# COMAR Title 16 — Department of Juvenile Services ## Subtitle 02 — Contested-Case Hearings ### Chapter 01 — Definitions; General Provisions **Authority:** Human Services Article, §9-204; State Government Article, Title 10, Subtitle 2; Annotated Code of Maryland **Administrative History:** Effective date: June 18, 2007 (34:12 Md. R. 1067) #### Regulation .01 Definitions. *COMAR 16.02.01.01* A. In this subtitle, the following terms have the meanings indicated. B. Terms Defined. (1) “Administrative law judge” has the meaning stated in COMAR 28.02.01. (2) “Contested case” has the meaning stated in State Government Article, §10-202, Annotated Code of Maryland. (3) “Filed” means, unless otherwise indicated in this chapter, when the document is: (a) Received by the Secretary or, if earlier, postmarked; and (b) If required, served on the other parties to the proceeding. (4) “Hearing” means a hearing to determine a contested case. (5) “Party” means a person or agency, including the Department, named or admitted to participate in a hearing. (6) “Person” includes a governmental entity or an instrumentality or unit of a governmental entity. #### Regulation .02 Scope. *COMAR 16.02.01.02* A. In General. This subtitle applies to contested-case hearings before the Secretary of Juvenile Services. B. Hearings by Office of Administrative Hearings. (1) In hearings conducted by an administrative law judge of the Office of Administrative Hearings (OAH), these regulations shall be construed, whenever possible, in harmony with COMAR 28.02.01. (2) In the event of conflict between these regulations and COMAR 28.02.01, these regulations control. #### Regulation .03 Delegation of Hearing Authority. *COMAR 16.02.01.03* The Secretary may delegate all or part of the authority to hear a contested case to the OAH. #### Regulation .04 Revocation of Delegation. *COMAR 16.02.01.04* A. Criteria. The Secretary may revoke all or part of a delegation previously made to the OAH if the Secretary believes that the case might: (1) Involve novel or unanticipated factual or legal issues; (2) Have significant social or fiscal consequences; (3) Involve policy issues of general applicability; or (4) Be likely to have precedential value. B. Timing. The revocation may be made at any time before the earlier of: (1) The issuance of a ruling on a substantive issue; or (2) The taking of oral testimony from the first witness. C. Notice. (1) The Secretary shall provide written notice of a revocation to all parties and the OAH. (2) The written notice shall: (a) Contain a brief statement of the reason for the revocation; (b) Specify whether all or part of the delegation to hear the case is revoked; and (c) If less than all of the delegation is revoked, specify the parts of the contested case for which the delegation has been revoked. D. Decision; Record. (1) The Secretary's subsequent decision in the case shall reflect the fact that delegation to the OAH was revoked. (2) A copy of the revocation notice shall be made a part of the record. #### Regulation .05 Time Modifications and Waivers. *COMAR 16.02.01.05* A. By Secretary. The Secretary may modify or waive any time limit established by this subtitle. B. By Administrative Law Judge. An administrative law judge may not modify or waive any time limit established by this subtitle except with the consent of all parties or the Secretary. #### Regulation .06 Service. *COMAR 16.02.01.06* A. Required. A copy of any notice, order, pleading, motion, response, correspondence, decision, paper, or other document filed in a proceeding shall be served promptly on all other parties to the proceeding or, as authorized or required by COMAR 16.02.02.06, their respective authorized representatives. B. Manner. Unless otherwise required by law, service shall be made by personal delivery or by regular mail. C. Permittees, etc. Service on a party to whom a permit, license, or certification has been issued by the Department may be made by delivering a copy to the last address provided by that party to the Department. D. Proof of Service. (1) Every paper or document filed in a proceeding, other than one filed by or on behalf of the Secretary, shall contain or be accompanied by a certificate of service. (2) The certificate of service shall: (a) Be signed by or on behalf of the party filing the paper or document; and (b) Specify the: (i) Date of service; (ii) Manner of service; (iii) Name of each person served; and (iv) Address at which each person was served. #### Regulation .07 Consolidation. *COMAR 16.02.01.07* A. When Authorized. When proceedings involving a common question of law or fact are pending before the Secretary, the Secretary may consolidate the proceedings pursuant to a motion or on the Secretary's own initiative. B. Special Procedures. If the consolidated proceedings involve different parties or burdens of going forward or persuasion, the Secretary may specify special procedures to assure an expeditious and just proceeding. #### Regulation .08 Default. *COMAR 16.02.01.08* A. In General. If, after receiving notice, a party fails to attend or participate in a prehearing conference, a hearing, or any other stage of a proceeding, the Secretary may: (1) Proceed in that party's absence; (2) Continue the matter to a later time; or (3) Issue a default order against that party. B. Motion to Vacate or Modify Default Order. Within 30 days after issuance of a default order, the party in default may file a written motion requesting that the order be vacated or modified. C. Grant of Motion. The Secretary may grant the motion and vacate or modify the default order if the Secretary finds that: (1) There is a substantial and sufficient basis for an actual controversy on the merits; and (2) It is equitable to excuse the default. D. Default Order as Final Decision. If a motion is not timely filed or if a motion is filed and denied, the default order is final and effective. #### Regulation .09 Dismissal for Lack of Prosecution. *COMAR 16.02.01.09* A. When Action Becomes Subject to Dismissal. (1) In this section “docket entry”: (a) Means filing a pleading, requesting a hearing date, or scheduling a proceeding; and (b) Does not include the entry or withdrawal of an appearance, case status reports, or other inquiries. (2) At the expiration of 6 months from the last docket entry, an action may be dismissed for lack of prosecution. B. Initiation; Notice. On request of a party or on the Secretary's own initiative, the Secretary shall notify all parties that an order of dismissal for lack of prosecution will be entered after the expiration of 30 days from the notice, unless a motion is filed under §C of this regulation. C. Motion and Deferral. On motion filed within 30 days of the notice and for good cause shown, the Secretary may defer entry of an order of dismissal for the period and on the terms the Secretary considers proper. D. Entry of Order. If a motion is not timely filed or if a motion is filed and denied, the Secretary shall issue an order of dismissal. ### Chapter 02 — Prehearing Procedures **Authority:** Human Services Article, §9-204; State Government Article, Title 10, Subtitle 2; Annotated Code of Maryland **Administrative History:** Effective date: June 18, 2007 (34:12 Md. R. 1067) #### Regulation .01 Notice of Right to Hearing. *COMAR 16.02.02.01* A. Notice Required. The Department shall provide notice of its action whenever, by law or regulation, that action gives rise to the right to request a contested-case hearing. B. Contents. The notice shall state: (1) The factual basis for the action; (2) The statutory or regulatory provision under which the action is taken; (3) The sanction proposed or potential penalty, if any; (4) The right to request a hearing on the action; (5) What a person must do to receive a hearing and the time periods within which the person must act; and (6) The consequences of a failure to timely request a hearing or to appear for a scheduled hearing, including a statement that unless a hearing is requested the Department action becomes final and binding on all parties. C. Accompanying Forms. If the Department requires that the request for a hearing be filed on a specific form, a copy of that form shall accompany the notice. #### Regulation .02 Request for Hearing. *COMAR 16.02.02.02* A. When Required. A request for a hearing shall be filed: (1) Within the time period specified by relevant law; or (2) If no time period is specified, within 30 days of the date of the notice of the right to a hearing. B. Contents. The request shall: (1) State the name and mailing address of the person requesting the hearing; (2) Specify the action of the Department to which the request for hearing applies; (3) Briefly state the basis for the request; and (4) Provide or be accompanied by any documents or other information required by law. C. Form. If the notice of the right to a hearing included a specific form for requesting a hearing, the request shall be made on that form. #### Regulation .03 Incomplete Request. *COMAR 16.02.02.03* A. In General. If a hearing request lacks necessary information or is otherwise improper, the Secretary may: (1) Deny the request; (2) Return the request for resubmission in proper form and with all necessary information; or (3) Conditionally accept the request subject to submission, within the time the Secretary specifies, of supplemental information. B. Effect of Denial, Return, or Conditional Acceptance. The denial, return, or conditional acceptance of a request does not extend the time under Regulation .02A of this chapter within which a request is required to be filed. #### Regulation .04 Notice of Hearing. *COMAR 16.02.02.04* A. In General. The Secretary shall give all parties reasonable written notice of the hearing. B. Contents. The hearing notice shall state: (1) The date, time, place, and nature of the hearing; (2) The right to: (a) Call witnesses; (b) Offer evidence, including rebuttal evidence; (c) Cross-examine any witness that another party or the Department calls; and (d) Present summation and argument; (3) The right, if applicable, to request subpoenas for witnesses and evidence, and the costs, if any, associated with such a request; (4) The right to request a copy of the hearing proceedings and the costs, if any, associated with such a request; (5) Any right or restrictions on representation; (6) That failure to appear for the scheduled hearing may result in an adverse action against that party; and (7) That the parties may agree to the evidence and waive their right to appear at the hearing. #### Regulation .05 Expedited Hearing. *COMAR 16.02.02.05* A. In General. Any party may file a motion for an expedited hearing. B. Contents. The motion for an expedited hearing shall set forth the reasons for the request. C. Waiver. A request for an expedited hearing waives applicable notice requirements. D. Ruling. (1) The Secretary shall rule on a request for an expedited hearing within 3 days after receiving the request. (2) All parties shall be notified promptly of the decision on the motion. E. Timetable. If the Secretary grants an expedited hearing, the Secretary's ruling shall establish precise time frames for the conduct and completion of the hearing and for the issuance of a final decision. #### Regulation .06 Representation; Entry of Appearance. *COMAR 16.02.02.06* A. In General. A party may: (1) Represent himself or herself; (2) Be represented by an attorney authorized to practice law in Maryland; or (3) If authorized by law, appear through a representative who is not an attorney. B. Entry of Appearance Required. A party's representative shall enter an appearance with the Secretary. C. Effect of Entry—General. After an appearance has been entered and unless subsequently withdrawn in writing: (1) The representative shall be sent copies of all notices, pleadings, and other correspondence; and (2) All notices, pleadings, and other correspondence required to be sent to a party may be sent instead to that party's representative and all presumptions regarding notices to parties shall apply. D. Effect of Entry—Attorney. If a party is represented by an attorney, all discovery requests, submissions of evidence, examinations of witnesses, objections, and motions on behalf of the party may be made only by the party's attorney. #### Regulation .07 Discovery. *COMAR 16.02.02.07* A. Request for Production of Documents. (1) By timely written request, a party may require any other party to produce, for inspection or copying, any file, memorandum, correspondence, or other document or any tangible thing that is: (a) Relevant to the subject matter of the case; and (b) Not privileged. (2) To be timely, the written request shall be served on all parties and filed with the Secretary not later than 30 days before the scheduled hearing. B. Compliance. (1) The party to whom the request is addressed shall comply within 15 days of service. (2) Copies of requested documents shall be made at the expense of the party making the request. (3) The charge for copies of requested documents may be waived or reduced by the custodian of the documents in accordance with COMAR 16.03.03.09G, or other applicable law. C. Regulation Exclusive. Unless otherwise provided by law or by agreement of the parties, no other discovery procedure may be required. #### Regulation .08 Subpoenas. *COMAR 16.02.02.08* A. Issuance Authorized. On request of a party, the Secretary may issue subpoenas to require: (1) The attendance and testimony of witnesses at the hearing; and (2) The production at the hearing of any tangible items in the possession or under the control of a witness. B. Requests. (1) A request for a subpoena shall be in writing. (2) To the extent practicable, the request shall be filed at least 10 days before the hearing. (3) The request shall: (a) Specify the name and full address of the person to be subpoenaed; (b) Describe with particularity any tangible items to be produced under the subpoena; and (c) Provide the name, full address, and telephone number of the party requesting the subpoena. (4) A subpoena request need not be served on other parties. C. Service. (1) Subpoenas may be served as follows: (a) By personal delivery by an individual who is 18 years old or older and not a party to the proceeding; (b) By certified mail to the person at the address specified in the subpoena request; or (c) If mailed by the Secretary, by regular mail. (2) For subpoenas requested fewer than 10 days before the scheduled hearing, the requestor shall provide service. (3) In all events, the costs of personal delivery or certified mail are the responsibility of the person requesting that service. D. Proof of Service. Proof of service may be made as follows: (1) For certified mail, by filing the original return receipt; and (2) For personal delivery, by an affidavit that: (a) Is signed by the person who made service; (b) Avers that the affiant is 18 years old or older and not a party to the proceeding; and (c) Specifies: (i) The name of the person served; (ii) The date on which the person was served; and (iii) The particular place of service. E. Objections. A person may object to a subpoena by filing a motion to quash or for other relief. F. Enforcement. On a person's failure to comply with a subpoena, the Secretary or the party requesting the subpoena may apply to an appropriate circuit court for its enforcement. #### Regulation .09 Intervention. *COMAR 16.02.02.09* A. Criteria. On timely motion, a person may be permitted to intervene in an action if: (1) The person has standing; and (2) The person: (a) Has an unconditional right to intervene as a matter of law; or (b) Claims an interest relating to the subject matter of the hearing that is: (i) Adversely affected; and (ii) Not adequately represented by existing parties. B. Deadline. To be timely, a motion to intervene shall be filed not later than 15 days before the earlier of the prehearing conference or the scheduled hearing. C. Contents. The motion to intervene shall: (1) State the grounds for the motion; and (2) Set forth the claim or defense for which intervention is sought. D. Considerations; Conditions. (1) The Secretary shall consider: (a) Whether the grounds for the motion meet the criteria for intervention; and (b) If they do, whether the intervention nonetheless will unduly delay or prejudice the adjudication of the rights of the original parties. (2) As soon as practicable, the Secretary shall issue an order denying or allowing the intervention. (3) In an order allowing intervention, the Secretary may place conditions on the intervenor's participation in the proceedings. E. Judicial Review. (1) Judicial review of the denial of a motion to intervene may be sought in accordance with law. (2) The Secretary may stay proceedings pending resolution of a judicial review sought under this section. #### Regulation .10 Prehearing Conference. *COMAR 16.02.02.10* A. In General. The Secretary may hold a prehearing conference to address and seek to resolve any one or more of the following preliminary matters: (1) Issuance of subpoenas; (2) Identification of contested factual and legal issues; (3) Stipulations; (4) Requests for official notice; (5) Identification and exchange of documentary evidence; (6) Admissibility of evidence; (7) Identification and qualification of witnesses; (8) Motions; (9) Discovery disputes; (10) Order of presentation; (11) Scheduling; (12) Settlement possibilities or conferences; and (13) Any other matters that might promote the orderly and prompt conduct of the hearing. B. Preconference Submissions. The Secretary may require the parties to submit prehearing statements or other relevant information before the prehearing conference. C. Conduct of Conference. (1) The prehearing conference may be conducted by telephone, video, or other electronic means. (2) At the Secretary's discretion, all or part of the prehearing conference may be recorded. D. Prehearing Orders. (1) Unless otherwise stated in this subtitle, the Secretary shall issue a prehearing order that sets forth the actions taken or to be taken on any matter addressed at the prehearing conference. (2) The prehearing order shall be made a part of the record. (3) Each party to the proceeding is bound by the Secretary's prehearing order, whether the party participated in the prehearing conference or not. #### Regulation .11 Alternative Dispute Resolution. *COMAR 16.02.02.11* A. In this regulation, “ADR” means alternative dispute resolution, a process of resolving matters pending before the Secretary through one or more of the following: (1) Settlement conference; (2) Neutral case evaluation; (3) Neutral fact finding; or (4) Other nonadversarial dispute resolution process. B. Authorized. If all parties agree, the Secretary may schedule an ADR proceeding. C. Presiding Officer. The individual who presides at the ADR proceeding may not: (1) Preside at the prehearing conference, the hearing on the merits, or any other stage of the contested case; (2) Advise the Secretary regarding any decision on the merits of the contested case; or (3) Be called to testify, participate in discovery, or otherwise provide information in any subsequent stage of the contested case. D. Confidentiality of Proceedings. (1) An ADR proceeding is confidential and shall be closed to the public. (2) Discussions in an ADR proceeding may not be made a part of the record of any stage of the contested case. (3) An ADR proceeding may not be recorded electronically or in any other manner. ### Chapter 03 — Motions **Authority:** Human Services Article, §9-204; State Government Article, Title 10, Subtitle 2; Annotated Code of Maryland **Administrative History:** Effective date: June 18, 2007 (34:12 Md. R. 1067) #### Regulation .01 In General. *COMAR 16.02.03.01* A. Scope. Unless otherwise provided in this subtitle, this chapter governs all motions filed with the Secretary. B. When Authorized. Unless otherwise provided in this subtitle, a party may move for appropriate relief before or during a hearing. #### Regulation .02 Motions Before Hearing. *COMAR 16.02.03.02* A. To Be in Writing. Except as otherwise provided in this subtitle, all motions made before a hearing shall be submitted in writing. B. Filing and Service. The motion shall be filed with the Secretary and served on all parties at least 15 days before the hearing. C. Contents. The motion shall: (1) State concisely the question to be determined; and (2) Be accompanied by any necessary supporting documentation. D. Answer. An answer to a prehearing motion shall be filed and served on all parties by the earlier of: (1) 15 days after receipt of the motion; or (2) The date of the hearing. E. Hearing on Motion. (1) On notice to all parties, the Secretary may schedule a hearing to consider a prehearing motion. (2) Failure of a party to attend a hearing scheduled to consider a prehearing motion may be grounds for a decision adverse to that party. #### Regulation .03 Motions During Hearing. *COMAR 16.02.03.03* During a hearing, all motions shall be submitted orally. #### Regulation .04 Motion to Dismiss. *COMAR 16.02.03.04* On motion of a party or on the Secretary's own initiative, the Secretary may issue a final decision dismissing a notice of agency action, an appeal of an agency action, or any other request for a hearing that fails to state a claim for which relief may be granted. #### Regulation .05 Motion for Summary Decision. *COMAR 16.02.03.05* A. In General. A party may move for summary decision on any appropriate issue in the case. B. Decision. The Secretary may grant a final summary decision if the Secretary finds that: (1) There is no genuine issue as to any material fact; and (2) The moving party is entitled to prevail as a matter of law. #### Regulation .06 Ruling on Motion. *COMAR 16.02.03.06* A. In General. Except as provided in §B of this regulation, the Secretary may: (1) Issue a written decision on a motion; or (2) State the decision on the record. B. Reserved Ruling. (1) The Secretary may reserve ruling on a motion until after the hearing. (2) If a ruling is reserved, the ruling shall be issued: (a) In a separate writing; or (b) As part of the Secretary's final decision. C. Effect of Ruling. All parties are bound by the Secretary's ruling notwithstanding their failure to attend a hearing. #### Regulation .07 Time Limits Unaffected by Motion. *COMAR 16.02.03.07* The filing or pendency of a motion does not alter or extend any time limit otherwise established by law or this subtitle. ### Chapter 04 — Hearing Procedures **Authority:** Human Services Article, §9-204; State Government Article, Title 10, Subtitle 2; Annotated Code of Maryland **Administrative History:** Effective date: June 18, 2007 (34:12 Md. R. 1067) #### Regulation .01 Venue. *COMAR 16.02.04.01* Hearings shall be conducted at a site designated by the Secretary. #### Regulation .02 Proceedings to be Public. *COMAR 16.02.04.02* A. In General. (1) Except as otherwise provided in this regulation, all proceedings before the Secretary shall be open to the public. (2) Proceedings shall be closed to the public to the extent: (a) Necessary to preserve confidentiality provided by law for individuals or records; or (b) Otherwise required by law. (3) On motion or on the Secretary's own initiative, the Secretary may close all or any part of the proceedings for good cause shown. B. Maintaining Order. The Secretary may: (1) Remove individuals whose conduct impedes the orderly progress of the hearing; and (2) Restrict attendance because of the physical limitations of the hearing facility. C. Recording Equipment. Recording equipment (cameras, tape recorders, and other sound or video equipment) shall be excluded from the hearing room: (1) When required by law; or (2) If the Secretary determines that the use of this equipment may impede the orderly progress of the proceedings or otherwise interfere with the process. D. Records. Unless otherwise provided by law, all documents, notices, and records in the Secretary's possession as a result of a contested-case proceeding are subject to inspection and copying under the Public Information Act (State Government Article, Title 10, Subtitle 6, Part III, Annotated Code of Maryland), and COMAR16.03.03. #### Regulation .03 Postponement; Continuance. *COMAR 16.02.04.03* A. Request for Postponement. A request for postponement may be made in writing or by telephone. B. Parties to be Contacted. When practicable, all parties to a proceeding shall be contacted before a ruling is made on the request. C. Action by Secretary. (1) The Secretary may grant the motion for good cause and as justice requires. (2) The Secretary may postpone or continue a hearing on the Secretary's own initiative. #### Regulation .04 Hearing by Telephone or Other Electronic Means. *COMAR 16.02.04.04* A. In General. (1) Except as otherwise provided in this section, the Secretary may conduct all or part of the hearing by telephone, video conference, or other electronic means, if each participant in the hearing has an opportunity to participate in, hear, and (for video means) see the entire proceeding. (2) On objection for good cause, the hearing shall be conducted in accordance with the alternatives specified in State Government Article, §10-211(b), Annotated Code of Maryland. B. Rights Unaffected. All substantive and procedural rights apply to telephone, video conference, or other electronic hearings, subject only to the limitations of the physical arrangement. C. Documentary Evidence. For a hearing conducted by electronic means, documentary evidence to be offered must be delivered by the proponent to all parties and the Secretary at least 1 day before the hearing. D. Default. For a hearing conducted by electronic means, the following may be considered as a failure to appear and grounds for default, if the condition exists for more than 15 minutes after the scheduled start of the hearing: (1) Failure to answer telephone; (2) Failure to free telephone for a hearing; (3) Failure to be present in the designated video or audio hearing room; or (4) Any other failure to be ready to proceed with the hearing as scheduled. #### Regulation .05 General Conduct of Hearings. *COMAR 16.02.04.05* A. Secretary's Duties. The Secretary 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. B. Secretary's Powers—General. The Secretary's authority to regulate the conduct of the proceedings includes the power to: (1) Administer oaths and affirmations; (2) Rule on offers of proof and receive relevant and material evidence; (3) Rule on motions; (4) Call and examine witnesses to insure a full and complete record; (5) Limit unduly repetitious testimony and limit the time for presentations; (6) Request parties to submit legal memoranda and proposed findings of fact and conclusions of law; (7) Issue orders as necessary to secure procedural simplicity and administrative fairness and to eliminate unjustifiable expense and delay; (8) Conduct the hearing in a manner suited to ascertain the facts and safeguard the parties' rights; and (9) Impose appropriate sanctions for failure to abide by this subtitle or any order of the Secretary. C. Secretary's Powers—Prehearing Order. Whether or not a prehearing conference is held, the Secretary may issue a prehearing order to regulate the conduct of the proceedings. D. Sanctions. The sanctions authorized by this regulation include: (1) Limiting the issues to be heard; (2) Dismissing all or any part of the request for a hearing; or (3) Entering an order on the merits against a party. #### Regulation .06 Stipulations. *COMAR 16.02.04.06* A. Authorized. The parties may agree by stipulation to any substantive or procedural matter. B. How Made. A stipulation may be filed in writing or entered on the record at the hearing. C. Additional Development. The Secretary may require additional development of stipulated matters. #### Regulation .07 Waiver of Right to Appear. *COMAR 16.02.04.07* A. In General. (1) A party may waive the right to appear personally at the hearing. (2) A waiver may be made: (a) Orally to the Secretary; or (b) In writing and filed with the Secretary. B. Withdrawal. A waiver may be withdrawn only by written notice received by the Secretary at least 5 days before the earlier of: (1) The scheduled hearing; or (2) The date that applicable law permits for the issuance of the Secretary's decision. C. Not a Default. If a party has filed a waiver under this regulation, the failure of that party to appear personally or by representative may not result in a finding of default. #### Regulation .08 Waiver of Hearing. *COMAR 16.02.04.08* The Secretary need not hold a hearing if all parties agree to the admission of evidence and waive their right to appear. #### Regulation .09 General Order of Proceedings. *COMAR 16.02.04.09* A. Start of Proceeding. At the start of the proceedings, the Secretary shall: (1) Briefly explain the purpose and nature of the hearing; and (2) State the order of presentation of evidence. B. Preliminary Matters. The Secretary may allow the parties, before presentation of evidence, to: (1) Present preliminary matters; and (2) Make opening statements. #### Regulation .10 Admission and Exclusion of Evidence. *COMAR 16.02.04.10* Evidence shall be admitted and excluded in accordance with State Government Article, §10-213, Annotated Code of Maryland. #### Regulation .11 Witnesses. *COMAR 16.02.04.11* A. Witness List. (1) Prior to the hearing, and whether or not a prehearing conference is held, the Secretary may order that each party make available to the other parties the names and written reports of experts and other witnesses the party expects to call. (2) Failure to comply in good faith with the order is grounds for the refusal to admit the oral or written testimony of that witness or a report of that expert. B. Oath or Affirmation. Witnesses shall take an oath or affirmation to tell the truth. C. Exclusion from Proceedings. (1) On request of a party, the Secretary shall exclude witnesses other than parties from the hearing room, except when testifying. (2) A party, representative, witness, spectator, or other person may not disclose to any witness excluded under this section the nature, substance, or purpose of any testimony, exhibit, or other evidence introduced during that witness' absence. (3) A party that is not an individual may designate an employee or officer to remain in the hearing room as its representative, 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 that testimony. (5) If a witness receives information in violation of this section, the Secretary may: (a) Exclude the testimony of that witness; or (b) Take other appropriate action. #### Regulation .12 Affidavits; Prefiled Testimony. *COMAR 16.02.04.12* A. Affidavits. The Secretary may admit an affidavit as evidence. B. Prefiled Testimony. (1) In the Secretary's discretion, testimony may be received in written form. (2) The testimony shall be filed with the Secretary and served on opposing parties at least 5 days before the hearing. #### Regulation .13 Interpreters. *COMAR 16.02.04.13* A. Appointment. If a party or witness cannot readily hear, speak, or understand spoken or written English, the Secretary shall arrange for a qualified interpreter to provide assistance during the hearing. B. Oath or Affirmation. The interpreter shall take an oath or affirm that he or she will accurately translate. #### Regulation .14 Burdens of Going Forward and Persuasion. *COMAR 16.02.04.14* A. Scope. This regulation does not modify any burden of going forward or burden of persuasion that is imposed on a party by specific statute or regulation. B. Burdens for Permits, Licenses, and Certifications. (1) A party requesting a hearing following notice of the Department's intent to deny or refuse to renew a permit, license, or certification bears: (a) The burden of going forward to establish a prima facie case of entitlement to the permit or license; and (b) The burden of persuasion that the permit or license should be issued. (2) A party contesting the Department's proposed decision to issue or renew a permit, license, or certification bears: (a) The burden of going forward to establish a prima facie case that grounds exist for denying the license or permit; and (b) The burden of persuasion that the license or permit should be denied. (3) In a proceeding following notice by the Department of an intent to revoke or suspend a permit, license, or certification, the Department bears: (a) The burden of going forward to establish a prima facie case as to the existence of grounds for revocation or suspension; and (b) The burden of persuasion that the permit, license, or certification should be revoked or suspended. C. Burdens Established—Departmental Order. In a proceeding contesting an order or proposed order of the Department, the Department bears: (1) The burden of going forward to establish a prima facie case as to existence of grounds for issuance of the order; and (2) The burden of persuasion that the order be issued. D. Burdens Established—Party Asserting Affirmative of Issue. Except as otherwise specified in this regulation, the party asserting the affirmative of an issue before the Secretary bears both the burden of going forward and the burden of persuasion. E. Secretary's Decision. (1) The Secretary shall find against a party with the burden of going forward if that party has not presented sufficient evidence to establish a prima facie case for the party's claim or defense. (2) The Secretary shall find against a party with the burden of 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 .15 Transcript of Proceedings. *COMAR 16.02.04.15* A. Recording. (1) A recording of the hearing shall be made at the Department's expense. (2) The recording need not be transcribed unless requested by a party or by the Secretary. B. Transcription. (1) If a party is seeking judicial review of a final decision, that party shall request a transcript of the recording, unless a transcript already has been prepared. (2) If a party is excepting to or appealing from a proposed decision, that party shall request a transcript of the recording, unless a transcript already has been prepared or the Secretary waives the requirement for a transcript. (3) The party requesting the transcript is responsible for all costs of transcription unless, at the party's request, the Department agrees to reduce or waive those costs for good cause shown. ### Chapter 05 — Record, Decision, and Judicial Review **Authority:** Human Services Article, §9-204; State Government Article, Title 10, Subtitle 2; Annotated Code of Maryland **Administrative History:** Effective date: June 18, 2007 (34:12 Md. R. 1067) #### Regulation .01 Record of Proceedings. *COMAR 16.02.05.01* A. Record Required. The Secretary shall prepare an official record of each hearing. B. Contents. The record shall consist of: (1) All documents giving rise to the proceeding; (2) All requests for hearing; (3) All notices of proceedings; (4) All prehearing orders; (5) All questions; (6) All motions, pleadings, petitions, and requests and the ruling on each; (7) All briefs and memoranda; (8) All documentary and tangible evidence received or considered; (9) A statement of each fact of which official notice is taken; (10) Each proffer of proof and the ruling on the proffer; (11) Each objection and the ruling on the objection; (12) Any staff memorandum submitted to an individual involved in the decision-making process by an official or employee of the Department who is not authorized to participate in the decision-making process; (13) All matters placed on the record after an ex parte communication; (14) Each proposed finding of fact, conclusion of law, and order proposed by a party or the presiding officer; (15) Each exception to a proposed finding of fact, conclusion of law, or order proposed by the presiding officer; (16) Each intermediate, proposed, and final ruling or order, including each report or opinion issued in connection with that ruling or order; and (17) The recording of the hearing and, if made, of any prehearing proceeding, and any transcript made of the recording. #### Regulation .02 Proposed Decision and Order. *COMAR 16.02.05.02* Each proposed decision and order shall comply with State Government Article, §10-220, Annotated Code of Maryland. #### Regulation .03 Exceptions. *COMAR 16.02.05.03* A. Time for Filing. Exceptions to a proposed decision and order shall be filed with the Secretary within 21 days after the proposed decision and order is issued. B. Form and Contents. All exceptions shall: (1) Be in writing; (2) Identify each portion of the proposed decision to which exception is taken; and (3) Contain a concise statement of the asserted basis for taking the exception. C. Service. A copy of the exceptions shall be served on all parties. D. Argument. (1) All parties shall be afforded the opportunity to present written argument to the Secretary. (2) The Secretary may conduct an exceptions hearing for the purpose of hearing oral argument. The length of any argument may be limited at the Secretary's discretion. E. Review Limited to Hearing Record. (1) The Secretary's review and consideration of exceptions shall be limited to the record. (2) At an exceptions hearing: (a) Additional evidence may not be introduced; and (b) Additional witnesses may not be heard by the Secretary. F. Reference to Hearing Evidence. (1) If a party intends to refer to any evidence produced at the hearing, the party shall notify the Department of the specific evidence in its request for exceptions. (2) That party is responsible for filing with the Secretary a copy of the transcript of the hearing, or relevant portions of it, at that party's expense, at least 5 days before the scheduled exceptions hearing, if a hearing is to be held. (3) If all parties agree, a stipulation of facts may be submitted instead of a transcript. G. Decision. (1) The Secretary shall consider all exceptions timely filed before rendering a final decision. (2) The Secretary shall adopt a final decision and an order as soon as possible after exceptions have been filed and argument presented. #### Regulation .04 Final Decision and Order. *COMAR 16.02.05.04* A. In General. Each final decision and order shall comply with State Government Article, §10-221, Annotated Code of Maryland. B. Authority of Secretary. (1) The Secretary is not bound by an administrative law judge's recommendation, even if no exceptions have been filed. (2) If exceptions have not been filed and, after reviewing a proposed decision by an administrative law judge, the Secretary is unable to approve that decision as written, the Secretary shall notify all parties and invite arguments from the affected parties on the issues the Secretary is reconsidering. C. Final Agency Decision. (1) The Secretary's decision is the final decision of the Department for the purpose of judicial review. (2) In the event of fraud, mistake, or irregularity, the Secretary may correct a final decision at any time. D. Service. Copies of the final decision, including the Secretary's findings of fact, conclusions of law, and order, shall be delivered or mailed promptly to all parties. #### Regulation .05 Stay. *COMAR 16.02.05.05* A. Request Authorized. Except as prohibited by law, a party that is adversely affected by a final order may request a stay from the Secretary pending judicial review. B. Time for Filing. A request for a stay shall be filed with the Secretary within 10 days of the date of the final order from which the stay is sought. C. Contents. The request shall include: (1) A statement of the reasons the stay is sought; and (2) A statement of the grounds for judicial review. D. Effect of Request. A request for a stay does not operate as a stay and does not extend the time for seeking judicial review. E. Grant of Stay. (1) The Secretary may hold a hearing on the request for a stay or rule on the request without a hearing. (2) The Secretary may grant the stay subject to the conditions, including security or bond, that the Secretary considers proper. #### Regulation .06 Judicial Review. *COMAR 16.02.05.06* A. Requisites. Unless otherwise agreed to by the parties, a party may not seek judicial review of a decision of the Secretary unless: (1) The party has filed exceptions with the Secretary to the proposed decision; and (2) The Secretary has rendered a final decision. B. Exception. This regulation does not apply to cases for which the Secretary has delegated final decision-making authority to the Office of Administrative Hearings.