Md. Code Regs. 13A.11.04.13

Current through Register Vol. 51, No. 18, September 6, 2024

Section 13A.11.04.13 - Administrative Review, Full Evidentiary Hearing, and Arbitration

A. Administrative Review.

(1) A vendor who is dissatisfied with any action, or actions, arising from the operation or administration of the program may obtain an administrative review of the action, or actions, by filing a written request within 15 calendar days of such action with the Director of the Office for Blindness and Vision Services (OBVS), Division of Rehabilitation Services stating the action, or actions, with which the vendor is dissatisfied and any remedy that the vendor seeks from the Division.

(2) Upon receipt of the written request, the Director of OBVS and the vendor shall determine a suitable date for the administrative review conference which shall be within 15 calendar days of the date on which the written request was received. The Director of OBVS shall provide written confirmation of the date, time, and place of the conference to the vendor and the availability of the Committee to assist in the appeal.

(3) Conduct of Administrative Review.

(a) The Director of OBVS shall conduct the administrative review conference in an informal manner in order to determine the merits of the dispute.

(b) The vendor may be accompanied to the conference by any person of the vendor's choosing.

(c) The Director of OBVS shall allow the vendor to fully explain the reasons for the request and the nature and type of any remedy that the vendor seeks from the Division.

(d) The conference may be recorded by any means if the parties determine that a recording is needed. If a record is made, the vendor shall be entitled to receive a copy promptly.

(4) Written Decision.

(a) After fully exploring the matter at the administrative review conference and considering the views of the vendor, the vendor's representative, and any representative of the Division, the Director of OBVS shall prepare a written determination affirming, reversing, or modifying the action, or actions, reviewed or make any other determination necessary to fully and fairly implement the purposes of the Randolph Sheppard Act and this chapter.

(b) The Director of OBVS shall set forth in the written determination a brief statement of the reasons for the determination.

(c) The Director of OBVS shall deliver or mail the written determination to the vendor and vendor's representative within 15 calendar days from the date of the conference.

(5) If the action or actions being reviewed is the result of a decision made by the Director of OBVS, the administrative review will be conducted by the immediate supervisor of the Director of OBVS or designee.

B. Full Evidentiary Hearing.

(1) Within 15 calendar days after receipt of an administrative review determination, a vendor may appeal the determination by filing a written request for a hearing with the Assistant State Superintendent in Rehabilitation Services stating the reasons for the appeal and the remedy that the vendor seeks from the Division.

(2) The Assistant Superintendent shall acknowledge in writing the receipt of the request for hearing and shall notify the vendor and the vendor's representative of the time, date, and place of the hearing within 15 calendar days after receipt of the request. The notice shall confirm the issues to be considered at the hearing, and the name of the hearing officer who will conduct the hearing.

(3) The hearing shall be held within 60 calendar days of the receipt of the request for hearing.

(4) The Assistant Superintendent may conduct the hearing or transfer the appeal to the Office of Administrative Hearings to conduct the hearing.

(5) The hearing officer shall conduct a fair and impartial hearing in an informal manner and in a fashion as to fully determine the issues presented.

(6) The parties shall have the following rights at the hearing:

(a) To be represented;

(b) To present witnesses;

(c) To cross-examine witnesses;

(d) To present documentary or other evidence which is relevant;

(e) To submit rebuttal evidence; and

(f) To present summation and argument.

(7) An authorized employee of the Division may participate in the hearing and present any evidence or testimony which is relevant.

(8) Evidence.

(a) The hearing officer shall admit into the record all relevant evidence.

(b) The hearing officer may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.

(c) Documentary evidence may be received in the form of copies unless the hearing officer determines that production of the original document is required to ensure a full and fair hearing.

(9) The hearing officer shall maintain a record of the hearing which shall include all physical evidence submitted by the vendor and the Division and a mechanical recording of the proceedings. The mechanical recording shall be transcribed if an appeal is filed by the vendor or upon payment of costs for the transcription by the vendor or other person entitled to access to the transcript.

(10) Ex Parte Communication.

(a) The hearing officer and any other Division official or employee authorized to participate in the decisional process, may not communicate outside the presence of the vendor or the vendor's representative with any person not authorized to participate in the decisional process regarding any issue of fact or law in the case.

(b) If the hearing officer or any official or employee involved in the decisional process becomes personally aware of the prohibited communication, that person shall follow the procedures of the State Government Article, § 10-213, Annotated Code of Maryland, concerning these communications.

(11) Written Decision.

(a) Upon conclusion of the hearing the hearing officer shall issue a written decision.

(b) If the hearing officer is the Assistant Superintendent, the decision shall contain final findings of fact and conclusions of law, separately stated.

(c) If the hearing officer is not the Assistant Superintendent, the decision issued shall contain proposed findings of facts and conclusions of law, separately stated.

(d) The decision shall affirm, modify, or reverse the administrative review determination and shall be delivered or mailed to the vendor and the vendor's authorized representative within 15 calendar days after the conclusion of the hearing.

(12) Exceptions.

(a) Upon receipt of a decision containing proposed findings of fact and conclusions of law, the vendor shall have 15 calendar days to file written exceptions to the decision with the Assistant Superintendent.

(b) If written exceptions are filed, the vendor shall state in writing whether the vendor desires to present argument before the Assistant Superintendent on the points of exception.

(c) If a request for argument is timely filed or if the Assistant Superintendent determines that argument would assist in resolving the appeal, the Assistant Superintendent shall schedule the case for argument.

(d) The argument before the Assistant Superintendent shall be limited to oral presentation of reasons for the points of exception.

(e) New or additional evidence may not be allowed into the record.

(f) After consideration of the exceptions and oral argument, if any, the Assistant Superintendent shall issue the final written decision in the case to affirm, reverse, or modify the hearing officer's decisions.

(g) The final decision shall be delivered or mailed to the vendor and the vendor's representative within 20 calendar days of receipt of the written exception or oral argument, whichever is later, and implemented promptly.

(13) When a final decision of the Division is issued, the Assistant Superintendent shall include with the decision a written statement of the right to file a complaint with the Secretary of the United States Department of Education, which is available to the vendor under 34 CFR § 395.13, to request the Secretary of the United States Department of Education to convene an ad hoc arbitration panel.

(14) The Division shall maintain a separate file of final hearing decisions issued which shall be available for public inspection. Before placing these decisions in the file, the Division shall delete any names or references in the decision which would allow identification of any vendor or other person.

(15) The Division shall arrange for interpretative or reader services for those persons who require assistance in exercising their rights under this regulation.

Md. Code Regs. 13A.11.04.13

Regulation .13A amended effective December 6, 2007 (34:24 Md. R. 2159)
Regulation .13 amended effective 42:14 Md. R. 881, eff.7/20/2015