10.33.01.17

.17 Procedure of Board Hearings.

A. Scope. These regulations apply to all formal hearings before the Board of Examiners of Nursing Home Administrators. They do not apply to conferences or other informal investigations or proceedings when no formal ruling or decision is made.

B. Charges and Notice of Initial Denial.

(1) If the Board issues charges or a notice of initial denial, the document shall be served upon the respondent.

(2) Service is completed when the document is:

(a) Sent by first-class regular mail;

(b) Sent by certified mail to the address the respondent is required to maintain with the Board; or

(c) Hand delivered in person.

(3) Charges or a notice of initial denial shall:

(a) Inform the respondent of the statutory basis for the charges or denial of licensure;

(b) Allege sufficient facts which the Board believes constitute a basis for:

(i) Violation of the Maryland Nursing Home Administrators Act or COMAR 10.33.01.15; or

(ii) Denial of licensure;

(c) Notify the respondent of any proceedings scheduled before the Board or of an opportunity to request a hearing within a certain period of time and the consequences of failing to appear for those proceedings or to request a hearing; and

(d) Be accompanied by a letter of procedure notifying the respondent of the applicability of the Administrative Procedure Act to the Board's proceedings.

(4) If the respondent has not acknowledged receipt of the charges or notice of initial denial, the Board may nevertheless proceed in prosecuting the case if it has complied with ßB(2) of this regulation.

(5) If the Board issues a notice of initial denial to an applicant for a license, the applicant may not withdraw the application without approval of the Board.

C. Representation of Parties. All parties appearing at formal hearings shall have the right to appear in person, with counsel, or to be represented by counsel.

D. Case Resolution Conference.

(1) After service of charges or notice of initial denial, the Board shall offer a respondent the opportunity for a case resolution conference.

(2) Matters admitted, revealed, negotiated, or otherwise discussed at a case resolution conference are without prejudice and may not be used by the respondent, administrative prosecutor, or Board in any subsequent proceedings, unless the information is otherwise discovered or available by appropriate means.

(3) Recommendations of the case resolution conference committee are not binding on the Board, which may:

(a) Accept the proposed resolution; or

(b) Modify a proposed settlement.

(4) If the respondent and the administrative prosecutor are unable to reach an agreement for settlement that is recommended by the case resolution conference committee, the matter shall proceed to a hearing on the charges or notice of initial denial.

(5) Participation in a case resolution conference is not a basis for recusal of a Board member, Board counsel, or Board prosecutor from further proceedings in a case.

E. Conduct of the Hearing.

(1) Board Majority. Each hearing shall be held before a majority of the Board, which majority of the Board shall include not less than three nursing home administrators, unless the hearing authority is delegated pursuant to State Government Article, §10-205, Annotated Code of Maryland. Board action shall be by majority vote of those Board members present at the hearing, unless the hearing authority has been delegated, in which case the provisions of State Government Article, §10-205, Annotated Code of Maryland, apply to any decision.

(2) Duties of Presiding Officer.

(a) The chairman, or in the chairman's absence, a member designated by the chairman shall be the presiding officer or if in a delegated hearing, a hearing examiner shall be the presiding officer. The presiding officer shall:

(i) Have complete charge of the hearing;

(ii) Permit the examination of witnesses;

(iii) Admit evidence;

(iv) Rule on the admissibility of evidence;

(v) Adjourn or recess the hearing from time to time.

(b) The presiding officer, at the presiding officer's discretion, may set reasonable time limits on arguments and presentation of evidence.

(c) The presiding officer shall be responsible for decorum in a hearing and can suspend the proceedings as necessary to maintain decorum.

(3) Legal Advisor and Counsel for the Board.

(a) The Board may request the Office of the Attorney General to participate in any hearing to present the case on behalf of the Board.

(b) Counsel presenting the case on behalf of the Board shall have the same rights with regard to the submission of evidence, examination, cross-examination of witnesses, presentation of summation and argument, and filing of objections, exceptions, and motions as does counsel for any party.

(c) The Board may also request a representative of the Office of the Attorney General to act as legal advisor to the Board as to questions of evidence and law.

(4) Order of Procedure. The case on behalf of the Board shall be presented first. The respondent shall then present the respondent's case. After that, rebuttal shall be permitted.

(5) Examination of Witnesses and Introduction of Evidence.

(a) The rules of evidence in all hearings under these regulations shall be as set forth in State Government Article, §10-213, Annotated Code of Maryland.

(b) Every party has the right to:

(i) Call witnesses and present evidence;

(ii) Cross-examine every witness called on behalf of the Board or other party;

(iii) Present summation and argument and file objections, exceptions, and motions.

(c) When a party is represented by counsel, all submission of evidence, examination and cross-examination of witnesses, and filing of objections, exceptions, and motions shall be done and presented solely by counsel.

(d) Witnesses.

(i) The presiding officer, or any person designated by the presiding officer for that purpose, may examine any witness called to testify.

(ii) The presiding officer may call as a witness any person in attendance at the hearing.

(iii) Any member of the Board may examine any witness called to testify.

F. Records and Transcript.

(1) The Board or its designee shall prepare an official record which shall include all pleadings, testimony, exhibits, and other memoranda or material filed in the proceeding.

(2) A stenographic record of the proceedings shall be made at the expense of the Board. This record need not be transcribed, however, unless requested by a party or by the Board. The cost of any typewritten transcripts of any proceedings, or part of them, shall be paid by the party requesting the transcript.

G. Decision and Order. Each decision and order rendered by the Board shall be in writing and shall be accompanied by finding s of fact and conclusions of law. A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed promptly to each party or his attorney of record.

H. Rehearings.

(1) Any party aggrieved by the decision and order may apply for rehearing within 10 days after service of the decision and order. Action on an application shall lie in the discretion of the Board.

(2) Unless otherwise ordered, neither the rehearing nor the application for it shall stay the enforcement of the order, or excuse the persons affected by it for failure to comply with its terms.

(3) On rehearing, the Board shall only consider facts not presented in the original hearing, including facts arising after the date of the original hearing, and may by new order abrogate, change, or modify its original order.

I. Discovery on Request. By written request served on the other party and filed with the Board or the Office of Administrative Hearings, as appropriate, a party may require another party to produce copies of documents intended to be produced at the hearing within 30 days of service.

J. Mandatory Discovery.

(1) At least 15 days before the prehearing conference, if scheduled, or 45 days before the scheduled hearing date, whichever is earlier, each party shall provide to the other party:

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

(b) A detailed written report summarizing the expertís testimony, which includes the opinion offered and the factual basis and reasons underlying the opinion.

(2) If the Board or the Office of Administrative Hearings, as appropriate, finds that the report is not sufficiently specific, or otherwise fails to comply with the requirements of this section, the testimony of the expert and any report of the expert shall be excluded from the hearing.

(3) The Board or the Office of Administrative Hearings, as appropriate, shall consider and decide arguments regarding the sufficiency of the report:

(a) At the prehearing conference, if scheduled; or

(b) Immediately before the scheduled hearing.

(4) If an expert adopts a sufficiently specific charging document as the expertís report, that adoption shall satisfy the requirements set forth in this section.

(5) Parties are not entitled to discovery of items other than as listed in §J(1) of this regulation.

(6) Both parties have a continuing duty to supplement their disclosures of witnesses and documents.

(7) Absent unforeseen circumstances which would otherwise impose an extraordinary hardship on a party:

(a) If a prehearing conference is scheduled, witnesses or documents may not be added to the list after the prehearing conference; or

(b) If no prehearing conference is scheduled, witnesses or documents may not be added to the list later than 15 days before the hearing.

(8) The prohibition against adding witnesses does not apply to witnesses or documents to be used for impeachment or rebuttal purposes.

(9) Construction.

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

(b) In the event of a conflict between this section and COMAR 28.02.01, this section applies.