Chapter 02. Prehearing Procedures
Regulation .01 Notice of Right to Hearing.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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 annotations
Authority: Human Services Article, §9-204; State Government Article, Title 10, Subtitle 2; Annotated Code of Maryland
History: Effective date: June 18, 2007 (34:12 Md. R. 1067)