Sec. 10.21.01.09. Conduct of IVA Hearings

A. Powers and Duties of ALJ. An ALJ from the OAH shall conduct a hearing at the inpatient facility according to the rules of procedure outlined in COMAR 28.02.01.

B. Location. Unless the ALJ, for good cause, relocates a hearing, the hearing shall take place in the inpatient facility where the individual is confined, and the inpatient facility shall provide a room that:

(1) During the hearing, is used for no other purpose;

(2) Has sufficient space and adequate and appropriate furnishings to accommodate the ALJ, the parties, and any others participating in the hearing; and

(3) Includes a speaker telephone that is adequate for the purpose of taking testimony by telephone.

C. Rights of Parties.

(1) At a hearing, the parties have the right to:

(a) Be represented by counsel;

(b) Present witnesses;

(c) Cross-examine witnesses presented by the other party;

(d) Present documentary or other relevant evidence;

(e) Submit rebuttal evidence; and

(f) Present summation and argument.

(2) In addition, an individual has the right to:

(a) Wear the individual's own clothes; and

(b) Be present or waive the right to be present, if the waiver is:

(i) Knowingly and intelligently made;

(ii) Witnessed by the individual's counsel; and

(iii) Witnessed by the ALJ.

D. Record of Hearing.

(1) The ALJ shall make and maintain a record of the hearing, and the record shall:

(a) Be an audio recording of the oral proceedings before the ALJ;

(b) Include a full description of the documentary evidence submitted at the hearing, but may not include the physical evidence itself;

(c) Be maintained for a period of 3 years following the hearing; and

(d) Upon request, be made available to a party to the hearing or to a party's counsel or authorized representative to listen to the record.

(2) Upon request by a party to the hearing, the OAH shall transcribe the record, and the record shall be:

(a) Paid for by the requesting party in accordance with the charges established in State Government Article, §10-621, Annotated Code of Maryland, and COMAR 10.01.08.14; or

(b) Provided without cost to an individual who:

(i) Has filed an appeal in proper person; and

(ii) Is indigent.

E. Testimony.

(1) The ALJ shall require the inpatient facility to provide for the testimony of one of the following, who has personally examined the individual within 48 hours before the hearing:

(a) A psychiatrist;

(b) A physician in an accredited residency program in psychiatry if the physician in the residency program in psychiatry is under the supervision of the psychiatrist who is responsible for the treatment of the individual who is the subject of the hearing; or

(c) A psychologist.

(2) Unless the inpatient facility demonstrates exceptional and compelling circumstances, the ALJ shall require the examining psychiatrist, physician in the residency program in psychiatry identified under §E(1)(b) of this regulation, or psychologist, to testify in person at the hearing.

(3) If the ALJ determines that a certifying physician or, psychologist, has not submitted adequate information with the certificate and that additional testimony from the certifying physician or, psychologist, may materially assist the ALJ to make an informed decision, the ALJ may;

(a) Require the certifying physician or, psychologist, to attend and testify at the hearing; or

(b) Receive the testimony of the certifying physician or, psychologist, by telephone.

F. Burden of Proof. The burden of proof is on the inpatient facility to demonstrate by clear and convincing evidence that:

(1) The individual has a mental disorder;

(2) The individual needs inpatient care or treatment;

(3) The individual presents a danger to the life or safety of the individual or of others;

(4) The individual is unable or unwilling to be admitted voluntarily;

(5) There is no available, less restrictive form of intervention that is consistent with the welfare and safety of the individual; and

(6) If the individual is 65 years old or older and is being referred for admission to a State inpatient facility or VA hospital, a GES team has determined that there is no available, less restrictive form of care or treatment that is adequate for the needs of the individual.

G. Findings and Conclusions. After the evidence and testimony are presented, and following summation and argument by the parties, the ALJ shall:

(1) Consider all evidence and testimony of record;

(2) Rule on issues raised by the individual that relate to the process by which the:

(a) Individual was taken into and confined during observation status;

(b) Individual's admission status was changed according to the provisions of Regulation .08B of this chapter; or

(c) Individual is presented for a semiannual hearing under the provisions of Regulation .08C of this chapter;

(3) Order the release of the individual from the inpatient facility if:

(a) An error in the process occurred;

(b) The error in the process is substantial; and

(c) No other available remedy is consistent with due process and the protection of the individual's rights;

(4) Order the release of the individual from the inpatient facility unless the inpatient facility meets the burden of proof outlined in §F of this regulation;

(5) State on the record the:

(a) Findings, including whether the individual waived the right to attend the hearing;

(b) Conclusions of law on any relevant issue presented;

(c) Right of the individual to appeal the decision of the ALJ pursuant to State Government Article, §§10-215 and 10-216, Annotated Code of Maryland, and the procedure for requesting an appeal; and

(d) Right of the individual to seek judicial release from the inpatient facility pursuant to the provisions of Health-General Article, §§10-804 and 10-805, Annotated Code of Maryland; and

(6) Give to the individual a written decision which shall:

(a) Be on the form provided by the OAH;

(b) Include the conclusions and the rights enumerated under §G(5) of this regulation;

(c) State whether the inpatient facility has proven that the individual meets each of the requirements for IVA outlined in Health-General Article, §10-617, Annotated Code of Maryland, and §F of this regulation; and

(d) By copy, be:

(i) Given to the presenter;

(ii) Filed in the individual's medical record; and

(iii) If the individual is a minor, given to the individual's parent or guardian if the parent or guardian is present at the hearing.