10.32.02.04

.04 Adjudication of Allegations in a Charging Document.

A. Application.

(1) This regulation applies to cases under Health Occupations Article, §§1-307, 14-405, 14-5A-17(b), 14-5B-14(b), 14-5C-17(b), 14-5D-15, and 15-315 Annotated Code of Maryland.

(2) This regulation does not apply to cases under Health Occupations Article, §14-404(b), 14-5A-17(c), 14-5B-14(c), 14-5C-17(c), 14-5D-14(b), or 15-314(b), Annotated Code of Maryland, or to cease and desist orders issued under Health Occupations Article, §14-206(e), Annotated Code of Maryland.

B. Delegation.

(1) The Board shall initially delegate to an administrative law judge responsibility to make:

(a) Proposed findings of fact;

(b) Proposed findings of fact and proposed conclusions of law; or

(c) Proposed findings of fact, proposed conclusions of law, and proposed disposition.

(2) If the Board has delegated the case to the Office of Administrative Hearings for the issuance of proposed findings of fact only, the following apply:

(a) The delegation to the Office of Administrative Hearings is limited to making proposed findings of fact on allegations which are disputed;

(b) The Board may rescind the delegation if:

(i) The parties jointly notify the Board prior to the prehearing conference, or the administrative law judge notifies the Board prior to the occurrence of the factors set out in State Government Article, §10-205(d)(2), Annotated Code of Maryland, that there are no substantial factual allegations in dispute;

(ii) The notification recites the facts which are undisputed; and

(iii) The Board determines that the facts agreed upon are sufficient to decide the issue; and

(c) If a delegation to the Office of Administrative Hearings has been rescinded pursuant to §B(2)(b) of this regulation, the Board shall set the case on the Board docket for the Board to issue conclusions of law and a disposition based on the undisputed material facts, after giving the parties a reasonable opportunity for written and oral argument.

(3) If the Board has delegated the case to the Office of Administrative Hearings for the issuance of proposed findings of fact and conclusions of law only, the following apply:

(a) The delegation to the Office of Administrative Hearings is limited to making proposed findings of fact and conclusions of law on allegations which are disputed; and

(b) The Board may rescind the delegation if:

(i) The parties jointly notify the Board prior to the prehearing conference, or the administrative law judge notifies the Board prior to the occurrence of the factors set out in State Government Article, §10-205(d)(2), Annotated Code of Maryland, that there are no substantial factual allegations or conclusions of law in dispute;

(ii) The notification recites the facts and conclusions of law which are undisputed; and

(iii) The Board determines that the facts and conclusions of law agreed upon are sufficient to decide the issue.

(c) If a delegation to the Office of Administrative Hearings has been rescinded pursuant to §B(3)(b) of this regulation, the Board shall set the case on the Board docket for the Board to issue a disposition based on the undisputed material facts and conclusions of law, after giving the parties a reasonable opportunity for written and oral argument.

(4) The Board may rescind a delegation to an administrative law judge if prior to the start of the evidentiary hearing:

(a) The parties execute a proposed consent order settling all aspects of the case; and

(b) The Board formally executes an approval of that proposed consent order.

C. Discovery.

(1) Discovery on Request. In addition to any disclosures required by §C(2) or (3) of this regulation, by written request served on the other party and filed with the administrative law judge, a party may require another party to produce, within 15 calendar days, the following:

(a) A list of witnesses to be called; and

(b) Copies of documents intended to be produced at the hearing.

(2) Mandatory Notice of Specific Defenses in Cases Involving the Standard of Quality Care.

(a) The respondent shall notify the administrative prosecutor not later than 45 days after the issuance of charges of any statement made to the respondent by the patient which was not recorded in the respondentís medical record of the patient, and which affected the patientís course of treatment, including but not limited to:

(i) Any refusal of hospitalization or treatment;

(ii) Any report of symptoms;

(iii) Any report of the effects of medication;

(iv) Any report by the patient of consultations or treatment by other health care providers; and

(v) Any expressions by the patient of a preference for one course of treatment over another.

(b) The respondent shall notify the administrative prosecutor not later than 45 days after the issuance of charges of:

(i) Any consultation concerning the patient, formal or informal, with any other health care provider, which is not recorded in the patientís medical record; or

(ii) Any communication with family members of the patient which affected the patientís course of treatment, and which is not recorded in the patientís medical record.

(c) The notices required by §C(2)(a) and (b) of this regulation shall be in writing and shall state:

(i) The name of the declarant or consultant;

(ii) The substance of the declaration or consultant report; and

(iii) The date on which each communication took place.

(d) Unless the respondent has provided the notice required by §C(2) of this regulation, the administrative law judge shall exclude from the hearing any evidence described in §C(2)(a) or (b) of this regulation.

(3) Mandatory Discovery.

(a) Each party shall provide to the other party not later than 15 days prior to the prehearing conference or 45 days prior to the scheduled hearing, whichever is earlier:

(i) The name and curriculum vitae of any expert who will testify at the hearing; and

(ii) A detailed written report prepared and signed by the expert summarizing the expertís testimony, which includes the opinion offered and the factual basis and the reasons underlying the opinion.

(b) If the administrative law judge finds that the report is not sufficiently specific, or otherwise fails to comply with the requirements of this section, the administrative law judge shall exclude from the hearing:

(i) The testimony of the expert; and

(ii) Any report of the expert.

(c) The administrative law judge shall consider and decide arguments concerning the sufficiency of the report at the prehearing conference and may require that the report be timely amended, if insufficient, to allow the opposing party ample opportunity to prepare for hearing.

(d) If an expert adopts the written report of the Board peer reviewer or reviewers, or adopts a sufficiently specific charging document as the expertís report, that adoption is considered to satisfy the requirements set forth in §C(3) of this regulation.

(4) Parties are not entitled to discovery of items except as listed in §C(1), (2), or (3) of this regulation.

(5) Subject to §C(7) of this regulation, both parties have a continuing duty to supplement their disclosures of witnesses and documents.

(6) Absent unforeseen circumstances which would otherwise impose an extraordinary hardship on a party, witnesses or documents may not be added to the list subsequent to:

(a) The prehearing conference, if scheduled; or

(b) If no prehearing conference is scheduled, 15 days prior to the hearing.

(7) The prohibition from adding witnesses subsequent to the prehearing conference does not apply to witnesses or documents to be used for impeachment or rebuttal purposes.

D. Hearing.

(1) Unless the delegation has been rescinded according to §B(2), (3), or (4) of this regulation, the administrative law judge shall conduct an evidentiary hearing governed by the Administrative Procedure Act and COMAR 28.02.01.

(2) Evidence otherwise admissible under COMAR 28.02.01 may not be excluded solely on the ground that the evidence is not recited in the charging document.

(3) During these proceedings, the administrative law judge shall treat all records except for a charging document issued by the Board as confidential and sealed.

(4) Construction.

(a) In hearings conducted by an administrative law judge of the Office of Administrative Hearings, §C of this regulation shall, whenever possible, be construed as supplementing and in harmony with COMAR 28.02.01.

(b) In the event of a conflict between §C of this regulation and COMAR 28.02.01, §C of this regulation shall apply.

(5) The administrative law judge shall issue to the Board a written proposed decision including, where applicable, proposed findings of fact, proposed conclusions of law, and a proposed disposition after the conclusion of the hearing.