Chapter 01. Procedures for Hearings before the Secretary
Regulation .01 Scope.LinkCopy Citation
A.
These regulations apply to all formal hearings before the Secretary of Aging or a hearing officer designated by the Secretary.
B.
These regulations do not apply to or limit the authority of a hearing officer to hold additional conferences or informal proceedings at which no formal ruling or decision is made.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Department” means the Department of Aging.
(2)
“Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity.
(3)
“Secretary” means the Secretary of Aging.
Regulation .03 Commencement of Procedures.LinkCopy Citation
A.
A person entitled to request a hearing before the Secretary may do so by filing a written request for a hearing with the Secretary.
B.
The request for a hearing shall include:
(1)
The name, address, and telephone number of the party filing the request;
(2)
The decision, order, action, or inaction which is the subject of the appeal; and
(3)
A brief statement of the grounds for appeal to be raised at the hearing.
C.
The petition shall be filed in the Office of the Secretary by the party filing the request within 30 days of the action which is the subject of the petition. The request for a hearing shall be deemed timely if it is mailed or received within 30 days.
Regulation .04 Notice of Hearing.LinkCopy Citation
A.
The Secretary or the Secretary's designee shall send written notice of the hearing, not later than 20 days before the beginning of the hearing, to the party requesting the hearing and any other interested party who is entitled to participate or has been given leave to participate under Regulation .05 of this chapter.
B.
The notice of hearing shall specify the:
(1)
Date, time, and place of the hearing;
(2)
Legal authority and jurisdiction under which the hearing is to be held, including citation to any statute or regulation that is pertinent;
(3)
Nature and subject matter of the hearing;
(4)
Asserted grounds for appeal to be raised at the hearing;
(5)
Name, mailing address, and telephone number of the presiding officer and of each party to whom the notice is sent; and
(6)
Name, title, address, and telephone number of any attorney who has been designated to appear for the Secretary at the hearing.
C.
The notice shall be accompanied by a copy of any prehearing order rendered before the date of the notice.
Regulation .05 Parties Representation.LinkCopy Citation
A.
The parties shall consist of:
(1)
The party requesting the hearing;
(2)
A person entitled as of right to participate as a party; and
(3)
A person who applies for and is granted leave to participate as a party upon a satisfactory showing of interest in the matter, including a person admitted as a party for a limited purpose.
B.
Parties shall have the right to:
(1)
Appear in proper person or by or with counsel;
(2)
Be accompanied, represented, and advised by counsel.
Regulation .06 Time and Place for Hearing.LinkCopy Citation
The hearing shall be:
A.
Held within 90 days of the date on which the Secretary receives the request for a hearing, unless by consent of all parties another hearing date is selected;
B.
Open to the public, and may not be held at a time or in a place that would unreasonably deter the attendance of members of the public.
Regulation .07 The Presiding Officer.LinkCopy Citation
A.
The Secretary may, at the Secretary's discretion, appoint a hearing officer to serve as presiding officer at the hearing and prepare proposed findings of fact and proposed conclusions of law.
B.
If the Secretary elects not to appoint a hearing officer, then the hearing shall be conducted before the Secretary.
C.
Powers of the Presiding Officer. The presiding officer shall have the authority and duty to conduct a full, fair, and impartial hearing, to take action to avoid unnecessary delay in the resolution of the case, and to maintain order. Specifically, but without limitation, the presiding officer shall have the power to:
(1)
Regulate the course of the hearing, the scope of the issues, and the conduct of the parties and their counsel;
(2)
Administer oaths and affirmations;
(3)
Admit evidence and rule on the admissibility of evidence;
(4)
Consider and decide all procedural, preliminary, and other motions, including applications for leave to participate under Regulation .05A(3) of this chapter;
(5)
Examine witnesses and call witnesses not otherwise called by the parties;
(6)
Limit the time for presentations, limit unduly repetitious testimony, and otherwise establish appropriate schedules, dates, timetables, and deadlines;
(7)
Require parties to submit prehearing or posthearing briefs, proposed findings of fact, proposed conclusions of law, and stipulations;
(8)
Adjourn or recess the hearing from time to time, and grant continuances for good cause shown;
(9)
Determine whether a prehearing conference should be held, and, if so, preside at the prehearing conference; and
(10)
Make decisions and take any other appropriate actions authorized by law.
D.
Duties of the Presiding Officer if a Party is not Represented by an Attorney.
(1)
The presiding officer shall provide the party with a copy of these regulations and shall satisfy himself that the party:
(a)
Understands the nature of the proceedings;
(b)
Understands the language and intent of these regulations; and
(c)
Is cognizant of the rights to which he may be entitled under any applicable statutes governing the subject of the hearing and the rights under these regulations.
(2)
If the presiding officer is unable to satisfy himself that the party is fully informed as to these matters, the presiding officer shall continue the hearing for a reasonable time, and provide the party with a list of legal assistance providers. If the party remains unrepresented, the hearing officer shall note this on the record.
(3)
At the time the decision or order is rendered, the hearing officer shall fully apprise an unrepresented party of his right to an appeal from a decision or order and the methods and procedures by which an appeal can be made.
E.
An individual may not serve as a hearing officer if the individual:
(1)
Has personal knowledge of or personal interest in the matter that is the subject of the hearing;
(2)
Is related to or maintains an ongoing business or social relationship with a person who either is involved in the matter that is the subject of the hearing or will appear as a witness;
(3)
Is currently employed or was formerly employed by a party; or
(4)
Is biased, prejudiced, or otherwise incapable of discharging impartially the duties of a hearing officer.
F.
A party who has reason to believe that grounds exist for the disqualification of a hearing officer shall immediately file a petition for disqualification. The petition shall be addressed to the Secretary, and shall state with particularity the grounds upon which it is based. The Secretary may invite responses from other parties and the person whose disqualification is sought. The Secretary shall rule promptly on the petition, and shall indicate in writing the reasons for the decision and the facts upon which it is based.
Regulation .08 Prehearing Procedure.LinkCopy Citation
A.
Discovery and Disclosure.
(1)
Although parties are not entitled to compel discovery, they are encouraged to cooperate as much as possible in complying with good-faith requests for informal discovery.
(2)
A party shall have the right to review at reasonable hours and locations and to copy at its own expense any document that is accessible under the Maryland Access to Public Records Act, State Government Article, §§10-611—10-628, Annotated Code of Maryland.
(3)
If required by the presiding officer, each party shall produce and make available to all other parties and to the presiding officer, in advance of the hearing, a copy of each document that the party intends to offer into evidence, and a list of all witnesses who will testify at the hearing for that party. The presiding officer may prohibit the introduction of any documentary or testimonial evidence not disclosed before the hearing as provided in this section.
B.
Prehearing Conference.
(1)
Before the hearing, the presiding officer may hold a prehearing conference. The principal purpose of the prehearing conference is to simplify the hearing by resolving preliminary matters.
(2)
The presiding officer shall give written notice to all parties of the date, time, and place of the prehearing conference.
(3)
At the discretion of the presiding officer, and subject to the consent of the parties, the prehearing conference may be conducted by telephone or other electronic means.
(4)
The following subjects may be considered or decided at the prehearing conference:
(a)
Stipulations and admissions of fact;
(b)
Stipulations as to the authenticity and admissibility of documents;
(c)
Evidentiary objections;
(d)
Pending motions;
(e)
The timetable for filing prehearing briefs and posthearing submissions;
(f)
Problems relating to the sequence, scheduling, and qualification of witnesses;
(g)
Settlement possibilities; and
(h)
Any other matter relating to the conduct, scope, or substance of the hearing.
C.
Prehearing Order.
(1)
If a prehearing conference is held, the presiding officer shall prepare after the prehearing conference and send to all parties, a written prehearing order reciting the subjects discussed and actions taken.
(2)
If a prehearing conference is not held, the presiding officer shall resolve any preliminary matters by issuing and sending to all parties an appropriate prehearing order.
(3)
The prehearing order shall become part of the record of the case.
D.
Motions.
(1)
Motions shall be in writing and shall be filed not later than 10 days before the date of the prehearing conference or 20 days before the date of the hearing, whichever is earlier. Copies of motions shall be served by first-class mail or hand-delivery on all parties.
(2)
A party wishing to oppose a motion shall file a written opposition within 7 days of receipt of the motion, and shall serve copies of the opposition on all parties in the manner prescribed in §D(1) of this regulation.
(3)
For good cause shown, the presiding officer may extend or shorten any of the time limits for filing or opposing a motion. The time limits may also be extended or shortened by mutual consent of all parties, provided, however, that a deadline may not be extended beyond the date of the prehearing conference or, in the absence of a prehearing conference, the date of the hearing.
(4)
If a party so requests in a motion or opposition, oral argument on the motion shall be permitted at the prehearing conference, at a specially convened motion hearing, or before the beginning of the hearing. The presiding officer may limit each party's time for oral argument.
E.
Postponement of Hearing. Upon written request, the presiding officer may grant a postponement of the hearing. Except in extraordinary circumstances, requests for postponement shall be denied if made after the date of the prehearing conference. A request for postponement may not be granted unless the party making the request shows that the request is made in good faith and that hardship will result from its denial.
Regulation .09 Conduct of Hearing.LinkCopy Citation
A.
Rights of the Parties. Each party shall be entitled at the hearing to:
(1)
Call witnesses;
(2)
Offer evidence, including rebuttal evidence;
(3)
Cross-examine opposing witnesses; and
(4)
Present summation and argument.
B.
Record of Hearing.
(1)
The presiding officer shall prepare an official record which shall include all pleadings, testimony, exhibits, and other memoranda or material filed in the case.
(2)
The hearing shall be recorded by tape recording, stenographic notes, or other means, at the expense of the Department. The record need not be transcribed unless requested by the Secretary, the presiding officer, or a party.
(3)
The cost of transcription shall be paid by the party requesting the transcript, except:
(a)
The cost shall be paid by the Department if the person requesting the transcript is the Secretary or the presiding officer; or
(b)
For good cause shown, the Secretary may order the cost to be paid by the Department.
C.
Evidence.
(1)
The presiding officer is not bound by the technical rules of evidence.
(2)
The presiding officer may accept into evidence any testimonial or documentary evidence that possesses probative value.
(3)
Upon proper objection, the presiding officer may exclude evidence that is incompetent, irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of a privilege recognized by law.
(4)
Expert testimony may be accepted by the presiding officer if, in the presiding officer's opinion, the testimony as proffered would aid in an understanding of the case.
(5)
Evidence may not be excluded solely on the ground that it constitutes hearsay, but shall be given the weight it deserves in light of the entire case.
D.
Order of Procedure and Burden of Proof. The presiding officer shall determine the:
(1)
Order in which the parties shall present their case;
(2)
Burden of proof.
Regulation .10 Posthearing Submissions.LinkCopy Citation
A.
The presiding officer may require the parties to submit posthearing briefs, and may also require the submission of proposed findings of fact and proposed conclusions of law.
B.
The presiding officer, by appropriate order, may:
(1)
Establish a schedule for the filing of posthearing submissions;
(2)
Require the parties to address specified issues; and
(3)
Establish page limitations or other restrictions on the scope of posthearing submissions.
Regulation .11 Decision and Order.LinkCopy Citation
A.
Generally. Each case shall be decided on the basis of credible evidence, exclusively on the record, and according to the applicable burdens of proof.
B.
Cases Tried Before a Hearing Officer.
(1)
As soon as practicable after the conclusion of the hearing and, if required, the filing of posthearing submissions, the hearing officer shall submit to the parties and the Secretary a written report consisting of proposed findings of fact, proposed conclusions of law, and a recommended decision or remedy.
(2)
Each party shall have 20 days from the date of receipt of the hearing officer's report in which to file written exceptions with the Secretary. Copies of exceptions shall be served by first-class mail or hand-delivered on all other parties, who shall then have 10 days from the date of receipt to file, and serve on all parties in the manner specified in the preceding sentence, written comments on the exceptions. These time limitations may not be extended except with the approval of the Secretary.
(3)
If a party files exceptions, the Secretary shall set a time for the presentation of oral argument by a party that wishes to be heard. The Secretary shall notify all parties of the date, time, and place of oral argument. At the Secretary's discretion, the Secretary may limit the time given to each party to present oral argument.
(4)
After hearing oral argument and considering the record as appropriate, the Secretary shall:
(a)
Adopt the hearing officer's report as the final decision of the agency;
(b)
Modify the hearing officer's proposed findings of fact, proposed conclusions of law, or proposed decision or remedy, in whole or in part, and then adopt the report with modifications as the final decision of the agency; or
(c)
Remand the matter to the hearing officer for further proceedings.
(5)
The decision of the Secretary shall be communicated in writing to all parties. The Secretary's decision shall include a specific ruling on each exception. It shall also include a short and plain statement of the available procedures and time limitations for seeking judicial review. Unless the matter is remanded for further proceedings, the date of the written decision shall be the date of the final decision of the agency.
(6)
The Secretary may not entertain motions for reconsideration or applications for stay pending judicial appeal.
C.
Cases Tried Before the Secretary. If the Secretary elects not to appoint a hearing officer, then as soon as practicable after the conclusion of the hearing and, if required, the filing of posthearing submission, the Secretary shall render in writing a final decision. The final decision shall contain findings of fact, conclusions of law, and the decision or remedy. Copies of the final decision shall be mailed to all parties. The final decision shall include a short and plain statement of the available procedures and time limitations for seeking judicial review. The Secretary may not entertain motions for reconsideration or applications for stay pending judicial appeal.
Regulation .12 Ex Parte Communication.LinkCopy Citation
A.
The presiding officer may not communicate, directly or indirectly, with any party or person who has an interest or is otherwise involved in the hearing, including employees of the Department, without giving notice to all parties and an opportunity, if appropriate, to participate. The same prohibition shall apply to the Secretary, except that the Secretary may not be prohibited from communicating with counsel concerning a case pending before the Secretary.
B.
A party or a party's representative may not communicate directly with a presiding officer or Secretary concerning a pending case except by:
(1)
Written communication submitted to the hearing officer and served on the other parties or their representatives; or
(2)
Oral communication with the hearing officer in the presence of all other parties or their representatives.
Chapter annotations
Authority: State Government Article, §10-201 et seq., Annotated Code of Maryland
History: Effective date: December 26, 1980 (7:26 Md. R. 2424)
History: Regulations .01—.11 repealed and new Regulations .01—.12 adopted
History: effective October 31, 1988 (15:22 Md. R. 2558)
History: Chapter recodified from COMAR 14.11.03 to COMAR 32.01.01, October 2000