Hearings shall be conducted at a site designated by the Secretary. In General. Except as otherwise provided in this regulation, all proceedings before the Secretary shall be open to the public. Proceedings shall be closed to the public to the extent: Necessary to preserve confidentiality provided by law for individuals or records; or Otherwise required by law. On motion or on the Secretary's own initiative, the Secretary may close all or any part of the proceedings for good cause shown. Maintaining Order. The Secretary may: Remove individuals whose conduct impedes the orderly progress of the hearing; and Restrict attendance because of the physical limitations of the hearing facility. Recording Equipment. Recording equipment (cameras, tape recorders, and other sound or video equipment) shall be excluded from the hearing room: When required by law; or If the Secretary determines that the use of this equipment may impede the orderly progress of the proceedings or otherwise interfere with the process. 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. Request for Postponement. A request for postponement may be made in writing or by telephone. Parties to be Contacted. When practicable, all parties to a proceeding shall be contacted before a ruling is made on the request. Action by Secretary. The Secretary may grant the motion for good cause and as justice requires. The Secretary may postpone or continue a hearing on the Secretary's own initiative. In General. 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. 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. 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. 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. 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: Failure to answer telephone; Failure to free telephone for a hearing; Failure to be present in the designated video or audio hearing room; or Any other failure to be ready to proceed with the hearing as scheduled. Secretary's Duties. The Secretary shall: Conduct a full, fair, and impartial hearing; Take action to avoid unnecessary delay in the disposition of the proceedings; and Maintain order. Secretary's Powers—General. The Secretary's authority to regulate the conduct of the proceedings includes the power to: Administer oaths and affirmations; Rule on offers of proof and receive relevant and material evidence; Rule on motions; Call and examine witnesses to insure a full and complete record; Limit unduly repetitious testimony and limit the time for presentations; Request parties to submit legal memoranda and proposed findings of fact and conclusions of law; Issue orders as necessary to secure procedural simplicity and administrative fairness and to eliminate unjustifiable expense and delay; Conduct the hearing in a manner suited to ascertain the facts and safeguard the parties' rights; and Impose appropriate sanctions for failure to abide by this subtitle or any order of the Secretary. 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. Sanctions. The sanctions authorized by this regulation include: Limiting the issues to be heard; Dismissing all or any part of the request for a hearing; or Entering an order on the merits against a party. Authorized. The parties may agree by stipulation to any substantive or procedural matter. How Made. A stipulation may be filed in writing or entered on the record at the hearing. Additional Development. The Secretary may require additional development of stipulated matters. In General. A party may waive the right to appear personally at the hearing. A waiver may be made: Orally to the Secretary; or In writing and filed with the Secretary. Withdrawal. A waiver may be withdrawn only by written notice received by the Secretary at least 5 days before the earlier of: The scheduled hearing; or The date that applicable law permits for the issuance of the Secretary's decision. 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. The Secretary need not hold a hearing if all parties agree to the admission of evidence and waive their right to appear. Start of Proceeding. At the start of the proceedings, the Secretary shall: Briefly explain the purpose and nature of the hearing; and State the order of presentation of evidence. Preliminary Matters. The Secretary may allow the parties, before presentation of evidence, to: Present preliminary matters; and Make opening statements. Evidence shall be admitted and excluded in accordance with State Government Article, §10-213, Annotated Code of Maryland. Witness List. 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. 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. Oath or Affirmation. Witnesses shall take an oath or affirmation to tell the truth. Exclusion from Proceedings. On request of a party, the Secretary shall exclude witnesses other than parties from the hearing room, except when testifying. 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. 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. An expert witness who is to render an opinion based on testimony given at the hearing may remain during that testimony. If a witness receives information in violation of this section, the Secretary may: Exclude the testimony of that witness; or Take other appropriate action. Affidavits. The Secretary may admit an affidavit as evidence. Prefiled Testimony. In the Secretary's discretion, testimony may be received in written form. The testimony shall be filed with the Secretary and served on opposing parties at least 5 days before the hearing. 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. Oath or Affirmation. The interpreter shall take an oath or affirm that he or she will accurately translate. 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. Burdens for Permits, Licenses, and Certifications. A party requesting a hearing following notice of the Department's intent to deny or refuse to renew a permit, license, or certification bears: The burden of going forward to establish a prima facie case of entitlement to the permit or license; and The burden of persuasion that the permit or license should be issued. A party contesting the Department's proposed decision to issue or renew a permit, license, or certification bears: The burden of going forward to establish a prima facie case that grounds exist for denying the license or permit; and The burden of persuasion that the license or permit should be denied. In a proceeding following notice by the Department of an intent to revoke or suspend a permit, license, or certification, the Department bears: The burden of going forward to establish a prima facie case as to the existence of grounds for revocation or suspension; and The burden of persuasion that the permit, license, or certification should be revoked or suspended. Burdens Established—Departmental Order. In a proceeding contesting an order or proposed order of the Department, the Department bears: The burden of going forward to establish a prima facie case as to existence of grounds for issuance of the order; and The burden of persuasion that the order be issued. 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. Secretary's Decision. 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. 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. Recording. A recording of the hearing shall be made at the Department's expense. The recording need not be transcribed unless requested by a party or by the Secretary. Transcription. 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. 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. 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. Human Services Article, §9-204; State Government Article, Title 10, Subtitle 2; Annotated Code of Maryland Effective date: June 18, 2007 (34:12 Md. R. 1067)