Md. Code Regs. 10.24.01.11

Current through Register Vol. 51, No. 9, May 3, 2024

Section 10.24.01.11 - Evidentiary Hearings

A. Request for Evidentiary Hearing.

(1) Except as otherwise provided in these regulations, a request for an evidentiary hearing shall be made within 45 days of the docketing of an application or within 30 days after the modification of an application in a review.

(2) At the request of an applicant or interested party, the Commission may hold an evidentiary hearing in the review of a CON application for any health care facility other than an ambulatory surgical facility if, in the judgment of the reviewer, an evidentiary hearing is appropriate due to the magnitude of the impact that the proposed project may have on the health care delivery system and the project, if approved, would result in one of the following:

(a) A substantial negative impact on the costs and charges for the type of the facility, services, or both included in the project;

(b) A substantial negative impact on access to those facilities and services by the population in the proposed project's expected service area;

(c) A significant decrease in the availability and overall quality of health care services in the affected area in a manner not consistent with policies or need projections set forth in the State Health Plan, such as by causing a loss of reasonable access to an essential medical service by a substantial number of patients; or

(d) Any impact that the reviewer concludes may be sufficiently serious to merit an evidentiary hearing.

B. General.

(1) Reviewer as Presiding Officer.

(a) If an evidentiary hearing is held in accordance with this chapter, the reviewer shall:

(i) Conduct a full, fair, and impartial hearing;

(ii) Take action to avoid unnecessary delay in the disposition of the proceedings; and

(iii) Maintain order.

(b) A reviewer has the power to regulate the course of an evidentiary hearing and the conduct of the parties and authorized representatives, including the power to:

(i) Administer oaths and affirmations;

(ii) Rule upon offers of proof and receive relevant and material evidence;

(iii) Consider and rule upon motions in accordance with this chapter;

(iv) Examine witnesses and call witnesses as necessary to ensure a full and complete record;

(v) Limit unduly repetitious testimony and reasonably limit the time for presentations;

(vi) Grant a continuance or postponement;

(vii) Modify or waive, reasonably and for good cause, any time periods established by this chapter;

(viii) Request that parties submit legal memoranda, proposed findings of fact, and proposed conclusions of law;

(ix) Make proposed decisions and take any other appropriate action authorized by law;

(x) Issue orders as are necessary to secure procedural simplicity and administrative fairness and to eliminate unjustifiable expense and delay; and

(xi) Conduct the hearing in a manner suited to ascertain the facts and safeguard the rights of the parties to the hearing.

(c) The reviewer may impose appropriate sanctions for failure to abide by this chapter or any lawful order of the reviewer.

(2) Conduct of Evidentiary Hearings.

(a) An evidentiary hearing need not be conducted according to technical rules of evidence, but shall be conducted in accordance with the State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and these regulations.

(b) Reliable hearsay is admissible.

(c) Rules of privileges are effective to the extent they would be effective in a judicial proceeding in Maryland.

(d) Nonexpert opinion testimony may be considered.

(e) Qualification as an expert lies within the discretion of the reviewer. The qualification of an expert need not be based on academic degrees. Reasonably extensive practical experience with the subject may be sufficient for an expert qualification.

(f) Reliable and probative documents previously filed with or compiled by the Commission or its staff or consultants that are relevant to issues being considered by the Commission may be incorporated by reference into the record of a proceeding by the Commission or, by leave of the reviewer, by a party to the proceeding, upon notice to the parties and an opportunity to object.

(g) The reviewer may take administrative notice of all judicially cognizable facts to the same extent as courts of this State, either on the reviewer's own motion or at the request of a party. The reviewer may also take official notice, without meeting formal evidentiary rules, of general technical or scientific facts within the specialized knowledge of a member of the Commission. A party to the hearing is entitled, on timely request, to an opportunity to show that the Commission should not take administrative or official notice of specific facts and matters, or that the fact or matter to be officially noticed is inapplicable to the proceeding or is incorrect or misunderstood by the Commission.

(3) A party to the hearing may be represented by counsel.

(4) The prehearing conference and the hearing shall be recorded. If an applicant or other person desires a transcript, that person shall pay all costs to transcribe the recording.

(5) Documents filed in the proceeding shall be served on the reviewer, the assistant attorneys general of the Commission, and each interested party, and shall include a certificate of service.

C. Prehearing Procedures.

(1) The reviewer shall hold a prehearing conference, and may hold settlement conferences, before an evidentiary hearing.

(2) The reviewer shall notify each applicant and interested party of the prehearing conference in writing. The notification shall:

(a) Include the date, time, and place of the prehearing conference or conferences;

(b) Summarize the rules of procedure governing the evidentiary hearing; and

(c) State the dates, if known, for the submission of prefiled testimony and the date, time, and place of the evidentiary hearing.

(3) The principal purpose of the prehearing conference is to expedite the evidentiary hearing. To this end the reviewer may, among other things:

(a) Instruct the parties to:

(i) Formulate and submit a list of genuine contested issues to be decided at the hearing;

(ii) Identify each potential witness, the subject matter of each witness's testimony, and documents to be introduced; and

(iii) Raise and address issues that can be decided before the hearing;

(b) Encourage stipulations as to facts, law, and other matters;

(c) Schedule dates for the submission of prefiled testimony, further prehearings, the hearing, and submission of briefs and documents; and

(d) Rule on any pending motions.

(4) A written summary of the prehearing conference shall be made a part of the record of the proceeding.

(5) The reviewer may record the prehearing conference or have a stenographer present.

(6) A request for the postponement of a hearing shall be made at a reasonable time before the hearing and may be granted only for good cause shown, at the discretion of the reviewer.

D. List of Genuine Issues.

(1) The reviewer shall establish a list of genuine issues of material fact for the evidentiary hearing.

(2) An evidentiary hearing shall be held only on those genuine factual issues or issues on which the reviewer determines that testimony would be useful in rendering a decision.

E. Written Direct Testimony.

(1) Direct testimony shall be in writing and may not be delivered orally.

(2) A party who wishes to present testimony at the evidentiary hearing shall file written testimony before the hearing in accordance with the schedule set by the reviewer.

(3) The written direct testimony shall set forth the conclusions of the person submitting it and all arguments and facts supporting these conclusions.

(4) Written direct testimony shall be verified either under oath at the hearing or by including the statement specified in Regulation .08B(2) of this chapter.

(5) Upon notice with an opportunity to object, the reviewer shall separate irrelevant material from the remainder of the record and keep that material apart. Parts of the body of the written direct testimony judged irrelevant by the reviewer shall be so marked and may not be considered by the Commission in its deliberations.

(6) Persons submitting written testimony shall make themselves available for oral cross-examination. Submitted application materials are also subject to cross-examination. Letters submitted into the record which are not considered written testimony are not subject to cross-examination.

F. Cross-Examination.

(1) Cross-examination of each witness shall be live and under oath.

(2) The reviewer and each non-proponent applicant and interested party may conduct reasonable cross-examination of a witness who gave direct or rebuttal testimony.

(3) The reviewer may set reasonable time limits on the cross-examination of witnesses.

G. Rebuttal Testimony.

(1) Rebuttal testimony is permitted on any issue specified by the reviewer.

(2) Rebuttal testimony, whether specified by the reviewer to be written or oral, is subject to live cross-examination.

H. Post-Hearing Briefs. The reviewer may request post-hearing briefs.

I. Informal Proceedings. At the request of an applicant, and if each interested party waives the right to present evidence, argument, and conduct cross-examination, the reviewer may establish informal rules for mediation, structured negotiation, or another consensual procedure for reaching a decision.

Md. Code Regs. 10.24.01.11

Regulations .11 amended effective February 4, 1976 (3:3 Md. R. 151)
Regulations .11A, D amended as an emergency provision effective July 1, 1978 (5:17 Md. R. 1321); adopted permanently effective December 15, 1978 (5:25 Md. R. 1855)
Regulations .11D amended effective January 25, 1980 (7:2 Md. R. 115)
Regulations .11E_G adopted effective January 25, 1980 (7:2 Md. R. 115)
Regulations .11 amended as an emergency provision effective March 15, 1986 (13:8 Md. R. 890) (Emergency provisions are temporary and not printed in COMAR)
Regulations .11 amended as an emergency provision effective July 16, 1987 (14:16 Md. R. 1767); emergency status extended at 14:18 Md. R. 1962 (Emergency provisions are temporary and not printed in COMAR)
Regulations .11 amended as an emergency provision effective September 23, 1987 (14:21 Md. R. 2217); adopted permanently effective February 8, 1988 (15:3 Md. R. 304)
Regulations .11 amended as an emergency provision effective March 9, 1989 (16:7 Md. R. 802); emergency status extended at 16:20 Md. R. 2178 and 17:3 Md. R. 295 (Emergency provisions are temporary and not printed in COMAR)
Regulation .11 amended effective November 17, 1986 (13:23 Md. R. 2480)
Regulation .11C amended effective February 13, 1995 (22:3 Md. R. 154)
Regulation .11E amended effective March 19, 1990 (17:5 Md. R. 638)
Regulations .11 adopted effective November 6, 1995 (22:22 Md. R. 1658)
Regulation .11 amended effective April 11, 2005 (32:7 Md. R. 680); adopted effective 50:22 Md. R. 975, eff. 12/1/2023