approved school construction project is constructed, or an emergency.

IAC Review. The IAC shall evaluate relocatable facilities funding requests using the following factors:

(1)

The proposed use of the facility at a public school;

(2)

Whether the relocatable facility will be in use for at least 2 years after installation at the requested site; and

(3)

Whether the relocatable facility can be installed in a manner that will not interfere with work associated with proposed renovations, additions, or new construction.

Procedures. The provisions of Regulation .14B, E(1) and (2)(b), and F—I of this chapter apply to relocatable facility projects approved in the State capital improvement program.

LEA Responsibility After Installation.

(1)

After installation, the LEA is responsible for obtaining appropriate insurance and maintaining the relocatable facility. These include:

(a)

Property damage insurance at least in replacement value amount, naming the State and the LEA as payees;

(b)

Personal liability insurance;

(c)

Drawings, specifications, operating instructions, warranties, and keys associated with the installation; and

(d)

A log of completed maintenance.

(2)

The LEA shall comply with the Federal Asbestos Hazard Emergency Response Act.

Repairs After Installation.

(1)

Except as provided in §G(2) of this regulation, the State may contribute funds, up to the State cost share, toward renovation of relocatable facilities.

(2)

The State may not contribute funds for renovation necessary because of vandalism or lack of proper maintenance.

Surplus Property. The IAC may declare a State-owned relocatable facility to be surplus property.

(1)

LEAs who request the disposal of a State-owned relocatable facility must have the request approved by the IAC prior to the disposal of the unit.

(2)

All disposals of State-owned property, including relocatable facilities, are required to follow the Maryland Department of General Services’ disposal procedure.

Regulation .18 Emergency Repairs.Link Copy Citation

An emergency condition is a condition in a school building or on school grounds that:

(1)

Presents an immediate health or safety hazard, or a threat of severe damage to the school building or grounds; and

(2)

Could not have been reasonably foreseen through regular inspections or corrected through a regular preventive maintenance program.

The IAC may fund eligible costs of correcting an emergency condition according to the State cost share percentage established in Regulation .05 of this chapter. Funding for emergency repairs is separate from the State capital improvement program.

Requests.

(1)

An LEA shall submit a request to the IAC for funds to correct an emergency condition not later than 6 months after project completion.

(2)

The request may only be for eligible costs that total at least $10,000.

Funding. The IAC may:

(1)

Provide the funds to the LEA in advance of the project start or after project completion; and

(2)

Determine whether the emergency repair funds will be deducted from the maximum State construction allocation for future building renewals and renovations based on the nature and cost of the emergency repairs.

Regulation .19 Maintenance.Link Copy Citation

Comprehensive Maintenance Plan.

(1)

A comprehensive maintenance plan is a written plan approved by the local board of education that describes a strategy for maintaining public school facilities.

(2)

Annually, each LEA shall submit to the IAC a comprehensive maintenance plan that is compatible with the local educational facilities master plan and the local capital improvement program.

(3)

The IAC or its designee shall notify the LEA of concerns and recommendations about the comprehensive maintenance plan.

(4)

The LEA shall resolve the IAC's issues to the reasonable satisfaction of the IAC or its designee.

The IAC may determine a project is ineligible for planning approval or funding approval for an existing school if:

(1)

The school is not properly maintained; or

(2)

The LEA does not have an adequate preventive maintenance program.

Maintenance Surveys.

(1)

Annual Surveys.

(a)

The IAC shall annually survey the maintenance conditions at selected schools in each LEA. The survey shall rate:

(i)

Buildings and site components at the schools surveyed; and

(ii)

Each school overall.

(b)

Within 45 days of receiving notice from the IAC or its designee that a school has been rated less than adequate in any category of building or site component, the LEA shall submit to the IAC a plan of how and when the deficiencies will be corrected.

(c)

If a condition is identified that presents a hazard to occupants of the building or the threat of serious damage to the building, the LEA shall take immediate corrective action and notify the IAC of the steps it has taken.

(2)

Annual Report. The IAC shall annually publish a report summarizing the annual surveys.

Regulation .20 Aging Schools Program.Link Copy Citation

There is an Aging Schools Program. The Aging Schools Program is separate from the State capital improvement program.

Purpose. An LEA may use Aging Schools Program funds for capital improvements, repairs, and deferred maintenance of school buildings or building components that are 16 years old or older.

Funding.

(1)

Allocations for each LEA are set forth in Education Article §5-324, Annotated Code of Maryland.

(2)

The State cost share percentage does not apply to projects funded through the Aging Schools Program. The State may fund all eligible costs of an approved Aging Schools Program project. An LEA may provide additional funds to increase the scope of work or cost for an approved project.

(3)

An LEA may not use Aging Schools Program funds to supplement the State allocation received for any other project.

Requests. An LEA may submit a request to the IAC for allocated funds for an Aging Schools Program project at any time during the fiscal year of the allocation.

IAC Review. The IAC or its designee shall evaluate Aging Schools Program project requests using the following factors:

(1)

Type of work;

(2)

Age of the building or building component;

(3)

State capital improvement program;

(4)

Local capital improvement program;

(5)

School's current and projected enrollments; and

(6)

Maryland Historic Trust review, if applicable.

Procurement. The LEA shall procure construction in compliance with COMAR 14.39.03.

State Payment. The LEA shall submit to the IAC one request for payment per contract. The IAC or its designee shall review the request for payment for determination of whether the request comprises eligible expenditures and whether payment is within the allocation. The State shall pay the LEA through a single reimbursement at project completion.

Ineligible Expenditures. The following expenditures are ineligible for funding under the Aging Schools Program:

(1)

Expenditures set forth in Regulation .12 of this chapter, except maintenance; and

(2)

Improvements to or the movement of relocatable facilities.

Regulation .21 School Safety Grant Program.Link Copy Citation

There is a School Safety Grant Program. The School Safety Grant Program is separate from the State capital improvement program.

Purpose. An LEA may use the School Safety Grant Program to complete eligible school safety and security projects as identified by the IAC in consultation with the Center for School Safety.

LEAs shall follow the Administrative Procedure Guide School Safety Grant Program.

Procurement. The LEA shall procure construction in compliance with COMAR 14.39.03.

Regulation .22 Change in School Status.Link Copy Citation

An LEA shall report to the IAC changes in:

(1)

A school name; and

(2)

Use of a school when the school will be used for educational purposes other than as a school or when a school will be left vacant, as provided in Regulations .23 and .24 of this chapter.

The LEA shall request State approval to:

(1)

Grant easements or rights-of-way on school property;

(2)

Lease a portion of a school, as provided in Regulations .23 and .24 of this chapter; and

(3)

Transfer a school site or a school building when the school is no longer needed for school purposes, as provided in Regulation .24 of this chapter.

Regulation .23 Temporary or Partial Change in School Use.Link Copy Citation

When an LEA uses more than 10 percent of a school building for educational purposes other than as a school for 5 years or less, the LEA shall notify the IAC of the use, the anticipated time for the use, and the expected date for reactivation as a school.

When an LEA leases more than 10 percent of a school building for 5 years or less:

(1)

The LEA shall request IAC approval to lease by providing the IAC the information in §A of this regulation and a copy of the proposed lease; and

(2)

The IAC may require the LEA to:

(a)

Pay the State a proportional share of the lease proceeds based on the proportion of the State's investment in the school; and

(b)

Assume the outstanding debt remaining for bonds, the proceeds of which were used to construct or renovate the school.

When an LEA leaves more than 10 percent of a school building vacant for 5 years or less:

(1)

The LEA shall report the vacancy to the IAC by providing the information in §A of this regulation; and

(2)

The IAC may require the LEA to assume the outstanding debt remaining for bonds, the proceeds of which were used to construct or renovate the school.

Regulation .24 Non-Public School Use Exceeding 5 Years.Link Copy Citation

When the LEA uses more than 10 percent of a school building other than as a public school for more than 5 years and the State has debt remaining for bonds, the proceeds of which were used to construct or renovate that school, the IAC may require the LEA to pay a proportion of any lease proceeds and assume the remaining State debt, all calculated as of the date the LEA first began to use the school for purposes other than as a school.

Regulation .25 Local Board Transfer of School Property to County Government.Link Copy Citation

Definitions.

(1)

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

(2)

Terms Defined.

(a)

“School property” means any land, school site, or school building;

(b)

” Local board transfer to county government” includes, in the case of Baltimore City, the City's change of the dedicated use of the property.

Local Board Transfer to County Government.

(1)

If, with the approval of the State Superintendent of Schools, a local board determines that any school property is no longer needed for school purposes, the local board shall transfer the property to the county government.

(2)

The local board shall submit a request to the IAC for approval to transfer the school property to the county government.

The IAC may approve, disapprove, or conditionally approve the request to transfer the school property to the county government. The IAC may require that the transfer documents specifically incorporate the conditions.

The local board shall affirm in the request that the county concurs with the local board's intention to transfer the property and commits to repayment of outstanding bond debt if repayment is required.

Regulation .26 County Government Disposition of School Property.Link Copy Citation

Definition.

(1)

In this regulation, the following term has the meaning indicated.

(2)

Term Defined. “School property” means any land, school site, or school building.

A county government:

(1)

May use, sell, lease, or otherwise dispose of, except by gift, any former school property in accordance with this regulation; and

(2)

Is encouraged to use the State Clearinghouse or similar procedures to make government agencies aware of the availability of former school property.

A county government proposing to dispose of former school property shall submit to the IAC a request for approval to dispose. The IAC shall review the request and may approve, disapprove, or conditionally approve the request to dispose of the former school property. The IAC may require that the disposition documents specifically incorporate the conditions.

Regulation .27 Assumption of State Debt, Capital Lease Financing Balances, and Disposition Proceeds.Link Copy Citation

Pursuant to Education Article, §5-308, Annotated Code of Maryland, the IAC:

(1)

Shall require reimbursement of debt service from a county for a school property that:

(a)

Is sold by the county government; or

(b)

Meets all the following:

(i)

Was initially constructed or substantially altered by additions, alterations, or renovations, and the cost of the construction at the time of execution exceeded $100,000, and the work was accomplished after February 1, 1971;

(ii)

Is no longer used for school purposes;

(iii)

Has had title transferred to county government;

(iv)

Is being used for local governmental purposes by the State or county, or by any instrumentality of the State or county other than public education; and

(v)

Has outstanding debt that exceeds $5,000;

(2)

May require reimbursement of debt service or capital lease financing balances, or both, from a county for a school property that:

(a)

Has remaining State debt for bonds or capital lease financing balances;

(b)

Is no longer used for school purposes;

(c)

Has had title transferred to county government; and

(d)

Is not being used for local governmental purposes by the State or county, or by any instrumentality of the State or county.

Reimbursement for Transferred School Building.

(1)

A county government is not required to reimburse the State for outstanding debt service for a school building that is transferred to the county government in accordance with §A of this regulation until 2 years after the school building is transferred.

(2)

After the 2-year period ends, the county government shall reimburse the State for outstanding debt service for a school building in the amount that the county government would have been required to pay when the school building was transferred to the county.

The IAC may require the county to pay the State a proportional share of the disposition proceeds based on the proportion of the State's investment in the school property.

The IAC may establish any method of payment of the bond debt or the disposition proceeds including a lump sum payment or an assumption or re-assumption of existing bond debt.

Regulation .28 Audits.Link Copy Citation

The IAC or its designee may conduct financial audits and compliance audits of each LEA that receives State funds.

Audit items may include:

(1)

Transactions and balances reported on financial reports and close-out forms;

(2)

LEA internal controls and management authorizations;

(3)

Items ineligible for State participation; and

(4)

Compliance with 'IAC regulations and IAC policies and procedures.

The LEA shall reconcile audit exceptions and back charges to the IAC's or its designee's satisfaction.

Regulation .29 Reconsideration.Link Copy Citation

Reconsideration of Staff Determination.

(1)

An LEA dissatisfied with a determination made by the IAC’s designee may request the IAC to reconsider the determination.

(2)

The LEA shall submit a written request for reconsideration to the IAC within 45 calendar days of the designee’s decisions.

(3)

The written request for reconsideration shall include all additional information and documentation the LEA wants the IAC to consider.

(4)

The IAC’s designee may submit to the IAC additional information and documentation it wants the IAC to consider in support of its determination.

(5)

The IAC will notify the LEA of its decision.

Reconsideration of IAC Determination.

(1)

An LEA dissatisfied with a determination made by the IAC, including determination of projects that were not approved by the IAC, may appeal the decision to the IAC in writing.

(2)

The appeal shall be received by the IAC no later than 45 days following the IAC determination.

(3)

The written appeal shall contain:

(a)

The IAC determination from which the appeal is being taken, including funding requests for projects that were not approved by the IAC;

(b)

Reasons in support of the appeal;

(c)

A statement of the result sought; and

(d)

Any supporting documents, exhibits, and affidavits.

(4)

Oral Argument.

(a)

In its written appeal, the LEA may request to present oral argument to the IAC.

(b)

Oral argument will not be allowed without a written request to the IAC.

(c)

If oral argument is requested, the IAC shall notify the LEA of the date that the argument will be heard.

(5)

The IAC shall issue a decision to the LEA.

The IAC’s decision is a final decision of the agency.

Regulation .30 Waiver.Link Copy Citation

The IAC may waive or vary particular provisions of this chapter to the extent that the waiver or variance is not inconsistent with State statutes if:

In the IAC's determination, the application of a regulation in a specific case or in an emergency situation would be inequitable or contrary to the purposes of State law; and

The Office of the Attorney General approves the waiver for form and legal sufficiency.

Regulation .31 Priority Funding Area Waiver Criteria.Link Copy Citation

In accordance with State Finance and Procurement Article, §5-7B-07, Annotated Code of Maryland, it is the policy of the State to ensure sufficient conditions in existing schools as well as new facilities.

Waiver Procedure.

(1)

An LEA may request a waiver for approval of planning and funding, or of a site, for a new school or a replacement school that adds capacity located outside of a priority funding area.

(2)

On confirmation by the Maryland Department of Planning that the proposed new school or a replacement school that adds capacity, or the site for same, is outside a priority funding area, the designees shall make a recommendation to the IAC.

(3)

Based on the recommendation of the IAC designees, the IAC shall consider whether to grant a waiver for approval of planning and funding, or of a site, for a new school or a replacement school that adds capacity outside of a priority funding area.

(4)

After considering the criteria for a waiver in §B of this regulation, the IAC may:

(a)

Approve planning and funding, or of a site, for the new school or the replacement school that adds capacity;

(b)

Approve planning and funding, or of a site, for the new school or the replacement school that adds capacity with conditions; or

(c)

Deny planning and funding, or of a site, for the new school or the replacement school that adds capacity.

(5)

When considering whether to grant a waiver for a new school or a replacement school that adds capacity outside of a priority funding area, the IAC may consult with the Smart Growth Subcabinet.

The IAC shall consider the following factors when determining whether to grant a waiver to the requirement that a site for a new school or for a replacement school that adds capacity, or a new school or a replacement school that adds capacity that is requested for approval of State planning and funding, be located inside a priority funding area:

(1)

Evidence of efforts made by the LEA and the local government to secure a site within a priority funding area that is of a size, location, and configuration that can support the proposed educational program and serve an appropriate student body. For each evaluated site, criteria that must be considered include:

(a)

Costs of each site, including both quantifiable first costs and life cycle costs analysis (LCCA) inclusive of transportation costs, and non-quantifiable costs such as administrative inefficiencies or lost teaching time, in order to demonstrate that sites within the priority funding area are more costly than those outside the priority funding areas; and

(b)

Benefits of each site, including the impact of the proposed site on community life, walkability of students, access to public transportation, and access of students to educational programs and non-curricular activities;

(2)

Evidence that if a site outside a priority funding area is selected because of inability to locate a site within a priority funding area that is of a size, location, and configuration that can support the proposed educational program and serve an appropriate student body:

(a)

The new site or new school or replacement school that adds capacity is located as proximate to the priority funding area as possible;

(b)

The LEA proposes to mitigate potential negative effects of the site on educational delivery and the community; and

(c)

The local government tools for control of land use, including the comprehensive plan and zoning, restrict the growth of housing development outside of the priority funding area that may result from the new school or replacement school that adds capacity;

(3)

Evidence of efforts made by the LEA and local government to achieve the needed capacity through additions to existing schools inside the priority funding area;

(4)

The location of the student body that will be served by the new school or replacement school that adds capacity;

(5)

The potential of the new school or replacement school that adds capacity to be permanently connected to existing or proposed municipal or county water and sewer service that is in the 6-year local government capital improvement program;

(6)

The effect of the new school or replacement school that adds capacity in relieving an Adequate Public Facilities closure within an existing priority funding area or local growth area;

(7)

Opportunities for co-location or joint use that the new school or replacement school that adds capacity may make possible;

(8)

Opportunities for reuse of an existing facility;

(9)

The increase of capacity for a replacement school is modest;

(10)

Other factors.

Regulation .32 Emergency Management Shelters.Link Copy Citation

Definitions.

(1)

“Emergency management shelter” means temporary operations that meet the base humanitarian needs of the whole community before, during, or after an emergency event.

(2)

“Fully power” means the capability to provide electrical power to the fixtures, services, appliances, and/or outlets within a specified facility or portion of a facility.

(3)

“Replacement of the electrical system” means a complete new electrical system is installed in an existing or new facility, including when major components of the pre-existing electrical system are either removed or abandoned in place.

(4)

“Upgrade of the electrical system” means an existing electrical system of a facility or a major portion of a facility is improved through either:

(a)

The replacement or upgrade of existing components; or

(b)

Other improvements that alter the performance characteristics of the electrical system.

Each county board shall determine which public schools within the jurisdiction of the county board should be designated as emergency management shelters.

The county board’s determination is based on consistency with local emergency management plans and criteria and the availability of funding.

For schools that will be used as emergency management shelters based upon the LEA determination, local officials shall consult with the Maryland Department of Emergency Management (MDEM) to determine those areas of the facility that are necessary for public safety when the circumstances require the use of the facility as a public shelter during or after a federal, State, or local declared emergency.

The LEA shall ensure that the areas determined to be emergency management shelters are designed and constructed to be fully powered in the event of an emergency through installation of:

(1)

A permanent, on-site emergency power source; or

(2)

Other means to accept temporary emergency power source.

Regulation .33 Built to Learn Program.Link Copy Citation

There is a Built to Learn Program. The Built to Learn Program is separate from the State Capital Improvement Program. The Built to Learn Program is governed by the memorandum of understanding (MOU), as defined in Economic Development Article, §10-650, Annotated Code of Maryland, established between the IAC and the Maryland Stadium Authority.

Funding allocations for the Built to Learn program are mandated in Economic Development Article, §10–650, Annotated Code of Maryland, and shall be distributed accordingly.

IAC review will consist of planning review, priority funding area review, and available funding allocation review, Built to Learn projects must be brought to the IAC for approval. For each project approved by the IAC, the LEA shall establish an MOU with the Maryland Stadium Authority.

Built to Learn funding may be combined with Capital Improvement Program funding, or funding from other IAC programs. Projects that combine funding must meet the contract award requirements pursuant to COMAR 14.39.02 and 14.39.03.

Subtitle 39 — Interagency Commission on School Construction

Chapter 03. Construction Procurement Methods

Regulation .01 Scope.Link Copy Citation

This chapter applies to a public school construction project for building, improvement, supplies, or equipment if it:

(1)

Exceeds $50,000 and has IAC planning or funding approval; or

(2)

Requires review by the State Superintendent of Schools under Education Article, §2-303, Annotated Code of Maryland.

This chapter does not apply to a project in a building that is not used primarily for the instruction of students, including an office building, warehouse, or vehicle maintenance or repair building.

In this chapter, “IAC or its designee” includes “State Superintendent or designee” when State Superintendent approval is required by Education Article, §2-303(f), Annotated Code of Maryland.

Regulation .02 Project Procurement Proposal Review Assistance.Link Copy Citation

The State Superintendent or designee may request assistance from the IAC or its designee when reviewing project procurement proposals.

Regulation .03 Methods of Source Selection.Link Copy Citation

Unless otherwise authorized, school construction procurement contracts shall be awarded by one of the following methods:

Competitive sealed bidding, including competitive multistep sealed bidding;

Quality-based selection;

Competitive negotiation;

Unsolicited proposals;

Intergovernmental cooperative purchasing;

Sole source; or

Negotiated award after unsatisfactory competitive sealed bidding.

Regulation .04 Choice of Method.Link Copy Citation

Except as this regulation otherwise provides, an LEA shall use competitive sealed bidding.

Quality-Based Selection; Competitive Negotiation; Unsolicited Proposals.

(1)

An LEA may use quality-based selection or competitive negotiation or accept an unsolicited proposal in order to finance or to speed delivery of, transfer risks of, or otherwise enhance the delivery of public school construction.

(2)

An LEA intending to use quality-based selection or competitive negotiation or to pursue an unsolicited proposal shall:

(a)

Present a written determination that the circumstances listed in §B(1) of this regulation exist; and

(b)

Obtain authorization from the IAC or its designee.

An LEA may use intergovernmental cooperative purchasing when the circumstances set forth in Regulation .12B of this chapter exist.

Sole Source.

(1)

If the LEA determines that a competitive source selection method cannot be used because there is only one available source for the subject of the procurement, the LEA may award a contract without competition to the sole source.

(2)

An LEA intending to use sole source selection shall present a written determination that the circumstances listed in §B(1) of this regulation exist.

An LEA may use negotiated award after unsatisfactory competitive sealed bidding when the circumstances set forth in Regulation .14A of this chapter exist.

Regulation .05 Approvals.Link Copy Citation

IAC or designee authorization to use quality based selection or competitive negotiation or to pursue an unsolicited proposal is distinct from IAC or designee approval of project planning and funding. If the IAC or designee approves the project for use of a competitive negotiation method but does not approve the project for planning, the project may proceed as a locally funded project.

The LEA shall obtain State approval of each construction contract.

Regulation .06 Other Requirements.Link Copy Citation

All projects shall comply with State procedures and requirements for educational and design review.

A county board is encouraged, consistent with competitive bidding, to use bulk purchasing, bundling, and intergovernmental purchasing.

Project Delivery Methods. The requirements of COMAR 14.39.04 apply to procurements conducted in accordance with this chapter.

Minority Business Enterprise (MBE). The State’s minority business enterprise program applies to procurements conducted in accordance with this chapter that the State funds in whole or part. Any LEA utilizing State funding for school construction projects shall;

(1)

Adopt an MBE policy and procedures guiding document;

(2)

Provide the LEA’s board-adopted MBE policy and any related guiding documents to the IAC annually by a date specified by the IAC; and

(3)

Certify that all MBE policies are in compliance with the State’s MBE program.

Prevailing Wage. To the extent required by law, the State's prevailing wage requirements apply to procurements conducted in accordance with this chapter that the State funds in whole or part.

Debriefing and Protests.

(1)

The LEA shall establish procedures by which unsuccessful bidders and offerors may be debriefed upon written request within a reasonable time by a procurement official familiar with the rationale for the selection decision and contract award.

(2)

The LEA shall establish procedures by which an interested party may file a protest relating to the solicitation or award of a procurement contract.

If a single bid or offer is submitted following appropriate notification and solicitation procedures, the LEA may award the contract to the single bidder or offeror if the bid or offer is determined responsible and responsive.

Regulation .07 Competitive Sealed Bidding — One Step Sealed Bidding.Link Copy Citation

Prequalification. The LEA may establish procedures to ensure that bidders are responsible. The LEA may require a bidder to be prequalified according to LEA procedures before submitting a bid.

Invitation for Bids.

(1)

The invitation for bids shall be used to initiate a competitive sealed bid procurement.

(2)

The invitation for bids shall include:

(a)

Instructions and information concerning bid submission requirements including the date, time, and place for receipt of bids;

(b)

Whether electronic bids will be accepted;

(c)

Specifications or drawings or both that clearly and accurately describe the functional characteristics of or the nature of the work to be procured;

(d)

The delivery or performance schedule;

(e)

MBE goals, if applicable;

(f)

Prevailing wage requirements, if applicable;

(g)

Requirement that bidders acknowledge receipt of each amendment and addendum issued;

(h)

Requirement for submission of bid bond;

(i)

Information with respect to prebid conference if a conference is to be held;

(j)

Requirement for submission of bid affidavit; and

(k)

Any other information the LEA requires.

Public Notice. The LEA shall publish notice of an invitation for bid at least 14 calendar days before the bid due date in:

(1)

eMaryland Marketplace;

(2)

An electronic posting or a physical posting on the LEA's bid board; or

(3)

A newspaper of general circulation in the LEA's region.

Bid Receipt, Opening, Disclosure.

(1)

Upon its receipt, each bid shall be stored in a secure place until the time set for bid opening.

(2)

Bids shall be opened publicly in the presence of at least one LEA employee and read aloud at the time, date, and place designated in the invitation for bids, or are to be made available to the public through a method in accordance with local policy and procurement practice. The name of each bidder, the bid price, and other appropriate information shall be read aloud or otherwise made available. This information shall be recorded at the time of bid opening. The bids shall be tabulated or a bid abstract made.

(3)

Opened bids shall be available for public inspection at a reasonable time after bid opening and before contract award. Bidders may designate trade secrets, financial data, or other proprietary data as confidential; material so designated shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. The LEA shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. All information submitted by bidders is subject to State and local public disclosure laws.

IFB Cancellation; Bid Rejection; Irregularities.

(1)

Before opening of bids, the LEA may cancel the invitation for bids in whole or in part if the LEA determines that the cancellation is fiscally advantageous or otherwise in its best interest.

(2)

After opening of bids but before award, the LEA may reject all bids in whole or in part if the LEA determines that the rejection is fiscally advantageous or otherwise in its best interest.

(3)

The LEA may reject any bid in whole or in part if it is in the LEA's best interest to do so. Reasons for rejecting a bid may include that the bidder is not responsible, that the bid is not responsive, that the price is unreasonable, or that the bidder is debarred or otherwise ineligible.

(4)

Irregularities.

(a)

Minor; Material; Correction.

(i)

The LEA may permit a bidder to correct a minor irregularity or may waive a minor irregularity. A minor irregularity is one that is merely a matter of form and not of substance or pertains to an immaterial or inconsequential defect or variation in a bid, the correction or waiver of which would not be prejudicial to other bidders.

(ii)

The LEA may not waive or permit a bidder to correct a defect or variation in a bid that is material as to price, quantity, quality, or delivery.

(b)

Up to and including the time for bid opening, a bidder may correct a defect or variation with respect to:

(i)

Bid bond;

(ii)

Acknowledgment of addenda; or

(iii)

MBE submission materials.

(c)

After bid opening, the LEA may not waive or permit a bidder to correct a defect or variation with respect to these requirements unless the defect or variation is determined to be minor and does not affect the competitiveness of the bid.

Bid Evaluation and Award.

(1)

The LEA shall award the contract to the responsible bidder who provides the best value and conforms to specifications with consideration given to:

(a)

The quantities involved;

(b)

The time required for delivery;

(c)

The purpose for which required;

(d)

The competency and responsibility of the bidder;

(e)

The ability of the bidder to perform satisfactory service;

(f)

The plan for utilization of minority contractors; and

(g)

The price offered by the bidder.

(2)

The LEA may not evaluate a bid for any criterion that is not disclosed in the invitation for bids.

Single Bidder. If after proper publication of invitation for bid and proper bid opening, the LEA receives one responsive bid, the LEA may:

(1)

Award the contract to the single responsible bidder; or

(2)

Reissue the invitation for bid.

Regulation .08 Competitive Sealed Bidding — Multistep Sealed Bidding.Link Copy Citation

General.

(1)

Competitive sealed bidding may be conducted through multistep sealed bidding.

(2)

Multistep sealed bidding is a multiphase process in which bidders submit a technical offer (statement of qualifications) and a second phase in which those bidders who are determined qualified during the first phase may have price bids considered.

Request for Qualifications.

(1)

The request for qualifications is used to initiate a competitive two-step sealed bid procurement.

(2)

The request for qualifications shall set forth the factors by which the bidder's qualifications will be evaluated.

(3)

Evaluation factors shall include:

(a)

Bidder's understanding of the scope and schedule of the work;

(b)

Bidder's prior experience with projects of similar size and scope, and if bidder is a joint venture, experience of at least one of the members of the joint venture entity;

(c)

Bidder's plan for management of the project, and the organizational structure proposed for the project;

(d)

Experience of bidder's individual staff members with projects of similar size and scope;

(e)

MBE plan, if applicable; and

(f)

Other factors that the LEA sets forth.

(4)

The request for qualifications shall set forth the minimum standards that a bidder shall meet to be found qualified.

(5)

The request for qualifications may include information concerning the project scope, schedule, MBE, and prevailing wage as the LEA considers appropriate.

Public Notice. The LEA shall publish notice of a request for qualification at least 14 calendar days before the technical-offer due date in:

(1)

eMaryland Marketplace;

(2)

An electronic posting or a physical posting on the LEA's bid board; or

(3)

A newspaper of general circulation in the LEA's region.

Qualifications Evaluation.

(1)

The LEA shall evaluate the bidder's qualifications to determine whether the bidder meets the minimum qualification standards.

(2)

The LEA shall compile a list of bidders that are determined to meet the minimum qualification standards. Only the bidders on that list shall be permitted to submit bids.

(3)

Interviews may be conducted as a component of the qualifications process.

Invitation For Bids.

(1)

After preparing the list of qualified bidders, the LEA may issue an invitation for bids to all bidders on that list.

(2)

The invitation for bids shall include:

(a)

Instructions and information concerning bid submission requirements including the date, time, and place for receipt of bids;

(b)

Whether electronic bids will be accepted;

(c)

Specifications, drawings, or both, that clearly and accurately describe the functional characteristics of or the nature of an item to be procured;

(d)

The delivery or performance schedule;

(e)

MBE goals, if applicable;

(f)

Prevailing wage requirements, if applicable;

(g)

Requirement that bidders acknowledge receipt of each amendment and addendum issued;

(h)

Requirement for submission of bid bond;

(i)

Information with respect to pre-bid conference if a conference is to be held;

(j)

Requirement for submission of bid affidavit; and

(k)

Any other information the LEA requires.

(3)

The LEA shall obtain approval from the IAC or its designee before issuing the invitation for bids.

Bid Receipt and Opening; Disclosure.

(1)

Upon receipt, each bid shall be stored in a secure place until the time set for bid opening.

(2)

Bids shall be opened publicly in the presence of at least one LEA employee and read aloud at the time, date, and place designated in the invitation for bids. The name of each bidder, the bid price, and other appropriate information shall be read aloud or otherwise made available. This information shall be recorded at the time of bid opening. The bids shall be tabulated or a bid abstract made.

(3)

Opened bids shall be available for public inspection at a reasonable time after bid opening and before contract award. Bidders may designate trade secrets or other proprietary data as confidential; material so designated shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. The LEA shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. All information submitted by bidders is subject to State and local public disclosure laws.

IFB Cancellation; Bid Rejection; Irregularities.

(1)

Before opening bids, the LEA may cancel the invitation for bids in whole or in part if the LEA determines that the cancellation is fiscally advantageous or otherwise in its best interest.

(2)

After opening of bids but before award, the LEA may reject all bids in whole or in part if the LEA determines that the rejection is fiscally advantageous or otherwise in its best interest.

(3)

The LEA may reject any bid in whole or in part if it is in the LEA's best interest to do so. Reasons for rejecting a bid include that the bidder is not responsible, that the bid is not responsive, that the price is unreasonable, or that the bidder is debarred or otherwise ineligible.

(4)

Irregularities.

(a)

Minor; Material; Correction.

(i)

(ii)

The LEA may not waive or permit a bidder to correct a defect or variation in a bid that is material as to price, quantity, quality, or delivery.

(b)

Up to and including the time for bid opening, a bidder may correct a defect or variation with respect to:

(i)

Bid bond;

(ii)

Acknowledgment of addenda; or

(iii)

MBE submission materials.

(c)

Bid Evaluation and Award.

(1)

The LEA shall award the contract to the lowest responsible and responsive bidder whose bid meets the requirements and evaluation criteria set forth in the invitation for bids and is the most favorable bid.

(2)

The LEA may not evaluate a bid for any criterion that is not disclosed in the invitation for bids.

Single Bidder. If after proper publication of invitation for bid and proper bid opening, the LEA receives one responsive bid, the LEA may:

(1)

Award the contract to the single responsible bidder; or

(2)

Reissue the invitation for bid.

Regulation .09 Quality-Based Selection.Link Copy Citation

General. Quality-based selection means a method of source selection based on a combination of qualification and cost factors.

Request for Proposals.

(1)

The request for proposals is used to initiate a quality-based selection procurement.

(2)

The request for proposals shall include:

(a)

Instructions and information concerning proposal submission requirements including the date, time, and place for receipt of proposals;

(b)

Whether electronic proposals will be accepted;

(c)

Specifications, drawings, or both, that clearly and accurately describe the functional characteristics of or the nature of the work to be procured, delivery or performance schedule, and any special instructions;

(d)

The evaluation factors and an indication of the relative importance of each evaluation factor including price;

(e)

MBE goals, if applicable;

(f)

Prevailing wage requirements, if applicable;

(g)

Information with respect to preproposal conference if a conference is to be held;

(h)

Requirement for submission of proposal affidavit;

(i)

Requirement that offerors acknowledge receipt of each amendment and addendum issued;

(j)

Requirement for submission of bid bond; and

(k)

Any other information the LEA requires.

(3)

LEAs may request that qualification factors in the proposal be submitted separately from price information.

Public Notice. The LEA shall publish notice of a request for proposals at least 14 calendar days before the proposal due date in:

(1)

eMaryland Marketplace;

(2)

An electronic posting or a physical posting on the LEA's bid board; or

(3)

A newspaper of general circulation in the LEA's region.

Proposal Receipt. The LEA shall keep submitted proposals in a secure place until the due date. Proposals may not be opened publicly but shall be opened in the presence of at least two LEA employees.

Proposal Disclosure. Offerors shall indicate clearly the portions of their proposals that they consider confidential information. All information submitted by offerors is subject to State and local public disclosure laws.

Proposal Evaluation.

(1)

The LEA shall evaluate the proposal based on the evaluation factors set forth in the request for proposals.

(2)

Evaluation factors shall include:

(a)

Offeror's understanding of scope of the work;

(b)

Offeror's prior experience with projects of similar size and scope, and if offeror is a joint venture, experience for at least one of the members of the joint venture entity;

(c)

Offeror's plan for management of the project and organizational structure proposed for the project;

(d)

Experience of offeror's individual staff members with projects of similar size and complexity;

(e)

MBE plan, if applicable;

(f)

Other qualification factors that the LEA sets forth; and

(g)

Price.

(3)

Interviews may be conducted as a component of the qualification process.

IFB Cancellation; Proposal Rejection; Irregularities.

(1)

Before opening of proposals, the LEA may cancel the request for proposals in whole or in part if the LEA determines that the cancellation is fiscally advantageous or otherwise in its best interest.

(2)

After opening of proposals but before award, the LEA may reject all proposals in whole or in part if the LEA determines that the rejection is fiscally advantageous or otherwise in its best interest.

(3)

The LEA may reject any proposal in whole or in part if it is in the LEA's best interest to do so. Reasons for rejecting a proposal include that the offeror is not responsible, that the proposal is not susceptible of award, that the price is unreasonable, or that the offeror is debarred or otherwise ineligible.

(4)

Irregularities.

(a)

Minor; Material; Correction.

(i)

The LEA may permit an offeror to correct a minor irregularity or may waive a minor irregularity. A minor irregularity is one that is merely a matter of form and not of substance or pertains to an immaterial or inconsequential defect or variation in a proposal, the correction or waiver of which would not be prejudicial to other bidders.

(ii)

The LEA may not waive or permit an offeror to correct a defect or variation in a proposal that is material as to price, quantity, quality, or delivery.

(b)

Up to and including the time for proposal opening, an offeror may correct a defect or variation with respect to:

(i)

Bid bond;

(ii)

Acknowledgment of addenda; or

(iii)

MBE submission materials.

(c)

After proposal opening, the LEA may not waive or permit an offeror to correct a defect or variation with respect to these requirements unless the defect or variation is determined to be minor and does not affect the competitiveness of the bid.

Evaluation and Award.

(1)

The LEA may not evaluate a proposal for any criterion that is not disclosed in the request for proposals.

(2)

The LEA shall award the contract to the offeror whose proposal is, in the LEA's determination, the highest ranked proposal based on the factors contained in the request for proposals including price.

Single Offeror. If after proper publication of request for proposal and proper proposal opening, the LEA receives one responsive offer, the LEA may:

(1)

Award the contract to the single responsible offeror; or

(2)

Reissue the request for proposal.

Regulation .10 Competitive Negotiation.Link Copy Citation

Definition.

(1)

In this regulation, the following term has the meaning indicated.

(2)

Term Defined. Competitive negotiation means a method of source selection that:

(a)

Permits offerors to demonstrate creativity, experience, and knowledge;

(b)

Allows offerors to submit proposals that vary widely in scope, cost, and other factors; and

(c)

Allows negotiating between the LEA and the qualified offerors with the objective that the final proposal be the most advantageous to the LEA.

Request for Proposals.

(1)

The request for proposals is used to initiate a competitive negotiation procurement.

(2)

The request for proposals shall include:

(a)

Instructions and information concerning proposal submission requirements including the date, time and place for receipt of proposals;

(b)

A statement as to whether electronic proposals will be accepted;

(c)

At a minimum, a general description of the final product or services the LEA seeks;

(d)

The evaluation factors and an indication of the relative importance of each evaluation factor, including price;

(e)

A statement that discussions may be conducted with those responsible offerors that submit proposals judged to be in the competitive range, as previously determined by the LEA;

(f)

MBE goals, if applicable;

(g)

Prevailing wage requirements, if applicable;

(h)

Information with respect to preproposal conference if a conference is to be held;

(i)

Requirement for submission of a proposal affidavit;

(j)

Requirement that offerors acknowledge receipt of each amendment and addendum issued;

(k)

Requirement for bid bond, if applicable; and

(l)

Any other information the LEA requires.

(3)

The LEA shall obtain authorization from the IAC or its designee before issuing the request for proposals.

Public Notice. The LEA shall publish notice of a request for proposals at least 14 calendar days before the proposal due date in:

(1)

eMaryland Marketplace;

(2)

An electronic posting or a physical posting on the LEA's bid board; or

(3)

A newspaper of general circulation in the LEA's region.

Proposal Receipt. The LEA shall keep submitted proposals in a secure place until the due date. Proposals are not required to be opened publicly but shall be opened in the presence of at least two LEA employees.

Proposal Evaluation.

(1)

LEAs may interview offerors as part of the evaluation process.

(2)

The LEA shall evaluate the proposals based on the evaluation factors set forth in the request for proposals.

(3)

The LEA shall evaluate the technical proposals and price proposals independently of each other.

(4)

Evaluation factors shall include:

(a)

Offeror's understanding of scope of the work;

(b)

Advantages of the offeror's proposal to the LEA and to the public in general;

(c)

Offeror's prior experience with projects of similar size and scope, and if offeror is a joint venture, experience for at least one of the members of the joint venture entity;

(d)

Offeror's plan for management of the project, and the organizational structure proposed for the project;

(e)

Experience of offeror's individual staff members with projects of similar size and scope;

(f)

Financial resources of team and team members;

(g)

MBE plan, if applicable;

(h)

Price;

(i)

If applicable, process by which operation and maintenance of the facility will be transferred to the LEA; and

(j)

Other factors that the LEA sets forth.

(5)

The LEA shall establish a competitive range based on the ratings of each proposal.

(6)

Price may be a component in the first evaluation phase of the request for proposals, but is not required. The LEA may exclude price as a factor in the first phase of the request for proposals in order to assess the range of conceptual options that are available for a particular project.

Negotiations.

(1)

The primary objective of negotiations is to obtain the most advantageous contract for the LEA.

(2)

The LEA shall undertake negotiations with each offeror in the competitive range. During negotiations, an offeror may revise its proposal.

(3)

During negotiations, the LEA may establish a final competitive range. The LEA may limit the number of offerors that are included in the final competitive range.

(4)

After negotiation, the LEA shall give each offeror in the final competitive range the opportunity for a final proposal revision.

Award.

(1)

The LEA shall select the offeror whose proposal is, in the LEA's determination, the most advantageous to the LEA.

(2)

Before seeking approval of the award from the local board of education, the LEA shall:

(a)

Discuss the project in an open meeting; and

(b)

Notify the public as to when the proposed contract will be brought before the board of education for approval.

(3)

Following approval of the award by the local board of education, the LEA shall prepare and submit to the IAC or its designee a statement that explains why the proposal is the most advantageous. The explanation shall:

(a)

Describe the proposed scope of work, including alternative financing arrangements, if applicable;

(b)

Include a cost schedule, indicating the costs associated with various services to be provided by the vendor or phases of the work, and whether those costs are eligible for State reimbursement;

(c)

Summarize the evaluation system used to select the offeror;

(d)

Summarize the apparent successful offeror's proposal; and

(e)

Describe the MBE plan.

Regulation .11 Unsolicited Proposals.Link Copy Citation

Receipt of Unsolicited Proposals; Competing Proposals.

(1)

If an LEA receives a proposal other than one submitted in response to a solicitation and it determines that it is interested in pursuing the unsolicited proposal, the LEA shall:

(a)

Publish notice that it has received an unsolicited proposal;

(b)

Briefly describe the nature of the proposal;

(c)

Give any other interested offeror at least 28 days to submit a competing proposal after the public notice is issued; and

(d)

Inform the IAC or its designee of its intention and provide a description of the proposed method to procure the project.

(2)

The unsolicited proposal and any competing proposals shall be in writing and sufficiently detailed to permit the LEA to determine if it is advantageous and should be the basis for a contract award.

Notice. Notices required under this regulation shall be placed in:

(1)

eMaryland Marketplace;

(2)

An electronic posting or a physical posting on the LEA's bid board; or

(3)

A newspaper of general circulation in the LEA's region.

If the LEA receives one or more competing proposals, the LEA shall evaluate and negotiate the proposals consistent with Regulations .09F and G of this regulation.

Award.

(1)

The LEA may award a contract that it determines to be advantageous based on an unsolicited proposal or a competing proposal.

(2)

The LEA shall prepare and submit to the IAC or its designee a statement that explains why the proposal is the most advantageous. The explanation shall:

(a)

Describe the proposed scope of work or services, including alternative financing if applicable;

(b)

Include a cost schedule, indicating the costs associated with various services to be provided by the vendor or phases of the work, and whether those costs are eligible for State reimbursement;

(c)

Summarize the evaluation system used to select the offeror;

(d)

Summarize the apparent successful offeror's proposal; and

(e)

Describe the MBE plan, if applicable.

(3)

Before seeking approval from the Board of Education, the LEA shall:

(a)

Discuss the project in an open meeting; and

(b)

Notify the public as to when the proposed contract will be brought before the Board of Education for approval.

Regulation .12 Intergovernmental Cooperative Purchasing.Link Copy Citation

General. Intergovernmental cooperative purchasing means a method of source selection that permits an LEA to aggregate with other government entities their common requirements for purposes of maximizing economies of scale when soliciting bids or proposals for goods and commodities or to purchase its requirements from another governmental entity's contract if that contract is an intergovernmental cooperative purchasing agreement.

An LEA may use the intergovernmental cooperative purchasing method if it determines that the method:

(1)

Will provide cost benefits, promote administrative efficiencies, or promote governmental cooperation; and

(2)

Is not intended to avoid competition.

Types. An LEA may use the following types of intergovernmental cooperative purchasing method:

(1)

Pooling, a method that includes the following steps:

(a)

Each participating governmental entity agrees to procure its respective requirements from the successful bidder or offeror;

(b)

A lead jurisdiction conducts the procurement on behalf of all participants; and

(c)

Either a master contract award or awards is made by the lead jurisdiction on behalf of all participants or each participant awards its own contract; and

(2)

Piggybacking, a method wherein an LEA purchases its requirements from another governmental entity's contract if that contract contains an intergovernmental cooperative purchasing clause.

Regulation .13 Sole Source.Link Copy Citation

Sole source procurement is permissible if a requirement is available from only a single vendor.

Examples of circumstances that might necessitate a sole source procurement are as follows:

(1)

Only one source exists which meets the requirements;

(2)

The compatibility of equipment, accessories, or replacement parts is the paramount consideration;

(3)

A sole vendor's item is needed for trial use or testing; or

(4)

Public or regulated utility services are to be procured and only one source exists.

The LEA shall submit a written sole source justification to the IAC or its designee.

Regulation .14 Negotiated Award After Unsatisfactory Competitive Sealed Bidding.Link Copy Citation

General. An LEA may make a negotiated award after unsatisfactory competitive sealed bidding if, after bids have been opened, the LEA:

(1)

Rejects all bids pursuant to Regulation .07F(2) or .08G(2) of this chapter; and

(2)

Determines that:

(a)

Funding does not permit an award to the lowest responsible and responsive bidder;

(b)

Any delay resulting from a resolicitation with revised specifications under competitive sealed bidding would be fiscally disadvantageous or would not otherwise be in the best interest of the LEA or the State; or

(c)

Both.

Invitation for Revised Bids. The LEA shall:

(1)

Issue an invitation for revised bids based on revised specifications to the original bidders as promptly as possible; and

(2)

Require a prompt response.

Discussion. Discussion may not be conducted with bidders after revised bids have been submitted unless the LEA determines that there is compelling need for further negotiation. Any discussion concerning revised specifications shall be conducted with all responsible bidders in a fair and equal manner.

Award. The LEA shall award the contract to the lowest responsive and responsible bidder whose bid meets the invitation for revised bids.

Subtitle 39 — Interagency Commission on School Construction

Chapter 04. Project Delivery Methods

Regulation .01 Scope.Link Copy Citation

This chapter applies to a public school construction project for building, improvement, supplies, or equipment if it:

(1)

Exceeds $50,000 and has IAC planning or funding approval; or

(2)

Requires review by the State Superintendent of Schools under Education Article, §2-303, Annotated Code of Maryland.

This chapter does not apply to a project in a building that is not used primarily for the instruction of students, including an office building, warehouse, or vehicle maintenance or repair building.

In this chapter, “IAC or its designee” includes “State Superintendent or designee” if State Superintendent approval is required by Education Article, §2-303(f), Annotated Code of Maryland.

Regulation .02 Project Delivery Proposal Review Assistance.Link Copy Citation

The State Superintendent or designee may request assistance from the IAC or its designee when reviewing project delivery proposals.

Regulation .03 Methods of Project Delivery.Link Copy Citation

For a public school construction project, an LEA may use one of the following methods:

General contracting; or

Alternative project delivery including:

(1)

Construction management agency;

(2)

Construction management at risk;

(3)

Design build; and

(4)

Job order contracting.

Regulation .04 Other Requirements.Link Copy Citation

The requirements of COMAR 14.39.03 apply to all projects conducted under this chapter.

All projects regardless of delivery method shall comply with State procedures for project design review.

Regardless of project delivery method, the LEA may not begin construction until the IAC or its designee has authorized the LEA to proceed.

The IAC may specifically designate an individual or group to act on requests, provide the State approvals on behalf of the IAC, or both, as required in this chapter.

Regulation .05 Construction Management Agency.Link Copy Citation

General. Construction management agency (CMA) means a project delivery method in which the LEA:

(1)

Directly contracts with trade contractors; and

(2)

Either:

(a)

Engages a construction manager as its agent to manage the project; or

(b)

Acts as the construction manager.

The LEA shall disclose in the solicitation documents if the project may be converted to the construction management at risk method or other project delivery method.

State Reimbursement.

(1)

The IAC or its designee shall maintain a list of CMA services that are eligible for State reimbursement.

(2)

If the LEA intends to seek reimbursement of CMA costs with State funds, the LEA shall:

(a)

Submit the solicitation documents to the IAC or its designee for review not later than 1 month before the documents are released to offerors; and

(b)

Identify in the solicitation documents the construction management services that are eligible for State reimbursement.

(3)

An LEA intending to seek State reimbursement for construction manager services shall procure a construction manager in accordance with COMAR 14.39.03.

Trade Contracts.

(1)

Trade contracts may be procured concurrently or over the life of the project.

(2)

The LEA shall submit the bidding schedule for the trade packages with proposed bid dates to the IAC or its designee and provide notice of any changes.

(3)

The LEA shall procure each trade contract in accordance with COMAR 14.39.03.

(4)

The LEA shall submit each trade contract to the IAC for approval.

(5)

If the project is subject to prevailing wage rate requirements, each trade contract within the project is subject to prevailing wage rate requirements.

(6)

MBE goals shall be based on the total project price, but MBE goals may vary in individual trade contracts if the overall MBE project goal is acknowledged.

Regulation .06 Construction Management at Risk.Link Copy Citation

General.

(1)

Construction management at risk means a project delivery method in which the LEA engages a construction manager at risk (CMR) to:

(a)

Contract directly with trade contractors; and

(b)

Provide a guaranteed maximum price for project procurement and construction.

(2)

The CMR warrants that the work will be completed at or below the guaranteed maximum price with provisions for change order adjustments for work that is outside the agreed-upon work scope.

(3)

Cost savings resulting from projects completed below the guaranteed maximum price may be shared between the LEA and the CMR.

Guaranteed Maximum Price.

(1)

Guaranteed maximum price (GMP) means an arrangement between the LEA and the CMR in which the total amount payable to the CMR for the project is restricted to a pre-agreed maximum and includes the cost of construction and construction management services that is generally determined before the design is complete.

(2)

The LEA and CMR may determine the guaranteed maximum price as follows:

(a)

In competitive sealed bidding or quality based selection, the guaranteed maximum price is based on construction documents that are sufficiently developed to allow bidders to reasonably estimate and include costs for unspecified items, and includes:

(i)

Cost of the work;

(ii)

Construction management fee; and

(iii)

General conditions; and

(b)

In competitive negotiation, including projects in which a construction manager has provided pre-GMP services, the LEA may begin negotiations to establish a guaranteed maximum price with the construction manager only after:

(i)

The LEA has provided public notice of its intent and a request for competing proposals; and

(ii)

At least 28 days have elapsed for receipt of competing proposals.

(3)

If the LEA receives competing proposals, the proposals shall be evaluated in accordance with COMAR 14.39.03.

Notice to IAC.

(1)

Not later than 2 months before the release of solicitation documents to offerors, the LEA shall provide written notice to the IAC or its designee that the CMR method will be used.

(2)

The LEA shall acknowledge in the notice that the State is not responsible for any project cost overruns.

(3)

Not later than 1 month before release to offerors, the LEA shall submit the solicitation documents to the IAC or its designee for approval.

State Reimbursement.

(1)

State funds may be used to reimburse:

(a)

Allowable pre-GMP costs only if related to the solicitation of trade packages; and

(b)

Allowable post-GMP costs.

(2)

Allowable post-GMP construction management services, as determined by the IAC, shall be included in total construction cost as if the CMR were a general contractor for purposes of determining the maximum State construction allocation, payment of requisitions, and project close out.

(3)

Total State reimbursement of eligible costs may not exceed the lesser of:

(a)

The State's share of the guaranteed maximum price based on the cost-share formula; or

(b)

The maximum State construction allocation.

(4)

If an LEA intends to seek State reimbursement of any of the construction management services, the services shall be procured through one of the procurement methods provided in COMAR 14.39.03.

Trade Contracts.

(1)

The CMR assumes all risk for cost, schedule, and performance of the trade contracts except for a trade contract that the LEA separately procures.

(2)

Trade contracts may be procured concurrently or over the life of the project.

(3)

After the guaranteed maximum price is finalized, any trade contract previously awarded by the LEA may be assigned to the CMR who then assumes all risk for coordination and completion of the trade contracts.

(4)

Subcontracts solicited by the CMR as components of the final guaranteed maximum price do not require IAC approval.

(5)

If the LEA intends to award a separate trade contract, the LEA shall submit the trade contract to the IAC for approval notwithstanding the subsequent inclusion of the trade contract in the guaranteed maximum price.

Regulation .07 Design-Build.Link Copy Citation

General.

(1)

Design-build means a project delivery method in which a single entity is contractually responsible for both design and construction of a project.

(2)

The LEA provides sufficient information to the design-build entity to guide it in the design of the project and specifies the reviews and approvals that will be required of the project.

(3)

The design-build entity is responsible for the following:

(a)

Quality of the design;

(b)

Project costs;

(c)

Construction quality;

(d)

Adherence to the LEA's schedule for project completion and occupancy; and

(e)

Other factors the LEA requires.

(4)

Design-build may extend beyond the design and construction phases of a project to include:

(a)

Financing, in which case the method is called finance-design-build; or

(b)

Provision of furniture and equipment, occupant move-in, or other post-construction tasks, except as limited by §A(5) of this regulation.

(5)

The design-build entity may not perform the routine maintenance and operation of a school building after occupancy.

IAC Approval.

(1)

If the LEA decides to use the design-build method, the LEA:

(a)

Shall request approval from the IAC or its designee 2 months prior to the release of the solicitation; and

(b)

May not proceed with the design-build method until approval is obtained from the IAC or its designee.

(2)

The request for approval shall at a minimum include the proposed:

(a)

Brief description of the scope of work;

(b)

Project phasing;

(c)

Schedule for the submission of plans and specifications for review by the IAC or its designee;

(d)

Solicitation schedule;

(e)

Procurement method;

(f)

Financing arrangement, if applicable; and

(g)

Performance expectations.

(3)

The LEA shall acknowledge in the request for approval that the State is not responsible for any project cost overruns.

(4)

The LEA shall send the draft design-build solicitation to the IAC or its designee for approval not later than 1 month before it is released to bidders.

(5)

Authorization by the IAC or its designee to proceed with the design-build method is independent of approvals of project planning and funding. If the IAC or its designee authorizes the use of the design-build method but project planning is not approved, the project may proceed as a locally funded project.

Design-Build Procurement.

(1)

The LEA may develop a design-build solicitation based on:

(a)

Performance specification;

(b)

Performance specification combined with concept or schematic design; or

(c)

Performance specification combined with the LEA's prototype design.

(2)

The performance specification shall include at a minimum:

(a)

Educational specifications;

(b)

Performance characteristics of the school facility;

(c)

A schedule for completion and occupancy; and

(d)

General conditions that clearly describe the respective responsibilities of the LEA and the design-build entity.

State Reimbursement.

(1)

If the LEA intends to seek State reimbursement, the LEA shall distinguish between preconstruction and construction scopes of work to allow the IAC or its designee to determine the costs that are eligible for State reimbursement.

(2)

The State's maximum participation in the project is calculated when:

(a)

The construction documents are complete; and

(b)

The full scope of the project is known including ineligible items.

(3)

Allowable preconstruction services, as determined by the IAC, shall be included in total construction cost.

(4)

Final adjustment of the State's participation shall be made at project closeout.

(5)

Total State reimbursement of eligible costs may not exceed the lesser of:

(a)

The State's share of the guaranteed maximum price based on the cost-share formula; or

(b)

The maximum State construction allocation.

Regulation .08 Job Order Contracting.Link Copy Citation

In this regulation, the following term has the meaning indicated.

Term Defined. “Job order contracting (JOC)” means a project delivery method in which the LEA selects a contractor through a competitive procurement process based on a multiplier or coefficient that:

(1)

Reflects the bidder's determination of the actual cost to perform the work plus overhead and profit; and

(2)

Is applied to a fixed-price list of construction items and activities.

The fixed prices of the construction items and activities are defined by the LEA or through a standard project cost source.

The schedule of fixed prices may include a construction escalation factor for multiyear contracts.

Procurement and Award.

(1)

An LEA shall obtain a JOC through a competitive procurement process, whether or not the LEA intends to execute State-funded projects through the JOC.

(2)

The JOC may include extension clauses, but the State may not participate in a project executed under a JOC that:

(a)

Has more than three annual extensions; or

(b)

Has been increased by change order above the maximum combined price indicated in the solicitation, including all potential extensions, except for changes of scope to individual projects already begun before completion of the final annual extension.

(3)

When submitting a contract approval to the IAC, the LEA must acknowledge that the State is not responsible for any project cost overruns.

Approvals. If an LEA intends to execute a State-funded project through a JOC, it:

(1)

Shall provide the IAC or its designee with a brief description of the anticipated scope of work, the duration of the JOC contract, the number of annual extensions, and the maximum combined cost of the projects to be performed under the JOC;

(2)

Shall submit the project for design review prior to the start of construction [shall be required] if it would be required for similar project funded through the same State funding program;

(3)

May reference an earlier approval and the JOC solicitation if approval is requested for a project to be executed through a JOC under which a State-funded project was previously approved, but is not required to resubmit all relevant information;

(4)

Shall obtain approval of contract award, reimbursement, or both, in the manner and timeframe required for all projects funded under the relevant program;

(5)

Shall, for design-build JOC projects, clearly indicate on the request for approval of contract award or for reimbursement those portions of the project cost that are associated with preconstruction activities in order to allow the IAC or its designee to determine which costs are eligible for State reimbursement;

(6)

Shall include in the total construction cost allowable preconstruction services, as determined by the IAC; and

(7)

Shall acknowledge that final adjustment of the State’s participation will be made at project closeout.

Subtitle 39 — Interagency Commission on School Construction

Chapter 05. Alternative Financing

Regulation .01 Scope.Link Copy Citation

This chapter applies to a public school construction project for building, improvement, supplies, or equipment if it:

(1)

Exceeds $50,000 and has IAC planning or funding approval; or

(2)

Requires review by the State Superintendent of Schools under Education Article, §2-303, Annotated Code of Maryland.

This chapter does not apply to a project in a building that is not used primarily for the instruction of students, including an office building, warehouse, or vehicle maintenance or repair building.

In this chapter, “IAC or its designee” includes “State Superintendent or designee” if State Superintendent approval is required by Education Article, §2-303(f), Annotated Code of Maryland.

Regulation .02 Alternative Project Proposal Review Assistance.Link Copy Citation

The State Superintendent or designee may request assistance from the IAC or its designee when reviewing alternative project financing proposals.

Regulation .03 Educational and Design Standards Apply.Link Copy Citation

All projects financed through alternative methods shall comply with State procedures for project design review.

Regulation .04 Use of Alternative Financing Methods.Link Copy Citation

A county or an LEA may use alternative financing methods for public school construction.

An LEA shall obtain the approval of the county governing body to use an alternative financing method.

Alternative financing shall be conducted consistent with Education Article, §4-126, Annotated Code of Maryland.

Subtitle 39 — Interagency Commission on School Construction

Chapter 06. Relocatable Classroom Indoor Environmental Quality Standards

Regulation .01 Definitions.Link Copy Citation

In this regulation, the following terms have the meanings indicated.

Terms Defined.

(1)

“Locally-constructed relocatable classroom” means a relocatable classroom that is constructed at the school site.

(2)

“Model Performance Code” means the construction standards stated in COMAR 09.12.50.03:

(3)

“Pre-manufactured unit” means a relocatable classroom that is constructed off-site and transported to the school site.

(4)

“Relocatable classroom” means a classroom unit that is capable of being disconnected and transported from one school site and reinstalled at another school site.

Regulation .02 Relocatable Classrooms Indoor Environmental Quality Standards.Link Copy Citation

All relocatable classrooms used for student instruction at public schools must conform to Indoor Environmental Quality Standards that meet the Maryland Green Building Council International Green Construction Code (IgCC) Supplement, Chapter 8, Section 801 through 806, which is incorporated by reference; and

One of the following:

(1)

The Model Performance Code for pre-manufactured units; or

(2)

Local building codes for locally-constructed relocatable classrooms.

Regulation .03 Exceptions.Link Copy Citation

This chapter does not apply to relocatable classrooms constructed before July 1, 2015.

Subtitle 39 — Interagency Commission on School Construction

Chapter 07. Public School Facilities Educational Sufficiency Standards

Regulation .01 Purpose.Link Copy Citation

The purpose of Maryland Public School Facilities Educational Sufficiency Standards is to establish acceptable minimum levels for the physical attributes, capacity, and educational suitability of existing public PreK—12 school facilities in order to assess existing facilities against a defined standard to identify deficiencies.

Regulation .02 Scope.Link Copy Citation

As required by Education Article, §5-310, Annotated Code of Maryland, the Facilities Educational Sufficiency Standards established in this chapter shall be used to complete assessments of existing school facilities Statewide.

The chapter is to be used for assessment purposes only and are not requirements for school facility design or construction.

This chapter may not supersede or obviate compliance with applicable building and fire codes or any other code, regulation, law, or standard that has been adopted by State agencies.

Regulation .03 General Requirements.Link Copy Citation

Building Condition.

(1)

A school facility shall be safe and capable of being maintained.

(2)

A school facility shall be structurally sound. A school facility shall be considered structurally sound if the building presents:

(a)

No imminent danger;

(b)

No major visible signs of decay or distress; or

(c)

Structural systems support the loads imposed on them.

(3)

An exterior envelope is safe and capable of being maintained if:

(a)

Walls and roof are weather-tight under normal conditions with routine upkeep; and

(b)

Doors and windows are weather-tight under normal conditions with routine upkeep.

(4)

An interior surface is safe and capable of being maintained if it is:

(a)

Structurally sound;

(b)

Capable of supporting a finish; and

(c)

Capable of continuing in its intended use with normal maintenance and repair.

(5)

An interior finish is safe and capable of being maintained if it is:

(a)

Free of exposed lead paint;

(b)

Free of exposed friable asbestos; and

(c)

Capable of continuing in its intended use with normal maintenance and repair.

Building Systems.

(1)

Building systems in a school facility shall be in working order and capable of being properly maintained.

(2)

Building systems include but are not limited to the following:

(a)

Roof;

(b)

Plumbing;

(c)

Telephone;

(d)

Electrical;

(e)

Heating and cooling systems;

(f)

Fire alarm;

(g)

Two-way internal communication;

(h)

Technological infrastructure; and

(i)

Security systems.

(3)

A building system shall be considered to be in working order and capable of being maintained if the following apply:

(a)

The system is capable of being operated as intended and maintained;

(b)

Newly manufactured or cost-effective refurbished replacement parts are available;

(c)

The system is capable of supporting the standards established in this rule; and

(d)

Components of the system present no imminent danger of personal injury.

(4)

Sanitary Facilities.

(a)

Fixtures shall include but are not limited to the following:

(i)

Water closets;

(ii)

Urinals;

(iii)

Lavatories; and

(iv)

Drinking fountains.

(b)

Wherever possible within reasonable cost constraints, restrooms shall be accessible to general classrooms for grades 3 and below and for special-needs classrooms without having to exit the building.

Regulation .04 Classifications of Public Schools.Link Copy Citation

The classifications for public schools under these standards are as follows:

Elementary School, which houses pre-kindergarten through grade 5 or any subset thereof;

Middle School, which houses grade 6 through grade 8;

High School, which houses grade 9 through grade 12;

Combination School, which houses a combination of any grade levels; and

Other School, which includes but is not limited to the following:

(1)

Early-childhood-education centers;

(2)

Special-education centers;

(3)

Career-technology centers; and

(4)

Alternative-education schools.

Regulation .05 School Site.Link Copy Citation

A school site shall be of sufficient size to accommodate safe access, parking, drainage, and security and shall have an adequate source of water and appropriate means of effluent disposal.

Safe Access.

(1)

A school site shall be configured for safe and controlled access that separates pedestrian traffic from vehicular traffic.

(2)

If buses are used to transport students, then bus loading and unloading areas shall be separated from vehicular-traffic areas wherever possible.

(3)

Dedicated student drop-off and pickup areas shall be provided for safe use by student passengers arriving or departing by automobile.

Parking. A school site shall include a surfaced area that is capable of being maintained, stable, firm, slip resistant, and large enough to accommodate 1.5 parking spaces per full-time-equivalent employee and one student space per ten high school students. Alternative parking may be approved after the sufficiency of parking at the site is reviewed by the IAC based on the following criteria:

(1)

Availability of street parking around the school;

(2)

Availability of any nearby parking lots;

(3)

Availability of public transit;

(4)

Number of staff who drive to work on a daily basis; and

(5)

Average number of visitors on a daily basis.

Drainage. A school site shall be configured such that runoff does not undermine the structural integrity of the school buildings located on-site or create flooding, ponding, or erosion resulting in a threat to health, safety, or welfare.

Security. All schools shall have safe and secure site fencing or other barriers with accommodations for safe passage through openings to protect students from the hazards of traffic, railroad tracks, animal nuisance, and steep slopes.

Regulation .06 Site Recreation and Outdoor Physical Education.Link Copy Citation

A school facility shall have area, space, and fixtures, in accordance with the standard equipment necessary to meet the educational requirements of the public education department, for physical-education activity.

An elementary school shall provide:

(1)

At least one safe play area (and playground, including a hard surfaced court and unpaved recreation area, which shall be conveniently accessible to the students;

(2)

At least one play area and appropriate equipment for physical education and school recreational purposes, based on the planned school program capacity;

(3)

For schools that serve students in grade 5 and below, a protected play area; and

(4)

Play-equipment areas with surfacing materials that meet or exceed safety specifications for shock-absorbing qualities as outlined by the U.S. Consumer Product Safety Commission.

A middle school shall provide at least one hard surfaced court and playing field for physical-education activities; and the number of playing fields and quantity and type of equipment shall be based on the planned school program capacity.

A high school shall provide a playing field for physical-education activities, and the number of laying fields and quantity and type of equipment shall be based on the planned school program capacity.

A combination school shall provide the elements of the grades served by §§B—D of this regulation without duplication, but shall meet the highest standard.

Other schools shall provide the elements above necessary to meet the educational requirements of the specific programs and capacity of the schools.

Regulation .07 Academic Classroom Space.Link Copy Citation

Classroom spaces, including those for physical education, shall be sufficient for educational programs that are appropriate for the class-level needs.

Classroom Fixtures and Equipment.

(1)

With the exception of physical-education spaces, each general and specialty classroom shall contain a work surface and seat for each student in the classroom. The work surface and seat shall be appropriate for the normal activity of the class conducted in the room.

(2)

Each general and specialty classroom shall have an erasable surface and a surface suitable for projection purposes, appropriate for group classroom instruction, and a display surface. A single surface may meet one or more of these purposes.

(3)

Each general and specialty classroom shall have storage for classroom materials or access to conveniently located storage.

(4)

With the exception of physical-education spaces and music-education spaces, each general and specialty classroom shall have a work surface and seat for the teacher and for any aide assigned to the classroom. The classroom shall have secure storage for student records that is located in the classroom or is conveniently accessible to the classroom.

Classroom Lighting.

(1)

Each general and specialty classroom shall have a light system capable of maintaining at least 50 foot-candles of well-distributed light. A school shall provide appropriate task lighting in specialty classrooms where enhanced visibility is required.

(2)

The light level shall be measured at a work surface located in the approximate center of the classroom, between clean light fixtures.

Classroom Temperature and Relative Humidity.

(1)

Each general and specialty classroom shall have a heating, ventilation, and air conditioning (HVAC) system capable of maintaining a temperature between 68°F and 75°F and a relative humidity between 30 and 60 percent at full occupancy.

(2)

The temperature and humidity shall be measured at a work surface in the approximate center of the classroom.

Classroom Acoustics.

(1)

With the exception of physical-education spaces, each general and specialty classroom shall be maintainable at a sustained background sound level of less than 55 decibels.

(2)

The sound level shall be measured at a work surface in the approximate center of the classroom.

Classroom Air Quality.

(1)

Each general, science, and fine-arts classroom shall have an HVAC system that continuously moves air and is capable of maintaining a carbon dioxide level of not more than 1,200 parts per million.

(2)

The air quality shall be measured at a work surface in the approximate center of the classroom.

Regulation .08 General Use Classrooms.Link Copy Citation

Cumulative classroom net square foot requirements, excluding in-classroom storage space and any in-classroom toilet rooms, shall be at least:

(1)

For prekindergarten, 50 net square feet per student;

(2)

For kindergarten, 50 net square feet per student;

(3)

For grades 1—8, 32 net square feet per student; and

(4)

For grades 9—12, 25 net square feet per student;

At least 2 net square feet per student shall be available for dedicated, in-classroom storage and may be provided vertically to avoid the need for additional floor area.

Sufficient number of classrooms shall be provided to meet State and local board mandated student-to-staff ratio requirements Administrative History.

Regulation .09 Specialty Classrooms.Link Copy Citation

Special Education.

(1)

To the maximum extent appropriate, students with disabilities shall be educated in the least restrictive environment with students who are not disabled. A continuum of alternative placements shall be provided.

(2)

If a special-education space for pull-out purposes other than calming is provided and the space is required to support educational programs, services, and curricula, the space may not be smaller than 450 net square feet.

(3)

When the need is demonstrated by a local education agency, additional space in the classroom shall be provided with, or students shall have an accessible route to an accessible unisex restroom with one toilet, sink, washer/dryer, and shower stall/tub, as needed, and at least 15 net square feet of storage.

(4)

When the need is demonstrated by a local education agency, in 6th grade classrooms and above, a kitchenette of least 30 net square feet shall be provided.

Science Classrooms.

(1)

For grades PreK through 5, no additional space is required beyond the classroom requirement.

(2)

For grades 6 through 12, 4 net square feet per student of the specialty program capacity for science is required. The space may not be smaller than the average classroom at the facility. This space is included in the academic classroom requirement and may be used for other instruction. The space shall have science fixtures and equipment, in accordance with the standard equipment necessary to meet the educational requirements of the Maryland Science Content Standards.

(3)

For grades 9 through 12 only, at least 40 net square feet of space is provided for securable, well-ventilated storage or prep space for each science room having science fixtures and equipment. Storage/prep rooms may be combined and shared between more than one classroom.

Fine-Arts Education.

(1)

A school facility shall have classroom space to deliver fine-arts education programs which include the following:

(a)

Art;

(b)

Music;

(c)

Dance; and

(d)

Theater.

(2)

Elementary school fine-arts education programs:

(a)

May be accommodated within a general-use or dedicated arts classroom;

(b)

Shall provide one dedicated classroom for each fine-arts subject area staffed with greater than 0.5 full-time fine-arts teacher; and

(c)

Shall provide additional dedicated fine-arts program storage of at least 60 net square feet for each subject area per facility.

(3)

A middle school shall provide classroom space for fine-arts education programs that:

(a)

Contains no less than 4 net square feet per student of the specialty program capacity for fine-arts subjects;

(b)

Provides one dedicated classroom for each fine-arts subject area staffed with greater than 0.5 full-time fine-arts teacher; and

(c)

Provides additional 60 net square feet of storage for each fine-arts program subject.

(4)

A high school shall provide classroom spaces for fine-arts education programs that contain no less than 5 net square feet of the specialty program capacity for fine-arts subjects.

(5)

A combination school shall provide the elements of the grades served by §C(1)—(4) of this regulation without duplication but meeting the highest square footage standards.

(6)

Other schools shall provide the elements included in §C(1)—(4) of this regulation that are necessary to meet the educational requirements of the specific programs and capacity of the schools.

Technology Education and Computer Science.

(1)

For grades K through 5, no additional space is required beyond the classroom requirement.

(2)

For grades 6 through 8, 3 net square feet, and 4 net square feet for grades 9 through 12, of the specialty program capacity for technology education and family and consumer science is required. The space shall be no smaller than the average classroom at the facility. This space is included in the academic classroom requirement and may be used for other instruction.

(3)

The space shall have technology fixtures and equipment, in accordance with the standard equipment necessary to meet the educational requirements of the Maryland Technology Education Content Standards, and, in high school, the requirements of Maryland Advanced Technology Education electives where such electives are offered.

(4)

Provide at least 80 net square feet for securable, well-ventilated storage/prep space for each technology education room having technology fixtures and equipment. Storage/prep rooms may be combined and shared between more than one classroom.

Career and Technology Education.

(1)

Elementary schools have no requirement.

(2)

Middle schools shall include space for career-development and career-exploration activities. Each program lab or classroom space shall be no smaller than 650 net square feet.

(3)

High School Career and Technology Education.

(a)

Program space shall be provided with no less than 4 net square feet of the specialty program capacity of the school for career education.

(b)

Each program lab or classroom space shall be no smaller than 650 net square feet.

(c)

Spaces for programs requiring licensing, certification, or accreditation by a State board or agency shall meet all applicable health and safety standards. Cosmetology and barber programs shall comply with the sanitation requirements of the State Board of Cosmetologists and the State Board of Barbers, respectively.

(4)

A combination school shall provide the elements of the grades served by §E(1)—(3) of this regulation without duplication, but meeting the higher standards.

(5)

Other schools shall provide the elements above necessary to meet the educational requirements of the specific programs and capacity of the schools.

Regulation .10 School Library/Media Center.Link Copy Citation

A school facility shall have a unified school library/media program for the use of all students which shall include an organized and centrally managed collection of instructional materials and technologies and direct instruction.

Elementary schools shall include an area for stacks and seating space which shall be at least 3 net square feet of the planned school program capacity. The instructional space may not be smaller than the average classroom at the facility. In addition, office/workroom space and secure storage shall be provided.

Middle and high schools shall include an area for stacks and seating space which shall be at least 3 net square feet of the planned school program capacity. The space may not be smaller than the average classroom at the facility. In addition, office/workroom space and secure storage shall be provided.

Combination schools shall include the elements of the grades set out in §§B and C of this regulation without duplication, but meeting the higher standards.

Other schools shall include the elements in §§A—D of this regulation necessary to meet the educational requirements of the specific programs and capacity of the schools.

Regulation .11 Physical Education.Link Copy Citation

General Requirements.

(1)

Each school shall provide an instructional program in physical education each year for all students in grades PreK-8. Each school shall offer a physical-education program in grades 9—12 which shall enable students to meet graduation requirements and to select physical-education electives. The following minimum spaces are required:

(a)

A gymnasium;

(b)

A teacher office or planning area;

(c)

Equipment storage; and

(d)

An outdoor instructional playing field.

(2)

Elementary schools shall include a gymnasium with at least 2,200 net square feet. This space may have multi-purpose use in accommodating other educational program activities such as art program performances.

(3)

Middle schools shall include a gymnasium with a minimum of 5,200 net square feet plus an additional 4 net square feet times 40 percent of the enrollment of the school devoted to bleacher seating.

(4)

High schools shall include a gymnasium with at least 6,500 net square feet plus an additional 4 net square feet times 40 percent of the enrollment of the school devoted to bleacher seating.

(5)

Combination schools shall include the elements of the grades served by §A(2)—(4) of this regulation without duplication, but meeting the higher net square feet standards.

(6)

Other schools shall include the elements above necessary to meet the educational requirements of the specific programs and capacity of the schools.

Physical-Education Requirements in Addition to Space Requirements in §A of This Regulation.

(1)

Elementary schools shall include one office. Separate physical-education equipment storage shall be provided.

(2)

Middle schools shall include one office. Separate physical-education equipment storage space shall be provided.

(3)

High schools shall include two dressing rooms with lockers, showers, and restroom fixtures. Two offices shall be provided. Separate physical-education equipment storage space shall be provided.

(4)

Combination schools shall include the elements of the grades served by §B(1)—(3) of this regulation without duplication, but meeting the higher standards.

(5)

Other schools shall provide the elements above necessary to meet the educational requirements of the specific programs and capacity of the schools.

Regulation .12 Food Services.Link Copy Citation

Dining Area. A school facility shall have a space to permit students to eat within the school outside of general classrooms. This space may have more than one function and may fulfill more than one sufficiency standards requirement. The dining area shall be sized to accommodate no less than one third of the planned school program capacity of the school. The dining area shall have no less than 15 net square feet per seated student.

Serving Area. A serving area shall be provided in addition to a dining area.

Kitchen Area. A kitchen shall have a telephone, plumbing providing potable water, a sink suitable for use both in preparing food and washing utensils, and a separate hand-washing sink. Kitchen and equipment shall comply with either the food preparation kitchen or the serving kitchen standards defined as follows:

(1)

Food preparation kitchen: Provide at least the greater of:

(a)

A minimum of 2 net square feet per meal served during the single largest serving period; or

(b)

No fewer than 2 square feet per enrolled student eligible for free or reduced-price meals.

(2)

Serving kitchen: Where food is not prepared, there shall be a minimum of 200 net square feet.

Regulation .13 Other Facility Areas.Link Copy Citation

Administrative Space. A school facility shall have space to be used for the administration of the school. The space shall consist of a minimum of 150 net square feet, plus 1 net square foot per student of the planned school program capacity.

Faculty Workroom/Lounge. A school facility shall have a workspace/lounge available to the faculty. This space is in addition to any workspace/lounge available to a teacher in or near a classroom. The space shall consist of 1 net square foot per student of the planned school program capacity with no less than 150 net square feet. The space may consist of more than one room and may have more than one function. This space shall include a break area with a sink.

Health Services. A school facility shall have a dedicated health services space with a minimum of 500 net square feet that includes:

(1)

Areas for waiting, examination and treatment, resting, storage;

(2)

An accessible toilet room;

(3)

A separate room for private consultations and for use as a health service professional’s office;

(4)

Lockable cabinets for medical records and medications; and

(5)

At least one sink that provides both hot and cold water in addition to the sink in the toilet room.

Pupil Services. A school shall provide a coordinated program of pupil services for all students, which shall include, but not be limited to, school counseling, pupil personnel, school psychology, and health services. The school facility shall provide a minimum of 120 net square feet for each discipline, except school health services, and be staffed with greater than a 0.5 full-time professional.

Regulation .14 General Storage.Link Copy Citation

For general storage, which excludes lockers, janitorial, kitchen, general classroom, specialty classrooms, and administrative storage, at least 1 net square foot of the planned school program capacity may be distributed in or throughout any type of room or space, but may not count toward required room square footages. General storage shall be securable and include textbook storage.

Regulation .15 Maintenance and Janitorial Space.Link Copy Citation

Each school shall designate 0.5 net square feet per student of the planned school program capacity for maintenance and janitorial space. Janitorial space shall include a janitorial sink.

Regulation .16 Standards Variance.Link Copy Citation

The IAC may grant a variance from any of the Sufficiency Standards if it determines that the intent of the standard can be met by the school system in an alternate manner or if a variance is required for appropriate programmatic needs as demonstrated by the school system. If the IAC grants the variance, the school system shall be deemed to have met the standard.

Regulation .17 Facility Assessment.Link Copy Citation

Each school facility shall be assessed at least once every 4 years.

Subtitle 40 — Maryland Center for School Safety

Chapter 01. Meetings

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Advisory Board” has the meaning stated in Education Article, §7-1501, Annotated Code of Maryland.

(2)

“Center” means the Maryland Center for School Safety, its Subcabinet, the Advisory Board to the Subcabinet, its committees, and any other public bodies under the authority and acting on behalf of the Maryland Center for School Safety.

(3)

“Open session” means a meeting of the Subcabinet or the Advisory Board that is required to be open to the public pursuant to the Open Meetings Act, General Provisions Article, Title 3, Subtitle 3, Annotated Code of Maryland.

(4)

“Subcabinet” has the meaning stated in Education Article, §7-1501, Annotated Code of Maryland.

Regulation .02 Public Attendance.Link Copy Citation

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

Meetings shall be held in a location that is reasonably accessible to individuals who would like to attend and observe an open session of the Center.

Regulation .03 Public Participation Limited.Link Copy Citation

A member of the public attending an open session may not participate in the session except to the extent:

The Center expressly invites public testimony, questions, comments, or other forms of public participation; or

The Chair of the Subcabinet, the Chair of the Advisory Board, or a member of the Center invites the public to comment or as entitled by law to participate,

Regulation .04 Disruptive Conduct.Link Copy Citation

An individual attending an open session may not engage in conduct that disrupts the session or interferes with the right of members of the public to attend and observe the session. This includes but is not limited to visual demonstrations, such as the display of placards, signs, or banners, and verbal outbursts from attendees not recognized by the Chair to participate in the session.

Authority of the Chair of the Subcabinet and Chair of the Advisory Board.

(1)

The Chair may order an individual who violates §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 law enforcement assistance to restore order.

(2)

The Chair may recess the session while order is restored.

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 .05 Recording, Photographing, and Broadcasting of Open Session.Link Copy Citation

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

(1)

(2)

A representative of the news media may broadcast or televise the open session if the equipment used does not create excessively bright artificial light, excessive noise, or other conditions determined at the discretion of the Chair that would disturb the open session or other individuals attending the session.

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

A member of the public who intends to record the discussions at an open session is requested to provide written notice to the Executive Director of the Center in advance of the meeting advising of the intention to record the proceedings and specifying the type of equipment to be used to record the proceedings.

Regulation .06 Recordings Not Part of Record.Link Copy Citation

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

Subtitle 40 — Maryland Center for School Safety

Chapter 02. Inspection of and Copying of Public Records

Regulation .01 Purpose.Link Copy Citation

This chapter sets forth procedures for the disclosure, inspection, or copying of public records maintained by the Maryland Center for School Safety.

Regulation .02 Policy.Link Copy Citation

It is the policy of the Maryland Center for School Safety to facilitate public access to the Center’s public records when access is authorized by law.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.

(2)

“Advisory Board” has the meaning stated in Education Article, §7-1501, Annotated Code of Maryland.

(3)

“Applicant” has the meaning stated in General Provisions Article, §4-101(b), Annotated Code of Maryland.

(4)

“Center” means the Maryland Center for School Safety, its Subcabinet, Advisory Board to the Subcabinet, advisory councils, workgroups, and committees, any other public bodies under the authority and acting on behalf of the Maryland Center for School Safety, and any employees, agents, or contractors acting on behalf of the Maryland Center for School Safety.

(5)

“Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

(6)

“Executive Director” means the Executive Director of the Maryland Center for School Safety, as set forth in Education Article, §7-1502(d), Annotated Code of Maryland.

(7)

“Official custodian” has the meaning stated in General Provisions Article, §4-101(f), Annotated Code of Maryland.

(8)

“Person in interest” means:

(a)

A person or governmental unit that is the subject of a public record;

(b)

An authorized designee of the person or governmental unit that is the subject of a public record; or

(c)

If the person has a legal disability, a parent or legal representative of the person that is the subject of a public record.

(9)

“Public record” has the meaning stated in General Provisions Article, §4-101(j), Annotated Code of Maryland.

(10)

“Subcabinet” has the meaning stated in Education Article, §7-1501, Annotated Code of Maryland.

(11)

“Working day” means a day other than Saturday, Sunday, or a State holiday or service reduction day.

Regulation .04 Official Custodian.Link Copy Citation

The Executive Director shall designate an official custodian of public records for the Center.

The website for the Center shall provide the name and contact information for the custodian of public records.

Regulation .05 Who May Request Public Records.Link Copy Citation

Any person may request to inspect or copy public records of the Center.

Regulation .06 Necessity for Written Request.Link Copy Citation

Inspection.

(1)

Except as otherwise provided in this chapter, the custodian shall make public records of the Center available for inspection by an applicant without demanding a written request.

(2)

The custodian shall require a written request if the custodian reasonably believes that:

(a)

The Act or any other law may prohibit the disclosure of the public record to the applicant; or

(b)

A written request will materially assist the Center in responding.

Copies. If the applicant requests a copy of any public record of the Center, the custodian may require a written request.

Regulation .07 Contents of Written Request.Link Copy Citation

A written request shall:

Contain the applicant’s name and address;

Be signed by the applicant, or transmitted via email as an electronic signature;

Reasonably identify, by brief description, the public record sought; and

Specify an alternate format, if applicable, due to a disability.

Regulation .08 Addressee.Link Copy Citation

A request to inspect or copy a public record shall be addressed or directed to the custodian of the record. If the custodian is unknown, the request may be addressed or directed to the Executive Director.

Regulation .09 Response to Request.Link Copy Citation

If the custodian decides to grant a request for inspection, the custodian shall produce the public record for inspection, without unreasonable delay, as follows:

(1)

Immediately for records designated by the Center for inspection, as set forth in §B of this regulation; or

(2)

If additional time is needed to retrieve the public record and conduct any necessary review, within a reasonable time period, not to exceed 30 days after the date of the request.

The custodian shall designate the following public records for immediate inspection:

(1)

Minutes of the Subcabinet;

(2)

Minutes of the Advisory Board;

(3)

Bylaws of the Subcabinet; and

(4)

Bylaws of the Advisory Board.

If the custodian decides to deny a request for inspection, the custodian shall:

(1)

Do so within 30 days of receipt of the request; and

(2)

Immediately notify the applicant of the denial.

If a request is denied, the custodian shall provide the applicant, at the time of the denial or within 10 working days, a written statement setting forth:

(1)

The reason for the denial;

(2)

The legal authority for the denial; and

(3)

Notice of the remedies available for review of the denial.

(1)

That the custodian does not have custody or control of the requested public record; and

(2)

If the custodian knows, of:

(a)

The name of the custodian of the public record; and

(b)

The location or possible location of the public record.

With the consent of the applicant, any time limit imposed by §§A—C of this regulation may be extended for an additional period of up to 30 days.

Regulation .10 Notice to Person Possibly Affected by Disclosure.Link Copy Citation

The custodian may consider the views of the possibly affected person before deciding whether to disclose the public record to an applicant.

Regulation .11 Public Record Temporarily Unavailable.Link Copy Citation

If a requested public record of the Center is in the custody and control of the person to whom the application is made but is not immediately available for inspection or copying, the custodian shall promptly:

Notify the applicant that the public record is not immediately available; and

Schedule a date within a reasonable time for inspection or copying.

Regulation .12 Public Record Destroyed or Lost.Link Copy Citation

If the custodian knows that a requested public record of the Center has been destroyed or lost, the custodian shall promptly:

Notify the applicant that the public record is not available; and

Explain the reasons why the public record cannot be produced.

Regulation .13 Review of Denial.Link Copy Citation

Regulation .14 Disclosure Against Public Interest.Link Copy Citation

Denial Pending Court Order.

(1)

If, in the opinion of the Executive Director, disclosure of a public record of the Center otherwise subject to disclosure under the Act would do substantial injury to the public interest, the Executive Director may temporarily deny the request to obtain a court order allowing nondisclosure.

(2)

A temporary denial shall be in writing.

Circuit Court Review.

(1)

Within 10 working days after the denial, the Executive Director shall apply to the appropriate circuit court for an order permitting continued denial or restriction of access.

(2)

Notice of the Executive Director’s complaint, on behalf of the Center, shall be served on the applicant in the manner provided for service of process under the Maryland Rules.

Regulation .15 Fees.Link Copy Citation

Except as provided in §§B and C of this regulation, the fee schedule for copying and certifying copies of public records of the Center is as follows:

(1)

For each copy made by a photocopying machine within the Center, 25 cents per page;

(2)

For each copy made other than by a photocopying machine within the Center, the actual cost of reproduction; and

(3)

For certification as a true copy of a public record, an additional fee of $1 per page or, if appropriate, per item.

Minimum Fee. A charge may not be made if the total fee is $1 or less.

If the fee for copies or certified copies of any public record of the Center is specifically set by a law other than the Act or this regulation, the custodian shall charge the prescribed fee.

(1)

Collect from the applicant a fee to cover the actual cost of reproduction; or

(2)

Direct the applicant to pay the cost of reproduction directly to the facility making the copy.

Before copying a public record of the Center, the custodian shall estimate the cost of reproduction and either:

(1)

Obtain the agreement of the applicant to pay the cost; or

(2)

Require prepayment of the cost.

Except as provided in §G of this regulation the custodian may charge a reasonable fee for time that an official or employee of the Center spends to:

(1)

Search for requested public records; or

(2)

Prepare public records for inspection and copying.

The custodian may not charge a search or preparation fee for the first 2 hours that an official or employee of the Center spends to respond to a request for public records.

The Center may charge a reasonable hourly fee based on the actual cost to the Center for staff services for additional time required to search for or prepare public records for inspection and copying.

Waiver or Reduction of Fee.

(1)

The custodian may waive or reduce any fee under this regulation if:

(a)

The applicant requests a waiver; and

(b)

The custodian determines that the waiver or reduction is in the public interest.

(2)

In making a decision under this section, the custodian shall consider, among other relevant factors, the ability of the applicant to pay the fee.

Regulation .16 Time and Place of Inspection.Link Copy Citation

The Center shall notify the applicant of the scope of responsive documents and fee associated with fulfilling the request no later than 30 days after receiving applicant’s request.

An applicant may inspect any public record of the Center that the applicant is entitled to inspect during the normal working hours of the Center.

The applicant shall have 30 days from receipt of the Center’s notification set forth in §A of this regulation to schedule the inspection of the responsive documents, make arrangements for copying of the documents, and/or remit payment to the Center.

After the expiration of the 30-day period set forth in §D of this regulation, if the applicant has failed to schedule the inspection, make arrangements for copying of the documents, remit payment, or otherwise communicate with the Center, the request shall be closed.

Subtitle 40 — Maryland Center for School Safety

Chapter 03. Correction or Amendment of Public Records

Regulation .01 Scope.Link Copy Citation

This chapter sets out procedures under which a person in interest may request the correction or amendment of public records of the Maryland Center for School Safety.

Regulation .02 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Act” means the Public Information Act, General Provisions Article, §§4-101—4-601, Annotated Code of Maryland.

(2)

“Center” means the Maryland Center for School Safety.

(3)

“Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

(4)

“Executive Director” means the Executive Director of the Maryland Center for School Safety, as set forth in Education Article, §7-1502(d), Annotated Code of Maryland.

(5)

“Person in interest” has the meaning stated in General Provisions Article, §4-101(g), Annotated Code of Maryland.

(6)

“Public record” has the meaning stated in General Provisions Article, §4-101(j), Annotated Code of Maryland.

Regulation .03 Who May Request.Link Copy Citation

A person in interest may request that the Center correct or amend any public record that:

The Center keeps; and

The person in interest is authorized to inspect.

Regulation .04 Contents of Request.Link Copy Citation

A person in interest shall make a request to correct or amend a public record in writing.

The request shall:

(1)

Identify the public record to be corrected or amended;

(2)

State the precise correction or amendment requested;

(3)

State the reason for the correction or amendment; and

(4)

Include a statement that, to the best of the requester’s belief, the public record is inaccurate or incomplete.

Regulation .05 Addressee.Link Copy Citation

A request to correct or amend a public record shall be addressed to the custodian of the record. If the custodian is unknown, the request shall be addressed to the Executive Director.

Regulation .06 Return of Nonconforming Request.Link Copy Citation

The Center shall accept a request to correct or amend a public record when it is received if it reasonably complies with Regulations .04 and .05 of this chapter.

If the request does not reasonably comply with Regulations .04 and .05 of this chapter, the Center shall return the request to the requestor with:

(1)

An explanation of the reason for the return; and

(2)

A statement that, on receipt of a request that reasonably complies with Regulations .04 and .05 of this chapter, the request will be accepted.

Regulation .07 Response to Request.Link Copy Citation

Within 30 days after the Center receives a request for the correction or amendment of a public record that reasonably complies with Regulations .04 and .05 of this chapter, the custodian shall:

Make the requested correction or amendment, and inform the requester in writing of the action; or

Inform the requester in writing that the Center will not:

(1)

Make the requested correction or amendment, and the reason for the refusal; or

(2)

Act on the request because:

(a)

The requester is not a person in interest;

(b)

The requester is not authorized to inspect the record; or

(c)

Of any other reason authorized by law.

Regulation .08 Response to Refusal of Request — Statement of Disagreement.Link Copy Citation

If the Center refuses to make a requested correction or amendment, a person in interest may file with the Center a concise statement of the reasons for:

The requested correction or amendment; and

The person’s disagreement with the refusal of the Center to make the correction or amendment.

Regulation .09 Requirements for Statement of Disagreement.Link Copy Citation

The statement submitted under Regulation .08 of this chapter shall:

Be on pages not larger than 8-1/2 x 11 inches;

Use only one side of each page; and

Consist of not more than five pages.

Regulation .10 Disclosure of Statement of Disagreement.Link Copy Citation

If a person in interest files a statement of disagreement concerning a public record under Regulations .08 and .09 of this chapter, the Center shall provide a copy of the statement whenever the Center discloses the public record to a third party.

Regulation .11 Administrative Review.Link Copy Citation

A person may request administrative review under this regulation if the Center:

(1)

Has refused the person’s request to correct or amend a public record under Regulation .07 of this chapter;

(2)

Has rejected the person’s statement of disagreement under Regulation .08 of this chapter; or

(3)

Has not provided a statement of disagreement to a third party under Regulation .10 of this chapter.

A request for review shall be filed with the Executive Director within 30 days after the requester is advised of the Center’s action.

The review proceedings shall be conducted in accordance with General Provisions Article, Title 4, Subtitle 1A, 1B, or 3, Annotated Code of Maryland.

Subtitle 40 — Maryland Center for School Safety

Chapter 04. Certification and Training for School Security Employees and School Resource Officers

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Center” means the Maryland Center for School Safety.

(2)

“School resource officer” has the meaning stated in Education Article, §7-1501(j), Annotated Code of Maryland.

(3)

“School safety coordinator” means an individual or individuals in a school system, regardless of job title, who serve as:

(a)

The head of safety or security for the school system; or

(b)

The liaison between the Center, local law enforcement, and the local school system as required under Education Article, §7-1508(a), Annotated Code of Maryland.

(4)

School Security Employee.

(a)

“School security employee” has the meaning stated in Education Article, §7-1501(k), Annotated Code of Maryland.

(b)

School security employee includes individuals:

(i)

Employed by a local school system, either as salaried or contractual employees, to provide safety or security-related services at a public school; or

(ii)

Assigned to a public school, whose job description includes safety or security related services as part of the individual’s primary duties.

(c)

School security employee does not include:

(i)

A school resource officer;

(ii)

Local law enforcement providing supplemental coverage to local school systems;

(iii)

An employee of the school system not assigned to work in an individual public school as part of their duties; or

(iv)

A school administrator.

Regulation .02 School Safety Coordinator Certification.Link Copy Citation

The Center shall certify a school safety coordinator upon completion of the following training:

(1)

The Center’s curriculum for school safety coordinators and any annual updates;

(2)

The National Incident Management System, Incident Command System, independent study courses 100, 200, 700, and 800; and

(3)

Federal Emergency Management Agency (FEMA) independent study course, Multi-Hazard Emergency Planning for Schools.

Supplemental Instruction.

(1)

A school safety coordinator shall complete an additional 4 hours of supplemental instruction annually in content areas approved by the Center to maintain certification.

(2)

A request for enrollment in a particular course of supplemental instruction shall be made by the school safety coordinator to the Center in advance of enrollment in a course to ensure that the course is approved.

(3)

Retroactive requests for approval of a particular course to maintain certification by the Center shall be denied.

(4)

A school safety coordinator shall submit certificates of completion to the Center within 30 days of completion of the coursework.

Regulation .03 School Resource Officers and School Security Employees Certification Training.Link Copy Citation

A school resource officer or school security employee shall complete the Center’s model curriculum or an approved local training, as required under Education Article, §7-1508, Annotated Code of Maryland.

A school resource officer or school security employee assigned or hired after the start of the school year will register and complete the model curriculum prior to the next school year and may begin work in a school:

(1)

Following notification to the Center; and

(2)

Following completion of the preliminary curriculum prescribed by the Center.

School resource officers and school security employees shall complete additional hours of training annually in content areas approved by the Center, including:

(1)

Updated legislative and regulatory changes affecting the work of school resource officers and school security employees;

(2)

Expanded training in existing content areas;

(3)

Any training identified or approved by the Center; or

(4)

Any other mandates under State, federal, or local law.

Each year, the local school superintendent shall certify to the Center’s Executive Director that school security employees assigned to the jurisdiction’s schools have completed the training required under this chapter.

Subtitle 40 — Maryland Center for School Safety

Chapter 05. Critical, Life-Threatening Incidents

Regulation .01 Purpose.Link Copy Citation

Pursuant to Education Article, §7-1510(g), Annotated Code of Maryland, each local school system shall promptly inform the Maryland Center for School Safety of any critical life-threatening incidents that occur on school grounds.

Regulation .02 Scope.Link Copy Citation

The provisions of this chapter apply during school hours, inclusive of after-school activities and school-sanctioned events on school grounds and while transporting students.

Regulation .03 Definitions.Link Copy Citation

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

Terms Defined.

(1)

Critical, life-threatening incident means an event which:

(a)

Results in an individual being charged with a threat of mass violence directed at a school under Criminal Law Article, §3-1001, Annotated Code of Maryland;

(b)

Meets the criteria for a threat of mass violence but does not result in criminal charges due to the age limitation under Courts and Judicial Proceedings Article, §3-8A-03(f), Annotated Code of Maryland; or

(c)

Occurs on school grounds and:

(i)

Results in death or serious bodily injury; or

(ii)

Requires activation of a school’s emergency plans and substantially disrupts the normal or orderly operation of a school.

(2)

School grounds means:

(a)

The premises where the school is located and operated, including all buildings, physical structures, and real property owned or leased by the local school system for the operation of a school;

(b)

School transportation vehicles either owned by or contracted for by the local school system for the purposes of student transportation; and

(c)

Locations used for school sponsored activities or approved by the school or school system for attendance of students as part of a field trip.

(3)

“Serious bodily injury” means an injury inflicted on another individual that results in:

(a)

A substantial risk of death;

(b)

Extreme physical pain;

(c)

Protracted and obvious disfigurement; or

(d)

Protracted loss or impairment of the function of a bodily member, organ, or mental faculty in accordance with 18 U.S.C. §1365(h)(3).

Regulation .04 Notification.Link Copy Citation

A local school system experiencing a critical, life-threatening incident shall notify the Center of the incident as soon as practicable, but no later than 24 hours after the local school system knew or should have known that this was a critical, life-threatening incident or received notice that the individual was charged under Criminal Law Article, §3-1001, Annotated Code of Maryland.

The local school system or the Center will determine when an incident substantially disrupts the orderly operation of a school.

The local school system shall hold the after-action meeting and review required pursuant to Education Article, §7-1510(g)(2)(ii), Annotated Code of Maryland, within 45 days of the occurrence of the incident.

The after-action meeting participants shall include:

(1)

Center staff;

(2)

School safety coordinator;

(3)

Representatives from the school or school system involved in the response to or recovery from the incident; and

(4)

Representatives from responding agencies.

The local school system shall file the report required by Education Article, §7-1510(g)(2)(iii), Annotated Code of Maryland, as soon as practicable following completion of the after-action meeting set forth in §C of this regulation, but no later than 100 days after the occurrence of the incident.

The after-action report shall be submitted on a form developed by the Center and address:

(1)

The scope of the incident;

(2)

The response to the incident;

(3)

Lessons learned by the local school system from the incident response and recovery; and

(4)

Any other information identified by the Center as necessary in order to adequately assess the incident.

The Center shall file the report required under Education Article, §7-1510(g)(3), Annotated Code of Maryland:

(1)

Within 45 days of receiving the report from the local school system; or

(2)

Within 45 days of the expiration of the filing deadline set forth at §E of this regulation.

The Center shall develop guidelines for local school systems to complete reports required by this regulation.

Subtitle 40 — Maryland Center for School Safety

Chapter 06. Data Collection and Reporting

Regulation .01 Definitions.Link Copy Citation

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

Terms Defined.

(1)

“Center” means the Maryland Center for School Safety.

(2)

“Emergency summary report” is the report required pursuant to Education Article, §7-1510(f), Annotated Code of Maryland.

(3)

“Incidents of force report” is the report required pursuant to Education Article, §7-1508(h), Annotated Code of Maryland.

(4)

“School emergency plan” has the meaning stated in Education Article, §7-1501(i), Annotated Code of Maryland, and is required pursuant to Education Article, §7-1510(d) and (e), Annotated Code of Maryland.

(5)

“School safety evaluation” means the facility assessments required pursuant to Education Article, §7-1510(a) and (b), Annotated Code of Maryland.

(6)

“School resource officer and adequate coverage report” is the report required pursuant to Education Article, §7-1508(c) and (e), Annotated Code of Maryland.

Regulation .02 Report and Plan Collection.Link Copy Citation

Emergency Summary Report. By August 1 each year, local school systems shall submit to the Center the required emergency summary report.

Incidents of Force Report. By August 1 each year, local school systems and law enforcement agencies providing school resource officers shall submit to the Center to required incidents of force report.

School Emergency Plans. Local school systems shall:

(1)

Annually review and update each public school emergency plan; and

(2)

By September 30 every 2 years, submit copies of each public school emergency plan to the Center.

School Safety Evaluations. Local school systems shall:

(1)

Complete a facility safety evaluation for each public school every 2 years; and

(2)

By September 30 every 2 years, submit an aggregated summary of evaluation findings to the Center following the completion of the reviews.

School Resource Officer and Adequate Coverage Report. By September 1 each year, local school systems shall submit to the Center the required school resource officer and adequate coverage report.

Title 14. Independent Agencies

Subtitle 01 — Prescription Drug Affordability Board

Chapter 01. General Provisions

Regulation .01 Definitions.LinkCopy Citation

Regulation .02 Rules of Construction.LinkCopy Citation

Regulation .03 Open Meetings.LinkCopy Citation

Regulation .04 Confidential, Trade-Secret, and Proprietary Information.LinkCopy Citation

Regulation .05 Public Comment Procedures.LinkCopy Citation

Regulation .06 Hearing Procedures.LinkCopy Citation

Subtitle 01 — Prescription Drug Affordability Board

Chapter 02. Prescription Drug Affordability Fund

Regulation .01 Prescription Drug Affordability Fund.LinkCopy Citation

Regulation .02 Fee Assessment, Exemption, Waiver, and Collection.LinkCopy Citation

Regulation .03 Amount of Assessment.LinkCopy Citation

Regulation .04 Use of Funds.LinkCopy Citation

Regulation .05 Surplus Funds.LinkCopy Citation

Subtitle 01 — Prescription Drug Affordability Board

Chapter 03. Public Information Act

Regulation .01 Scope.LinkCopy Citation

Regulation .02 Policy.LinkCopy Citation

Regulation .03 Definitions.LinkCopy Citation

Regulation .04 Official Custodian.LinkCopy Citation

Regulation .05 Request for Public Records.LinkCopy Citation

Regulation .06 Written Request May Be Required.LinkCopy Citation

Regulation .07 Contents of Written Request.LinkCopy Citation

Regulation .08 Addressee.LinkCopy Citation

Regulation .09 Response to Request.LinkCopy Citation

Regulation .10 Notice to Person Potentially Affected by Disclosure.LinkCopy Citation

Regulation .11 Electronic Records.LinkCopy Citation

Regulation .12 Public Record Destroyed or Lost.LinkCopy Citation

Regulation .13 Availability of Judicial and Administrative Review.LinkCopy Citation

Regulation .14 Disclosure Against Public Interest.LinkCopy Citation

Regulation .15 Fees.LinkCopy Citation

Regulation .16 Time and Place of Inspection.LinkCopy Citation

Regulation .17 Sociological Information.LinkCopy Citation

Subtitle 01 — Prescription Drug Affordability Board

Chapter 04. Cost Review Study Process

Regulation .01 Public Reporting of Drug Affordability Issues.LinkCopy Citation

Regulation .02 Identifying Drugs Eligible for Cost Review.LinkCopy Citation

Regulation .03 Selecting Drugs for Cost Review.LinkCopy Citation

Regulation .04 Request for Information for Cost Review.LinkCopy Citation

Regulation .05 Cost Review Study.LinkCopy Citation

Subtitle 01 — Prescription Drug Affordability Board

Chapter 05. Policy Review, Final Action, Upper Payment Limits

Regulation .01 Definitions.LinkCopy Citation

Regulation .02 Criteria for Setting an Upper Payment Limit.LinkCopy Citation

Regulation .03 Policy Review and Final Action Process Overview.LinkCopy Citation

Regulation .04 Policy Review—Information Gathering.LinkCopy Citation

Regulation .05 Policy Review—Preliminary Policy Recommendations.LinkCopy Citation

Regulation .06 Policy Review—Process for Establishing a UPL.LinkCopy Citation

Regulation .07 Policy Review—Final Policy Action.LinkCopy Citation

Regulation .08 Establishing and Monitoring a UPL.LinkCopy Citation

Regulation .09 Reconsideration.LinkCopy Citation

Subtitle 02 — State Public Information Act Compliance Board

Chapter 01. Definitions; General Provisions

Regulation .01 Definitions.LinkCopy Citation

Regulation .02 Jurisdiction.LinkCopy Citation

Regulation .03 Recusal of Board Members.LinkCopy Citation

Regulation .04 Consolidation of Complaints.LinkCopy Citation

Regulation .05 Computation of Time.LinkCopy Citation

Regulation .06 Date of Receipt.LinkCopy Citation

Regulation .07 Record.LinkCopy Citation

Subtitle 02 — State Public Information Act Compliance Board

Chapter 02. Complaint Process — Applicants

Regulation .01 Filing a Complaint.LinkCopy Citation

Regulation .02 Documents Attached to Complaint.LinkCopy Citation

Regulation .03 Response to Complaint.LinkCopy Citation

Regulation .04 Reply to Response.LinkCopy Citation

Regulation .05 Effect of Failure to Respond.LinkCopy Citation

Regulation .06 Transfer of Information from Ombudsman.LinkCopy Citation

Regulation .07 Withdrawal of Complaint.LinkCopy Citation

Regulation .08 Dismissal of Complaint.LinkCopy Citation

Regulation .09 Effect of Filing.LinkCopy Citation

Subtitle 02 — State Public Information Act Compliance Board

Chapter 03. Complaint Process — Custodians

Regulation .01 Filing a Complaint.LinkCopy Citation

Regulation .02 Documents Attached to Complaint.LinkCopy Citation

Regulation .03 Response to Complaint.LinkCopy Citation

Regulation .04 Reply to Response.LinkCopy Citation

Regulation .05 Effect of Failure to Respond.LinkCopy Citation

Regulation .01 Definitions.Link Copy Citation

Regulation .02 Rules of Construction.Link Copy Citation

Regulation .03 Open Meetings.Link Copy Citation

Regulation .04 Confidential, Trade-Secret, and Proprietary Information.Link Copy Citation

Regulation .05 Public Comment Procedures.Link Copy Citation

Regulation .06 Hearing Procedures.Link Copy Citation

Regulation .01 Prescription Drug Affordability Fund.Link Copy Citation

Regulation .02 Fee Assessment, Exemption, Waiver, and Collection.Link Copy Citation

Regulation .03 Amount of Assessment.Link Copy Citation

Regulation .04 Use of Funds.Link Copy Citation

Regulation .05 Surplus Funds.Link Copy Citation

Regulation .01 Scope.Link Copy Citation

Regulation .02 Policy.Link Copy Citation

Regulation .03 Definitions.Link Copy Citation

Regulation .04 Official Custodian.Link Copy Citation

Regulation .05 Request for Public Records.Link Copy Citation

Regulation .06 Written Request May Be Required.Link Copy Citation

Regulation .07 Contents of Written Request.Link Copy Citation

Regulation .08 Addressee.Link Copy Citation

Regulation .09 Response to Request.Link Copy Citation

Regulation .10 Notice to Person Potentially Affected by Disclosure.Link Copy Citation

Regulation .11 Electronic Records.Link Copy Citation

Regulation .12 Public Record Destroyed or Lost.Link Copy Citation

Regulation .13 Availability of Judicial and Administrative Review.Link Copy Citation

Regulation .14 Disclosure Against Public Interest.Link Copy Citation

Regulation .15 Fees.Link Copy Citation

Regulation .16 Time and Place of Inspection.Link Copy Citation

Regulation .17 Sociological Information.Link Copy Citation

Regulation .01 Public Reporting of Drug Affordability Issues.Link Copy Citation

Regulation .02 Identifying Drugs Eligible for Cost Review.Link Copy Citation

Regulation .03 Selecting Drugs for Cost Review.Link Copy Citation

Regulation .04 Request for Information for Cost Review.Link Copy Citation

Regulation .05 Cost Review Study.Link Copy Citation

Regulation .01 Definitions.Link Copy Citation

Regulation .02 Criteria for Setting an Upper Payment Limit.Link Copy Citation

Regulation .03 Policy Review and Final Action Process Overview.Link Copy Citation

Regulation .04 Policy Review—Information Gathering.Link Copy Citation

Regulation .05 Policy Review—Preliminary Policy Recommendations.Link Copy Citation

Regulation .06 Policy Review—Process for Establishing a UPL.Link Copy Citation

Regulation .07 Policy Review—Final Policy Action.Link Copy Citation

Regulation .08 Establishing and Monitoring a UPL.Link Copy Citation

Regulation .09 Reconsideration.Link Copy Citation

Regulation .01 Definitions.Link Copy Citation

Regulation .02 Jurisdiction.Link Copy Citation

Regulation .03 Recusal of Board Members.Link Copy Citation

Regulation .04 Consolidation of Complaints.Link Copy Citation

Regulation .05 Computation of Time.Link Copy Citation

Regulation .06 Date of Receipt.Link Copy Citation

Regulation .07 Record.Link Copy Citation

Regulation .01 Filing a Complaint.Link Copy Citation

Regulation .02 Documents Attached to Complaint.Link Copy Citation

Regulation .03 Response to Complaint.Link Copy Citation

Regulation .04 Reply to Response.Link Copy Citation

Regulation .05 Effect of Failure to Respond.Link Copy Citation

Regulation .06 Transfer of Information from Ombudsman.Link Copy Citation

Regulation .07 Withdrawal of Complaint.Link Copy Citation

Regulation .08 Dismissal of Complaint.Link Copy Citation

Regulation .09 Effect of Filing.Link Copy Citation

Regulation .01 Filing a Complaint.Link Copy Citation

Regulation .02 Documents Attached to Complaint.Link Copy Citation

Regulation .03 Response to Complaint.Link Copy Citation

Regulation .04 Reply to Response.Link Copy Citation

Regulation .05 Effect of Failure to Respond.Link Copy Citation

Regulation .06 Transfer of Information from Ombudsman.Link Copy Citation

Regulation .07 Withdrawal of Complaint.Link Copy Citation

Regulation .08 Dismissal of Complaint.Link Copy Citation

Regulation .09 Effect of Filing.Link Copy Citation

Regulation .01 Board’s Discretion.Link Copy Citation

Regulation .02 Notice of Informal Conference.Link Copy Citation

Regulation .03 Location of Informal Conference.Link Copy Citation

Regulation .04 Timing of Informal Conference.Link Copy Citation

Regulation .05 Procedure During Informal Conference.Link Copy Citation

Regulation .06 Record of Informal Conference.Link Copy Citation

Regulation .01 Form of Request.Link Copy Citation

Regulation .02 Request for Custodian’s Response to Request for Public Record.Link Copy Citation

Regulation .03 Requests Related to Public Records.Link Copy Citation

Regulation .04 Request for Basis for Fee Charged.Link Copy Citation

Regulation .05 Frivolous, Vexatious, or Bad Faith Requests.Link Copy Citation

Regulation .06 Request for Affidavit or Statement.Link Copy Citation

Regulation .07 Timing.Link Copy Citation