10.22.13.03

.03 Hearing Procedures.

A. The hearing shall be conducted within 21 days after the admission of an individual to a State residential center.

B. Written notice of the admission of an individual and of the date, time, and place of the individual's hearing shall be given:

(1) On admission to the individual; or

(2) As soon as possible, but not later than 5 days after the admission to legal counsel for the individual and to the proponent of the admission.

C. The notice also shall state the:

(1) Name of each proponent of the admission;

(2) Rights of the individual who has been admitted to:

(a) Consult with and be represented by a lawyer, and

(b) Call witnesses and offer evidence at the hearing on admission;

(3) Availability of the services of the Legal Aid Bureau, lawyer referral services, and other agencies that exist for the referral of individuals who need legal counsel;

(4) Right of individuals with developmental disabilities, pursuant to Health-General Article, Title 7, Subtitle 10, and §7-1102, Annotated Code of Maryland;

(5) Rights of the individual to release, pursuant to Health-General Article, §§7-506, 7-507, and 7-508, Annotated Code of Maryland.

D. The parties to the hearing shall be the proponent and the individual.

E. Each hearing which is held pursuant to Health-General Article, §7-503, shall be held in an appropriate room within the facility in which the individual is a resident, or in such other place as is deemed appropriate by the hearing examiner.

F. The individual shall have the right to appear dressed in his or her own clothing, at the hearing, if he or she so desires.

G. The records of the facility which address any aspect of the individual for whom the hearing shall be held shall, upon request, be made available to counsel for that person.

H. A mechanical recording of the hearing shall be made, but a transcription need not be made unless an appropriate appeal is taken.

I. Rules of Evidence--Notice.

(1) The hearing examiner:

(a) May admit and give probative effect to evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs;

(b) Shall give effect to the rules of privilege recognized by law;

(c) May exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.

(2) All evidence, including records and documents in the possession of the agency, of which it desires to avail itself, shall be offered and made a part of the record in the case, and other factual information or evidence may not be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference.

(3) Each party shall have the right:

(a) Of cross-examination of witnesses who testify; and

(b) To submit rebuttal evidence.

(4) The hearing examiner may take notice of judicially cognizable facts and, in addition, may take notice of general, technical, or scientific facts within the hearing examiner's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material so noticed, and the parties shall be afforded an opportunity to contest the facts so noticed. The hearing examiner may use experience, technical competence, and specialized knowledge in the evaluation of the evidence presented.

(5) The hearing examiner as designee of the Secretary of Health, upon request and good cause shown, shall issue appropriate process to compel the attendance of witnesses and the production of documents or other tangible evidence. This power is granted pursuant to Health-General Article, §2-104(k), Annotated Code of Maryland.

(6) Telephoned Testimony. The hearing examiner, on the motion of the hearing examiner or upon request of a party to the hearing, may allow the testimony of any party or nonparty witness to be taken by telephone. The hearing examiner shall notify all parties in advance of the hearing that the testimony of a witness will be taken by telephone. When testimony is taken by telephone, the hearing examiner shall employ appropriate techniques to ensure that the testimony is fully audible to all parties present at the hearing and the testimony is made a part of the hearing record. The party shall be allowed to fully cross-examine any witness whose testimony is taken using this procedure.

J. Admission Requirements.

(1) At the hearing, in order to certify the admission of the individual, it shall be affirmatively shown by clear and convincing evidence that the conclusions leading to the decision to admit the individual were supported by the following findings:

(a) That the individual whose admission is sought has an intellectual disability;

(b) That the individual needs residential services for the provision of adequate habilitation; and

(c) That there is no less restrictive setting in which the needed services can be provided that is available to the individual, or will be available to the individual within a reasonable time.

(2) If the hearing examiner finds from the admissible evidence that the conclusions leading to the admission decision are invalid, the hearing examiner shall so certify and the individual shall be released from the State residential center.

(3) If the hearing examiner finds from the evidence presented that all of the admission requirements have been proved, the hearing examiner shall so certify and the individual's admission shall be considered approved.

(4) If the hearing examiner certifies the admission of an individual to a State residential center, the hearing examiner shall, at the conclusion of the hearing, write on the certification form any additional services of habilitation that are not included in the evaluation report, but that the hearing officer finds from the evidence are needed by the individual.

(5) If the hearing examiner certifies the admission of an individual to a State residential center, at the conclusion of the hearing, the examiner shall advise the individual and the legal counsel of the individual's right to seek judicial release from the State Residential Center under Health-General Article, §7-507, Annotated Code of Maryland, and of his right to file a petition for habeas corpus under Health-General Article, §7-506, Annotated Code of Maryland. The hearing examiner shall also advise individual and legal counsel of the individual's right under the appeal provision of State Government Article, §§10-215 and 10-216, Annotated Code of Maryland. The individual's rights shall be communicated in a form of language that the individual understands.

K. Hearing Examiners' Powers. In addition to other powers and authority granted by law, the hearing examiner shall:

(1) Administer oaths and affirmation;

(2) Issue summonses for the attendance of witnesses at the hearings and subpoenas requiring the production of physical evidence;

(3) Rule upon offers of proof by the parties;

(4) Consider and rule upon all procedural and other motions appropriate to the proceedings;

(5) Examine witnesses;

(6) Maintain order and limit unduly repetitious or irrelevant testimony or argument.