Issue Date: August 12, 2011 -...

IN THIS ISSUE Open Meetings Compliance Board Judiciary Regulatory Review and Evaluation Regulations General Notices

Volume 38 • Issue 17 • Pages 989—1042

Pursuant to State Government Article, §7-206, Annotated Code of Maryland, this issue contains all previously unpublished documents required to be published, and filed on or before July 25, 2011, 5 p.m. Pursuant to State Government Article, §7-206, Annotated Code of Maryland, I hereby certify that this issue contains all documents required to be codified as of July 25, 2011.

Brian Morris Acting Administrator, Division of State Documents

Office of the Secretary of State

Issue Date: August 12, 2011

Information About the Maryland Register and COMAR MARYLAND REGISTER

The Maryland Register is an official State publication published every other week throughout the year. A cumulative index is published quarterly. The Maryland Register is the temporary supplement to the Code of Maryland Regulations. Any change to the text of regulations published in COMAR, whether by adoption, amendment, repeal, or emergency action, must first be published in the Register. The following information is also published regularly in the Register: • Governor’s Executive Orders • Attorney General’s Opinions in full text • Open Meetings Compliance Board Opinions in full text • State Ethics Commission Opinions in full text • Court Rules • District Court Administrative Memoranda • Courts of Appeal Hearing Calendars • Agency Hearing and Meeting Notices • Synopses of Bills Introduced and Enacted by the General Assembly • Other documents considered to be in the public interest

CITATION TO THE MARYLAND REGISTER The Maryland Register is cited by volume, issue, page number, and date. Example: • 19:8 Md. R. 815—817 (April 17, 1992) refers to Volume 19, Issue 8, pages 815—817 of the Maryland Register issued on April 17, 1992.

CODE OF MARYLAND REGULATIONS (COMAR) COMAR is the official compilation of all regulations issued by agencies of the State of Maryland. The Maryland Register is COMAR’s temporary supplement, printing all changes to regulations as soon as they occur. At least once annually, the changes to regulations printed in the Maryland Register are incorporated into COMAR by means of permanent supplements.

CITATION TO COMAR REGULATIONS COMAR regulations are cited by title number, subtitle number, chapter number, and regulation number. Example: COMAR 10.08.01.03 refers to Title 10, Subtitle 08, Chapter 01, Regulation 03.

DOCUMENTS INCORPORATED BY REFERENCE Incorporation by reference is a legal device by which a document is made part of COMAR simply by referring to it. While the text of an incorporated document does not appear in COMAR, the provisions of the incorporated document are as fully enforceable as any other COMAR regulation. Each regulation that proposes to incorporate a document is identified in the Maryland Register by an Editor’s Note. The Cumulative Table of COMAR Regulations Adopted, Amended or Repealed, found online, also identifies each regulation incorporating a document. Documents incorporated by reference are available for inspection in various depository libraries located throughout the State and at the Division of State Documents. These depositories are listed in the first issue of the Maryland Register published each year. For further information, call 410-974-2486.

HOW TO RESEARCH REGULATIONS An Administrative History at the end of every COMAR chapter gives information about past changes to regulations. To determine if there have been any subsequent changes, check the ‘‘Cumulative Table of COMAR Regulations Adopted, Amended, or Repealed’’ which is found online at www.dsd.state.md.us/CumulativeIndex.pdf. This table lists the regulations in numerical order, by their COMAR number, followed by the citation to the Maryland Register in which the change occurred. The Maryland Register serves as a temporary supplement to COMAR, and the two publications must always be used together. A Research Guide for Maryland Regulations is available. For further information, call 410-260-3876.

SUBSCRIPTION INFORMATION For subscription forms for the Maryland Register and COMAR, see the back pages of the Maryland Register. Single issues of the Maryland Register are $15.00 per issue.

CITIZEN PARTICIPATION IN THE REGULATION-MAKING PROCESS

Maryland citizens and other interested persons may participate in the process by which administrative regulations are adopted, amended, or repealed, and may also initiate the process by which the validity and applicability of regulations is determined. Listed below are some of the ways in which citizens may participate (references are to State Government Article (SG), Annotated Code of Maryland): • By submitting data or views on proposed regulations either orally or in writing, to the proposing agency (see ‘‘Opportunity for Public Comment’’ at the beginning of all regulations appearing in the Proposed Action on Regulations section of the Maryland Register). (See SG, §10-112) • By petitioning an agency to adopt, amend, or repeal regulations. The agency must respond to the petition. (See SG §10-123) • By petitioning an agency to issue a declaratory ruling with respect to how any regulation, order, or statute enforced by the agency applies. (SG, Title 10, Subtitle 3) • By petitioning the circuit court for a declaratory judgment on the validity of a regulation when it appears that the regulation interferes with or impairs the legal rights or privileges of the petitioner. (SG, §10-125) • By inspecting a certified copy of any document filed with the Division of State Documents for publication in the Maryland Register. (See SG, §7-213) Maryland Register (ISSN 0360-2834). Postmaster: Send address changes and other mail to: Maryland Register, State House, Annapolis, Maryland 21401. Tel. 410-260-3876; Fax 410-280-5647. Published biweekly, with cumulative indexes published quarterly, by the State of Maryland, Division of State Documents, State House, Annapolis, Maryland 21401. The subscription rate for the Maryland Register is $225 per year (first class mail). All subscriptions post-paid to points in the U.S. periodicals postage paid at Annapolis, Maryland and additional mailing offices. Martin O’Malley, Governor; John P. McDonough, Secretary of State; Brian Morris, Acting Administrator; Gail S. Klakring, Senior Editor; Mary D. MacDonald, Editor, Maryland Register and COMAR; Elizabeth Ramsey, Editor, COMAR Online, and Subscription Manager; Tami Cathell, Help Desk, COMAR and Maryland Register Online. Front cover: State House, Annapolis, MD, built 1772—79. Illustrations by Carolyn Anderson, Dept. of General Services

Note: All products purchased are for individual use only. Resale or other compensated transfer of the information in printed or electronic form is a prohibited commercial purpose (see State Government Article, §7-206.2, Annotated Code of Maryland). By purchasing a product, the buyer agrees that the purchase is for individual use only and will not sell or give the product to another individual or entity.

Contents 991

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011

Closing Dates for the Maryland Register Schedule of Closing Dates and Issue Dates for the

Maryland Register .................................................................... 993

COMAR Research Aids Table of Pending Proposals .......................................................... 994

Index of COMAR Titles Affected in This Issue COMAR Title Number and Name Page

04 Department of General Services ..................................... 1017 07 Department of Human Resources ................................... 1018 08 Department of Natural Resources ............... 1011, 1012, 1020 09 Department of Labor, Licensing, and Regulation ........... 1027 10 Department of Health and Mental Hygiene .......... 1012, 1028 12 Department of Public Safety and Correctional Services .... 1016 13A State Board of Education ...................................... 1013, 1038 14 Independent Agencies ................................. 1011, 1016, 1039 26 Department of the Environment ...................................... 1014 31 Maryland Insurance Administration ............................... 1039 33 State Board of Elections .................................................. 1014

PERSONS WITH DISABILITIES Individuals with disabilities who desire assistance in using the publications and services of the Division of State Documents are encouraged to call (410) 974-2486, or (800) 633-9657, or FAX to (410) 974-2546, or through Maryland Relay.

Open Meetings Compliance Board OPINIONS............................................................................. 996 OPINIONS............................................................................. 996 OPINIONS............................................................................. 998 OPINIONS........................................................................... 1004

The Judiciary COURT OF APPEALS OF MARYLAND

SCHEDULE .................................................................... 1007 COURT OF SPECIAL APPEALS

SCHEDULE FOR SEPTEMBER 1, 2, 6, 7, 8, 9, 12, 13, 14, 15, 16, 2011 .................................................................. 1007

Regulatory Review and Evaluation 15 DEPARTMENT OF AGRICULTURE

Notice of Availability of Evaluation Report .................... 1010

Emergency Action on Regulations 08 DEPARTMENT OF NATURAL RESOURCES

FISHERIES SERVICE Oysters ............................................................................. 1011 Shellfish ........................................................................... 1011

14 INDEPENDENT AGENCIES STATE LOTTERY AGENCY

Video Lottery Terminals.................................................. 1011

Final Action on Regulations 08 DEPARTMENT OF NATURAL RESOURCES

FISHERIES SERVICE Fish .................................................................................. 1012 Fish .................................................................................. 1012

BOATING — SPEED LIMITS AND OPERATION OF VESSELS

Patuxent River ................................................................. 1012 10 DEPARTMENT OF HEALTH AND MENTAL HYGIENE

DRUGS Purchase and Distribution of Prescription Drugs and Devices......................................................................... 1012

FOOD Shellfish Sanitation.......................................................... 1012

MARYLAND HEALTH CARE COMMISSION Institutional Review Board.............................................. 1013

BOARD OF EXAMINERS OF PSYCHOLOGISTS Child Custody Evaluations in Family Law Proceedings.... 1013

BOARD OF PROFESSIONAL COUNSELORS AND THERAPISTS

Supervision Requirements............................................... 1013 13A STATE BOARD OF EDUCATION

SCHOOL PERSONNEL Comprehensive Teacher Induction Program ................... 1013

26 DEPARTMENT OF THE ENVIRONMENT AIR QUALITY

General Administrative Provisions.................................. 1014 General Administrative Provisions.................................. 1014 Control of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations .................................................................. 1014 Permits, Approvals, and Registration .............................. 1014

33 STATE BOARD OF ELECTIONS PROVISIONAL VOTING

Provisional Voting Documents and Supplies .................. 1014 EARLY VOTING

Early Voting Centers ....................................................... 1015 Early Voting Center Equipment and Materials................ 1015 Non-Voting Hours Procedures ........................................ 1015

Withdrawal of Regulations 12 DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

SEX OFFENDER REGISTRATION Administration of Sex Offender Registration .................. 1016 Administration of Juvenile Sex Offender Listing............ 1016

14 INDEPENDENT AGENCIES WORKERS' COMPENSATION COMMISSION

Procedural Regulations.................................................... 1016

Proposed Action on Regulations 04 DEPARTMENT OF GENERAL SERVICES

OFFICE OF THE SECRETARY Public Information Requests ........................................... 1017

BUILDINGS AND GROUNDS General Regulations ........................................................ 1017

07 DEPARTMENT OF HUMAN RESOURCES CHILD SUPPORT ENFORCEMENT ADMINISTRATION

General Information ........................................................ 1018 Establishment of Paternity............................................... 1019 Establishment of Support Obligation............................... 1019 Enforcement of Support Obligation................................. 1020

08 DEPARTMENT OF NATURAL RESOURCES FISHERIES SERVICE

General ............................................................................ 1020 Fishing in Nontidal Waters.............................................. 1020 Nuisance and Prohibited Species..................................... 1020

Contents 992


Shellfish........................................................................... 1022 Fishing in Nontidal Waters .............................................. 1023

FORESTS AND PARKS Licensed Tree Experts ..................................................... 1026

09 DEPARTMENT OF LABOR, LICENSING, AND REGULATION

RACING COMMISSION Thoroughbred Rules ........................................................ 1027

COMMISSION OF REAL ESTATE APPRAISERS AND HOME INSPECTORS — REAL ESTATE APPRAISERS

Fees.................................................................................. 1028 10 DEPARTMENT OF HEALTH AND MENTAL HYGIENE

MEDICAL CARE PROGRAMS Medical Day Care Services.............................................. 1028 Early and Periodic Screening, Diagnosis, and Treatment: Private Duty Nursing .................................................... 1029 Home/Community Based Services Waiver for Older Adults ........................................................................... 1030 Living at Home Waiver Program..................................... 1031 Home and Community-Based Services Waiver for Children with Autism Spectrum Disorder ................................... 1033

BOARD OF PHARMACY Infusion Pharmacy Services in an Alternate Site Care Environment ................................................................. 1034

13A STATE BOARD OF EDUCATION CERTIFICATION

Specialists ........................................................................ 1038 14 INDEPENDENT AGENCIES

STATE LOTTERY AGENCY Video Lottery Terminals.................................................. 1039

31 MARYLAND INSURANCE ADMINISTRATION HEALTH MAINTENANCE ORGANIZATIONS; ENTITIES THAT ACT AS HEALTH INSURERS

Payments to Nonparticipating Providers.......................... 1039

General Notices BOARD OF ARCHITECTS

Public Meeting................................................................. 1041 ATHLETIC COMMISSION

Public Meeting................................................................. 1041 CHESAPEAKE BAY TRUST

Public Meeting................................................................. 1041 BOARD FOR THE CERTIFICATION OF RESIDENTIAL CHILD CARE PROGRAM ADMINISTRATORS

Public Meeting................................................................. 1041 MARYLAND COLLECTION AGENCY LICENSING BOARD

Public Meeting on Regulations........................................ 1041 GOVERNOR’S OFFICE OF CRIME CONTROL AND PREVENTION

Public Meeting................................................................. 1041 Public Meeting................................................................. 1041

MARYLAND STATE BOARD OF EDUCATION Public Meeting................................................................. 1041

ELEVATOR SAFETY REVIEW BOARD Public Meeting................................................................. 1041

DEPARTMENT OF HEALTH AND MENTAL HYGIENE/MARYLAND BOARD OF PHYSICIANS

Public Meeting................................................................. 1041 DEPARTMENT OF HEALTH AND MENTAL HYGIENE/ LABORATORIES ADMINISTRATION

Public Meeting................................................................. 1041

BOARD OF HEATING, VENTILATION, AIR- CONDITIONING, AND REFRIGERATION CONTRACTORS (HVACR)

Public Meeting ................................................................ 1041 MARYLAND STATE LOTTERY COMMISSION

Public Meeting ................................................................ 1041 MARYLAND HEALTH CARE COMMISSION

Public Meeting ................................................................ 1042 Formal Start of Review ................................................... 1042 Formal Start of Review ................................................... 1042

BOARD OF PODIATRIC MEDICAL EXAMINERS Public Meeting ................................................................ 1042 Public Meeting ................................................................ 1042 Public Meeting ................................................................ 1042 Public Meeting ................................................................ 1042

PROCUREMENT ADVISORY COUNCIL (PAC) Public Hearing................................................................. 1042

BOARD OF PUBLIC ACCOUNTANCY Public Meeting ................................................................ 1042

COMMISSION TO COORDINATE THE STUDY, COMMEMORATION, AND IMPACT OF SLAVERY’S HISTORY AND LEGACY IN MARYLAND

Public Meeting ................................................................ 1042 MARYLAND TRANSPORTATION AUTHORITY

Public Meeting ................................................................ 1042 WORKERS’ COMPENSATION COMMISSION

Public Meeting ................................................................ 1042

.COMAR Online The Code of Maryland Regulations is available at www.dsd.state.md.us as a free service of the Office of the Secretary of State, Division of State Documents. The full text of regulations is available and searchable. Note, however, that the printed COMAR continues to be the only official and enforceable version of COMAR. The Maryland Register is also available at www.dsd.state.md.us. For additional information, visit www.sos.state.md.us, Division of State Documents, or call us at (410) 974-2486 or 1 (800) 633-9657.

Availability of Monthly List of Maryland Documents The Maryland Department of Legislative Services receives copies of all publications issued by State officers and agencies. The Department prepares and distributes, for a fee, a list of these publications under the title ‘‘Maryland Documents’’. This list is published monthly, and contains bibliographic information concerning regular and special reports, bulletins, serials, periodicals, catalogues, and a variety of other State publications. ‘‘Maryland Documents’’ also includes local publications. Anyone wishing to receive ‘‘Maryland Documents’’ should write to: Legislative Sales, Maryland Department of Legislative Services, 90 State Circle, Annapolis, MD 21401.

http://www.dsd.state.md.us/�

http://www.sos.state.md/�

Contents 993


CLOSING DATES and ISSUE DATES through

JANUARY 27, 2012

Issue Date

Emergency and Proposed Regulations

5:00 p.m.

Final Regulations 10:30 a.m.

Notices, etc. 10:30 a.m.

August 26 August 8 August 17 August 15 September 9** August 22 August 30 August 26 September 23** September 2 September 14 September 12 October 7 September 19 September 28 September 26 October 21** October 3 October 12 October 7 November 4 October 17 October 26 October 24 November 18** October 31 November 8 November 4 December 2** November 14 November 18 November 16 December 16 November 28 December 7 December 5 December 30 December 12 December 21 December 19 January 13** December 23 January 4 December 30 January 27 January 9 January 18 January 16

* Due date for documents containing 8 to 18 pages—48 hours before date shown Due date for documents exceeding 18 pages—1 week before date shown NOTE: ALL DOCUMENTS MUST BE SUBMITTED IN TIMES NEW ROMAN, 9-POINT, SINGLE-SPACED FORMAT. THE REVISED PAGE COUNTS REFLECT THIS FORMATTING REQUIREMENT. ** Note closing date changes The regular closing date for Proposals and Emergencies is Monday.

994


Cumulative Table of COMAR Regulations Adopted, Amended, or Repealed

This table, previously printed in the Maryland Register lists the regulations, by COMAR title, that have been adopted, amended, or repealed in the Maryland Register since the regulations were originally published or last supplemented in the Code of Maryland Regulations (COMAR). The table is no longer printed here but may be found on the Division of State Documents website at www.dsd.state.md.us.

Table of Pending Proposals The table below lists proposed changes to COMAR regulations. The proposed changes are listed by their COMAR number, followed by a citation to that issue of the Maryland Register in which the proposal appeared. Errata pertaining to proposed regulations are listed, followed by “(err)”. Regulations referencing a document incorporated by reference are followed by “(ibr)”. None of the proposals listed in this table have been adopted. A list of adopted proposals appears in the Cumulative Table of COMAR Regulations Adopted, Amended, or Repealed.

03 COMPTROLLER OF THE TREASURY 03.02.06.01—.04 • 37:3 Md. R. 181 (1-29-10) 03.06.01.44 • 38:13 Md. R. 758 (6-17-11)

04 DEPARTMENT OF GENERAL SERVICES

04.01.01.13 • 38:17 Md. R. 1017 (8-12-11) 04.05.01.02 • 38:17 Md. R. 1017 (8-12-11)

05 DEPARTMENT OF HOUSING AND COMMUNITY

DEVELOPMENT

05.05.07.01—.31 • 37:20 Md. R. 1398 (09-24-10)

07 DEPARTMENT OF HUMAN RESOURCES

07.02.04.08 • 38:16 Md. R. 947 (7-29-11) 07.02.13.04 • 38:13 Md. R. 759 (6-17-11) 07.03.05.10 • 38:16 Md. R. 948 (7-29-11) 07.07.02.04,.05 • 38:17 Md. R. 1018 (8-12-11) 07.07.04.03 • 38:17 Md. R. 1019 (8-12-11) 07.07.05.03,.04 • 38:17 Md. R. 1019 (8-12-11) 07.07.06.05,.06 • 38:17 Md. R. 1020 (8-12-11)

08 DEPARTMENT OF NATURAL RESOURCES

08.02.01.09 • 38:17 Md. R. 1020 (8-12-11) 08.02.04.13 • 38:16 Md. R. 949 (7-29-11) 08.02.04.15 • 38:16 Md. R. 950 (7-29-11) 08.02.08.05 • 38:17 Md. R. 1022 (8-12-11) 08.02.11.01—.05,.07—.09 • 38:17 Md. R. 1023 (8-12-11) 08.02.11.10,.11 • 38:17 Md. R. 1020 (8-12-11) 08.02.19.04,.08 • 38:17 Md. R. 1020 (8-12-11) 08.03.03.01,.07,.08 • 38:16 Md. R. 951 (7-29-11) 08.03.04.22 • 38:14 Md. R. 791 (7-1-11) 08.03.14.03 • 38:15 Md. R. 900 (7-15-11) 08.07.07.07,.08 • 38:17 Md. R. 1026 (8-12-11) 08.18.14.05 •38:14 Md. R. 792 (7-1-11)

09 DEPARTMENT OF LABOR, LICENSING, AND REGULATION

09.03.13.01,.02 •38:14 Md. R. 793 (7-1-11) 09.10.01.49 • 38:17 Md. R. 1027 (8-12-11) 09.12.28.01—.07 •38:14 Md. R. 794 (7-1-11) (ibr) 09.15.02.12 •37:23 Md. R. 1614 (11-5-10) 09.16.01.05,.06 • 38:15 Md. R. 901 (7-15-11) 09.19.07.01 • 38:17 Md. R. 1028 (8-12-11) 09.20.04.01,.02 • 37:4 Md. R. 346 (2-12-10) 38:3 Md. R. 176 (1-28-11) 09.22.01.10,.11 • 38:15 Md. R. 901 (7-15-11) 09.24.05.03 • 38:16 Md. R. 952 (7-29-11) 09.37.01.04,.06,.08,.11,.17,.18 • 38:16 Md. R. 954 (7-29-11)

10 DEPARTMENT OF HEALTH AND MENTAL HYGIENE Subtitles 01 — 08 (1st Volume) 10.01.04.01—.11 • 38:3 Md. R. 180 (1-28-11) 38:14 Md. R. 800 (7-1-11) 10.07.05.01—.28 • 38:4 Md. R. 269 (2-11-11) Subtitle 09 (2nd Volume) 10.09.03.01,.03—.05,.05-1,.06,.07 • 38:16 Md. R. 955 (7-29-11) 10.09.04.01,.03 • 38:9 Md. R. 555 (4-22-11) 10.09.07.08 • 38:17 Md. R. 1028 (8-12-11) 10.09.10.01,.03,.15 •38:14 Md. R. 802 (7-1-11) 10.09.10.07-1 • 38:15 Md. R. 902 (7-15-11) 10.09.20.01,.04—.06 • 38:16 Md. R. 961 (7-29-11) 10.09.24.13 • 38:3 Md. R. 180 (1-28-11) 38:14 Md. R. 800 (7-1-11) 10.09.53.07 • 38:17 Md. R. 1029 (8-12-11) 10.09.54.33 • 38:17 Md. R. 1030 (8-12-11) 10.09.55.29 • 38:17 Md. R. 1031 (8-12-11) 10.09.56.22 • 38:17 Md. R. 1033 (8-12-11) 10.09.81.01—.07 • 37:20 Md. R. 1409 (09-24-10)

PENDING PROPOSALS 995


Subtitles 10 — 22 (3rd Volume) 10.10.01.03 • 37:25 Md. R. 1745 (12-3-10) 10.10.03.02 • 37:25 Md. R. 1745 (12-3-10) 10.10.06.02 • 37:25 Md. R. 1745 (12-3-10) 10.21.22.07 • 38:15 Md. R. 902 (7-15-11) Subtitles 23 — 36 (4th Volume) 10.24.05.04 • 38:16 Md. R. 962 (7-29-11) 10.25.08.01—.06 • 38:16 Md. R. 962 (7-29-11) 10.25.16.01—.07 • 38:16 Md. R. 964 (7-29-11) 10.26.01.03 • 38:16 Md. R. 968 (7-29-11) 10.26.02.07 • 38:16 Md. R. 968 (7-29-11) 10.27.11.02,.04,.05 •37:21 Md. R. 1456 (10-8-10) 10.27.12.03 • 38:16 Md. R. 968 (7-29-11) 10.32.03..01—.16 •38:14 Md. R. 803 (7-1-11) 10.34.03.01—.18 • 38:12 Md. R. 716 (6-3-11) 10.34.28.01,.02,.04—.12 • 36:25 Md. R. 1965 (12-4-09) 10.34.28.01,.02,.04—.14 • 38:2 Md. R. 93 (1-14-11) 10.34.35.01—.10 • 38:17 Md. R. 1034 (8-12-11) Subtitles 37—59 (5th Volume) 10.37.07.01—.07 • 38:12 Md. R. 722 (6-3-11) 10.41.03.06 • 38:11 Md. R. 674 (5-20-11) 10.44.21.01,.02,.04,.05,.10,.11 • 38:11 Md. R. 674 (5-20-11) 10.44.30.01—.05 •38:14 Md. R. 812 (7-1-11) 10.53.04.03 • 38:16 Md. R. 969 (7-29-11) 10.53.12.01 • 38:16 Md. R. 969 (7-29-11) 10.54.02.18 • 38:16 Md. R. 970 (7-29-11)

11 DEPARTMENT OF TRANSPORTATION

11.11.05.03 • 38:15 Md. R. 903 (7-15-11) 11.15.16.05 • 38:15 Md. R. 903 (7-15-11)

12 DEPARTMENT OF PUBLIC SAFETY AND

CORRECTIONAL SERVICES 12.02.28.01—.23 • 37:24 Md. R. 1674 (11-19-10) 12.04.01.02 • 38:9 Md. R. 556 (4-22-11) 12.10.01.04—.06,.08,.09,.14—.17, .19—.27 • 38:15 Md. R. 904 (7-15-11) 12.10.04.01—.31 • 38:15 Md. R. 904 (7-15-11) 12.10.05.01 • 38:15 Md. R. 904 (7-15-11) 12.10.06.01—.16 • 38:15 Md. R. 904 (7-15-11)

13A STATE BOARD OF EDUCATION 13A.01.02.05 •38:14 Md. R. 814 (7-1-11) 13A.06.01.01—.03 • 38:12 Md. R. 723 (6-3-11) 13A.06.02.01—.05 • 38:16 Md. R. 971 (7-29-11) 13A.07.04.01.,01-1,.05,.06 •37:16 Md. R. 1082 (7-30-10) (ibr) 13A.12.02.27 •38:14 Md. R. 815 (7-1-11) 13A.12.03.02,.03,.11 • 38:17 Md. R. 1038 (8-12-11)

13B MARYLAND HIGHER EDUCATION COMMISSION 13B.02.01.04,.05,.07,.08 •38:14 Md. R. 815 (7-1-11) 13B.02.02.04,.06 •38:14 Md. R. 815 (7-1-11) 13B.02.03.02-1 •38:14 Md. R. 815 (7-1-11) 13B.02.04.03 •38:14 Md. R. 815 (7-1-11)

14 INDEPENDENT AGENCIES 14.01.10.13 • 38:17 Md. R. 1039 (8-12-11) 14.01.13.02 • 38:13 Md. R. 762 (6-17-11) 14.09.03.01,.04,.09 • 38:3 Md. R. 207 (1-28-11) 14.32.05.02 •37:1 Md. R. 33 (1-4-10) 37:15 Md. R. 1020 (7-16-10)

15 DEPARTMENT OF AGRICULTURE

15.15.01.01-2,.17 •38:14 Md. R. 817 (7-1-11)

17 DEPARTMENT OF BUDGET AND MANAGEMENT

17.04.13.01,.03 • 38:16 Md. R. 973 (7-29-11)

20 PUBLIC SERVICE COMMISSION

20.50.01.03,.05 • 38:5 Md. R. 332 (2-25-11) 20.50.10.01—.08 • 38:5 Md. R. 332 (2-25-11)

22 STATE RETIREMENT AND PENSION SYSTEM

22.01.14.01—.03 •38:14 Md. R. 818 (7-1-11) 22.07.02.04 •38:14 Md. R. 819 (7-1-11)

26 DEPARTMENT OF THE ENVIRONMENT

Subtitles 08 — 12 (Part 2) 26.11.02.01 •38:14 Md. R. 821 (7-1-11) (err) 26.11.09.01,.02,.10 • 38:2 Md. R. 112 (1-14-11) 26.11.19.11 • 38:9 Md. R. 565 (4-22-11) 26.12.01.01 •38:14 Md. R. 820 (7-1-11) (ibr) Subtitles 13—18 (Part 3) 26.17.01.01 • 37:19 Md. R. 1329 (9-10-10) (err) 26.17.01.01—.11 • 37:18 Md. R. 1244 (8-27-10) (ibr) 26.17.01.09 • 37:19 Md. R. 1329 (9-10-10) (err)

29 MARYLAND STATE POLICE 29.06.06.01—.07 • 36:20 Md. R. 1554 (9-25-09)

30 MARYLAND INSTITUTE FOR EMERGENCY MEDICAL

SERVICES SYSTEMS (MIEMSS)

30.04.02.12 • 38:15 Md. R. 922 (7-15-11) 30.04.03.17 • 38:15 Md. R. 922 (7-15-11) 30.04.04.15 • 38:15 Md. R. 922 (7-15-11) 30.08.02.03,.04,.07,.10 • 38:15 Md. R. 922 (7-15-11) 30.08.17.01—.19 • 38:15 Md. R. 924 (7-15-11)

31 MARYLAND INSURANCE ADMINISTRATION

31.04.17.13 • 38:15 Md. R. 929 (7-15-11) 31.10.41.01—.07 • 38:12 Md. R. 730 (6-3-11) 31.12.08.04 • 38:17 Md. R. 1039 (8-12-11)

34 DEPARTMENT OF PLANNING

34.05.01.01—.04 • 38:6 Md. R. 401 (3-11-11)

996


Open Meetings Compliance Board

OPINIONS (Revised)

April 21, 2011 Complainant: Craig O’Donnell Kent County News

Respondent: Maryland Transportation Authority

The Open Meetings Compliance Board has considered the complaint of Craig O’Donnell “Complainant”) that the Maryland Transportation Authority (“Authority”) violated the Open Meetings Act (“Act”) by omitting from its minutes of an open session a description of the topics discussed in a prior closed session. The Authority agrees with Complainant: the minutes of its January 27, 2011 open meeting did not state the topics that were discussed in the closed meeting held that day.1 The open session minutes state merely that “the members unanimously voted to move into Closed Session pursuant to Section 10-508(a)(12) of the State Government Article ... to discuss an investigative proceeding on actual or possible criminal conduct.” Section 10-509(c)(2) of the State Government Article (“SG”) requires public bodies which have met in closed session to include in the minutes for their next open session “a listing of the topics of discussion, persons present, and each action taken during the session.” We have “repeatedly noted that the mere parroting of the statutory exception is not acceptable.” 4 OMCB Opinions 38, 41 (2004). The Authority thus violated the Act by omitting from its minutes the content required by §10-509(c)(2), and it has since corrected them. The Authority states that its omission (and hence violation of the Act) was inadvertent and that it posted its closing statement on its website. The closing statement provisions of the Act appear in SG §10-508 and are distinct from the minutes provisions set forth in SG §10-509. See 3 OMCB Opinions 173, 178 (2002)(explaining the Act’s “three distinct public disclosure mandates in connection [with] a closed meeting”). The topic description in the January 27, 2011 closing statement goes well beyond “mere boilerplate” and thus complies with SG §10-508(d)(2). It reads:

The meeting will be closed under [SG §10-508(a)(12)] to permit the MDTA Chief Police officer to discuss an ongoing criminal investigation resulting from package incidents at the Maryland Department of Transportation headquarters and other locations.

We find that while the Authority’s closing statement complied with the Act, its minutes did not.

OPEN MEETINGS COMPLIANCE BOARD Elizabeth L. Nilson, Esquire Courtney J. McKeldin Julio A. Morales, Esquire

[11-17-26]

1 This opinion replaces an earlier opinion, in which we mistook the

concession made by the Authority.

OPINIONS April 21, 2011

Complaint: Dr. Douglas E. Edwards

Respondent: Prince George’s County Council

The Open Meetings Compliance Board has considered the complaint of Dr. Douglas E. Edwards (“Complainant”) that the Prince George’s County Council (“Council”) violated the Open Meetings Act (the “Act”) and other laws on December 7, 2010 with respect to its decision in a closed session that Council Member Leslie E. Johnson would not be appointed to any committees. We have also considered the Council’s response and exhibits. For the reasons stated below, we conclude that the Council did not violate the Act. We lack the authority to address the allegations that the Council violated other laws.

I Facts and Contentions

On December 7, 2010, the Prince George’s County Council met to elect its officers and discuss committee assignments for the 2011 legislative year. Under the Council’s Rules of Procedure (“Council Rules”), the Council elects its officers, while the Council committees “shall be appointed by the Chairman upon the advice and consent of a majority of the full Council.” The Council elected its Chair and Vice Chair in open session. It then unanimously approved a written “Motion for a closed session.” The motion states that the purpose of the closed meeting was “To discuss personnel issues in accordance with Section 10-508(a)(1)State Government [“SG”] Article, and to consult with legal counsel in accordance with Section 10-508 (a)(7) ..., Annotated Code of Maryland.” The “Topics to be discussed” were “To discuss specific committee assignments for the upcoming legislative year and to consult with legal counsel to receive advice on the scope of councilmanic authority within County and State law.” The open-session minutes of the December 7 meeting reflect counsel’s presence at the closed session and describe the matters addressed there:

Discussion of specific committee assignments for the upcoming legislative year; Counsel provided legal advice on the scope of councilmanic authority within County and State law. Discussion of scope of councilmanic authority to make appointments. Discussion of Committee assignments for Council Member Johnson. Approved the following assignments: Council Member Johnson will have no Committee assignments; the full Council to take a more active role in District six development projects and throughout the County; Council Member Johnson will not represent the Council to any external bodies.

We have reviewed the minutes of the closed session. They do not suggest that the Council discussed or acted on other matters. The Council issued a press release later on the day of the meeting. The press release announced the committee assignments made that day and reported on statements made by the Chair during a press conference after the Council session. According to the press release, the Chair “said the Council had reached a decision on the role Council Member Leslie Johnson (D) – District 6, will have in

OPEN MEETINGS COMPLIANCE BOARD 997


legislative year 2011.” As quoted in the press release, the Chair further stated:

While Mrs. Johnson is under federal charges the Council is proceeding with an abundance of caution by taking the following measures to ensure the effectiveness of this body and to avoid any appearance of impropriety. Mrs. Johnson will have no committee assignments; the full Council will take a more active role in development projects in District 6 and throughout all of Prince George’s County; and she will not officially represent the County Council to any external bodies.

The press release also reported the Council’s election of officers. Complainant asserts that the Council “failed to provide accurate information to the general public on the specific nature and purpose for the closed meeting,” that the Council’s “actions were not sealed as required, but disclosed during a press conference,” that “the information provided in the press release is not consistent with the stated purpose for the meeting...,” and that the “action taken during the [closed session] should be declared invalid.” Complainant additionally contends that the Council’s action “prevents Mrs. Johnson from representing the residents of district 6” in violation of the County Charter. Complainant’s attachments show that he has communicated to the Council his concern that Council Member Johnson’s inability to serve on committees will have a negative impact on the district. The Council responds that the “discussion of committee assignments for Council Member Johnson [fell] squarely within...Section 10-508(a)(1) of the Act,” that the Act does not prohibit the public disclosure of actions taken in a closed session, and that this Board lacks the authority to address the alleged violations of the County Charter. 2

II Discussion

We begin with the allegation that the Council’s motion to close (“closing statement”) did not accurately disclose “the specific nature and purpose” of the closed session. That allegation raises the issues of whether the closing statement was sufficiently detailed, whether it was accurate, and whether the discussion fell within the exceptions claimed. With respect to the level of detail in the closing statement, a public body need not disclose the names of the individuals to be discussed in a session closed under the exception for personnel matters. See, e.g., 6 OMCB Opinions 127,136 (2009). With respect to accuracy, it is apparent from our review of the closed-session minutes that the Council’s description of the “topics to be discussed” turned out to be correct. Thus, the closing statement was sufficient under the Act. We proceed to whether the matters discussed during the closed

2 The Council does not claim that it was merely performing an

“administrative function” excluded from most provisions of the Act when it discussed committee assignments. However, we note that we have explained that the “process by which a public body itself makes an appointment, as distinct from the process of considering the confirmation of an appointment by someone else, constitutes an [administrative] function.” 3 OMCB Opinions 182, 186, n.7 (2002). Thus, in 1 OMCB Opinions 252 (1997), we concluded that a mayor and town council were performing an administrative function when they filled a vacancy on the council, because they were merely administering their own regulations. Here, if the Council was simply performing its role under its rules of providing “advice” to the Chair on committee appointments, it was likely performing an administrative function. The closed minutes are not clear on this point.

session fell within the claimed exceptions for personnel matters and legal advice. SG §10-508(a) lists fourteen topics of discussion that a public body may discuss in closed session. The first such topic claimed by the Council was the “personnel matters” exception. Under that exception, a public body may meet in closed session to discuss:

(i) the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees, or officials over whom it has jurisdiction; or

(ii) any other personnel matter that affects 1 or more specific individuals.

SG §10-508(a)(1). The Council also claimed the “legal advice” exception, which permits a public body to “consult with counsel to obtain legal advice.” SG §10-508(7). The Act does not permit us to interpret the exceptions broadly. SG §10-508(b) provides that a public body that meets in closed session to discuss an excepted topic “may not discuss or act on any matter” not permitted by the exception it claimed. Further, SG §10-508(c) requires us to construe the exceptions “strictly” and “in favor of open meetings....” Accordingly, the personnel exception permits closed-session discussions concerning specifically-identifiable individuals, but not to permit policy deliberations pertaining to an entire class. See, e.g., 4 OMCB Opinions 38,40 (2004) (finding that the exception permitted a closed-session discussion about five individuals’ salaries). Similarly, a public body “may not use the ‘legal advice’ exception as a mask for policy deliberations.” 1 OMCB Opinions 145, 149 (1995). To apply these principles to Complainant’s allegations, we have examined the closed-session minutes to determine whether the Council’s actions with respect to Council Member Johnson could be deemed “policy deliberations” applicable to a broad class, as opposed to the discussion of the “appointment” of “appointees ... over whom it has jurisdiction.” SG §10-508(a)(1). The minutes do not reflect policy deliberations. For instance, the Council did not address possible changes to its Rules of Procedure, which govern committee appointments and Council members’ duties. We also examined the Rules of Procedure, in their entirety, to discern whether the Council’s various actions with respect to Council Member Johnson could be deemed a de facto amendment of those Rules. Again, we do not find that the discussions strayed into policy matters. It appears that the Council properly confined its closed meeting to its attorney’s advice on councilmanic authority with respect to committee appointments and other matters and to its own discussion and action on matters pertaining to the appointment of a specific individual to committees subject to the Council’s governance3. We turn to whether the Council violated the Act by disclosing its closed-session actions to the public. Two provisions of the Act govern a public body’s disclosure of matters discussed in closed session. First, SG §10-509(c)(2) requires the public body to include various items in its minutes for the next open session, including “a listing of the topics of discussion, persons present, and each action taken during the session.” The Council’s public disclosure of its actions did not violate this section. Second, SG §10-509(c)(4) requires a public body to keep the minutes of a

3 The Council’s decision on which Council members would

communicate to other entities on the Council’s behalf falls into the administrative exclusion, which applies to a public body’s internal “housekeeping” matters. Cf. 1 OMCB Opinions 233, 236 (1997) (applying the exclusion to the members’ discussion of procedures governing their public expression of private views because it involved their “internal operating methods” concerning the body’s responsibility to express the town’s positions).



closed session sealed and not “open to public inspection” unless the public body votes otherwise or other events, not relevant here, occur. The Council did not produce its closed-session minutes at the press conference and did not violate this provision. Finally, we turn to the allegations that the Council’s various actions with regard to Council Member Johnson should be declared invalid as violative of both the Act and the County Charter. We lack the authority to either grant such redress or address alleged violations of laws other than the Act itself. While our duties include issuing opinions as to whether a violation of the Act has occurred, SG §10-502.4, the enforcement of the Act through injunctive or other relief lies with the appropriate circuit court. SG §10-510. No provision of the Act authorizes us to examine whether a public body has violated other laws.

III Conclusion

We conclude that the Prince George’s County Council did not violate the Open Meetings Act with respect to the closed session it held on December 7, 2010.


[11-17-27]

OPINIONS

April 25, 2011 Complainant: Craig O’Donnell

Respondent: Kent County Commissioners

The Open Meetings Compliance Board has consolidated and considered the three complaints of Craig O’Donnell (“Complainant”) of the Kent County News that the Board of County Commissioners of Kent County(“Commissioners”) violated the Open Meetings Act with respect to meetings in 2009 and 2010. Some allegations were resolved in an informal conference our counsel held with the Complainant, the County Administrator, and the County’s Economic and Tourism Development Director. See §10-502.5(e) of the State Government Article (“SG”). We now address the remaining issues, which we summarize as follows:

(1) Did the discussion during a closed session on November 17, 2009 concerning pending litigation exceed the basis for closing the meeting? (2) Did the Commissioners exceed the scope of the exception they claimed for closing various sessions to discuss selling County land to the Fairweather Team, Inc., a solar utility company which proposed to locate in the County? (3) Did the Commissioners exceed the scope of the exception they claimed for closing various sessions to discuss the proposal of the company known as “Firefly” to locate in the County? (4) Did the Commissioners violate the Act when they reconvened a closed session which they had temporarily recessed earlier the same day without voting again on whether to convene in closed session?

I The “Drayton Manor” Issue

The Commissioners held a closed session on November 17, 2009, to hear from the County Attorney concerning ongoing litigation. To do so, they invoked the exceptions relating to legal advice and litigation to close the meeting. As crystallized at the informal conference, Complainant’s argument is that subsequent events demonstrate that the discussion exceeded the scope of either exception. A. Background 1. Drayton Manor Litigation In 1999, Kent County adopted a Growth Allocation Policy that governs development decisions in parts of the County in the Chesapeake Bay Critical Area. In 2003, a developer filed an application to reclassify a site known as the Drayton Manor property in order to develop a resort and conference center at that site. In 2007, the Commissioners granted a growth allocation to the developer pursuant to the Growth Allocation Policy. The decision was then forwarded to the Critical Areas Commission for its review as required under State law. The Critical Areas Commission approved the Commissioners’ decision. Opponents of the development filed actions challenging the approvals in the circuit courts for Kent County and Anne Arundel County. The County prevailed in the Kent County action and the Court of Special Appeals dismissed an appeal of that decision. At the time of the November 17, 2009 meeting, the opponents were seeking a writ of certiorari in the Court of Appeals4. The issue on which the opponents sought further review was a procedural question concerning the appropriate time for appealing a growth allocation decision by the Commissioners – i.e., whether the Commissioners’ decision itself or the subsequent Critical Areas Commission approval triggered the appeal period under the Growth Allocation Policy. Subsequent to the meeting, the Court of Appeals granted certiorari and heard arguments; it currently has the case under advisement. 2. Closed Session According to the response to the complaint, the meeting notice for the November 17, 2009, meeting indicated that part of the meeting would be closed for the Commissioners to discuss the Drayton Manor litigation with the County Attorney. The closing statement for that session similarly referenced that litigation, cited the Act’s exceptions for legal advice and discussion of litigation, and stated that the meeting was closed to protect the “confidentiality of information covered by attorney-client privilege.” The open minutes adopted at the next meeting of the Commissioners summarized the actions taken during the closed session as follows:

In closed session, the Commissioners requested that [the County Attorney] prepare an amendment for the Growth Allocation Policy for their consideration and the Commissioners decided not to file a response to the Petition of Certiorari that is pending in the Court of Appeals as it relates to the Drayton Manor growth allocation case.

We have reviewed the minutes of the closed session submitted by the County. Without revealing the precise substance of those minutes, we can confirm that they are consistent with the closing statement and open minutes – that is, the County Attorney provided a report on the status of the litigation, the County Attorney offered legal advice as to steps the Commissioners could take in relation to that litigation, and the Commissioners in response made the decisions reported in the

4 The Anne Arundel County case was subsequently transferred to

the Circuit Court for Kent County, where it was dismissed.



open minutes.5 As indicated in the minutes, one of the decisions made by the Commissioners in the closed session was to ask the County Attorney to draft an amendment to the County’s Growth Allocation Policy. The County Attorney prepared an amendment, which the Commissioners subsequently adopted at their December 1, 2009, meeting. According to the response, the purpose of the amendment was described at the December 1 meeting during the public session. As stated by the County Attorney and reflected in the resolution itself, the amendment was “for clarification purposes only” and was intended to be consistent with the construction of the appeal provision that had been adopted by the Court of Special Appeals in dismissing the Drayton Manor case. Apparently, there was a hope that the amendment might render moot any further consideration of the case by the Court of Appeals.6 B. Analysis 1. Contentions The Complainant does not dispute that the open minutes recite the actions taken by the Commissioners in closed session. Rather, he complains that the actions taken by the Commissioners in the closed session – in particular, the decision to consider an amendment of the Growth Allocation Policy – were not publicly known until the meeting at which the Commissioners adopted the amendment. Because of the intervening Thanksgiving holiday, the open minutes were not publicly available for the two weeks following the November 17, 2009, meeting during which Complainant assumed that the closed session had involved only an update on the status of the litigation. Moreover, the Complainant believes that any discussion of the Growth Allocation Policy or its amendment should have taken place in open session. The County Attorney argues that the Commissioners meticulously followed the Act’s procedures in closing the session, that the discussion was squarely within the exceptions for legal advice and consultation about litigation, and that the amendment of the Growth Allocation Policy involved procedure, not the substance of the policy, and, in any event, did not effect any change in public policy. 2. Discussion The consideration, adoption, or amendment of a policy such as the Growth Allocation Policy is, in the taxonomy of the Open Meetings Act, a “legislative function.” §10-502(f)(1) (“approving, disapproving, enacting, amending, or repealing a law or other measure to set public policy”). When a public body is engaged in a legislative function, it must ordinarily meet in open session. §10-505. This requirement covers “every step” of the legislative process. City of New Carrollton v. Rogers, 287 Md. 56, 72, 410 A.2d 1070 (1980). There are several exceptions to this requirement, including those for consultations with counsel to receive legal advice (§10-508(a)(7)) and for consultations with staff and other individuals about pending or potential litigation (§10-508(a)(8)). The exceptions are to be strictly construed. §10-508(c). The legal advice and litigation exceptions may be invoked when a public body wishes to receive confidential advice concerning the resolution of litigation, and they can even encompass execution of a settlement agreement or consent decree. 7 OMCB Opinions 36 (2010). In some cases, the policy discussion may be so interrelated with litigation strategy that discussion of those considerations may legitimately occur in closed session. But the litigation exception may

5 The initial version of the open minutes incorrectly identified the court in which the petition for certiorari was pending – an error that was later corrected in both the closed and open minutes.

6 Given that the Court of Appeals accepted the case and presumably will decide whether the opponents filed a timely appeal, the question whether the amendment clarified or changed the Policy’s appeal procedure may ultimately depend on the decision of that Court.

not be used as a pretext for engaging in closed discussions concerning an underlying policy issue that, though related to the litigation, can reasonably discussed separately. See 1 OMCB Opinions 56, 60-61 (1994) (while city council could discuss in closed session possible ways to avert a lawsuit related to alleged zoning violation by a day care center, discussion of alternative locations for day care center should have occurred separately in open session). The line is not always easy to draw. In a matter involving a proposed ordinance that was the subject of pending litigation, we concluded that a city council could discuss legislative findings critical to the defense of the ordinance in closed session. “That an option involves changes in the law does not negate the exception, so long as the subject of the discussion remains the litigation, rather than the policy issues in and of themselves, separate from the litigation.” 3 OMCB Opinions 61, 65 (2000). But we also noted in that case that the policy debate concerning the legislative findings occurred in the open session that immediately followed the closed session. Id. We find little to quibble with in the procedures the Commissioners followed or the documentation they created in connection with the November 17, 2009 meeting. The prospective closure of the meeting was announced in advance of the meeting, the closing statement accurately described the reasons for closing the meeting and cited the appropriate legal authority, and the discussion reported in the closed minutes was almost entirely within the two exceptions cited in the closing statement. It was certainly within the scope of those exceptions for the Commissioners to hear about the litigation, hear their attorney’s advice, and ask any questions they had about the implications of that advice. We take issue with just one aspect of the closed session. The Commissioners’ decision to direct the County Attorney to draft an amendment to the Growth Allocation, though it may have resulted from the County Attorney’s advice, was not itself a request for legal advice covered by the attorney-client privilege. While this legislative action was perhaps inspired by the Drayton Manor litigation, it was not directly part of that litigation. Rather, it was an amendment of a plan the County is required to maintain by State law. Thus, at the very least, that decision should have been announced when the Commissioners returned to their open session. The Compliance Board considered an analogous situation in 1 OMCB Opinions 145 (1995). There, a city council held a series of closed sessions to receive legal advice concerning the First Amendment implications of an ordinance governing solicitation and peddling. While the Compliance Board accepted the city attorney’s representation that the meetings did not involve any discussion by council members concerning the merits of such a policy, nevertheless we concluded that the council’s direction to the city attorney to draft an ordinance should have occurred in open session. “This decision was a key component of the legislative process ....” Id. at 150. This legislative process would have a broader effect than the resolution of particular litigation. Compare 1 OMCB Opinions 201 (1997) (board of zoning appeals could have properly closed session concerning its implementation of circuit court decision reversing its prior decision). It is true that the amendment did not affect the substantive aspects of the Growth Allocation Policy, but rather concerned the procedures by which a person may challenge decisions made under the substantive policy. However, that does not mean that the creation, alteration, or clarification of appeals rules is not itself a matter of public policy. The Open Meetings Act itself contemplates that the creation of procedural rules may come within the Act. See §10-502(h)(3)(vi) (excluding courts from the definition of “public body” except when the court is exercising rulemaking power). The Court of Appeals and its Rules Committee both consider changes in procedural rules in open sessions. By contrast, the Commissioners’ decision not to file a response to the petition for certiorari need not have occurred in open session. The



decision whether or not to file a responsive pleading in litigation will generally not involve the formulation of policy. In 4 OMCB Opinions 67, 72 (2004), we held that a county council’s decision in closed session to agree to dismiss a lawsuit challenging its prior actions did not violate the Act, as it fell within the administrative function exclusion. However, “[h]ad the Council engaged in any negotiations that would have required it to revisit its prior policy decisions, or otherwise engaged in any stage of policy formation, the Council’s action would not have fallen within the scope of the [administrative] function exclusion.” Id. C. Summary The Commissioners provided advance notice of their closed session on November 17, 2009, followed the appropriate procedures for closing part of their meeting, and adequately documented the closed session. The discussion during the closed session was almost entirely within the claimed exceptions from the open meetings requirement. However, the Commissioners’ direction to the County Attorney to prepare an amendment to a procedural provision of the Growth Allocation Policy should have been part of the open session.

II The “Fairweather” Issue

A. Facts and Contentions Complainant alleges that the Commissioners violated the Act by discussing in closed meetings matters which did not fall within the exception they cited in their closing statements. Specifically, Complainant alleges that the Commissioners violated the Act by “negotiating and approving a contract [and] discussing zoning... and legislation” in four sessions they had closed under SG §10-508(a)(4), which permits closed-session consideration of matters concerning a business’s proposal to “locate, expand, or remain in the State....” The business in question was Fairweather Team, Inc., (“Fairweather”), which proposed to buy County land and operate a solar utility there. The Commissioners respond that while they received information about Fairweather’s request for a zoning text amendment in closed session, they did not discuss the proposed legislation in closed session, and that, in any event, the County’s Renewable Energy Task Force had already been created to study such legislation. These contentions require us to review the history of the Commissioners’ passage of a text amendment to the County Land Use Ordinance. The Commissioners have provided us with their minutes and those of two other entities, the County’s Renewable Energy Task Force (“Task Force”) and Planning Commission. Neither entity is a party to this matter. On May 21, 2010, the Task Force met for the first time to consider solar energy uses in the County7. According to its meeting summaries, the Task Force agreed that “Utility scale solar should be permitted with standards (special exception)” and that “Staff [are] to provide special exception language for utility scale solar power in the Industrial District.” The Task Force recommendation thus was that utility scale solar uses be allowed by special exception, rather than as of right in the 1,100-acre Industrial District. Four days later, on May 25, 2010, the Commissioners met in an open meeting and then, at 8:37 a.m., voted “[t]o go into closed session to consider a preliminary matter that concerns the proposal for a business or industrial organization to locate, expand or remain in the State in accordance with [§] 10.508(a)(4) [of the Act].” The closing statement also cites that provision (“the business location exception”). Under “Reason for Closing,” the closing statement states, “Confidentiality of business proprietary information and

7 We have received no allegations that the Task Force violated the

Act, and we do not know whether it was a public body. In any event, it appears that at least some of the Task Force meetings were open to the public.

negotiations concerning property”; under “Topics to be discussed,” it states, “Business’ proposal to locate in Worton Industrial Park.” The open minutes identify the non-Commissioner attendees; they included Mr. Hoon, who is a private lawyer, and his client, Mr. Fairweather, as well as a realtor, the County Attorney, and four County employees, including the County’s Director of Planning. The minutes further state: “Topics of discussion related to a business proposal to locate in the Worton Industrial Park.” The minutes also report various “Planning” topics discussed in the open meeting; none involved proposed uses in the Industrial District. At 9:10 a.m., the Commissioners “temporarily adjourned” their closed meeting “to reconvene later in the morning,” and they did so at 10:47. The minutes of the open session additionally report:

In closed session, the Commissioners approved for [the County Attorney] to move forward to negotiate modifications to the proposed purchase options agreement as presented by Mr. Fairchild [sic] regarding his proposed purchase of one or more lots located in the Worton Industrial Park.

The Commissioners have provided the closed minutes to us, and we shall describe them only to the extent that the County has divulged their contents in its response. The many topics discussed during the closed session included the need for a zoning text amendment to allow Mr. Fairweather’s proposed use of the property for a solar-energy utility, the timing of such an amendment, and a report by the Director of Planning on the Task Force’s plans to address amendments to the Land Use Ordinance. The minutes do not reflect that any Commissioner spoke on these topics. On June 4, 2010, the Task Force met and agreed on the following “Action item”: “Solar energy systems should be permitted in the Industrial District....Staff to provide draft permitted use language for utility scale solar power in the Industrial District.” The meeting summary does not reflect discussion on why the Task Force changed its recommendation from allowing the use by special exception to permitting it as of right. On June 15, 2010, the Commissioners again voted to close a portion of their regular meeting to discuss “the proposal for a business to locate in Kent County.” The presiding officer indicated on the closing statement that the topic to be discussed was “Proposal by business to locate in Worton Industrial Park,” and that the reason for closing was “Confidentiality of business’ proprietary information and protection of purchase price negotiations.” The summary of the closed session contained in the open minutes states that the Commissioners “approved for [the Town Attorney] to move forward with negotiating contract submitted for the purchase of lots located in the Worton Industrial Park.” The closed minutes reflect the County Attorney’s discussion of a revised contract and various requests by the business, including an August deadline for passage of “the Zoning Text Amendment.” The County Attorney reported that the Director of Planning had commented that a November deadline was more feasible. The open meeting minutes do not disclose that discussion of the zoning text amendment, and it apparently was not discussed during the open discussion of planning issues. On June 18, 2010, the Task Force met and agreed on “language for solar energy systems in the Industrial District.” On June 22, 2010, the Commissioners met for a third time in closed session to discuss the Fairweather proposal. The closing statement cited the same exception, reasons, and topics as those listed on the June 15 closing statement. The proposed zoning text amendment was not discussed in either the open or the closed meeting. The minutes of both sessions reflect the Commissioners’ authorization to the County Attorney “to continue to negotiate an agreement for the purchase of lots located in the Worton Industrial Park.” On July 1, the Kent County Planning Commission met to address



various items, including the Task Force’s recommendation that the Land Use Ordinance be amended to permit utility-scale solar and small-scale accessory solar uses in the Industrial and Employment Districts. Mr. Hoon testified that he had a client who wished to put a solar manufacturing plant in Kent County, and Mr. Fairweather testified that he “was very interested in solar energy “ and “want[ed] to build a large scale manufacturing plant.” The Commission voted to recommend the Task Force’s language on utility-scale solar uses. On July 8, 2010, the Commissioners published a notice of a public hearing, to be held on July 27, 2010, regarding Code Home Rule Bill # 2-2010, “which is an act to amend Article V, Sections 14.2 (Employment Center - Permitted Uses and Structures), 15.2 (Industrial - Permitted Uses and Structures) and Article XI, Section 2 (Definitions) of the Kent County Land Use Ordinance to add new provisions for utility scale solar energy systems.” On July 20, 2010, a week before its public hearing on Bill #2-2010, the Board met in its fourth closed session to discuss the Fairweather proposal. The Board again cited the “confidentiality of business’ proprietary information.” The closed minutes state that the Commissioners signed a contract with Fairweather in the closed session. The open minutes state that the Commissioners “resolved questions concerning State grant funding[,] imposed conditions on the sale of lots in Worton Industrial Park, and reached an agreement with Fairweather Team, Inc. for the sale of Lot 2 and purchase options for Lots 3 and 4.” The contract the Commissioners signed on July 20 specifies this “Condition Precedent”:

B. The “Zoning Requirement:” (i) There is some uncertainty about whether Buyer’s Intended Use is authorized by the Kent County Land Use Ordinance ... as a permitted use in the LI-Light Industrial zoning district in which the Business Park is located; (ii) As soon as possible after the date hereof, Seller will introduce a zoning text amendment to clarify and assure that uses like Buyer’s Intended Use are permitted in the Business Park and other properties in the LI-Light Industrial District (“the Zoning Text Amendment”). In the event that the Zoning Text Amendment is not enacted by November 15, 2010, (the “the Zoning Text Amendment Contingency Date”), the Deposit shall be returned to Buyer and this Agreement shall be null and void thereafter.

At 9:30 a.m. on July 27, 2010, the Commissioners conducted a public hearing on Bill # 2-2010. The minutes of that public hearing contain the text of the bill, which added “Solar Energy Systems, Utility Scale” to the “Employment Center Permitted Uses” and “Industrial Permitted Uses” sections of the Land Use Ordinance. The Planning Commission’s recommendation that the bill be approved was introduced. The County’s Director of Planning also addressed the amendment. She stated that it was the “first in a series of potential amendments concerning alternative energy sources.” According to the minutes, the contract with Fairweather was not mentioned. The Commissioners also held a regular meeting on July 27, 20108. The minutes state:

Commissioner Crow advised that the County reached an agreement and entered into a contract on July 20 with Fairweather Team, Inc. for the sale of Lot 2 of the Worton Industrial Park and purchase options on Lots 3 and 4. Fairweather Team, Inc. plans to place a solar energy

8 It is not clear from the minutes of the regular meeting whether the

public hearing preceded that meeting.

manufacturing facility on the properties. Commissioner Crow advised that the agreement signed with Fairweather Team, Inc. is conditioned on use of the property for a solar energy facility, and the property cannot be sold and used for other purposes without the Commissioners’ approval.

The Commissioners made the July 20 contract available to the public on July 27. On August 3, 2010, the Commissioners’ business included a “Code Home Rule Zoning Text Amendment,” as follows:

Third reading was held today on Code Home Rule Bill Number 2-2010, which is An Act to amend Article V, Sections 14.2 (Employment Center - Permitted Uses and Structures), 15.2 (Industrial - Permitted Uses and Structures) and Article XI, Section 2 (Definitions) of the Kent County Land Use Ordinance to add new provisions for utility scale solar energy systems. Ballots were distributed to Commissioner Fithian and Commissioner Pickrum for voting. Commissioner Crow was absent. Upon their return, both ballots were marked favorable and the bill was adopted and signed by the Board. The effective date of this bill will be September 17, 2010.

The minutes of the August 3 meeting do not reflect deliberations on the zoning text amendment. B. Discussion The “business location” exception permits a public entity to close a meeting to “consider a matter that concerns the proposal for a business or industrial organization to locate, expand, or remain in the State....” §10-508(a)(4) of the State Government (“SG”) Article. We have applied it six times. Each of those opinions is instructive on whether the discussion of a text amendment in a closed session exceeds the scope of the exception. In the first opinion, 1 OMCB Opinions 28, 29 (1993), we considered allegations that a board of town commissioners improperly invoked the exception to discuss a proposal that would require an amendment of an annexation agreement between the town and the seller of the affected property. We found that the discussion was properly limited to a discussion of the proposal. Id. at 29. We further noted that “the materials supplied by the board reflect an understanding by the board that the exception would not be properly invoked when the matter involved not a discussion of the proposal ... but rather consideration of a possible amendment to an annexation resolution.” Id. We also described the evolution and purpose of the exception:

The exception ...reflects a rare instance in which the 1991 amendments [to the Act] broadened the scope of an exception that had been in the original Act. Under its former wording, §10-508(a)(4) authorized a public body to meet in closed session to “consider a preliminary matter that concerns the proposal for a business or industrial organization in the State.” In 1991 the Legislature deleted the modifier “preliminary” and authorized the exception not only for proposals by a business or industrial organization [to] locate in the State but also to “expand” or to “remain” in the State. This wording evidently reflects the Legislature’s understanding that some businesses might be deterred from making proposals about relocation,



expansion, or retention of an existing facility if all such discussions were open to public view.

Id. In 2 OMCB Opinions 56 (1999), we applied the SG §10-508 (c) mandate that the exceptions be “strictly construed in favor of open meetings of public bodies,” and we construed the “business location” exception not to include proposals by other public bodies. In 2 OMCB Opinions 80 (1999), where the public body had not invoked the exception, we applied it hypothetically: “[I]f the overall discussion concerned a business’ possible relocation to a site in Hyattsville under circumstances in which the business insisted on the need for confidentiality, §10-508(a)(4) authorized discussion in closed session.” Id. at 82. We then began to extend the exception to certain matters collateral to a business location proposal. In 2006, in a matter involving the same Complainant and public body as in this matter, we addressed allegations involving a business proposal to relocate in the Worton Industrial Park. 5 OMCB Opinions 72 (2006). There, Complainant asserted that the exception did not apply to discussions about the sale of County land. The Commissioners responded that the County had sub-divided the industrial park into lots in order to sell them to businesses seeking to relocate and that any relocation proposal necessarily involved discussions about the purchase of the lots. Id. at 74. After reviewing the closed-session minutes, we agreed with the Commissioners and explained that various topics of such a discussion could fall within the scope of the exception:

A closed-session discussion is permitted about a business proposal “to locate, expand, or remain in the State.” Such a proposal could involve a host of considerations, including the sale or other transfer of government land. Obviously, businesses that are considering relocation or expansion will be concerned about the site, including acquisition costs. From the perspective of a public body, the land that it owns might be an important bargaining chip. Economic development deals of the kind described in §10-508(a)(4) generally involve a subsidy to attract the business investment that, in the long run, is thought to justify the subsidy. Subsidies can be of various kinds, including the gift or below-market sale of land. This is particularly so when a county owns land that it is seeking to transform into a fully occupied industrial park. The characteristics of a business seeking to purchase land in an industrial park, the economic development benefits and potential negative consequences of selling to a particular private business, offering price – all of these are directly related to a public body’s discussion of a proposal for a business to locate in a particular site.

Also in 2006, we addressed whether a Town Council would have exceeded the exception, had the Town Council claimed it, by discussing whether the Town’s boat slip tax would apply to a business’s proposed lease of the slips. We stated:

Assuming that the business proposal involved use of the boat slips on the property, the potential application of a tax would be factored into any business decision; thus, we cannot say that such a discussion would be inappropriate in a meeting closed under §10-508(a)(4). On the other hand, had the discussion not been tied to a specific business proposal but instead focused on the tax as a policy matter, the discussion would have exceeded the limits of the exception....

5 OMCB Opinions 86,90 (2006) (footnote omitted). Then, in 2009, a complainant alleged that the Kent County Commissioners improperly invoked the exception to conduct a closed meeting regarding a proposal to locate a rubblefill in the County. 6 OMCB Opinions 192 (2009). We reviewed the closed minutes, noted that they provided “significant detail in terms of the respective roles of the business and the County,” commented on our inability to disclose the details of the discussion, and concluded that the “discussion did not transcend the exception....” We explained:

While the Act requires that the exception be construed narrowly, that does not mean that the County Commissioners could not address any collateral matters – matters that the Commissioners would be expected to address in evaluating a business proposal. While the scope of discussions was indeed broad, it is unrealistic to expect that the matters discussed could have been practically separated and discussed outside of the context of the specific business proposal.

Id. at 194. In none of these opinions did we state that the business location exception could shield decisions and deliberations on pending legislation from public view. Nonetheless, in retrospect, we fear we worded our 2009 advice to the Commissioners so broadly as to suggest that we are now reading the exception more expansively than we did in 1993. See 1 OMCB Opinions 29 (implicitly approving the public body’s understanding that amending an annexation resolution, even where allegedly integral to the proposal under discussion, was a matter for open session). Specifically, the Commissioners may have taken our application of the exception to “collateral matters... that the Commissioners would be expected to address in evaluating a business proposal” to allow substantial closed-meeting deliberations on legislation. 6 OMCB Opinions 192. We take this occasion to correct any such reading of that opinion and to reaffirm the limits we have placed on the scope of discussions under the exceptions. We interpret the language of the Act in light of its purposes and in such a way as to harmonize its various parts. Cf. Lockshin v. Semsker, 412 Md. 257, 275-76, 987 A.2d 18 (2010). We begin with the principle that the Court of Appeals has stated variously as part of the “touchstone” or “heart” of the Act: “It is...the deliberative and decision-making process in its entirety which must be conducted in meetings open to the public since every step of the process, including the final decision itself, constitutes the consideration or transaction of public business.” New Carrollton, supra, 287 Md. at 71-72; see also J. P. Delphey Limited Partnership v. Mayor and City of Frederick, 396 Md. 180, 200, 913 A.2d 28 (2006) (quoting New Carrollton ). The Court further reiterated in Delphey its adoption of the proposition that “one purpose of the government in the Open Meetings Act was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance.” Id. at 201 (brackets, emphasis, and citations omitted). And, as we have stated, “The legislative process includes “the imparting of information about a matter, albeit unaccompanied by any discussion among the members of a public body....” 1 OMCB Opinions 35, 36 (1993). As the Court explained in Delphey, however, the Act contains exceptions. So, we look also to the purpose of this exception, which we must construe strictly and in favor of open meetings. §10-508 (c). In 1 OMCB Opinions at 29, we referred to the Legislature’s “understanding that some businesses might be deterred from making proposals about relocation, expansion, or retention of an existing facility if all such discussions were open to public view.” In 2 OMCB Opinions at 82, we stated that the exception would apply “[I]f the overall discussion concerned a business’ possible relocation to a site in Hyattsville under circumstances in which the business insisted



on the need for confidentiality.” We have thus interpreted the exception to address the business’s interest in protecting its own identity and information.9 We have also extended the exception to matters that could not have been “practically separated and discussed outside of the context of the specific business proposal,” 6 OMCB Opinions at 194, and to the applicability of an existing law in a discussion “tied to” the proposal. Here, the formulation of the County’s policy on permissible uses in the 1,100-acre Industrial District did not fall into the category of confidential information belonging to Fairweather. Even if such legislation could be deemed to embody private information (a proposition we doubt), we note that Fairweather itself did not appear to seek secrecy concerning its interest in relocating to the County: the minutes of the closed sessions identified Mr. Fairweather and his lawyer as participants, and Mr. Fairweather announced his business’s intentions at the July 1 Planning Commission meeting. Further, the policy could be discussed outside the context of Fairweather’s proposal; the Task Force summaries report a discussion of the very same legislative topic without any mention of Fairweather. And, these meetings involved not the application of an existing law to a specific proposal, but rather the passage of a new law by the deadline and in the form required by the business making the proposal. We therefore conclude that the extension of the business location exception to the Commissioners’ closed-session discussions on generally-applicable land-use legislation would not further the purposes of either the Act or the exception. Our conclusion with respect to the limits of the business location exception is consistent with our application of the other exceptions in SG §10-508(a). We have not interpreted the other exceptions to extend to discussions regarding the public body’s own generally-applicable policy decisions. For instance, in interpreting the “personnel matters” exception, we have concluded that while the exception permits closed sessions to discuss individual employees, it does not permit discussion of issues applicable to a class of employees. See, e.g. 3 OMCB Opinions 335,337 (2003). That exception, too, is intended to protect the information of the person discussed, not that of the public entity. As indicated in Part I, above, we have applied a similar distinction with respect to the legal advice exception. See 1 OMCB Opinions, supra, at 149 (stating that the exception “may not be used as a mask for policy deliberations”). That exception protects the content of the advice; once it has been “sought and provided, the public body must return to open session to discuss the policy implications of the advice it received, or anything else about proposed legislation.” Id. There, we concluded that a city council exceeded the “legal advice” exception when it discussed the need to have an ordinance drafted, “however brief and devoid of substantive discussion.” Id. We explained:

A decision by the Council that the City Attorney was to draft an ordinance amounted to a preliminary decision that the perceived problem required a legislative response. This decision was a key component of the legislative process at work here, and the absence of a debate preceding the decision is not proof against an Open Meetings Act violation. The press and public would have found this decision to have been of keen interest. It was required to have been made in open session....

Id. at 149-50. We shall therefore draw the line for the “business relocation”

9 Maryland’s other open government law, the Public Information

Act, also affords businesses protection against a public entity’s disclosure of their commercial information. See SG §10-617(d).

exception in the same place we have drawn it for other exceptions and consistently with the principles set forth by the Court of Appeals: when a discussion strays beyond the specific proposal and into even the preliminary stages of a “legislative response,” the public body must conduct that discussion in an open meeting.10 Here, the Commissioners decided in closed session that a text amendment was needed, agreed to a date by which they would introduce it, decided that Fairweather’s proposed use should be as of right, rather than by special exception, and signed a contract contingent on the implementation of these policy decisions, all before they held a public hearing on the text amendment itself. The fact that they did so without deliberating out loud is of no moment: the public was entitled to observe “every step” of this legislative process. Cf. Delphey, supra, 396 Md. at 200. We repeat what we said in 1 OMCB Opinions 35, 36 : “No part of this process, including the imparting of information to the [public body] about the ordinance and the procedures for its enactment, could be permissibly carried out in a closed session unless one of the specific exceptions in the Act were applicable.” C. Summary We conclude that the Commissioners’ closed-session deliberations on the text amendment and approval of the contract violated the Act, as did their failure to disclose those discussions in their closed-meeting summaries.

III The “Firefly” Issue

A. Facts and contentions Complainant alleges that the Commissioners violated the Act by closing meetings on the basis of “boilerplate,” by failing to identify the participants in the meetings, and, in those meetings, by negotiating contracts and discussing legislation to delete an obsolete reference in the County Code. The Commissioners’ documents show that, like the Fairweather meetings, the meetings in question were closed to discuss a business’s proposal to locate in the County. The proposal was code-named “Project Firefly.” We derive the facts from the Commissioners’ closed minutes and therefore describe them only generally. On November 16 and 30 and December 14, 2010, the Commissioners went into closed session to discuss “the proposal for a business or industrial organization to locate, expand, or remain in the State....” The company is not identified in the minutes other than as “a private manufacturing company” which “considers its proposal as proprietary and requests confidentiality.” The company proposing the relocation had evidently insisted on complete secrecy: not even the closed minutes identify the company’s representatives, industry, or current location. The Commissioners primarily discussed assembling a package of incentives, including exemptions from certain taxes. In one meeting, the County Attorney raised certain legal issues, and the possibility of amending the County Code was raised. In the last meeting, the Commissioners discussed introducing an amendment to the Code of Public Local Laws on the next legislative day.

10 Although the act of approving a contract is a quasi-legislative

function under §10-502(j)(3), not all contracts embody a new policy decision that would exceed the scope of an exception. In Delphey, the Court of Appeals applied the exception for the public body’s “acquisition of real property” under SG §10-508 (a)(3). There, the City aldermen publicly adopted task force recommendations that they condemn or otherwise acquire certain land for a parking lot, publicly arranged the financing, and eventually, in closed session, voted to condemn that land. The Court, after finding that no ordinance was required for the condemnation, found that the aldermen had not evaded the Act’s requirements and that the condemnation fell within the “acquisition of real property” exception. 396 Md. at 201-202.



B. Discussion We conclude that the Commissioners did not exceed the scope of the business location exception by closing sessions to discuss and assemble financial incentives responsive to the company’s requests. Here, as in 6 OMCB Opinions 192, supra, those appear to be “matters that the Commissioners would be expected to address in evaluating a business proposal” and that could not have been “practically separated and discussed outside of the context of the specific business proposal. Id. at 194. We also are not troubled by the failure to identify this company by name, for the reasons we stated in 1 OMCB Opinions 60 (1999). The closed-minute references to amending the ordinance and to the timing of such an amendment are another matter. Those discussions appear to have crossed the line between information specific to a company or proposal, which may be discussed in a closed session, and policy deliberations, which may not. For the reasons we stated in our discussion of Issue I, the Act required the Commissioners to terminate any such discussions in their closed sessions and conduct them in public.

IV The reconvened closed session issue

A. Facts and contentions Complainant alleges that the Commissioners violated the Act by meeting in two closed sessions on May 25, 2010 without following the Act’s closing procedures for the second session. The Commissioners have provided us with the relevant documents. The minutes of the open meeting held that day show that the Commissioners convened in a meeting open to the public and voted at 8:37 a.m. to go into closed session. At 9:10 a.m., the Commissioners “temporarily adjourned to reconvene later in the morning” to discuss business location matters. At 10:31 a.m., the Commissioners voted to go into closed session to discuss personnel matters. At 10:46 a.m., they adjourned that closed session. Then, at 10:47 a.m., the “closed session [on business location] reconvened,” and that second session was adjourned at 11:30 a.m. The minutes report that no action was taken in the personnel session and that certain actions were taken in the business location session. In their response, the Commissioners add that the Commissioners announced during the public session that the business location meeting would be reconvened later that morning. The Commissioners also state their belief that their disclosures complied with the Act. B. Discussion These facts present this question: must a public body vote to re-close a public meeting when the closed session merely continues a session that was properly closed earlier at the same meeting ? The Act requires a public body that wishes to meet in a closed session to “conduct its vote to close the meeting and issue the required written statement [of the reason for closing the meeting] in open session.” 1 OMCB Opinions 201, 204 (1997) (summarizing SG §10-508(d)(2)). Further, if a person objects to the closing, the public body must send a copy of the written statement to us. SG §10-508(d)(3). The purpose of these procedures is to ensure that the members of a public body are accountable to the public for their decisions to hold closed sessions. A “part of their accountability is to make that decision before the public that is about to be excluded.” 1 OMCB Opinions 191, 193 (1996). Although we have found that a public body may prepare its closing statement in advance as long as the statement remains accurate, see 6 OMCB Opinions 77, 82 (2009), “[we] have long held that the vote to close a session must occur at the meeting being closed, not at a prior meeting.” 6 OMCB Opinions at 81-82. Thus, in 5 OMCB Opinions 184 (2007), we rejected the argument that a closed meeting which began one day and was

reconvened five days later constituted a single meeting for purposes of the Act, and we found violations with respect to each closed session. Id. at 186-88. Similarly, in 3 OMCB Opinions 4,6 (2000), we concluded that “the Act would not have permitted [the public body] to vote on March 1 to close a meeting to be held on March 8.” Under these principles, the question boils down to whether the open Commissioners’ vote to close the meeting occurred at a “prior meeting,” in which case the Commissioners would have had to vote again, or, instead, at the same meeting. In 6 OMCB Opinions 77, we referred in passing to a closed session that occurred at two times during a single day as a single session and noted that the public body considered the sessions to be “part of a single business meeting that day.” Id. at 81 and 81, n.2. And, in 6 OMCB Opinions 127, 131 (2009), we found no violation where, “if the closed session did not begin immediately, it did start shortly after the vote.” There, addressing allegations by this Complainant about this same public body, we found no violation where the Commissioners voted at 9:55 a.m. on a series of motions to consider issues in closed session and completed its closed session by 10:45 a.m. We found no lack of accountability, no prejudice to the public’s right to object, and no violation of the Act. On these facts, we conclude that the “meeting being closed,” see 6 OMCB Opinions at 81, n.2., was the single business meeting that the Commissioners had scheduled for May 25. We again find no lack of accountability, no prejudice to the public’s right to object, and no violation of the Act.

V Conclusion

We conclude that the Commissioners strayed beyond the scope of the exceptions they claimed when, in closed sessions, they discussed, decided to introduce, and, in the Fairweather matter, contractually bound the County to introduce, legislation. It follows from that conclusion that the Commissioners should have disclosed those topics in publicly-available minutes. We find that the Commissioners did not violate the Act by holding two closed sessions, only hours apart and during one regularly-scheduled open meeting, on the basis of one closing statement and vote. Finally, we commend the Commissioners for their forthright and thoroughly-documented response to this complaint.


[11-17-28]

OPINIONS May 19, 2011

Complainant: Craig O’Donnell Kent County News

Respondent: Attorney General’s Advisory Committee on Campaign Finance

The Open Meetings Compliance Board has considered your complaint that the Attorney General’s Advisory Committee on Campaign Finance (“ACCF”) violated the Open Meeting Act by holding several meetings in the fall of 2010 by failing to provide proper notice of its meeting and failing to prepare minutes in accordance with the Act. Because the Compliance Board finds that ACCF is not a “public body” subject to the Act, there was no violation.



I Complaint and Response

The complaint alleged that ACCF repeatedly violated the Open Meeting Act by its failure to provide proper notice of its meeting and to provide minutes of the meeting. The complaint contends that the Attorney General is “either subject to the policy direction of the Governor, or … is subject to the same requirements under the Act as the Governor” as provided in §10-502(h)(2). 11 In a timely response submitted on behalf of ACCF, Jeffrey L. Darsie, Assistant Attorney General, first argued that the ACCF was not created by any formal legal instrument enumerated in §10-502(h)(1). Second, he argued that §10-502(h)(2) cannot be interpreted as applying to the Attorney General for two reasons: (1) because the Attorney General is elected independently and is not subject to the policy direction of the Governor; and (2) ACCF was not appointed by the Governor but was appointed by the Attorney General. He noted that because the Attorney General is elected independently of the Governor, the Attorney General may make policy recommendations to the General Assembly or to the State Board of Elections.

II Analysis

The ACCF was formed by the Attorney General so that the Attorney General could receive insights from knowledgeable individuals on campaign finance issues. The Attorney General, based on the work of the ACCF, could then inform the General Assembly of suggested amendments to the campaign finance laws and the State Board of Elections could consider revisions of its regulations that relate to campaign finance. The ACCF consisted of twelve individuals: four state legislators, two employees of the State Board of Elections, a former federal regulator, two members of the Attorney General’s Office, and the counsels of the Maryland Republican and Democratic State Central Committees.12 If an entity is not a “public body”, it is not subject to the Open Meeting Act. The term “public body” means a multi-member entity established in one of three ways. First, it may be “created by” any of several formal legal enactments. §10-502(h)(1). Second, it may be “appointed by” the Governor or chief executive authority of a political subdivision or “appointed by an official who is subject to the policy direction” of the Governor or chief executive authority, but only if the appointees include at least two individuals from outside the government.13 §10-502(h)(2)(i). Third, it may be appointed either by a public body in the Executive Branch of State government, the members of which were appointed by the Governor or by an official who is subject to the policy direction of the public body, but only if the entity includes at least two individuals who are neither members of the appointing entity nor employees of the State. §10-502(h)(2)(ii). A. Inapplicability of §10-502(h)(1) The ACCF was not “created by” one of the formal means listed in the definition of a public body including a law, Executive Order, rule, or resolution. §10-502(h)(1). Rather, the ACCF was an informal body of individuals asked to provide the Attorney General with advice on campaign finance issues.

11 All statutory references in this opinion are to the State

Government Article unless otherwise noted. 12 The response from Assistant Attorney General Darsie on behalf

of ACCF does not state specifically the number of times the ACCF met in 2010.

13 The ACCF included at least two individuals from outside of the government, counsels to the Republican State Central Committee and the Democratic State Central Committee.

B. Inapplicability of §10-502(h)(2)(i) The ACCF would have been a “public body” had it been appointed by the “Governor.” §10-502(h)(2)(i). The complaint urges us to construe “Governor” to mean the Attorney General. We decline to do so as we are bound by the language of the statute as applying to boards, commissions or committees appointed by the “Governor” and not the Attorney General. In addition, the ACCF would have been a “public body” had it been appointed by an “official who is subject to the policy direction of the Governor.” §10-502(h)(2)(i). In 4 OMCB Opinions 132 (2005), we examined the meaning of whether someone serves at the “policy direction” of the Governor or a chief elective authority. In that complaint, we considered whether or not an advisory body created by the Prince George’s County Planning Board was a public body because it was appointed by an official who is “subject to the policy direction of the … chief executive authority of the political subdivision.” We found that while the members of the Planning Board were appointed by the County Executive, the chief executive authority for Prince George’s County, the Board was not subject to the policy direction of the County Executive. We noted that:

[U]nlike a county department head or a position in which the appointee is expected to carry out policies on behalf of the chief executive authority, the duties of the Planning Board are designated under State and local law, and the members owe a fiduciary duty to the Planning Board on which they serve. In our view, the Planning Board is not subject to the policy direction of the county executive as contemplated by the 2004 amendment to the Act.

4 OMCB Opinions at 138 (emphasis added and internal citations omitted). The Attorney General is not appointed by the Governor. Section V, §1 of the Maryland Constitution establishes the Attorney General as an independent official elected by the voters of Maryland.14 As a state constitutional officer, the Attorney General’s duties are set forth in the Maryland Constitution.15 Md. Code Ann., Const. Article V, §3. The Attorney General is charged under the Constitution to:

(1) Prosecute and defend on the part of the State all cases pending in the appellate courts of the State, in the Supreme Court of the United States or the inferior Federal Courts, by or against the State, or in which the State may be interested, except those criminal appeals otherwise prescribed by the General Assembly.

14 See Dan Friedman, Magnificent Failure Revisited: Modern

Maryland Constitutional Law from 1967 to 1998, 58 Md. L. Rev. 528, 560-561 (1999) (Explaining a proposal at the Constitutional Convention of 1967-1968 to eliminate statewide elective offices such as the Attorney General that was rejected and noting that “[c]urrently, neither the comptroller nor the attorney general is dependent on the governor for his or her position. Because each of these elected officials has his or her own constituency, the attorney general and comptroller have every reason to act independently, and little impetus to follow the governor.” ).

15 There are state constitutional officers that are elected statewide such as the Governor, Attorney General and Comptroller and state constitutional officers that are elected locally such as a state’s attorney, sheriff, clerk of the court, register of wills, or orphan’s court judges. See Md. Code Ann., Const. Article IV, §25 (election of clerks of the court); Article IV, §40 (election of orphans court judges); Article IV, §41 (election of register of wills); Article IV, §44 (election of sheriffs); Article V, §§7 and 9 (election and duties of state’s attorneys); Article VI, §§1 and 2 (election and duties of Comptroller).



(2) Investigate, commence, and prosecute or defend any civil or criminal suit or action or category of such suits or actions in any of the Federal Courts or in any Court of this State, or before administrative agencies and quasi legislative bodies, on the part of the State or in which the State may be interested, which the General Assembly by law or joint resolution, or the Governor, shall have directed or shall direct to be investigated, commenced and prosecuted or defended. (3) When required by the General Assembly by law or joint resolution, or by the Governor, aid any State’s Attorney or other authorized prosecuting officer in investigating, commencing, and prosecuting any criminal suit or action or category of such suits or actions brought by the State in any Court of this State. (4) Give his opinion in writing whenever required by the General Assembly or either branch thereof, the Governor, the Comptroller, the Treasurer or any State’s Attorney on any legal matter or subject.

Md. Code Ann., Const., Article V, §3(a). While this constitutional provision provides that the Governor can direct the Attorney General to investigate criminal and civil actions in the State and to aid any State’s Attorney investigation, commencing, and prosecuting a criminal suit, this direction relates to the legal business of the state and not the “policy” direction that the General Assembly intended in §10-502(h)(2)(i). See Md. Ann. Code, State Government Article (“SG”) §6-106(a) (“the Attorney General has general charge of the legal business of the State”). Rather, the “policy direction” in §10-502(h)(2)(i) relates to those in the Executive Branch who are supervised by and serve at the pleasure of the Governor.16 SG §3-302(“The Governor is head of the Executive Branch of the State Government and … shall supervise and direct units in that branch.”); SG §8-203(a)(“The head of each principal department is a secretary, who shall be appointed by the Governor with the advice and consent of Senate.”). Indeed, the list of the principal departments within the Executive Branch does not include the Attorney General. See SG §8-201(listing the principal departments of the Executive Branch). 17

16 In the 2003 Annual Report of the Open Meetings Compliance

Board, we recommended a legislative change in the OMA to expand the definition of “public body” to include a “board, commission, or committee appointed by an official of the executive branch…” Report at p. 4. This expansive definition could have included all officials in the Executive Branch including those who are not appointed directly by the Governor. The General Assembly, however, chose not to adopt this definition but instead limited §10-502(h)(2)(i) to those Executive Branch officials “subject to the policy direction” of the Governor, a narrower group of officials. Compare Eleventh Annual Report of the Open Meetings Compliance Board p. 4 (2003) and Senate Bill 111 (2004), introduced at the request of the Compliance Board.

This change was enacted as Ch. 440, Laws of Maryland 2004.

17 Our conclusion that the Attorney General does not serve at the policy direction of the Governor is consistent with the conclusion the Court of Appeals has reached on whether the county sheriffs, also state constitutional officers, are not local government officials and not subject to control of the chief executive authority of the political subdivision. Rucker v. Harford County, Maryland, 16 Md. 27, 281 (1989). See also 91 Opinions of the Attorney General 48 (1991) (Harford County Council lacks the authority to establish a merit system for the Sheriff’s office).

C. Inapplicability of §10-502(h)(2)(ii) Finally, the ACCF was not was not a “public body” under the component of the definition in §10-502(h)(2). The ACCF was appointed not by a public body within the Executive Branch of government but rather by an individual, the Attorney General. Furthermore, as noted previously, the Attorney General is a State constitutional officer, not part of the Executive Branch of State government as that term is used in the Open Meetings Act.

III Conclusion

Because the AACF was not a public body under the Open Meetings Act, neither the substantive nor the procedural requirements of the Act applied to the meetings of the AACF in the fall of 2010. Thus, no violation occurred.18

OPEN MEETINGS COMPLIANCE BOARD Elizabeth L. Nilson, Esquire Courtney J. McKeldin Julio A. Morales

[11-17-29]

18 The Open Meetings Compliance Board was advised for the

purposes of this complaint by Amanda Stakem Conn, Assistant Attorney General at the Maryland Department of Planning, because the Opinions and Advice Division which normally serves as counsel to the Board had contact with the ACCF. Ms. Conn had no contact with the ACCF or other assistant

attorney generals that staffed the ACCF.

1007


The Judiciary

COURT OF APPEALS OF MARYLAND

SCHEDULE Wednesday, August 31, 2011:

Bar Admissions

Misc. 1 In the Matter of the Application of Karim Timothy Cheikh for Admission to the Bar of Maryland AG 11 Attorney Grievance Commission of Maryland v. Joel (2010 T) David Joseph No. 1 Charles Y. Kim v. Maryland State Board of Physicians No. 3 State of Maryland v. Bryan Sivells No. 9 Joel Pautsch v. Maryland Real Estate Commission

Thursday, September 1, 2011:

AG 66 Attorney Grievance Commission of Maryland v. (2010 T) Lucille Saundra White AG 23 Attorney Grievance Commission of Maryland v. Peter (2010 T) Richard Maignan No. 2 Kenneth Gerald Stabb v. State of Maryland No. 8 Hosea Anderson, et ux. v. John S. Burson, et al.

Wednesday, September 7, 2011:

AG 69 Attorney Grievance Commission of Maryland v. (2010 T) Spencer Dean Ault AG 34 Attorney Grievance Commission of Maryland v. (2010 T) Timothy Shawn Gordon No. 6 Gerald Thomas Titus, Jr. v. State of Maryland

Thursday, September 8, 2011:

AG 28 Attorney Grievance Commission of Maryland v. Brenda (2010 T) Carol Brisbon AG 10 Attorney Grievance Commission of Maryland v. Andre (2010 T) Levell Brady No. 4 Linda Freilich, et al. v. Upper Chesapeake Health Systems, Inc., et al. No. 12 Megan Cathey v. Board of Review, Department of Health and Mental Hygiene On the day of argument, counsel are instructed to register in the Clerk’s Office no later than 9:30 a.m. unless otherwise notified. After September 8, 2011 the Court will recess until October 6, 2011.

BESSIE M. DECKER Clerk

[11-17-23]

COURT OF SPECIAL APPEALS

SCHEDULE FOR SEPTEMBER 1, 2, 6, 7, 8, 9, 12, 13, 14, 15, 16, 2011

Thursday, September 1, 2011 Courtroom No. 1

No. 01107/10 Pradeep Kulkarni vs. Regina Kaiser, Individually, etc. No. 00993/10 Hubert Barry Shaw vs. State of Maryland No. 01036/10 Karl Herbert vs. Edson Hernandez et al. No. 01396/09 Baltimore and Charles Associates, LLC. et al. vs. J. F. Johnson Lumber Company, LLC et al. No. 02901/09 Esperanza B. Gonzalez, Personal Representative of the Estate of Manuel S. Gonzalez vs. CertainTeed Corporation No. 01514/09 JFY Enterprises, Inc. et al. vs. James A. Taylor et ux.

Courtroom No. 2

No. 01194/10 Lorene Garland vs. Charles J. Ware No. 01354/10 Ricco Clifton Gough vs. State of Maryland No. 00453/11** State of Maryland vs. Thomas J. Franklin, Jr. No. 01082/10 Walter Arthur Hayes vs. State of Maryland No. 01230/10 Jason Drew Mosley a/k/a Jason Mosely, Jayson Mosley vs. State of Maryland

**120 DAY RULE

Friday, September 2, 2011 Courtroom No. 1

No. 01490/09 Lanie H. Walker a/k/a Lance Walker vs. State of Maryland No. 01492/09 Nadirah Moreno vs. State of Maryland No. 01106/10 Richard D. Ayuso vs. Carolyn K. Gibson-Ayuso No. 01256/10 Carol G. Carson vs. H. Emslie Parks No. 01781/09*** Richard David Ayuso vs. Carolyn Kaye Gibson No. 00056/10*** Richard D. Ayuso vs. Carolyn Kaye Gibson-Ayuso No. 00988/10 Paul Svrcek vs. Diane S. Rosenberg et al.

***Consolidated Cases

Courtroom No. 2

No. 00410/11* In Re: Adoption/Guardianship of Alysha B.*** No. 00345/11* In Re: Adoption/Guardianship of Kenneth B. and Alysha B.*** No. 01384/10 Ramon Harvey vs. State of Maryland No. 01216/10 David Dewees vs. Charles A. Jenkins, Sheriff No. 01400/10 Jackson H. Gichema vs. State of Maryland No. 00393/11 Roslyn Broadway vs. State of Maryland

*8-207(a) ***Consolidated Cases

THE JUDICIARY 1008


Tuesday, September 6, 2011 Courtroom No. 1

No. 01476/10 Charles Aboke vs. State of Maryland No. 00995/10 Anton Berk vs. Carole Berk et al., Co-Personal Representatives of the Estate of Maurice H. Berk No. 01177/10 Mary Carol Corder vs. Steven C. Corder No. 00957/10 George Lee Smith vs. State of Maryland No. 01071/10 DeAngelo Tyrone Rouzer vs. State of Maryland

Courtroom No. 2

No. 00999/10* Howard Earle Wells, Jr. et al. vs. Deborah Marie Turner No. 00832/10 Michael Milburn vs. Bowie State University No. 00979/09 Michael T. Roach, Jr. vs. William Jackson No. 00835/10 Pathik Rami vs. Robert Yerman No. 02585/09 Tony Akhigbe vs. Siah Willie a/k/a Siah Ozurumba No. 00901/10 Kirk Anthony Bell vs. State of Maryland

*8-207(a)

Wednesday, September 7, 2011 Courtroom No. 1

No. 00962/10 Tamara Abrishamian vs. Montgomery County Department of Health and Human Services No. 00536/10 Cuppett and Weeks Nursing Home, Inc. vs. Department of Health and Mental Hygiene No. 01510/10 William Dryden vs. State of Maryland No. 01196/10 Baltimore County, Maryland vs. Virginia W. Barnhart No. 02082/10 Anthony Okpeku vs. State of Maryland

Courtroom No. 2

No. 01430/10*** State of Maryland vs. Richard Lynn Harris No. 01442/10*** State of Maryland vs. Richard Lynn Harris No. 01444/10 John C. Dodd, III vs. Thomas P. Dore et al., Substitute Trustees No. 01513/10 Amy Christine Spector vs. Charles Joseph Spector, Jr. No. 00986/10 C. Wayne Cook vs. Maryland Department of Transportation et al. No. 02098/09 Steven J. Ochse et ux. vs. William O. Henry et ux.


Thursday, September 8, 2011 Courtroom No. 1

No. 00503/10 Howard County Citizens for Open Government et al. vs. Howard County Board of Elections No. 01213/10 Antonio C. Alvarez vs. Sean D. Cook No. 01009/10 Barbara Hastings et al. vs. PNC Bank, NA No. 00768/10 MacKenzie Capital, LLC. vs. Edwin F. Hale, Sr. et al. No. 00533/10 John M. Tregoning vs. State of Maryland et al.

Courtroom No. 2

No. 02902/10* In Re: Adoption/Guardianship of Savannah E. No. 00280/10 CR-RSC Tower I, LLC et al. vs. RSC Tower I, LLC et al. No. 01187/10 Elizabeth S. Campbell vs. Council of Unit Owners of Bayside Condominium No. 01519/10 Carol Gilliam vs. St. Mary’s Hospital et al. No. 00803/10 SunTrust Bank vs. Frank J. Goldman et al.

No. 01097/10 Deborah Ashton Parsons vs. Peninsula Regional Medical Center

*8-207(a)

Friday, September 9, 2011 Courtroom No. 1

No. 01477/10 Young Ok Valley vs. State of Maryland No. 01197/10 James T. Smith, Jr., Baltimore County Executive vs. Fraternal Order of Police, Baltimore County Lodge 4 No. 01780/10 Howard Drummond vs. State of Maryland No. 01757/10 Angelo Sherrill a/k/a Angelo Sherril vs. State of Maryland No. 01515/10 State Retirement and Pension System vs. Debora Phillips No. 01226/10 William Russell Morgan, III vs. Herman Matthew Parsons

Courtroom No. 2

No. 00229/07 Wayne Stockstill vs. State of Maryland No. 03006/10* In Re: Malachi D. and Joy D. No. 01431/10 Charles Cornett vs. David Lockard et ux. No. 02533/09 Prince George’s County, Maryland et al. vs. Anthony Achoronye No. 01038/10 Matthew C. Baker et al. vs. Montgomery County, Maryland et al.

*8-207(a)

Monday, September 12, 2011 Courtroom No. 1

No. 01193/10 Ellen R. Goldman vs. Robert G. Koehler No. 00538/10 Eileen M. York vs. Richard Hession No. 01364/10 Joseph Drummond vs. State of Maryland No. 01225/10 James Tzeng et al. vs. John Michael Wood, Sr. et ux. No. 02057/10 James Allen Kemp vs. State of Maryland

Courtroom No. 2

No. 00365/11* In Re: Ridgely M. No. 01200/10 Wayne C. Markey vs. Critical Area Commission for the Chesapeake and Atlantic Coastal Bays et al. No. 00919/10 Stephen Barry Jones, Sr. vs. State of Maryland No. 00278/10 Brent M. Blackmer vs. Aileen B. Blackmer No. 01797/10 Ralph Steele vs. John Wolfe, Warden

*8-207(a)

Tuesday, September 13, 2011 Courtroom No. 1

No. 00557/10 2004 PG, LLC vs. Land Holders, LLC No. 00739/10 Direct Pharmacy Service, Inc. vs. DS Pharmacy, Inc. d/b/a Drugstore.com No. 00530/10 H.T. Barberis, Inc. vs. Laundry Unlimited, LLC et al. No. 01700/10* Dean Lake vs. Carolyn Tadiarca Lake No. 00811/10 Charles W. Kelly, Jr. vs. Andrea Collins Kelly No. 01827/10 Safety National Casualty Corp. et al. vs. State of Maryland et al.

*8-207(a)

THE JUDICIARY 1009


Courtroom No. 2

No. 02764/09*** Wycinna Spence et vir vs. Emerson R. Julian, Jr. et al. No. 01511/10*** Emerson R. Julian, Jr. et al. vs. Mercy Medical Center, Inc. et al. No. 00476/10 Paulette Ann Schriner f/k/a Paulette Moynihan vs. Robert John Moynihan No. 00808/10 Hercules Barberis vs. August Martin et al. No. 00543/10 Joseph J. Balsamo d/b/a JAG Vending vs. Jasmin R. Carbaugh et al. No. 01191/10 Michelle Moss Etlin vs. Department of Human Resources, Montgomery County Office of Child Support Enforcement


Wednesday, September 14, 2011 All cases submitted on brief

Courtroom No. 1

No. 01954/10 Robert Tomas Poole vs. State of Maryland No. 01558/10 Jaime Traverso vs. Commissioner of Correction No. 01284/10 James Edward Moore, Jr. vs. Bobby P. Shearin, Warden No. 01847/10 Claiton Marques Pacheco vs. State of Maryland No. 01842/10 Juan Carlos Galeas-Guevara vs. State of Maryland No. 01743/10 Clifton Alexander Waters vs. State of Maryland No. 01889/10 Demetrius Kendell Thompson, Sr. vs. State of Maryland No. 01762/10 Daniel Leon Hutchins vs. State of Maryland No. 01837/10 Kenny M. Jones vs. State of Maryland No. 00140/10 Darryl McGowan vs. State of Maryland

Courtroom No. 2

No. 01758/10 Rommell Riggins vs. State of Maryland No. 01708/10 Aaron Dubose Headspeth vs. State of Maryland No. 01782/10 Andre Patterson vs. State of Maryland No. 00657/10 John Wilbert Donahue vs. State of Maryland No. 00864/10 Aaron Outlaw vs. State of Maryland No. 00452/10*** Francis Mbewe vs. State of Maryland No. 00453/10*** Delonte Jordan vs. State of Maryland No. 02138/10 Rodney L. Saunders vs. State of Maryland No. 01024/10 Devan Lamar Lake vs. State of Maryland No. 01075/10 Olufemi Amez Obua vs. State of Maryland


Thursday, September 15, 2011 All cases submitted on brief

Courtroom No. 1

No. 00347/11* In Re: Jeremiah S. No. 01110/10 Myles Spires, Jr. vs. Town of Forest Heights, Maryland et al. No. 01695/10 Jamaal Lee Hicks vs. State of Maryland No. 02666/09 Charles Price a/k/a Dayton Harris vs. State of Maryland No. 01023/10 Randy Robert Drummond vs. State of Maryland No. 01702/10 Michael Antonio Hardy vs. State of Maryland No. 01843/10 David C. Winters vs. State of Maryland No. 01890/10 Ian Christopher Murdaugh vs. State of Maryland No. 01727/10*** Abayomi Oluwanioje Ogundeyi vs. State of Maryland No. 01729/10*** Abayomi Oluwanioje Ogundeyi vs. State of Maryland


Courtroom No. 2

No. 01956/10 Gerald D. Fuller vs. Kathleen Green, Warden No. 00001/11* In Re: Viper M.*** No. 00002/11* In Re: Eva M.*** No. 00008/11* In Re: Dakota M.*** No. 01495/10 James Eugene Keiser, Jr. vs. State of Maryland No. 01154/10 Shawn Lee Snyder vs. State of Maryland No. 00356/10 Kathy Kite vs. Ian Roy Jackson et al. No. 01472/10 Sean Tyrone Smith vs. State of Maryland No. 01369/10 Christopher Bryan Williams vs. State of Maryland No. 01372/10 Raymond Aur vs. State of Maryland No. 01395/10 Gary Wayne Buehler vs. State of Maryland

*8-207(a) ***Consolidated Cases

Friday, September 16, 2011 All cases submitted on brief

Courtroom No. 1

No. 01350/10* Gregory B. Curry, Sr. vs. Cecelia Carpenter No. 01006/10 Rose Isbell vs. Albert Marsico No. 00528/10 Damon Dukes vs. Caves Valley Golf Club, Inc. et al. No. 01895/10 Kasedaa Samba vs. State of Maryland No. 01896/10 Tommy Whack, Jr. vs. State of Maryland No. 00131/11* In Re: Jasmyn C. No. 01899/10 Christian Ellsworth Brooks vs. State of Maryland No. 02001/10 Spencer Ellsworth Chase vs. State of Maryland No. 01744/10 Tyler Allen Moore vs. State of Maryland

*8-207(a)

Courtroom No. 2

No. 02966/10* In Re: Cole H. No. 00200/11* In Re: Sierra M. and Alissa M. No. 00899/10 Victor Lewis Childs vs. State of Maryland No. 01527/10 Jody Pierre Carter vs. State of Maryland No. 02085/09 Lubna N. Khan vs. Zubair Arif Khan Niazi No. 00161/09 Patricia Gardner vs. State of Maryland No. 01621/10 Charles Freeman vs. State of Maryland No. 01740/10 Charles D. Quailes, Jr. vs. State of Maryland No. 01388/10 Terrance Mason vs. State of Maryland

*8-207(a) On the day of argument, counsel are instructed to register in the Office of the Clerk no later than 9 a.m. The Court is located at 361 Rowe Boulevard, in the Robert C. Murphy Courts of Appeals Building. After September, 2011, the Court will recess until October, 2011.

LESLIE D. GRADET Clerk

ADMINISTRATIVE ORDER

Pursuant to Maryland Rule 8-522(a), I hereby direct that oral argument in the month of September be limited to 20 minutes per side, subject to the discretion of the hearing panel to allow additional argument, not exceeding a total of 30 minutes per side. This directive applies only to cases scheduled in September, 2011.

Chief Judge’s signature appears on original Administrative Order

Dated: July 21, 2011 [11-17-25]

1010


Regulatory Review and Evaluation Regulations promulgated under the Administrative Procedure Act will undergo a review by the promulgating agency in accordance with the Regulatory Review and Evaluation Act (State Government Article, §§10-130 — 10-139; COMAR 01.01.2003.20). This review will be documented in an evaluation report which will be submitted to the General Assembly’s Joint Committee on Administrative, Executive, and Legislative Review. The evaluation reports have been spread over an 8-year period (see COMAR 01.01.2003.20 for the schedule). Notice that an evaluation report is available for public inspection and comment will be published in this section of the Maryland Register.

Title 15 DEPARTMENT OF

AGRICULTURE Notice of Availability of Evaluation Report

In accordance with the Regulatory Review and Evaluation Act, State Government Article, §§10-130 — 10-138, Annotated Code of Maryland, notice is hereby given that the Evaluation Reports concerning COMAR 15.11 — 15.22 are available for public inspection and comment for a period of 60 days following the date of this notice. This report may be reviewed at the Department of Agriculture, 50 Harry S. Truman Parkway, Annapolis, Maryland 21401, Monday through Friday, 9 a.m. to 5 p.m., except holidays. Information may be obtained by contacting Tonia C. Martin at 410-841-5883 or [email protected].

[11-17-19]

1011


Emergency Action on Regulations Symbol Key

• Roman type indicates text existing before emergency status was granted. • Italic type indicates new text. • [Single brackets] indicate deleted text.

Emergency Regulations Under State Government Article, §10-111(b), Annotated Code of Maryland, an agency may petition the Joint Committee on Administrative, Executive, and Legislative Review (AELR), asking that the usual procedures for adopting regulations be set aside because emergency conditions exist. If the Committee approves the request, the regulations are given emergency status. Emergency status means that the regulations become effective immediately, or at a later time specified by the Committee. After the Committee has granted emergency status, the regulations are published in the next available issue of the Maryland Register. The approval of emergency status may be subject to one or more conditions, including a time limit. During the time the emergency status is in effect, the agency may adopt the regulations through the usual promulgation process. If the agency chooses not to adopt the regulations, the emergency status expires when the time limit on the emergency regulations ends. When emergency status expires, the text of the regulations reverts to its original language.

Title 08 DEPARTMENT OF NATURAL

RESOURCES Subtitle 02 FISHERIES SERVICE

08.02.04 Oysters Authority: Natural Resources Article, §§4-215 and 4-11A-12, Annotated Code

of Maryland

Notice of Emergency Action [11-196-E]

The Joint Committee on Administrative, Executive, and Legislative Review has granted emergency status to amendments to Regulation .15 under COMAR 08.02.04 Oysters.

Emergency status began: July 20, 2011. Emergency status expires: January 16, 2012.

Editor’s Note: The text of this document will not be printed here because it appeared as a Notice of Proposed Action in 38:16 Md. R. 950—951 (July 29, 2011), referenced as [11-196-P].

JOHN R. GRIFFIN Secretary of Natural Resources

Subtitle 02 FISHERIES SERVICE

08.02.08 Shellfish Authority: Natural Resources Article, §§4-206 and 4-215, Annotated Code of

Maryland


The Joint Committee on Administrative, Executive, and Legislative Review has granted emergency status to adopt new Regulation .05 under COMAR 08.02.08 Shellfish.

Emergency status began: July 20, 2011. Emergency status expires: January 16, 2012.

Editor’s Note: The text of this document will not be printed here because it appears as a Notice of Proposed Action on pages 1022 — 1023 of this issue, referenced as [11-222-P].


Title 14 INDEPENDENT AGENCIES

Subtitle 01 STATE LOTTERY AGENCY 14.01.10 Video Lottery Terminals Authority: State Government Article, Title 9, Subtitle 1A, Annotated Code of

Maryland


The Joint Committee on Administrative, Executive, and Legislative Review has granted emergency status to amendments to Regulation .13 under COMAR 14.01.10 Video Lottery Terminals.

Emergency status began: July20, 2011. Emergency status expires: December 27, 2011.

Editor’s Note: The text of this document will not be printed here because it appears as a Notice of Proposed Action on page 1039 of this issue, referenced as [11-226-P].

STEPHEN L. MARTINO Director

State Lottery Agency

1012


Final Action on Regulations

Symbol Key • Roman type indicates text already existing at the time of the proposed action. • Italic type indicates new text added at the time of proposed action. • Single underline, italic indicates new text added at the time of final action. • Single underline, roman indicates existing text added at the time of final action. • [[Double brackets]] indicate text deleted at the time of final action.



08.02.05 Fish Authority: Natural Resources Article, §4-215, Annotated Code of Maryland

Notice of Final Action [11-156-F]

On August 2, 2011, the Secretary of Natural Resources adopted amendments to Regulation .21 under COMAR 08.02.05 Fish. This action, which was proposed for adoption in 38:13 Md. R. 759—760 (June 17, 2011), has been adopted as proposed.

Effective Date: August 22, 2011.



08.02.05 Fish Authority: Natural Resources Article, §4-2A-03, Annotated Code of Maryland


On August 2, 2011, the Secretary of Natural Resources adopted amendments to Regulation .29 under COMAR 08.02.05 Fish. This action, which was proposed for adoption in 38:13 Md. R. 760—761 (June 17, 2011), has been adopted as proposed.



Subtitle 18 BOATING — SPEED LIMITS AND OPERATION OF

VESSELS 08.18.20 Patuxent River

Authority: Natural Resources Article, §8-704, Annotated Code of Maryland


On August 2, 2011, the Secretary of Natural Resources adopted amendments to Regulation .04 under COMAR 08.18.20 Patuxent

River. This action, which was proposed for adoption in 38:3 Md. R. 175 (January 28, 2011), has been adopted as proposed.



Title 10 DEPARTMENT OF HEALTH

AND MENTAL HYGIENE Subtitle 13 DRUGS

10.13.02 Purchase and Distribution of Prescription Drugs and Devices Authority: Health-General Article, §21-234; Health Occupations Article,

§§12-6C-01(u) and 12-6C-03.1; Annotated Code of Maryland


On July 27, 2011, the Secretary of Health and Mental Hygiene adopted new Regulations .01—.06 under a new chapter, COMAR 10.13.02 Purchase and Distribution of Prescription Drugs and Devices. This action, which was proposed for adoption in 38:12 Md. R. 712—715 (June 3, 2011), has been adopted as proposed.


JOSHUA M. SHARFSTEIN, M.D. Secretary of Health and Mental Hygiene

Subtitle 15 FOOD

10.15.07 Shellfish Sanitation Authority: Health-General Article, §§18-102, 21-211, 21-234, 21-304, 21-

321, and 21-346—21-350, Annotated Code of Maryland


On August 2, 2011, the Secretary of Health and Mental Hygiene adopted amendments to Regulations .02 and .04, and new Regulation .06 under COMAR 10.15.07 Shellfish Sanitation. This action, which was proposed for adoption in 38:13 Md. R. 761—762 (June 17, 2011), has been adopted as proposed.



FINAL ACTION ON REGULATIONS 1013


Subtitle 25 MARYLAND HEALTH CARE COMMISSION

10.25.11 Institutional Review Board Authority: Health-General Article, §§19-109(a)(1) and (7) and (b)(5), 19-

103(c)(3), and 19-133(d), Annotated Code of Maryland


On July 21, 2011, the Maryland Health Care Commission adopted amendments to Regulation .01 under COMAR 10.25.11 Institutional Review Board. This action was considered by the Maryland Health Care Commission at an open meeting held on July 21, 2011, notice of which was given through publication in the Maryland Register pursuant to State Government Article, §10-506, Annotated Code of Maryland. This action, which was proposed for adoption in 38:12 Md. R. 715—716 (June 3, 2011), has been adopted as proposed.


MARILYN MOON Chair

Maryland Health Care Commission

Subtitle 36 BOARD OF EXAMINERS

OF PSYCHOLOGISTS 10.36.09 Child Custody Evaluations in Family

Law Proceedings Authority: Health Occupations Article, §18-206, Annotated Code of Maryland


On July 20, 2011, the Secretary of Health and Mental Hygiene adopted new Regulations .01—.05 under a new chapter, COMAR 10.36.09 Child Custody Evaluations in Family Law Proceedings. This action, which was proposed for adoption in 38:10 Md. R. 620—621 (May 6, 2011), has been adopted as proposed.



Subtitle 58 BOARD OF

PROFESSIONAL COUNSELORS AND THERAPISTS

10.58.12 Supervision Requirements Authority: Health Occupations Article, §§17-101(s) and (v) and 17-301—17-

309, Annotated Code of Maryland


On July 28, 2011, the Secretary of Health and Mental Hygiene adopted new Regulations .01—.08 under a new chapter, COMAR 10-58.12 Supervision Requirements. This action, which was proposed for adoption in 38:11 Md. R. 676—678 (May 20, 2011), has been adopted with the nonsubstantive changes shown below.


Attorney General’s Certification In accordance with State Government Article, §10-113,

Annotated Code of Maryland, the Attorney General certifies that the following changes do not differ substantively from the proposed text. The nature of the changes and the basis for this conclusion are as follows:

Regulation .01E: For clarity, the phrase “at the time this chapter becomes effective” is being deleted and replaced with the actual effective date.

.01 Scope. A.—D. (proposed text unchanged) E. Licensed graduate professional counselors who are in the

process of completing their supervision requirements [[at the time this chapter becomes effective]] before August 22, 2011, may continue to complete their requirements as previously agreed to with their supervisor. A licensed graduate professional counselor whose supervision begins after [[the effective date of this chapter]] August 22, 2011, shall follow the requirements set forth in Regulation .03 of this chapter.


Title 13A STATE BOARD OF

EDUCATION Subtitle 07 SCHOOL PERSONNEL

13A.07.01 Comprehensive Teacher Induction Program Authority: Education Article, §§2-205(c) and 6-202(b), Annotated Code of

Maryland


On July 19, 2011, the Maryland State Board of Education adopted amendments to Regulations .04—.07 and new Regulation .09 under COMAR 13A.07.01 Comprehensive Teacher Induction Program. This action, which was proposed for adoption in 38:11 Md. R. 679—680 (May 20, 2011), has been adopted with the nonsubstantive changes shown below.


Attorney General’s Certification In accordance with State Government Article, §10-113, Annotated

Code of Maryland, the Attorney General certifies that the following changes do not differ substantively from the proposed text. The nature of the changes and the basis for this conclusion are as follows:

Regulation .06F(3): The change from “who was” to “and have been” is solely a grammatical change to make that part of the sentence grammatically parallel to the first part of the sentence.

.06 Mentoring Component of the Comprehensive Induction Program.

A.—E. (proposed text unchanged) F. Mentors shall:

(1)—(2) (proposed text unchanged) (3) Hold an advanced professional certificate and be rated as a

satisfactory or effective teacher or be a retiree from a local school



system [[who was]] and have been rated as a satisfactory or effective teacher; and

(4) (proposed text unchanged) G. (proposed text unchanged)

NANCY S. GRASMICK State Superintendent of Schools

Title 26 DEPARTMENT OF THE

ENVIRONMENT Subtitle 11 AIR QUALITY

26.11.01 General Administrative Provisions Authority: Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-

303, 10-102, and 10-103, Annotated Code of Maryland


On July 29, 2011, the Secretary of the Environment adopted amendments to Regulations .10 and .11 under COMAR 26.11.01 General Administrative Provisions. This action, which was proposed for adoption in 38:9 Md. R. 561—562 (April 22, 2011), has been adopted as proposed.


ROBERT M. SUMMERS, Ph.D. Secretary of the Environment

Subtitle 11 AIR QUALITY


On July 29, 2011, the Secretary of the Environment adopted amendments to:

(1) Regulations .10 and .11 under COMAR 26.11.01 General Administrative Provisions; and

(2) Regulations .01 and .05 under COMAR 26.11.09 Control of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations.

This action, which was proposed for adoption in 38:2 Md. R. 104—106 (January 14, 2011), has been adopted with the nonsubstantive changes shown below.


Attorney General’s Certification In accordance with State Government Article, §10-113, Annotated

Code of Maryland, the Attorney General certifies that the following changes do not differ substantively from the proposed text. The nature of the changes and the basis for this conclusion are as follows:

Regulation 26.11.01.11E(2)(a): The removal of this paragraph eliminates an apparent conflict regarding the appropriate data reduction averaging time for Continuous Emissions Monitors (CEMs) in 26.11.01.11. The conflict was created when the language of Regulation 26.11.01.10D(2)(a) was erroneously duplicated and inserted as Regulation 26.11.01.11E(2)(a). Regulation .11 applies only to CEMs, whereas Regulation .10 applies only to Continuous Opacity Monitors (COMs). The language of Regulation .11D(2), Data Reduction, reads: “A CEM used to monitor a gas concentration shall record not less than four equally spaced data points per hour and automatically reduce data in terms of averaging time consistent with

the applicable emission standard”. The language in Regulation .11D(2) is correct for CEMs and applies to several different monitors, each specific to different federal air quality standard. Consequently, when Regulation .11E(2)(a) is eliminated the requirement to “reduce all data to six-minute block averages calculated from 24 or more equally spaced data points” will still exist for COMs, as appropriate in Regulation .10D(2)(a).

Elimination of Regulation .11E(2)(a) does not increase the requirements or stringency of the regulation and it does not decrease the benefits of the regulation.

26.11.01 General Administrative Provisions Authority: Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-

303, 10-102, and 10-103, Annotated Code of Maryland

.11 Continuous Emission Monitoring Requirements. A. — D. (proposed text unchanged) E. Record Keeping and Reporting Requirements.

(1) (proposed text unchanged) (2) CEM Data Reporting Requirements.

[[(a) A CEM shall automatically reduce all data to 6-minute block averages calculated from 36 or more equally spaced data points.]]

[[(b)]] (a) — [[(e)]] (d)


Subtitle 11 AIR QUALITY

26.11.02 Permits, Approvals, and Registration Authority: Environment Article, §§[1-101,] 1-404, [2-101—] 2-103, 2-301—

2-303, 2-401, [2-403] 2-402, and 2-404, Annotated Code of Maryland


On August 1, 2011, the Secretary of the Environment adopted amendments to Regulations .01, .10, and .13 under COMAR 26.11.02 Permits, Approvals, and Registration. This action, which was proposed for adoption in 38:9 Md. R. 562—565 (April 22, 2011), has been adopted as proposed.



Title 33 STATE BOARD OF

ELECTIONS Subtitle 16 PROVISIONAL VOTING

33.16.02 Provisional Voting Documents and Supplies

Authority: Election Law Article, §9-403, Annotated Code of Maryland


On July 28, 2011, the State Board of Elections adopted amendments to Regulation .01 under COMAR 33.16.02 Provisional Voting Documents and Supplies. This action, which was proposed



for adoption in 38:12 Md. R. 732—733 (June 3, 2011), has been adopted as proposed.


LINDA H. LAMONE State Administrator of Elections

Subtitle 17 EARLY VOTING


On July 28, 2011, the State Board of Elections adopted amendments to:

(1) Regulation .01 under COMAR 33.17.02 Early Voting Centers;

(2) Regulation .03 under COMAR 33.17.04 Early Voting Center Equipment and Materials; and

(3) Regulation .04 under COMAR 33.17.07 Non-Voting Hours Procedures.

This action, which was proposed for adoption in 38:12 Md. R. 733 (June 3, 2011), has been adopted as proposed.


LINDA H. LAMONE State Administrator of Elections

1016


Withdrawal of Regulations

Title 12 DEPARTMENT OF PUBLIC

SAFETY AND CORRECTIONAL SERVICES

Subtitle 06 SEX OFFENDER REGISTRATION

Notice of Withdrawal [11-007-W]

The Secretary of Public Safety and Correctional Services withdraws the proposal to: (1) amend Regulations .01 — .12, adopt new Regulations .13, .15, and .21, and amend and recodify existing Regulations .13 and .14—.18 to be Regulations .14 and .16—.20, respectively, under COMAR 12.06.01 Administration of Sex Offender Registration; and (2) adopt new Regulations .01 — .14 under a new chapter, COMAR 12.06.02 Administration of Juvenile Sex Offender Listing as published in 38:1 Md. R. 36—50 (January 3, 2011).

GARY D. MAYNARD Secretary of Public Safety and Correctional Services


Subtitle 09 WORKERS’ COMPENSATION COMMISSION

14.09.01 Procedural Regulations Authority: Health-General Article, §4-303; Labor and Employment Article,

§§9-307, 9-309, 9-310.2, 9-314, 9-404, 9-405, 9-410, 9-603, 9-625, 9-635, 9-689, 9-701, 9-709, 9-710, 9-711, 9-721, 9-731, 9-739, and 9-6A-07; Insurance

Article, §§19-405 and 19-406; State Government Article, §10-1103; Annotated Code of Maryland

Notice of Withdrawal [11-019-W]

The Workers’ Compensation Commission withdraws the proposal to amend Regulations .01 and .19 under COMAR 14.09.01 Procedural Regulations, as published in 38:1 Md. R. 57—58 (January 3, 2011).

R. KARL AUMANN Chairman

Workers’ Compensation Commission

1017


Proposed Action on Regulations

Title 04 DEPARTMENT OF GENERAL

SERVICES Subtitle 01 OFFICE OF THE

SECRETARY 04.01.01 Public Information Requests

Authority: State Government Article, §§10-611 — [10-613] 10-630, Annotated Code of Maryland

Notice of Proposed Action [11-206-P]

The Department of General Services proposes to amend Regulation .13 under COMAR 04.01.01 Public Information Requests.

Statement of Purpose The purpose of this action is to adjust the fee schedule for copying

and certifying records.

Comparison to Federal Standards There is no corresponding federal standard to this proposed action.

Estimate of Economic Impact The proposed action has no economic impact.

Economic Impact on Small Businesses The proposed action has minimal or no economic impact on small

businesses.

Impact on Individuals with Disabilities The proposed action has no impact on individuals with disabilities.

Opportunity for Public Comment Comments may be sent to Joan Cadden, Legislative Affairs,

Department of General Services, 301 West Preston Street, Room 1403, Baltimore, MD 21201, or call 410-767-4606, or email to

[email protected], or fax to 410-333-5480. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.13 Fees A. The fee schedule for copying and certifying copies of records is

as follows: (1) Copies. The fee for each copy is [15] 25 cents per page if

reproduction is made by a photocopying machine within the Department. If records are not susceptible to photocopying, for example, punch cards, magnetic tapes, blueprints, and microfilm, the fee for copies will be based on the actual cost of reproduction.

(2) — (3) (text unchanged) B. — H. (text unchanged)

ALVIN C. COLLINS Secretary of General Services

Subtitle 05 BUILDINGS AND

GROUNDS 04.05.01 General Regulations

Authority: United States Constitution, Amendments 1 and 14; Maryland Constitution, Declaration of Rights, Article 13; State Finance and

Procurement Article, §§4-604(6) and (7), 4-607(a) and (c); State Government Article, §2-1702; Criminal Law Article, §§4-208 and 6-409; Annotated Code

of Maryland


The Department of General Services proposes to amend Regulation .02 under COMAR 04.05.01 General Regulations.

Statement of Purpose The purpose of this action is to clarify access requirements to

property under the jurisdiction of the Department of General Services.


For information concerning citizen participation in the regulation-making process, see inside front cover.

Symbol Key • Roman type indicates existing text of regulation. • Italic type indicates proposed new text. • [Single brackets] indicate text proposed for deletion.

Promulgation of Regulations An agency wishing to adopt, amend, or repeal regulations must first publish in the Maryland Register a notice of proposed action, a statement of purpose, a comparison to federal standards, an estimate of economic impact, an economic impact on small businesses, a notice giving the public an opportunity to comment on the proposal, and the text of the proposed regulations. The opportunity for public comment must be held open for at least 30 days after the proposal is published in the Maryland Register. Following publication of the proposal in the Maryland Register, 45 days must pass before the agency may take final action on the proposal. When final action is taken, the agency must publish a notice in the Maryland Register. Final action takes effect 10 days after the notice is published, unless the agency specifies a later date. An agency may make changes in the text of a proposal. If the changes are not substantive, these changes are included in the notice of final action and published in the Maryland Register. If the changes are substantive, the agency must repropose the regulations, showing the changes that were made to the originally proposed text. Proposed action on regulations may be withdrawn by the proposing agency any time before final action is taken. When an agency proposes action on regulations, but does not take final action within 1 year, the proposal is automatically withdrawn by operation of law, and a notice of withdrawal is published in the Maryland Register.

PROPOSED ACTION ON REGULATIONS 1018




businesses.


Opportunity for Public Comment Comments may be sent to Joan Cadden, Legislative Affairs,

Department of General Services, 301 West Preston Street, Room 1403, Baltimore, MD 21201, or call 410-767-4606, or email to [email protected], or fax to 410-333-5480. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.02 Property Access. A.—C. (text unchanged) D. [After regular] During and after business hours or during

declared emergency situations, [admission to the property is restricted to authorized individuals who] an individual working, visiting, conducting business, or otherwise lawfully in, on, or about State property will be required to display identification documents upon request. During [these times] and after business hours or during declared emergencies, an individual may be arrested if the individual:

(1) Either: (a) Is on the property with no apparent lawful business to

pursue[, who refuses]; or (b) Fails to display identification documents upon request;

and (2) Refuses to leave[, may be arrested] or fails to leave after

being asked to leave by an authorized employee of the Department of General Services.

ALVIN C. COLLINS Secretary of General Services

Title 07 DEPARTMENT OF HUMAN

RESOURCES Subtitle 07 CHILD SUPPORT

ENFORCEMENT ADMINISTRATION 07.07.02 General Information

Authority: Family Law Article, §§10-106—10-116, 10-118, 10-119, 10-119.3—10-144, and 10-303—10-359, Annotated Code of Maryland;

Agency Note: Federal Regulatory Reference—45 CFR §§302, 303.2—303.15, 303.30, 303.31, and 303.71—303.106; 42 U.S.C. §654(6)(B)


The Secretary of Human Resources proposes to amend Regulations .04 and .05 under COMAR 07.07.02 General Information.

Statement of Purpose The purpose of this action is to indicate when a child support

worker may close a child support case pursuant to federal regulations. This action will also amend terms to comply with federal regulation

changes involving the processing of intergovernmental child support cases.

Comparison to Federal Standards There is a corresponding federal standard to this proposed action,

but the proposed action is not more restrictive or stringent.



businesses.


Opportunity for Public Comment Comments may be sent to Andrea Shuck, Acting Regulation

Coordinator, Department of Human Resources, Office of Government, Corporate, and Community Affairs, 311 W. Saratoga Street, Suite 270, Baltimore, Maryland 21201, or call 410-767-7193, or email to [email protected], or fax to 410-333-0637. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.04 [Interstate] Intergovernmental Support Services. A. (text unchanged) B. The Administration shall maintain [an Interstate] a Maryland

Central Registry to coordinate [interstate] intergovernmental case activities.

.05 Case Closure. A. The support enforcement agency may close a case which meets

one or more of the following criteria: (1)—(8) (text unchanged) (9) In an [interstate] intergovernmental case, the support

enforcement agency documents failure by the initiating state to take an action which is essential for the next step in providing services.

B. The support enforcement agency shall notify the custodial parent, in writing, 60 days before closing a case of its intent to close the case, except if:

(1)—(3) (text unchanged) (4) The case is an [interstate] intergovernmental case.

C. In an [interstate] intergovernmental case, the support enforcement agency shall:

(1) [notify] Notify the initiating state[, in writing, 60 days before closing a case of its intent to close the case.] of its intent to close a case 60 days prior to case closure; and

(2) Stop income withholding notice within 10 working days of receipt of instructions for case closure from an initiating state pursuant to 45 C.F.R. 303.11(c)(12).

THEODORE DALLAS Secretary of Human Resources



Subtitle 07 CHILD SUPPORT ENFORCEMENT ADMINISTRATION

07.07.04 Establishment of Paternity Authority: Family Law Article, §§5-1005—5-1048, and 10-301—[10-348]10-

359, Annotated Code of Maryland (Agency Note: Federal Regulatory Reference—45 CFR §§302.31, 303.5,

303.7 and 305.24)


The Secretary of Human Resources proposes to amend Regulation .03 under COMAR 07.07.04 Establishment of Paternity.

Statement of Purpose The purpose of this action is to amend terms to comply with

federal regulation changes involving the processing of intergovernmental child support cases.





businesses.




.03 [Interstate] Intergovernmental Establishment of Paternity. A. Maryland as the Initiating State.

(1) (text unchanged) (2) If use of Maryland’s long-arm statutes is inappropriate or

unsuccessful, the support enforcement agency shall refer the case to the responding state’s [interstate] intergovernmental central registry.

(3) (text unchanged) B. Maryland as the Responding State. Upon receipt of a request

from another state for establishment of paternity, the Maryland [Interstate] Central Registry shall forward the request to the appropriate Maryland support enforcement agency which shall take action to establish paternity.

C. Maryland’s Uniform Interstate Family Support Act (UIFSA). When providing services to establish paternity in an [interstate] intergovernmental case, the Maryland support enforcement agency shall comply with the provisions of UIFSA.



07.07.05 Establishment of Support Obligation Authority: Family Law Article, §§10-114, 10-204, 10-301—[10-307, 10-332,

10-354]10-359, and 12-101—12-204, Annotated Code of Maryland; Agency Note: Federal Regulatory Reference—45 CFR §§302.56, 303.4—

303.5, 303.7, 303.8, and 303.31; 42 U.S.C. §652(f)


The Secretary of Human Resources proposes to amend Regulations .03 and .04 under COMAR 07.07.05 Establishment of Support Obligation.


federal regulation changes that involve the processing of intergovernmental child support cases.





businesses.




.03 Review and Modification of Child Support Orders. A. (text unchanged) B. Cases Eligible for Review.

(1)—(2) (text unchanged) (3) In [interstate] intergovernmental cases, the support

enforcement agency shall conduct a review of the order at the request of another state if the request for a review is appropriate.

(4) (text unchanged) C. (text unchanged)

.04 [Interstate] Intergovernmental Establishment and Modification of Support Order.

When providing services in an [interstate] intergovernmental case to establish or modify an order for support, the support enforcement agency shall comply with the provisions of UIFSA.





07.07.06 Enforcement of Support Obligation Authority: Family Law Article, §§10-108—10-108.2, 10-113—10-116, 10-

119, 10-119.3—10-359, and 12-102; Article 1, §24; Annotated Code of Maryland;

Agency Note: Federal Regulatory Reference—45 CFR §§302.60—302.65, 302.80, 303.6, 303.7, 303.31, 303.71—303.100, 303.102, and 303.104


The Secretary of Human Resources proposes to amend Regulations .05 and .06 under COMAR 07.07.06 Enforcement of Support Obligation.


federal regulation changes that involve processing of intergovernmental child support cases.





businesses.




.05 Methods of Child Support Enforcement. A.—C. (text unchanged) D. IRS Full Collection Service. The support enforcement agency

may apply for collection by the IRS, when the support enforcement agency documents that:

(1) (text unchanged) (2) Local, State, and [interstate] intergovernmental

enforcement efforts have failed; and (3) (text unchanged)

E.—I. (text unchanged)

.06 [Interstate] Intergovernmental Enforcement. The support enforcement agency shall: A. (text unchanged) B. Use all appropriate enforcement methods in [interstate]

intergovernmental cases that the support enforcement agency uses in intrastate cases;

C. Initiate [interstate] intergovernmental earnings withholding procedures when an obligor is liable for earnings withholding and the obligor’s employer:

(1)—(2) (text unchanged)

D. (text unchanged)





The Secretary of Natural Resources proposes to: (1) Adopt new Regulation .09 under COMAR 08.02.01

General; (2) Repeal Regulations .10 and .11 under COMAR 08.02.11

Fishing in Nontidal Waters; and (3) Amend Regulation .04 and adopt new Regulation .08 under

COMAR 08.02.19 Nuisance and Prohibited Species.

Statement of Purpose The purpose of this action is to move regulations pertaining to

zebra mussels and tidal and nontidal dividing lines to more appropriate regulatory chapters and to make a clarification on the common name of the crayfish. Currently, regulations for zebra mussels and tidal and nontidal dividing lines are in COMAR 08.02.11 Fishing in Nontidal Waters. The action would move the zebra mussels regulation from COMAR 08.02.11 Fishing in Nontidal Waters to COMAR 08.02.19 Nuisance and Prohibited Species because zebra mussels are already listed as a prohibited species in this chapter. This action would also move the tidal and nontidal dividing lines to COMAR 08.02.01 General, which will put the regulations in the same chapter as the bay dividing lines. The action also makes a minor correction to the common name for a certain crayfish, previously this crayfish was called a crawfish and this action would change its name to “crayfish.”




businesses.


Opportunity for Public Comment Comments may be sent to Nuisance Species and Dividing Lines,

Regulatory Staff, Maryland Department of Natural Resources Fisheries Service, 580 Taylor Ave., B-2, Annapolis, MD 21044, or call 410-260-8300, or email to [email protected], or fax to 410-260-8310. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.



08.02.01 General Authority: Natural Resources Article, §4-602, Annotated Code of Maryland

.09 Dividing Lines; Tidal and Nontidal Waters. The following boundaries are designated as official dividing lines

for tidal and nontidal waters. These boundary lines are for the purpose of delineating those areas in which nontidal fishing licenses or Chesapeake Bay and coastal sport fishing licenses are required and tidal or nontidal fishing regulations apply, and have no other legal significance.

A. Harford County. (1) Winter’s Run: dam located ½mile south of Maryland Route

7, the Old Philadelphia Road. (2) Bynum Run: Old Philadelphia Road Bridge on Maryland

Route 7. (3) James Run: Old Philadelphia Road Bridge on Maryland

Route 7. (4) Deer Creek: Railroad bridge located at the mouth of Deer

Creek. (5) Gray’s Run: CSX Railroad crossing upstream of U.S. 40.

B. Baltimore County. (1) Big Gunpowder Falls: ¾of a mile south of Maryland Route

7, the Old Philadelphia Road at B&O Railroad Bridge. (2) Little Gunpowder Falls: ¾ of a mile south of Maryland

Route 7, the Old Philadelphia Road at B&O Railroad Bridge. (3) Stemmers Run: Golden Ring Road Bridge. (4) Stansbury Park Pond: base of dam.

C. Baltimore and Howard Counties. Patapsco River: B&O Viaduct at Relay.

D. Anne Arundel and Prince George’s Counties. (1) Patuxent River:

(a) Mainstem: bridge on Maryland Route 214; (b) Lyons Creek: Maryland Route 4; (c) Stocketts Run: confluence with the river; (d) Rock Run: confluence with the river; (e) Ferry Branch: confluence with the river.

(2) Severn River: bridge on Maryland Route 3. (3) Furnace Branch: Maryland Route 2. (4) Anacostia River: Northeast Branch Bridge at northbound

lane of Alternate U.S. Route 1, Bladensburg Road; Northwest Branch Bridge at southbound lane of Rhode Island Avenue.

(5) Marley Creek: Maryland Route 10. (6) Magothy River: Catherine Avenue. (7) South River and its tributaries:

(a) North River: Rutland Road; (b) Bacon Ridge Branch: Chesterfield Road; (c) Beards Creek: Maryland Route 214; (d) Broad Creek: Harry S Truman Parkway.

E. Charles, Montgomery, and Prince George’s Counties. (1) Potomac River: man-made dam at Little Falls. (2) Piscataway Creek: bridge on Maryland Route 224

(Livingston Road). (3) Henson Run: bridge on Old Broad Creek Road. (4) Western Branch: bridge on Maryland Route 4. (5) Nanjemoy Creek:

(a) Mainstem: Maryland Route 6; (b) Mill Run (Burgess Cr.): Maryland Route 6; (c) Hill Top Fork: Maryland Route 6; (d) Wards Run: Maryland Route 6.

(6) Wicomico River: Allens Fresh, bridge on Maryland Route 234.

(7) Port Tobacco Creek: bridge on Maryland Route 6. (8) Mattawoman Creek: bridge on Maryland Route 225.

(9) Patuxent River: (a) Swanson Creek: Maryland Route 381; (b) Mataponi Creek: St. Thomas Church Road; (c) Spice Creek: Maryland Route 382, Croom Road; (d) Full Mill Branch: Maryland Route 382, Croom Road; (e) Black Swamp Creek: Maryland Route 382, Croom Road.

(10) Pomonkey Creek: Fenwick Road. (11) Hoghole Run: Maryland Route 6. (12) Oxen Creek (Run): Maryland Route 210.

F. Kent and Queen Anne’s Counties. (1) Chester River: 500 yards upstream from the Pennsylvania

Railroad Bridge at Millington at the point where the Cypress Branch empties into the Chester River.

(2) Unicorn Branch: the U.S. Geological Survey weir just east of Maryland Route 313.

(3) Sassafras River: Maryland Route 299. (4) Herring Branch: Maryland Route 299. (5) Morgan Creek: Wallis Road. (6) Red Lion Branch: confluence with the Chester River. (7) Wye East River: Wye Mills Lake dam.

G. Caroline County. (1) Choptank River: bypass bridge on Maryland Route 313 on

the outskirts of Greensboro. (2) Tuckahoe Creek: abandoned stone railroad bridge

upstream of Maryland Route 404. (3) Watt’s Creek: bridge on American Legion Road. (4) Fowling Creek: wooden bridge on Stratum Road about 1

mile below Maryland Route 16. (5) Chapel Branch: Maryland Route 313 near Piney Grove

Church. (6) Marshy Hope Creek: confluence with Faulkner Branch. (7) Mill Creek: Maryland Route 16. (8) Hunting Creek: Maryland Route 331.

H. Wicomico and Worcester Counties. (1) Pocomoke River: bridge on Whiton Crossing, 3 miles south

of Powellville. (2) Wicomico River: Isabella Street in Salisbury. (3) Beaverdam Creek: dam just upstream of U.S. Route 13

(Business). (4) Nassawango Creek: Furnace Road.

I. St. Mary’s County. (1) Park Hall Run: Maryland Route 5. (2) McIntosh Run: Maryland Route 5. (3) Great Mills Run: bridge on Maryland Route 5. (4) Town Run: bridge on Maryland Route 5. (5) Chaptico Run: Chaptico Bridge on Maryland Route 234. (6) Eastern Branch: Maryland Route 5. (7) Dynard Run: Maryland Route 242. (8) Tomakokin Creek: Maryland Route 470. (9) Buds Creek: Maryland Route 234. (10) Gilbert Swamp Run: Maryland Route 234. (11) St. Clements Creek: Maryland Route 234, bridge at town

of Clements. J. Calvert County.

(1) St. Leonard’s Creek: Parran Road. (2) Battle Creek: bridge about 2 miles east of Bowens (Sixes

Road). (3) Parker’s Creek: Maryland Route 765. (4) Hunting Creek: bridge on Maryland Route 263 about 100

yards west of Maryland Route 4. (5) Hall’s Creek: Bridge on Maryland Route 4. (6) Lyons Creek: Bridge on Maryland Route 4. (7) Fishing Creek: 1½ miles upstream from the mouth of the

creek at Chesapeake Beach. (8) Plum Point Creek: bridge on Maryland Route 263.



(9) Mills Creek: Maryland Route 760. (10) Hellen Creek: Mill Branch Road, near Solomons. (11) Island Creek: Ross Road, near Brooms Island. (12) St. Johns Creek: Maryland Route 4. (13) Quaker Swamp: Maryland Routes 2 and 4.

K. Susquehanna River. Conowingo Dam at U.S. Route 1. L. Cecil County.

(1) Octoraro Creek: bridge on U.S. Route 222. (2) Rock Run: confluence with the Susquehanna River. (3) Mill Creek: Old Elk Neck Road. (4) Principio Creek: Amtrak crossing below Maryland Route 7. (5) North East River: Maryland Route 7. (6) Little Elk Creek: U.S. Route 40. (7) Big Elk Creek: Maryland Route 213. (8) Bohemia River: Telegraph Road. (9) Happy Valley Branch: confluence with Susquehanna River.

M. Dorchester County. (1) Chicamicomico River: U.S. Route 50. (2) Transquaking River: dam at Higgins Mill Pond.

08.02.19 Nuisance and Prohibited Species Authority: Natural Resources Article, §4-205.1, Annotated Code of Maryland

.04 Classification of Nonnative Aquatic Organisms. A. (text unchanged) B. A person may not transport the following nonnative aquatic

organisms: (1) Fish species:

(a) — (f) (text unchanged) (g) Southern white river [crawfish] crayfish (Procambarus

zonangulus); and (h) (text unchanged)

(2) (text unchanged) C. — D. (text unchanged)

.08 Zebra Mussel-Free Certification. A. The purpose of this regulation is to ensure that live aquatic bait

grown in an aquaculture operation and purchased from certified dealers is free of zebra mussels so that it will not adversely impact wild stocks of fish.

B. Definitions. (1) In this regulation, the following terms have the meanings

indicated. (2) Terms Defined.

(a)”Live aquatic bait” means any organism grown in an aquaculture operation and which is kept alive in water for use as bait while fishing, and includes, but is not limited to:

(i) Tadpoles and other amphibians, (ii) Minnows and other fish, (iii) Clams and other mollusks, (iv) Hellgrammites and other aquatic insects, (v) Crayfish and other crustaceans, and (vi) Leeches and other annelids.

(b) “Zebra mussel-free certification” means a certification issued by the Department that signifies that the:

(i) Volume of water containing certain live aquatic bait is free of any life stage of zebra mussels,

(ii) Live aquatic bait comes from a source that does not support zebra mussels, or

(iii) Water and bait have been treated in a manner that kills any life stage of zebra mussel.

C. Certification. (1) Certification is available to dealers of live aquatic bait.

(2) Application shall be made on forms provided by the Department.

(3) The Department shall make available to the public, on request, a complete list of certified bait dealers.



08.02.08 Shellfish Authority: Natural Resources Article, §§4-206 and 4-215, Annotated Code of

Maryland


The Secretary of Natural Resources proposes to adopt new Regulation .05 under COMAR 08.02.08 Shellfish.

Statement of Purpose The purpose of this action is to require an individual to declare

their intent to harvest clams. The action would allow the Department to determine the licensees who should be submitting clam reports and those who should receive shellfish closure books.




businesses.


Opportunity for Public Comment Comments may be sent to Clam Declaration, Regulatory Staff,

Maryland Department of Natural Resources Fisheries Service, 580 Taylor Ave., B2, Annapolis, MD 21401, or call 410-260-8300, or email to [email protected], or fax to 410-260-8310. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.05 Clam Harvester Declaration. A. Registration.

(1) A tidal fish licensee who possesses a clam harvester or unlimited tidal fish license under Natural Resources Article, §4-701(d)(ii), Annotated Code of Maryland, shall declare an intent to harvest clams in order to participate in the clam season.

(2) Declaration Schedule. (a) A tidal fish licensee may submit an application of

declaration during license renewal as described in Natural Resources Article, §4-701, Annotated Code of Maryland.

(b) A tidal fish licensee shall submit the application for declaration no later than March 31 of the license year for which the licensee intends to harvest.

B. The individual shall declare separately for each of the following species:

(1) Soft-shell clams: (a) Mya arenaria; and (b) Razor clams (Tagelus plebeius); and

(2) Hard-shell clams (Mercenaria mercenaria).



C. Reporting. Tidal fish licensees who declare an intent to harvest clams under this regulation shall report in accordance with COMAR 08.02.13.06 on forms provided by the Department.

D. Closure Areas. (1) The Department shall provide the publication as described

in Natural Resources Article, §4-1006.2, Annotated Code of Maryland, to each individual declaring an intent to harvest clams.

(2) An individual receiving the publication as described in §D(2)(a) of this regulation shall certify to the Department on the form the Department prescribes that the person received the publication.


Subtitle 02 FISHERIES SERVICE 08.02.11 Fishing in Nontidal Waters Authority: Natural Resources Article, §§4-205, 4-215, 4-215.2, 4-219, 4-402,

4-602, 4-603, 4-616, 5-209, and 10-808, Annotated Code of Maryland


The Secretary of Natural Resources proposes to amend Regulations .01, .03 — .05, and .08 and repeal Regulations .02, .07, and .09 under COMAR 08.02.11 Fishing in Nontidal Waters.

Statement of Purpose The purpose of this action is to reorganize the chapter to make it

more readable. Specifically, this action combines all sections relating to trout into one regulation, combines text where appropriate in order to make the text more readable, and repeals outdated text. No substantive changes were made in the reorganization.




businesses.


Opportunity for Public Comment Comments may be sent to Nontidal Chapter Reorganization,

Regulatory Staff, Department of Natural Resources Fisheries Service, B-2, 580 Taylor Avenue, Annapolis, MD 21401, or call 410-260-8300, or email to [email protected], or fax to 410-260-8310. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.01 Trout Fishing and Management Areas. A. Basic Statewide Trout Fishing. Except as listed in [§B] §§B —

H of this regulation, [or specifically exempted by law or other regulation,] the following shall be in effect for trout fishing in all nontidal waters of the State:

(1) — (5) (text unchanged) B. Put-and-Take Trout Fishing Areas.

(1) [The following are in effect for all put-and-take trout fishing areas listed under §B(2) of this regulation:

(a)] Open Season. Put-and-take trout fishing areas are closed to all fishing from 10 p.m. of the first date to 5:30 a.m. of the last date, during the period listed in the following schedule:

[(i)] (a) — [(v)] (e) (text unchanged)

[(b)] (2) — [(d)] (4) (text unchanged) (5) Public and private ponds in which State-supported fishing

rodeos are held may be designated put-and-take trout fishing areas on the day of the rodeo and are subject to the provisions in §B(1) — (4) of this regulation.

[(2)] (6) [The] Except as provided in §C(1) of this regulation the following areas are subject to [these regulations] the provisions in §B(1) — (4) of this regulation:

(a) — (n) (text unchanged) [(3) Public and private ponds in which State-supported fishing

rodeos are held may be designated put-and-take trout fishing areas on the day of the rodeo and are subject to a 5-trout limit.]

C. Catch-and-Return Trout Fishing Areas. (1) Owens Creek.

(a) Special provisions in effect on this area: (i) From June 1 through the last day of February, a

person may not keep or have any trout in possession while fishing; and

(ii) A person may not possess or use any natural or live bait, or any device enhanced with a scent and capable of catching fish.

(b) The area subject to the provisions of §C(1)(a) of this regulation is Owens Creek mainstem from Raven Rock Road downstream to Roddy Road.

(2) Areas with No Special Tackle Restrictions. (a) Special provisions in effect on this area:

(i) Open season—no closed season; (ii) Creel and possession limits, all trout species in

aggregate: daily—0, possession—0; and (iii) No special tackle restrictions.

(b) The area subject to the provisions of §C(2)(a) of this regulation is the North Branch Potomac River from the Upper Potomac River Commission Wastewater Treatment Plant discharge at Westernport downstream to the Maryland Route 956 bridge at Pinto.

(3) Areas Limited to Use of Artificial Lures Only. (a) Special provisions in effect on these areas:

(i) A person may not have any trout in possession while fishing in these areas. All trout which are caught shall be released and returned to the water.

(ii) A person may fish only with artificial lures, including artificial flies.

(iii) In these areas, a person may not possess or use any natural or live bait, or any device enhanced with a scent and capable of catching fish.

(iv) The open season for artificial lure fishing is January 1 through December 31, inclusive.

(b) Areas subject to the provisions of this section are: (i) Patuxent River, Howard and Montgomery counties.

The mainstem of the Patuxent River from the crossing of Maryland Route 97 upstream to the crossing of Maryland Route 27 and Cabin Branch from its confluence with the Patuxent River upstream to Hipsley Mill Road.

(ii) Morgan Run, Carroll County. From bridge on London Bridges Road upstream to bridge on Maryland Route 97.

(iii) Paint Branch and Tributaries, Montgomery County upstream of Fairland Road.

(iv) Gunpowder Falls, Baltimore County. Mainstem, from Prettyboy Reservoir Dam downstream to Bluemount Road.

(v) North Branch Potomac River from an overhead cable and red bank post located approximately 510 yards below the Jennings Randolph Reservoir spillway downstream approximately 1 mile to a red post, located approximately 100 yards above the upstream concrete abutments at Barnum, West Virginia, and from a red post located below a pool known as Blue Hole approximately 1/3



mile upstream of Bench Mark 1110 on the Westernport U.S.G.S. Quadrangle, downstream approximately 4 miles to the confluence of Piney Swamp Run.

(vi) Youghiogheny River, Garrett County. Mainstem beginning at a red post approximately 100 yards upstream of the Deep Creek Lake tailrace and extending downstream 4 miles to the Sang Run Bridge.

(vii) Little Hunting Creek, Frederick County. Mainstem from a red post located approximately 1/4 mile downstream of Maryland Route 806, upstream approximately 1 mile to the upper boundary of Cunningham Falls State Park Manor Area.

(4) Areas Limited to Artificial Fly Fishing Only. (a) Special provisions in effect on these areas:

(i) A person may not have any trout in possession while fishing in these areas. All trout which are caught shall be released and returned to the water.

(ii) A person may fish only with artificial flies and streamers constructed in a normal fashion using natural or synthetic materials, or both, which may include feathers, fur, hair, tinsel, thread, fiber, plastic, cork, wire, and rubber, on a single hook with the components wound on or about the hook. A person may not use molded replicas of insects, earthworms, fish eggs, fish, or any invertebrate or vertebrate, either singly or in combination with the other materials, or other lures commonly described as spinners, spoons, or plugs made of metal, plastic, wood, rubber, or a similar substance or a combination of these.

(iii) A person may fish only with conventional fly fishing tackle, including fly rods, fly reels, and fly line with a maximum of 18 feet of leader or monofilament line attached. Any method of angling when the fly is cast directly from the reel is prohibited. The use of spinning, spincast, and casting reels is prohibited.

(iv) In these areas, a person may not possess or use any natural or live bait, or any device enhanced with a scent and capable of catching fish.

(v) The open season is January 1 through December 31, inclusive.

(b) Areas subject to provisions of this section are: (i) Big Hunting Creek, Frederick County. All waters of

Big Hunting Creek and its tributaries within Cunningham Falls State Park and Catoctin Mountain Park except Owens Creek, Little Hunting Creek, Cunningham Falls Lake, and Frank Bentz Pond;

(ii) Beaver Creek, Washington County. From the confluence with Black Rock Creek downstream approximately 1 mile to a red post located 0.1 mile above Beaver Creek Road; and

(iii) Patuxent River, Montgomery and Howard Counties. From red bank posts located on both sides of the river approximately 400 yards below Brighton Dam downstream to Mink Hollow Road.

D. Trophy Trout Fishing Areas. (1) Savage River mainstem from the downstream side of the

Route 135 bridge upstream for a distance of approximately 2.7 miles to the lower suspension bridge (Allegany Bridge) is a trophy trout fishing area. The following apply:

(a) Open season—no closed season. (b) Creel limit all trout species in aggregate—daily: 2,

possession: 2. (c) Minimum size: brook trout—12 inches; brown trout—18

inches; all other species of trout—no minimum size. (d) A person may not have in possession any trout smaller

than the minimum size limit in effect for this area. (e) A person may fish only with artificial lures, including

artificial flies. Treble hooks are prohibited. Each artificial lure is restricted to a single hook with a single hook point.

(f) In these areas, a person may not possess or use any natural or live bait, or any device enhanced with a scent and capable of catching fish.

(2) Savage River mainstem from the Savage River Reservoir Dam downstream to the lower suspension bridge (Allegany Bridge) is a trophy trout fishing area. The following apply:

(a) Open season—no closed season (b) Creel limit all trout species in aggregate — daily: 2,

possession: 2. (c) Minimum size: brook trout—12 inches; brown trout—18

inches; all other species of trout—no minimum size. (d) A person may fish only with artificial flies. (e) In these areas, a person may not possess or use any

natural or live bait, or any device enhanced with a scent and capable of catching fish. Section C(4)(a)(ii)—(iv), of this regulation shall apply to this special trout management area.

(f) A person may not have in possession any trout smaller than the minimum size limit in effect for this area.

E. Areas Limited to Fishing by Persons under 16 Years Old, 65 Years Old and Older, and Blind Persons.

(1) Special provisions in effect on these areas: (a) Fishing in these areas is limited to persons under 16

years old, persons 65 years old and older, and blind persons; (b) Section B(1) — (4) of this regulation shall apply to these

special trout management areas. (2) Areas subject to provisions of this section:

(a) Jones Falls, Baltimore County. That portion of Jones Falls and tributaries above Stevenson Road to their source.

(b) Laurel Run (Moscow), Allegany County. (c) Avalon Pond, Baltimore County. (d) Pangborn Pond, Washington County. (e) Rising Sun Pond from March 1 through May 15. (f) Lion’s Park Pond (Frostburg), Allegany County.

F. Areas Limited to Fishing by Persons under 16 Years Old and Blind Persons.

(1) Special provisions in effect on these areas. (a) Fishing in these areas is limited to individuals under 16

years old and blind persons. (b) Section B(1) — (4) of this regulation shall apply to these

special trout management areas. (2) Areas subject to provisions of this section:

(a) Carroll Creek from a red post located approximately 300 yards upstream of Baughmans Lane downstream to the dam at College Avenue;

(b) Little Tonoloway Creek within Weidmeyer Park in Hancock;

(c) Glades Park Pond on Liberty Street in Oakland; (d) George’s Creek within Town Park in Westernport; (e) Little Antietam Creek at Keedysville, from Coffman

Farms Road downstream to Maryland Route 34; and (f) Grantsville Parkview Pond off Hershberger Lane.

G. Delayed Harvest Trout Fishing Areas and Requirements. (1) Group I Delayed Harvest Trout Fishing Areas and

Restrictions. (a) Group I Fishing Areas.

(i) Catoctin and Little Catoctin Creek (Frederick County) from U.S. Route 40 near its intersection with Maryland Route 17 within Doubs Meadow Park downstream to the lower park boundary near Myersville.

(ii) Middle Patuxent River (Howard County) from U.S. Route 29 downstream to Murray Hill Road.

(iii) Town Creek mainstem (Allegany County) within Green Ridge State Forest, from a red post located approximately 3/4 mile downstream of the upper ford on lower Town Creek Road, just south of the Wagner Road intersection, downstream to a red post located just upstream of the lower ford on Lower Town Creek Road (Mallory Place), and from a post located approximately 1/2 mile



downstream of Maniford Road to a red post located approximately 1-3/4 miles downstream (Bull Ring Ranch).

(b) Season, Creel, and Possession Limits for Group I Fishing Areas.

(i) From June 1 through September 30, inclusive, the daily creel limit and possession limit is five trout (all species of trout in aggregate); and

(ii) From October 1 through May 31, inclusive, a person may not have any trout in possession while fishing in these areas, and shall immediately release any trout caught to the water from which the trout was taken.

(c) Bait Restrictions for Group I Fishing Areas. (i) From June 1 through September 30, no special bait,

lure, or tackle restrictions are in effect. (ii) From October 1 through May 31, in these areas, a

person may not possess or use any natural or live bait, or any device enhanced with a scent and capable of catching fish.

(2) Group II Delayed Harvest Trout Fishing Areas and Restrictions.

(a) Group II Fishing Areas. (i) Casselman River mainstem (Garrett County) from a

boundary marked by two red posts on both stream banks located on the south side of the Interstate 68 eastbound bridge downstream to the Pennsylvania state line.

(ii) North Branch Potomac River mainstem (Garrett County) from the lowermost boundary of the Potomac State Forest near Lostland Run to the uppermost boundary of the Potomac State Forest at Wallman.

(iii) Youghiogheny River mainstem (Garrett County) below Friendsville from a site located 50 yards downstream of Maple Street (at the confluence of Minnow Run) downstream 1.8 miles to the powerline crossing upstream of the Youghiogheny Reservoir.

(b) Season, Creel, and Possession Limits for Group II Fishing Areas.

(i) From June 16 through September 30, inclusive, the daily creel limit and possession limit is five trout (all species of trout in aggregate).

(ii) From October 1 through June 15, inclusive, a person may not have any trout in possession while fishing in these areas, and shall immediately release any trout caught to the water from which the trout was taken.

(c) Bait Restrictions for Group II Fishing Areas. (i) From June 16 through September 30, inclusive, no

special bait, lure, or tackle restrictions are in effect. (ii) From October 1 through June 15, inclusive, in these

areas, a person may not possess or use any natural or live bait, or any device enhanced with a scent and capable of catching fish.

H. Zero Creel Limit Areas for Brook Trout. (1) Special provisions in effect in these areas are:

(a) Open season—no closed season; (b) Creel limit. Brook trout: daily—0, possession—0; all

other trout species in aggregate: daily—2, possession—2; (c) Tackle is restricted to artificial flies and lures; and (d) In these areas, a person may not possess or use any

natural or live bait, or any device enhanced with a scent and capable of catching fish.

(2) The area subject to the provisions of this section is the Savage River mainstem and tributaries upstream of the Savage River Reservoir dam, excluding impoundments and Put-and-Take Trout Fishing Areas (Savage River Reservoir, Savage River from Savage River Reservoir upstream to Poplar Lick Run, and New Germany Lake).

.03 Special Fisheries Management Areas. [A.] — [C.] (proposed for repeal) [D.] A. (text unchanged) [E.] B. Impoundments Limited to Catch-and-Return Fishing.

(1) (text unchanged) (2) While fishing in the areas set forth in [§E(1)] §B(1) of this

regulation, a person: (a) — (b) (text unchanged)

C. Catch-and-Return Bass Areas. (1) Special provisions in effect for catch-and-return bass areas

are that a person: (a) Who catches a largemouth or smallmouth bass shall

immediately release that bass in the water where it was caught; and (b) May not possess largemouth or smallmouth bass while

within the designated catch-and-return areas. (2) The areas subject to the provisions of this section are the:

(a) Potomac River from Dam No. 2 (Seneca Breaks) upstream to the mouth of the Monocacy River;

(b) Monocacy River from the Potomac River upstream to Buckeystown Dam;

(c) Patapsco River from Interstate 70 downstream to Maryland Route 144 (Frederick Road);

(d) Wheatley Lake (Gilbert Run Reservoir); and (e) North Branch of the Potomac River, from the spillway in

Cumberland upstream 25 miles to the U.S. Route 220 Bridge at Keyser, West Virginia.

[F.] (proposed for repeal) [G.] D. (text unchanged) [H.] (proposed for repeal) [I.] E. (text unchanged) [J.] — [L.] (proposed for repeal)

.04 Statewide General Regulations. A. — B. (text unchanged) C. Open Seasons, Creel, Possession, and Size Limits on Game and

Fresh Water Fish in Nontidal Waters. Except as otherwise provided in this chapter for specific areas, the following apply Statewide:

(1) Open Seasons.

Species Open Season

(a) (text unchanged)

(b) Trout (all species) No closed season, except as provided in [Regulations .01B and .03C, F, H, and J] Regulation .01B, C, E, F, and G of this chapter.

(c) — (n) (text unchanged)

(2) (text unchanged) (3) Minimum Size from Tip of Nose to End of Caudal Fin or

Tail.

(a) Largemouth bass 12 inches, except as provided in Regulation [.03D and I] .03A and E of this chapter.

(b) Smallmouth bass 12 inches, except as provided in Regulation [.03D] .03A of this chapter.

(c) — (f) (text unchanged)

(g) Striped bass As provided for in Regulation [.03G].03D of this chapter.

(h) — (s) (text unchanged)

D. — E. (text unchanged) [F.] (proposed for repeal) [G.] F. — [H.] G. (text unchanged)



[I. Repealed.] [J.] H. — [N.] L. (text unchanged) [O.] M. Bait.

(1) A person may not [take or possess more than 35 bait fish in any day from nontidal waters of the State. This section does not apply to bait fish commercially propagated or reared.]:

(a) Take or possess more than 35 bait fish in any day from nontidal waters of the State; or

(b) Take bait fish of any area described in Regulation .01B — H of this chapter.

(2) Crayfish. (a) (text unchanged) (b) In addition to [§O(2)(a)] §M(2)(a) of this regulation,

regulations relating to the importation, transport, purchase, possession, propagation, sale, or release of specific nuisance species of crayfish appear in COMAR 08.02.19.04.

[P.] N. Possession of Fish Whose Physical Condition has been Altered.

(1) — (2) (text unchanged) (3) This provision does not apply to the capture of snakehead

fish, under [§U] §S of this regulation. [Q.] O. (text unchanged) [R.] P. Use of Dip Nets, Cast Nets, and Seines in Nontidal Waters.

(1) — (4) (text unchanged) (5) [A person may not use a net, other than a landing net, on

any Put-and-Take Trout Fishing Area or Special Fisheries Management Area for Trout.] A person may not use seines, traps, or nets of any description in or upon the waters of the State described in Regulation .01B — H of this chapter. This section does not apply to landing nets used to land fish caught by angling.

(6) (text unchanged) (7) Subject to the provisions of [§R] §P of this regulation, a

seine not more than 6 feet in length nor more than 4 feet in depth or a dip net may be used by residents to catch bait fish.

[S.] Q. — [T.] R. (text unchanged) [U.] S. Snakehead Harvest.

(1) Notwithstanding Natural Resources Article, §4-710(g), Annotated Code of Maryland, an individual may capture and possess a snakehead fish using any legal method if, upon capture, the [head]:

(a) Head of the snakehead fish is immediately removed[, the body];

(b) Body is gutted[, the gill]; (c) Gill arches are removed from both sides of the fish[,]; or

[the fish] (d) Fish is filleted [upon capture].

(2) — (3) (text unchanged) [V.] T. — [W.] U. (text unchanged)

.05 [Special Permits and Licenses] Fee Fishing Lakes. [A. Fee Fishing Lakes.]

[(1)] A. — [(3)] C. (text unchanged) [B.] (proposed for repeal)

.08 Special Regulations for Deer Creek and Swan Creek. A. — B. (text unchanged) C. Scientific Collection Permit. A person may collect fish and

eggs for scientific purposes in Deer Creek and Swan Creek only if he first obtains a special scientific permit for these waters from the Department. Any scientific permit issued before January 1, 1975, for the collection of fish and eggs is revoked with respect to the collection of fish and eggs in Deer Creek and Swan Creek.


Subtitle 07 FORESTS AND PARKS 08.07.07 Licensed Tree Experts

Authority: Natural Resources Article, §§5-415—5-423, Annotated Code of Maryland


The Secretary of Natural Resources proposes to adopt new Regulation .07 and recodify existing Regulation .07 to be Regulation .08 under COMAR 08.07.07 Licensed Tree Expert.

Statement of Purpose The purpose of this action is to adopt amendments to the

regulations to reflect the recent statutory changes adopted during the 2011 Legislative Session. The statutory changes repealed the specified fees for obtaining and renewing tree expert licenses and authorized the Department of Natural Resources to set these fees, a time frame for the fees and procedures by regulations.


Estimate of Economic Impact I. Summary of Economic Impact. There will be an initial

economic impact on the licensed tree expert companies. Currently licenses are renewed annually. Starting in December 2011, the renewal fee will be increased to reflect a 2-year license. The fee will be increased on a staggered basis with the odd-numbered licenses switching to a 2-year license and increased fee in 2011 and the even-numbered licenses in 2012.

Revenue (R+/R-)

II. Types of Economic Impact.

Expenditure (E+/E-) Magnitude

B. On other State agencies: NONE

C. On local governments: NONE

Benefit (+) Cost (-) Magnitude

D. On regulated industries or

trade groups: (-) Minimal

E. On other industries or trade groups: NONE

F. Direct and indirect effects on public: NONE

III. Assumptions. (Identified by Impact Letter and Number from Section II.)

D. The license renewal fee will be increased from $10 yearly to $25 every 2 years. This is a yearly increase of $2.50.


businesses.




Opportunity for Public Comment Comments may be sent to Marian Honeczy, Supervisor, Urban

and Community Forestry, Department of Natural Resources Forest Service, 580 Taylor Ave., E-1, Annapolis, MD 21401, or call 410-260-8511, or email to [email protected], or fax to 410-260-8595. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.07 License Application and Renewal Fees. A. An applicant shall pay to the Department, as part of the

examination application, a $30 fee. If the applicant fails an examination, an additional $20 fee must be paid for each subsequent examination application.

B. A tree expert license shall be renewed every 2 years. C. License Renewal Schedule.

(1) All licensees shall renew their licenses by December 31, 2011, for the 2012 calendar year.

(2) Commencing with 2011 renewals for the 2012 calendar year:

(a) Odd-numbered licenses will be renewed for a 2-year period and every subsequent odd-numbered year; and

(b) Even-numbered licenses will be renewed for a 1-year period and will be renewed for a 2-year period every subsequent even-numbered year.

D. Renewal Fees. (1) A licensed tree expert shall pay a $25 fee every 2 years for

license renewal in accordance with the schedule in §C of this regulation.

(2) Licensees renewing in accordance with §C(2)(b) of this regulation shall pay a $10 renewal fee for the 2012 license year.


Title 09 DEPARTMENT OF LABOR,

LICENSING, AND REGULATION

Subtitle 10 RACING COMMISSION 09.10.01 Thoroughbred Rules Authority: Business Regulation Article, 11-210, Annotated Code of Maryland


The Maryland Racing Commission proposes to amend Regulation .49 under COMAR 09.10.01 Rewards to Breeders. This action was considered by the Maryland Racing Commission at an open public meeting held pursuant to State Government Article, §10-506(c), Annotated Code of Maryland on Wednesday June 29, 2011.

Statement of Purpose The purpose of this action is to provide language requiring the

Racing Commission to approve an increase from 5 percent up to 10 percent of the amount paid to the Maryland Horse Breeders Association to administer the fund and amends the language that specifies what percentage of the fund is to be paid as purses and bonuses paid to breeders, owners and stallion owners. The amended language allows the Racing Commission with the recommendation of

the Maryland Bred Advisory Committee to allocate these funds as needed to best promote the breeding industry in Maryland.




businesses.


Opportunity for Public Comment Comments may be sent to J. Michael Hopkins, Executive Director,

Maryland Racing Commission, 300 East Towsontown Boulevard, Baltimore, MD 21202, or call 410-296-9682, or email to [email protected], or fax to 410-296-9687. Comments will be accepted through December 30, 2011. A public hearing has not been scheduled.

.49 Rewards to Breeders — Maryland-Bred Rules. A. — C. (text unchanged) D. [Five] Subject to the approval of the Commission, up to 10

percent of all monies allocated to the Maryland-Bred Race Fund under Business Regulation Article, §§11-515 and 11-525(d), Annotated Code of Maryland, and all earnings on these monies, after the deduction of the amounts under §C of this regulation, shall be paid to the Maryland Horse Breeders Association as compensation for the administration of the Maryland-Bred Race Fund.

E. — F. (text unchanged) G. With the exception of the monies allocated to this Fund which

were generated by the handle on Maryland Million Day, [55 percent] subject to the approval of the Commission, a portion of all the remaining money allocated to this Fund from each race meeting that generates revenue for the Fund, and all earnings on these monies, shall be distributed in the form of purse money and owner awards [as determined by the Commission, with the advice of the Maryland-Bred Race Fund Advisory Committee, by applying the following criteria] on a semi-annual basis as follows:

(1) — (2) (text unchanged) H. After the application of §G of this regulation, the remaining [45

percent] portion of the monies allocated to this Fund, and all earnings on these monies, shall be distributed in the form of breeder and stallion owner awards as follows:

(1) To a breeder of a registered Maryland-bred horse which won a race, or finished second, third, or fourth in a stakes race [at a race meeting that generates revenue for the Fund]; and

(2) To the owner of a stallion, as defined by §A(4) of this regulation, if a registered Maryland-bred sired by the stallion won a race, or finished second, third, or fourth in a stakes race [at a race meeting that generates revenue for the Fund].

I. — N. (text unchanged)

J. MICHAEL HOPKINS Executive Director



Subtitle 19 COMMISSION OF REAL ESTATE APPRAISERS AND HOME

INSPECTORS — REAL ESTATE APPRAISERS

09.19.07 Fees Authority: Business Occupations and Professions Article, §§16-216, 16-

304(d), and 16-506(d), Annotated Code of Maryland


The Commission of Real Estate Appraisers and Home Inspectors proposes to amend Regulation .01 under COMAR 09.19.07 Fees. This action was considered at a public meeting of the Commission held on February 8, 2011, notice of which was given in 38:2 Md. R. 135 (January 14, 2011) pursuant to State Government Article, §10-506(c), Annotated Code of Maryland.

Statement of Purpose The purpose of this action is to amend COMAR 09.19.07.01 to

increase the annual National Registry fee. The fee increase was adopted by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council on October 13, 2010, to become effective on January 1, 2012. This action ensures that federal standards adopted by the Appraisal Subcommittee are in effect in Maryland as required under federal law.



Estimate of Economic Impact I. Summary of Economic Impact. There is no direct impact on

the agency as these fees are nonbudgeted funds collected by the agency and paid to the Appraisal Subcommittee. The Appraisal Subcommittee uses the fees to fund its operation and maintain a National Registry. The National Registry is a database that contains information about, and records disciplinary actions that have been taken against, the nation’s state-certified and -licensed real estate appraisers who are authorized to perform appraisal services in connection with federally related transactions. There is an annual fee charged to each license and certificate holder who obtains an original license or certificate or renews an existing license or certificate. This action increases the fee to $40 from its current fee of $25.

Revenue (R+/R-)



A. On issuing agency: NONE




D. On regulated industries

or trade groups: (-) Minimal




D. License and certificate holders will be required to pay the adjusted fee to the Appraisal Subcommittee in order to be included on the National Registry. Only appraisers on the National Registry are eligible to perform appraisals in connection with federally related transactions. The National Registry benefits appraisers, consumers, lenders, government agencies, and all other users of appraisal services.

F. This action enhances the Appraisal Subcommittee’s oversight of the appraiser regulatory programs, which benefits all users of appraisal services.


businesses.


Opportunity for Public Comment Comments may be sent to Patricia Schott, Administrator,

Commission of Real Estate Appraisers and Home Inspectors, 500 North Calvert Street, Baltimore, MD 21202, or call 410-230-6165, or email to [email protected], or fax to 410-333-6314. Comments will be accepted through October 4, 2011. A public hearing has not been scheduled.

.01 Fees Owed the Commission. A. (text unchanged) B. At the time a license or certificate is issued by the Commission,

the licensee or certificate holder shall pay to the Commission [$25] $40 for each year for which the license is issued. This fee will be transmitted to the Appraisal Subcommittee of the Federal Financial Institutions Examinations Council as required by 12 U.S.C. §3338.

C. — D. (text unchanged)

PATRICIA SCHOTT Administrator

Commission of Real Estate Appraisers and Home inspectors

Title 10 DEPARTMENT OF HEALTH

AND MENTAL HYGIENE Subtitle 09 MEDICAL CARE

PROGRAMS 10.09.07 Medical Day Care Services Authority: Health-General Article, §§2-104(b), 15-103, 15-105, and 15-111,

Annotated Code of Maryland


The Secretary of Health and Mental Hygiene proposes to amend Regulation .08 under COMAR 10.09.07 Medical Day Care Services.



Statement of Purpose The purpose of this action is to reduce Medicaid reimbursement

for medical day care services effective July 1, 2011.


Estimate of Economic Impact I. Summary of Economic Impact. This proposal will decrease

the current per diem rate by 1 percent, effective July 1, 2011.

Revenue (R+/R-)



A. On issuing agency: (E-) $3,566,603




D. On regulated

industries or trade groups: (-) $3,566,603




A. Under the pre-existing regulatory provisions, the Fiscal Year 2012 per diem rate of $71.80 for medical day services would have increased by 3.4 percent to $74.24, based on the annual increase in the March Consumer Price Index. Under the provisions of the proposed amendment, the Fiscal Year 2012 per diem rate will be reduced due to State budget limitations. Effective July 1, 2011 the medical day care services reimbursement rate of $71.80 will be reduced by 1 percent to $71.08. This 1 percent reduction will amount to a cost savings of $3.16 per unit of service. The projected days of service for FY 2012 is 1,128,672 days. Based on a cost savings of $3.16 and the projected days of service, the savings for Fiscal Year 2012 will be $3,566,603.00. Fifty percent of this amount is federal funds.

D. Medicaid payments to providers of medical day care services will be reduced by $3,566,603 during Fiscal Year 2012 as described in Section A.

Economic Impact on Small Businesses The proposed action has a meaningful economic impact on small

business. An analysis of this economic impact follows. Many medical day care providers are small businesses and the

proposed action will have a negative impact on their annual budgets.

Impact on Individuals with Disabilities The proposed action has an impact on individuals with disabilities

as follows: The proposed action will affect rates to providers of services to

individuals with disabilities. No impact on access or quality of services is anticipated.

Opportunity for Public Comment Comments may be sent to Michele Phinney, Director, Office of

Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 W. Preston Street, Room 512, Baltimore, Maryland 21201, or call 410-767-6499, or email to [email protected], or fax to 410-767-6483. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.08 Payment Procedures. A.―C. (text unchanged) D. Per Diem Rate.

(1) Payment to a provider of medical day care services shall be on a per diem basis. The per diem rate is [$73.27] $71.08 effective [November 1, 2008 through September 30, 2009. The per diem rate shall be $71.80 effective October 1, 2009 through June 30, 2010] July 1, 2011.

(2) Effective July 1, [2010] 2012, subject to the limitations of the State’s budget, the per diem rate shall be adjusted annually by adjusting the per diem rate for the preceding fiscal year by the percentage of the annual increase in the March Consumer Price Index for All Urban Consumers, medical care component, Washington-Baltimore, from U.S. Department of Labor, Bureau of Labor Statistics. This rate shall be established 1 month before the beginning of the State’s new fiscal year and shall be applicable for the State’s entire fiscal year.

(3) (text unchanged) E. (text unchanged)


Subtitle 09 MEDICAL CARE

PROGRAMS 10.09.53 Early and Periodic Screening,

Diagnosis, and Treatment: Private Duty Nursing

Authority: Health-General, §§2-104(b), 15-103, and 15-105, Annotated Code of Maryland


The Secretary of Health and Mental Hygiene proposes to amend Regulation .07 under COMAR 10.09.53 Early and Periodic Screening, Diagnosis, and Treatment: Private Duty Nursing.

Statement of Purpose The purpose of this action is to implement a 1 percent rate

decrease for private duty nursing providers in Fiscal Year 2012.



reimbursement rates by 1 percent for providers.

Revenue (R+/R-)









D. On regulated industries or

trade groups: (-) $4,419,031




A. Reimbursement to providers for services is projected to be $99,428,210 in FY 2012 based on a 1 percent rate decrease. Provider rates would have increased by 3.4 percent under the prior regulations, increasing the cost of the Program to $103,847,241, therefore the savings to the Program resulting from the decrease in proposed rates will be $4,419,031 in FY 2012. Fifty percent of this amount is federal funds.

D. The proposed reduction in reimbursement rates will decrease projected revenue by $4,419,031 for providers, as described in Section A.


businesses.


as follows: This rate decrease will have an impact on service providers but is

not expected to effect access or quality of care for individuals with disabilities.


Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 W. Preston St., Baltimore, Maryland 21201, or call 410-767-6499 (TTY 800-735-2258), or email to [email protected], or fax to 410-767-6483. Comments will be accepted through August 12, 2011. A public hearing has not been scheduled.

.07 Payment Procedures. A. (text unchanged) B. Effective [November 1, 2008] July 1, 2011, payment to a

provider of private duty nursing services may not exceed the following fee schedule:

(1) (text unchanged) (2) [$7.91] $7.83 for 15 minutes of skilled nursing services

provided to one participant; and (3) [$5.46] $5.41 for 15 minutes of skilled nursing services

provided to each of two or more participants in the same residence. C. Payment to a provider of private duty nursing services may not

exceed the lesser of: (1) The rates established under [§§ A and B] §B of this

regulation; and (2) (text unchanged)

D. Effective July 1, [2010,] 2011, subject to the limitations of the State budget, the fee schedule rates in §B(2) and (3) of this regulation

shall be adjusted annually by adjusting the fee by the percentage of the annual increase in the March Consumer Price Index for All Urban Consumers, medical care component, Washington-Baltimore, from the U.S. Department of Labor, Bureau of Labor Statistics.



PROGRAMS 10.09.54 Home/Community Based Services

Waiver for Older Adults Authority: Health-General Article, §§2-104(b), 15-103, 15-105, and 15-132,

Annotated Code of Maryland


The Secretary of Health and Mental Hygiene proposes to amend Regulation .33 under COMAR 10.09.54 Home and Community Based Services Waiver for Older Adults.


decrease for Waiver for Older Adults providers in Fiscal Year 2012.



reimbursement rates by 1 percent for providers of waiver services.

Revenue (R+/R-)








or trade groups: (-) $2,972,344




A. Reimbursement to providers for services is projected to be $84,074,886 in FY 2012 based on a 1 percent rate decrease. Provider rates would have increased by 2.5 percent under the prior regulations, increasing the cost of the program to $87,047,230; therefore the savings to the Program resulting from the decrease in proposed rates will be $2,972,344 in FY 2012. Fifty percent of this amount is federal



funds.

D. Provider reimbursement rates will decrease by $2,972,344 under the provisions of the proposed amendment, as described in Section A.


businesses.


as follows: The proposed rate decrease will have an impact on service

providers but it is not expected to effect access or quality of care for individuals with disabilities.


Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 W. Preston Street, Room 512, Baltimore, Maryland 21201, or call 410-767-6499 (TTY 800-735-2258), or email to [email protected], or fax to 410-767-6483. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.33 Payment Procedures. A.—B. (text unchanged) C. Payments.

(1)—(2) (text unchanged) (3) The Program’s maximum rates as specified in §C(4)—(9)

and (12)—(14) of this regulation shall be effective [November 1, 2008 through September 30, 2009. The rates shall be reduced by 2 percent effective October 1, 2009, and the resulting rates] July 1, 2011 and shall increase on July 1 of each year beginning July 1, [2010] 2012, subject to the limitations of the State budget, by the lesser of:

(a)—(b) (text unchanged) (4) Assisted Living Services.

(a)—(c) (text unchanged) (d) Payments for assisted living services as covered under

Regulation .16 of this chapter are: (i) [$56.85] $55.15 per day for Level II assisted living

services; (ii) [$42.65] $41.38 per day for Level II assisted living

services on a day that the participant also received medical day care services;

(iii) [$71.72] $69.59 per day for Level III assisted living services; or

(iv) [$53.78] $52.17 per day for Level III assisted living services on a day that the participant also received medical day care services.

(5) Environmental Assessment. (a) A qualified provider shall bill the Program the lesser of

[$395.59] $383.80 or its usual and customary charge to the general public for the services rendered, minus any payments by other third party payers such as Medicare.

(b) If the environmental assessment was rendered on behalf of more than one participant, the total charge, not to exceed [$395.59] $383.80 shall be divided equally among invoices submitted on behalf of the impacted participants.

(6) Behavior Consultation Services. A qualified provider shall bill the Program an all-inclusive rate not to exceed [$62.17] $60.32 for each hour of a home visit by an individual qualified to render services.

(7) Senior Center Plus. A qualified provider shall bill the Program a daily per capita rate, negotiated with the Maryland

Department of Aging, not to exceed [$45.21] $43.87, for each day that a participant attended the center for at least 4 hours, not including transportation to and from the center.

(8) Personal Care. A qualified provider shall bill the Program a rate for each hour of covered services not to exceed:

(a) [$10.17] $9.87 per hour for personal care aide services rendered by a self-employed aide, not including medication administration or assistance with administration of medication;

(b) [$13.27] $12.87 per hour for personal care aide services which include delegated nursing functions rendered by an appropriately certified self-employed aide under the supervision of a registered nurse;

(c) [$13.01] $12.62 per hour for personal care aide services rendered by an aide employed by a personal care provider agency, not including medication administration or assistance with administration of medication;

(d) [$16.95] $16.44 per hour for personal care aide services, which include delegated nursing functions, rendered by an appropriately certified aide employed by a personal care provider agency, under the supervision of a registered nurse;

(e) [$62.17] $60.32 per hour for personal care nurse monitor services rendered by a licensed registered nurse employed by a personal care provider agency.

(9) Respite Care. A qualified provider shall bill the Program a rate for each hour of covered services not to exceed:

(a) [$10.17] $9.87 per hour for respite care services rendered by a self-employed respite care worker;

(b) [$13.01] $12.62 per hour for respite care services rendered by a respite care worker employed by a respite care provider agency or facility, except a nursing facility or assisted living facility;

(c) [$135.62] $131.58 per day for respite care services delivered in a nursing facility; or

(d) [$72.33] $70.17 per day for respite care services delivered in an assisted living facility.

(10)—(11) (text unchanged) (12) Family or Consumer Training. A qualified provider shall

bill the Program an all-inclusive rate not to exceed [$62.17] $60.32 for each hour of covered services.

(13) Home-Delivered Meals. A qualified provider shall bill the Program an all-inclusive rate not to exceed [$5.65] $5.48 for each delivered meal.

(14) Dietitian and Nutritionist Services. A qualified provider shall bill the Program a rate not to exceed [$62.17] $60.32 for each hour of covered services.

(15)—(17) (text unchanged)



PROGRAMS 10.09.55 Living at Home Waiver Program Authority: Health-General Article, §§2-104(b), 15-103, [and] 15-105, and 15-

130, Annotated Code of Maryland


The Secretary of Health and Mental Hygiene proposes to amend Regulation .29 under COMAR 10.09.55 Living at Home Waiver Program.



Statement of Purpose The purpose of this action is to implement the 1 percent decrease

to provider rates based on the FY 2012 budget passed by the General Assembly.


Estimate of Economic Impact I. Summary of Economic Impact. The proposal will decrease

provider reimbursement rates by 1 percent based on the FY 2012 budget passed by the General Assembly.

Revenue (R+/R-)








or trade groups: (-) $1,067,653




A. and D. Reimbursement to providers for services is projected to be $30,199,330 in FY 2012 based on a 1 percent rate decrease. Provider rates would have increased by 2.5 percent under the prior regulations, increasing the cost of the Program to $31,266,983; therefore, the savings to the Program resulting from the decrease in proposed rates will be $1,067,653 in FY 2012. Fifty percent of this amount is federal funds.

Economic Impact on Small Businesses The proposed action has a meaningful economic impact on small

businesses. An analysis of this economic impact follows. The proposal will have an economic impact on small businesses,

as net provider revenues for services rendered under this Program will be decreased.


as follows: The proposed action will reduce payments to providers of services

to individuals with disabilities; however, no impact on access or quality of services is anticipated.


Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 W. Preston Street, Room 512, Baltimore, Maryland 21201, or call 410-767-6499 (TTY 800-735-2258), or email to [email protected], or fax to 410-767-6483. Comments

will be accepted through September 12, 2011. A public hearing has not been scheduled.

.29 Payment Procedures. A.—B. (text unchanged) C. Payments.

(1)—(3) (text unchanged) (4) Rates.

(a) Attendant Care Services. The Department shall reimburse a qualified provider a rate for each hour of covered service not to exceed:

(i) Consumer-employed—[$13.33] $12.93 per hour for attendant services rendered by a qualified self-employed provider; and

(ii) Agency-employed—[$17.03] $16.52 per hour for attendant services rendered by a qualified agency-employed provider.

(b) Environmental Accessibility Adaptations. A qualified provider shall bill the Department:

(i) (text unchanged) (ii) Not more than [$6,246.66] $6,184.19 every 12

months per participant, unless the rate complies with the exceptions set forth in Regulation .28B of this chapter.

(c) Personal Emergency Response Systems. A qualified provider shall:

(i) (text unchanged) (ii) Bill the Department, not more than [$1,135.76]

$1,101.91 per unit of service, unless preapproved under Regulation .28C of this chapter; and

(iii) (text unchanged) (d) Personal Emergency Response Systems with Motion

Detector. A provider shall: (i) (text unchanged) (ii) Bill the Department, not more than [$1,362.90]

$1,322.28 per unit of service, unless preapproved under Regulation .28C of this chapter; and

(iii) (text unchanged) (e) Assistive Technology. A qualified provider shall:

(i) (text unchanged) (ii) Bill the Department, not more than [$6,246.66]

$6,184.19 every 12 months, unless the rate complies with the exceptions set forth in Regulation .28B of this chapter; and

(iii) (text unchanged) (f) Consumer Training. A qualified provider shall bill the

Department an all-inclusive rate not to exceed [$40.32] $39.11 for each hour of covered service.

(g) Family Training. A qualified provider shall bill the Department a rate for each hour of covered services not to exceed:

(i) Self-employed—[$26.69] $25.90 per hour for family training services rendered by an appropriately licensed professional; and

(ii) Agency-employed—[$38.91] $37.75 per hour for family training services rendered by an appropriately licensed professional.

(h) Nursing Supervision. A qualified provider shall bill the Department a rate for each hour of covered services not to exceed:

(i) Self-employed—[$26.69] $25.90 per hour for nursing supervision services rendered by an appropriately enrolled, licensed provider; and

(ii) Agency-employed—[$38.91] $37.75 per hour for nursing supervision services rendered by an appropriately enrolled, licensed provider.

(i)—(j) (text unchanged) (k) Environmental Assessment. A qualified environmental

assessment provider shall bill the Department: (i) The lesser of [$395.59] $383.80 or its usual and

customary charge to the general public for the services rendered,



minus any payments by other third party payers such as Medicare; but

(ii) If the environmental assessment is rendered to more than one participant, the total charge, not to exceed [$395.59] $383.80, shall be divided equally on invoices submitted for multiple participants.

(l) Home-Delivered Meals. A qualified provider shall bill the Department an all inclusive rate not to exceed [$5.65] $5.48 for each delivered meal.

(m) Dietitian and Nutritionist Services. A qualified provider shall bill the Department a rate not to exceed [$62.17] $60.32 for each hour of covered services.

(n) Case Management Services. A qualified provider shall bill the Department not more than [$13.25] $13.12 for each unit of service, as defined in Regulation .26-3 of this chapter.

(5) The Program’s rates as specified in §C(4) of this regulation shall be effective [July 1, 2009 through September 30, 2009. The rates shall be reduced by 2 percent effective October 1, 2009 and the resulting rates] July 1, 2011, and shall increase on July 1 of each year beginning July 1, [2010] 2012, subject to the limitations of the State budget, by the lesser of:

(a)—(b) (text unchanged)



PROGRAMS 10.09.56 Home and Community-Based Services

Waiver for Children with Autism Spectrum Disorder

Authority: Health-General Article, §§2-104(b), 15-103, 15-105, and 15-130, Annotated Code of Maryland


The Secretary of Health and Mental Hygiene proposes to amend Regulation .22 under COMAR 10.09.56 Home and Community-Based Services Waiver for Children with Autism Spectrum Disorder.


decrease for Autism Waiver providers.



reimbursement rates by 1 percent for providers of waiver services.

Revenue (R+/R-)

II. Types of Economic Impact. Expenditure (E+/E-) Magnitude

A. On issuing agency: (E-) $757,255





or trade groups: (-) $757,255




A. Reimbursement to providers for services is projected to be $21,419,497 in FY 2012 based on a 1 percent decrease. Provider rates would have increased by 2.5 percent under the prior regulations, increasing the cost of the Program to $22,176,752; therefore, the savings to the Program resulting from the decrease in proposed rates will be $757,255 in FY 2012. Fifty percent of this amount is federal funds.

D. The proposed reduction in reimbursement rates will decrease projected revenue by $757,255 for providers, as described in Section A.


businesses.


as follows: This rate decrease will have an impact on service providers but it

is not expected to affect access or quality of care for individuals with disabilities.


Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 W. Preston Street, Room 512, Baltimore, Maryland 21201, or call 410-767-6499 (TTY 800-735-2258), or email to [email protected], or fax to 410-767-6483. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.22 Payment Procedures. A.—C. (text unchanged) D. Payments.

(1) (text unchanged) (2) The Program shall pay according to the following fee-for-

service schedule: (a) Residential habilitation services: reimbursed at one of the

following all-inclusive, maximum rates for a participant: (i) [$191.14] $190.08 per day for the regular level of

service; or (ii) [$382.30] $380.18 per day for the intensive level of

service; (b) Therapeutic integration services: reimbursed at the

maximum rate of [$11.59] $11.52 per 30 minutes; (c) Intensive individual support services: reimbursed at the

maximum rate of [$28.99] $14.41 per [hour] 30 minutes; (d) Respite care: reimbursed at the maximum rate of

[$22.63] $22.51 per hour; (e) Family training: reimbursed at the maximum rate of

[$95.10] $94.57 per hour;



(f) Adult life planning services: reimbursed at the maximum rate of [$95.53] $94.57 per hour;

(g) (text unchanged) (3) (text unchanged) (4) The Program’s rates as specified in §D(2)(a)—(f) of this

regulation shall be effective [July 1, 2008 through September 30, 2009. The rates shall be reduced by 2 percent effective October 1, 2009, and the resulting rates] July 1, 2011, and shall increase on July 1 of each year beginning July 1, [2010] 2012, subject to the limitations of the State budget, by the lesser of:

(a)—(b) (text unchanged)


Subtitle 34 BOARD OF PHARMACY

10.34.35 Infusion Pharmacy Services in an Alternate Site Care Environment

Authority: Health Occupations Article, §12-205, Annotated Code of Maryland


The Secretary of Health and Mental Hygiene proposes to adopt new Regulations .01 — .10 under a new chapter, COMAR 10.34.35 Infusion Pharmacy Services in an Alternate Site Care Environment. This action was considered by the Board of Pharmacy at a public meeting held February 16, 2011, notice of which was given by publication on the Board of Pharmacy web site www.dhmh.maryland.gov/pharamacyboard from January 22, 2011—February 16, 2011, pursuant to the State Government Article, §10-506(c), Annotated Code of Maryland.

Statement of Purpose The purpose of this action is to establish regulatory requirements

to set uniform standards for pharmacies that provide infusion therapy to patients in alternate site care environments in Maryland. The regulations set forth responsibilities for the permit holder, supervising pharmacist, pharmacist, and support personnel. It requires policies and procedures that address personnel, security, standards of patient care, infection control, initial and ongoing home safety assessments, patient education, patient care operations, delivery arrangements, patient confidentiality, and pharmacist availability after hours. Training requirements for all staff is required to addresses patient care, universal precautions, warehouse and equipment orientation, waste management, hazardous substances, customer service, patient confidentiality, policies and procedures, and other activities. Specific training requirements are broken down by pharmacist, pharmacy technician and unlicensed personnel. A performance improvement program will also be required to address medication errors, adverse drug reactions and equipment malfunctions. The regulations will address discontinuation of infusion therapy and end of therapy orders. Finally, the regulations will require specific reference materials beyond what is required in COMAR 10.34.07.03, such as Material Safety Data Sheets, IV compatibility references, stability and extended stability references, websites and electronic references, and other appropriate clinical references for the population served.


Estimate of Economic Impact I. Summary of Economic Impact. There will be an expenditure

of time by the Board in creating a new inspection form for providers of infusion pharmacy services in an alternate site care environment.

All pharmacies are inspected on an annual basis and that inspection schedule would not change. Some pharmacies providing infusion services in an alternate site care environment may need to develop policies and procedures or alter their practice to comply with the new regulations.

Revenue (R+/R-)


Expenditure (E+/E-)

Magnitude

A. On issuing agency: (E+) Minimal



Benefit (+) Cost (-)

Magnitude


or trade groups: (-) Unquantifiable

E. On other industries or trade groups:

NONE

F. Direct and indirect effects on public:

(+) Unquantifiable


A. The Board will be required to spend a minimal amount of time developing an inspection form for infusion pharmacy services in an alternate site care environment.

D. Some pharmacies providing infusion services in an alternate site care environment may have to adapt their current policies and procedures to conform with the requirements of this chapter.

F. This chapter will have a positive unquantifiable impact on the public because it will ensure best practices in the safe and effective delivery of infusion services to the public.


businesses.



Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 W. Preston St., Baltimore, Maryland 21201, or call 410-767-6499, TTY:800-735-2258, or email to [email protected], or fax to 410-767-6483. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.01 Definitions. A. In this chapter, the following terms have the meanings

indicated. B. Terms Defined.

(1) “Alternate site care environment” means the location where the patient is receiving infusion therapy other than an inpatient hospital setting.



(2) “Compounding worksheet” means a document or electronic record which:

(a) Specifies instructions for a specific compounded parenteral medication;

(b) Documents the manufacturer’s: (i) Ingredients; (ii) Lot numbers; and (iii) Expiration dates; and

(c) Includes a copy of the prescription label. (3) Delegated Pharmacy Act.

(a) “Delegated pharmacy act” means an activity that constitutes the practice of pharmacy delegated by a licensed pharmacist under Health Occupations Article, Title 12, Subtitle 6B, Annotated Code of Maryland, and this chapter.

(b) “Delegated pharmacy act” does not include: (i) An act within the parameters of a Drug Therapy

Management contract as provided under Health Occupations Article, Title 12, Subtitle 6A, Annotated Code of Maryland;

(ii) The administration of an influenza vaccination in accordance with Health Occupations Article, §12-508, Annotated Code of Maryland, or Health Occupations Article, Title 12, Annotated Code of Maryland;

(iii) The delegation of a pharmacy act by a pharmacy technician, pharmacy student, or pharmacy technician trainee;

(iv) A pharmacy activity performed by a pharmacy student in accordance with Health Occupations Article, §12-301(b), Annotated Code of Maryland;

(v) A pharmacy activity performed by an applicant for a license to practice pharmacy, if the applicant does not perform delegated pharmacy acts for more than 10 months; or

(vi) The performance of other functions prohibited in regulations adopted by the Board.

(4) “End of therapy” means the conclusion of parenteral infusion therapy as ordered by the prescriber.

(5) “Infusion nurse” means a registered nurse providing infusion therapy as defined in COMAR 10.27.20.02B in an alternate site environment.

(6) “Infusion pharmacy” means a pharmacy that provides pharmaceutical care to patients receiving parenteral therapy in an alternate site care environment.

(7) “Licensed authorized prescriber of record” means an individual with the authority to prescribe and monitor a patient’s parenteral infusion therapy for the duration of the patient’s infusion therapy.

(8) “Parenteral infusion access device” means, but is not limited to, intravenous, subcutaneous, intrathecal, epidural, or peripheral nerve catheter device through which parenteral medications may be administered.

(9) “Patient care plan” means an individualized care plan that reflects the patient’s parenteral infusion therapy pharmaceutical monitoring plan aimed at optimizing the outcome of therapy while minimizing untoward effects from the medication.

(10) “Patient triage form” means a written or electronic tool used by a clinician or by a registered pharmacy technician when communicating with a patient, a patient’s caregiver, or an infusion nurse to document the patient’s current status, including but not limited to, the patient’s response to therapy, medication changes or adverse reactions, and pain level.

(11) “Permit holder” means a person, corporation, or other legal entity authorized by the Board to establish and operate a pharmacy.

(12) “Pharmacy technician” means an individual who is registered with the Board to perform delegated pharmacy acts.

(13) “Pharmacist” means an individual who is licensed to practice pharmacy.

(14) “Supervision” means the on-site provision of management, direction, oversight and review of tasks assigned to personnel.

.02 Permit Holder Responsibilities. The permit holder shall: A. Develop and maintain a policy and procedure manual which

establishes the pharmacy’s policies and standard operating procedures related to the provision of infusion therapy services;

B. Ensure that an annual review of the policy and procedure manual is performed by a qualified clinician or clinicians to assure that the policies and procedures meet the current standards of practice and regulatory requirements;

C. Ensure that there is a process to verify the name, address, and contact information of the licensed authorized prescriber of record before initiation of therapy;

D. Establish and maintain a training program which includes, but is not limited to, the requirements set forth in Regulation .07 of this chapter;

E. If the infusion pharmacy is performing sterile compounding, ensure compliance with COMAR 10.34.19;

F. If the infusion pharmacy outsources sterile compounding to another pharmacy, confirm that the secondary pharmacy is appropriately licensed and in compliance with COMAR 10.34.04 and COMAR 10.34.19;

G. Assign a supervising pharmacist to provide oversight of the facility and operations as specified in Regulation .03 of this chapter;

H. Ensure adequate supervision to unlicensed personnel; I. Limit access to the infusion pharmacy area to authorized

personnel; J. Secure the facility and patient records in compliance with

federal and State laws and regulations; and K. Develop and implement a written performance improvement

program as set forth in Regulation .08 of this chapter.

.03 Supervising Pharmacist Responsibilities. The supervising pharmacist or the supervising pharmacist’s

designee shall ensure compliance with: A. State and federal regulations; B. Infusion pharmacy practice standards:

(1) As set forth in this chapter; and (2) As established by nationally recognized professional

organizations and accrediting bodies as appropriate; C. The infusion pharmacy’s policies and procedures manual; D. An established training program; and E. An established performance improvement program.

.04 Pharmacist Responsibilities. A. A pharmacist in an infusion pharmacy shall adhere to the

policies and procedures set forth in Regulation .06 of this chapter. B. A pharmacist shall:

(1) Provide infusion therapy services in accordance with: (a) Orders issued by a licensed authorized prescriber of

record; and (b) Where applicable, protocols issued by a licensed

authorized prescriber of record. (2) Perform and document initial and ongoing assessments of

the appropriateness of infusion therapy using the following information:

(a) Patient demographics including: (i) Name; (ii) Address; (iii) Telephone number; (iv) Gender; and (v) Date of birth;

(b) Emergency contact information;



(c) Diagnoses, including: (i) Diagnosis being treated; and (ii) Concurrent conditions, including pregnancy and

lactation status if applicable; (d) Medical history; (e) Allergies; (f) If applicable, height; (g) Weight; (h) Parenteral medication orders, including length of

therapy; (i) Parenteral infusion access device:

(i) Location; (ii) Type; and (iii) If available, date of placement;

(j) Ongoing medication profile review and reconciliation at end of therapy;

(k) First dose status; (l) Caregiver information including, but not limited to:

(i) Name; (ii) Address; (iii) Phone number; and (iv) Relationship to patient;

(m) If applicable, contact information for other agencies or individuals involved in the patient’s home care;

(n) Documented applicable medical and social factors and functional limitations which may affect infusion therapy including but not limited to:

(i) Language; (ii) Sight; (iii) Hearing; (iv) History of IV drug abuse; (v) History of drug or alcohol abuse; or (vi) Other physical or mental limitations; and

(o) If applicable to therapy, baseline labs; (3) Create a patient care plan specific to the patient’s:

(a) Diagnosis; (b) Prescribed therapy; and (c) Concurrent conditions;

(4) When compounding sterile preparations, comply with COMAR 10.34.19;

(5) If sterile compounding is outsourced, comply with COMAR 10.34.04;

(6) As applicable, retrieve and assess lab values and other monitoring parameters;

(7) Document in the patient chart: (a) New prescription orders; (b) Changes in prescription orders; (c) Information obtained from the patient or caregiver; and (d) Other necessary information obtained from the:

(i) Patient; (ii) Caregiver; (iii) Infusion nurse; (iv) Licensed authorized prescriber of record; or (v) Other sources relevant to patient care;

(8) Verify prescription label accuracy; (9) Communicate as appropriate, throughout the patient’s

therapy with the: (a) Licensed authorized prescriber of record or agent of the

licensed authorized prescriber of record; (b) Patient’s infusion nurse; (c) Patient; and (d) Caregiver; and

(10) Review therapy-specific considerations such as pain and nutrition status.

.05 Support Personnel. A. Pharmacy Technicians.

(1) A pharmacist working in an infusion pharmacy may delegate pharmacy acts to a pharmacy technician in accordance with COMAR 10.34.34.

(2) A pharmacy technician working in an infusion pharmacy may not perform delegated pharmacy acts as set forth in COMAR 10.34.34.03.

(3) A pharmacy technician working in an infusion pharmacy shall:

(a) Communicate immediately to the pharmacist reported changes in:

(i) Patient condition; (ii) Patient medication list; and (iii) Allergies; and

(b) Obtain pharmacist approval before processing refills. (4) A pharmacy technician working in an infusion pharmacy

may not: (a) Except as provided in COMAR 10.34.34, accept or

transcribe a new or change verbal order from an licensed authorized prescriber of record or the licensed authorized prescriber of record’s agent;

(b) Perform the clinical assessment of a patient; (c) Communicate clinical matters except as required in §

A(3)(a) of this regulations; (d) Provide therapy-related direction to a patient or

caregiver; and (e) Create a patient care plan specific to a patient’s therapy.

B. Unlicensed Personnel. (1) Unlicensed personnel working in an infusion pharmacy

under the supervision of a pharmacist may perform operational support which the unlicensed personnel have been trained to adequately perform in accordance with COMAR 10.34.21.

(2) Unlicensed personnel shall be appropriately trained to perform the following tasks, as applicable, including but not limited to:

(a) Schedule delivery dates based on; (i) Patient supply needs; (ii) Patient or caregiver availability; and (iii) If applicable, geographic delivery zones;

(b) Create delivery tickets; (c) Communicate with the infusion nurse or pharmacist

concerning supply needs and problems; and (d) Clean, test, and maintain patient-use equipment.

(3) Unlicensed personnel working in an infusion pharmacy shall refer clinical questions or concerns reported by patients or caregivers immediately to the pharmacist.

(4) Unlicensed personnel may not perform delegated pharmacy acts.

.06 Minimum Requirements for Policies and Procedures. The policies and procedures shall: A. Be congruent with State regulations and standards of care from

accrediting bodies and professional organizations; and B. Address:

(1) Personnel: (a) Training and Orientation; (b) Duties; and (c) Qualifications;

(2) Security of the facility; (3) Standards of patient care; (4) Infection control; (5) Initial and ongoing home safety assessments;



(6) The provision of patient or caregiver education including, but not limited to:

(a) Drug and therapy administration-specific information and precautions;

(b) Reporting adverse drug reactions; (c) Reporting side effects; (d) Infusion pharmacy contact information; (e) Emergency measures related to:

(i) Changes in patient condition requiring medical intervention; and

(ii) Events which may delay or prevent delivery of pharmaceuticals or nursing care; and

(f) Equipment use and safety. (7) Patient care operations, including but not limited to:

(a) If applicable, pharmacist checking procedures related to order entry and compounding accuracy;

(b) Therapy-specific monitoring parameters for: (i) Laboratory testing; (ii) Appropriate frequency of testing; and (iii) Patient follow-up; and

(c) Pump, or other patient-use equipment, between-patient cleaning, testing, and preventive maintenance, which include specific:

(i) Procedures and documentation of cleaning, testing and preventive maintenance for patient equipment according to manufacturer’s guidelines; and

(ii) Frequencies for all equipment maintenance activities; (8) Delivery arrangements; (9) Patient confidentiality and the Health Insurance Portability

and Accountability Act, 45 CFR Parts 160 and 164; and (10) Availability of a pharmacist on call after-hours to respond

to: (a) Pharmacy related patient or caregiver inquiries; and (b) Medication or supply needs.

.07 Training Requirements. A. Personnel shall be trained in the following areas where

appropriate: (1) Patient rights and responsibilities; (2) Patient safety; (3) Performance improvement program; (4) Universal precautions which are incorporated by reference

in COMAR 10.06.01.01-1; (5) Warehouse and equipment orientation; (6) Waste management; (7) Handling hazardous substances; (8) Policies and procedures; (9) Recognizing signs of patient abuse and neglect; (10) Recognizing signs of IV drug abuse; (11) Customer service and cultural sensitivity training; (12) Emergency policies and procedures which support the

continuum of patient care during natural or manmade disasters; and (13) Patient confidentiality and the Health Insurance

Portability and Accountability Act, 45 CFR Parts 160 and 164. B. A pharmacist shall be trained and evaluated in the following

areas, including but not limited to: (1) Clinical management of therapies and disease states

managed by the infusion pharmacy services, including but not limited to:

(a) Specific dosing and monitoring protocols; (b) Care planning; (c) Lab value ranges; and (d) Side effects;

(2) Pump use and programming;

(3) Parenteral infusion access devices and therapy-specific appropriateness by device;

(4) Supplies by therapy and device; (5) Accurate set-up of compounding worksheet instructions; (6) Pharmacist functions on computer systems; (7) Documentation; (8) If performing sterile compounding, COMAR 10.34.19; (9) Medication storage; (10) IV compatibility and stability; (11) Calculations to ensure:

(a) IV dose appropriateness; and (b) Compounding accuracy, if applicable; and

(12) On-call requirements and procedures for handling after-hours care.

C. A pharmacy technician obtaining clinical information shall be trained and evaluated in the following areas, including but not limited to:

(1) Pharmacy technician functions on computer systems; (2) Parenteral infusion access devices (3) Supplies specific to therapy and device (4) Storage and shipping protocols; (5) Pharmaceutical calculations for IV compounding, if

applicable; (6) Patient triage forms – therapy-specific training and

communication with the pharmacist as specified in Regulation .05A(3)(a) of this chapter; and

(7) Documentation of: (a) Communication with patients or caregiver; and (b) Delivery scheduling.

D. Unlicensed personnel shall be trained and evaluated in the following areas as applicable:

(1) Insurance pre-authorization; (2) Billing; (3) Delivery procedures; (4) Supplies; (5) Picking and packing of supplies; (6) Drug storage; (7) Shipping protocols; and (8) Cleaning, testing, and maintenance of patient-use

equipment according to manufacturers’ specifications.

.08 Performance Improvement Program. A. The performance improvement program shall consist of:

(1) A committee which: (a) Consists of representation of personnel and varied areas

of job responsibility; and (b) Is responsible for analysis of data, reporting trends and

corrective actions; and (c) Meets at least quarterly;

(2) Quality assurance and performance improvement monitoring parameters;

(3) Documentation requirements for: (a) Established monitoring parameters; (b) Trend analyses; and (c) Retention of committee meeting minutes for 3 years;

(5) Documentation of tracking, trending, analyzing, resolving, and developing corrective action plans as appropriate for:

(a) Medication errors; (b) Adverse drug reactions; and (c) Equipment malfunctions;

(6) Reporting of adverse events to regulatory and standard-setting bodies as applicable to State and federal regulations;

(7) Documentation and resolution of patient care issues involving:

(a) Incorrect equipment, supplies, or medications;



(b) Delays in delivery of care; (c) Missed doses; (d) Patient infections; (e) Failures in after-hours care; and (f) Patient, caregiver, or health care provider complaints;

(8) Documentation of patient outcomes; (9) Recall management; (10) Patient compliance monitoring; and (11) Staff training and competency compliance.

B. The permit holder shall review the performance improvement program at a minimum of every 3 years.

.09 Discontinuation of Infusion Therapy. A. If not addressed in the initial order, the infusion pharmacy

shall verify an end of therapy order. B. The infusion pharmacist shall:

(1) Communicate with the licensed authorized prescriber of record or agent of the prescriber of record to verify:

(a) An end of therapy order, if not addressed in the initial order; and

(b) Parenteral infusion access device disposition, including orders for removal or line maintenance; and

(2) Forward the most current medication list to: (a) The licensed authorized prescriber of record; and (b) To the patient or caregiver.

C. If appropriate, the infusion pharmacy shall arrange with the patient or caregiver for pick-up of medical equipment.

.10 Reference Materials. A. An infusion pharmacy shall maintain an adequate reference

library to enable it to prepare and dispense infusion therapy properly.

B. In addition to the requirements of COMAR 10.34.07.03, an infusion pharmacy’s reference library shall include:

(1) Material Safety Data Sheets (MSDSs); (2) IV compatibility references; (3) Stability and extended stability references; (4) Websites and electronic references authored by established

medical publishers recognized within the field of infusion pharmacy practice as a supplement to its printed library;

(5) Pediatric dosing reference, if applicable; and (6) Appropriate clinical references for the population served.

JOSHUA M. SHARFSTEIN, MD Secretary of Health and Mental Hygiene

Title 13A STATE BOARD OF

EDUCATION Subtitle 12 CERTIFICATION

13A.12.03 Specialists Authority: Education Article, §§2-205, 2-303(g), 6-101—6-104, and 6-701—

6-706; Health Occupations Article, §2-301; Annotated Code of Maryland


The Professional Standards and Teacher Education Board proposes to amend Regulations .02, .03, and .11 under COMAR 13A.12.03 Specialists. This action was considered at the Professional Standards and Teacher Education Board meeting on May 5, 2011.

Statement of Purpose The purpose of this action is to correct an error in a citation,

reflect a name change in a certification area, and remove language which is no longer applicable.




businesses.


Opportunity for Public Comment Comments may be sent to Jean Satterfield, Assistant State

Superintendent, Certification and Accreditation, Maryland State Department of Education, 200 West Baltimore Street, Baltimore, MD 21201, or call 410-767-0385 TTY: 410-333-6442, or email to [email protected], or fax to 410-333-8963. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

Open Meeting Final action on the proposal will be considered by the Professional

Standards and Teacher Education Board during a public meeting to be held on November 3, 2011, at 200 West Baltimore Street, Baltimore, MD 21201.

.02 [Guidance] School Counselor. The requirements for certification as a [guidance] school

counselor are: A. — D. (text unchanged)

.03 Library Media Specialist. A. (text unchanged) B. Education and Experience.

(1) — (2) (text unchanged) (3) Option II.

(a) — (c) (text unchanged) (d) The total number of post-baccalaureate credits needed

for certification will not be reduced for course requirements that are met in the applicant’s bachelor’s degree program. Additional post-baccalaureate or graduate courses may be substituted if some of the course work described in [§B(2)(b)] §B(3)(b) of this regulation has been acquired as a part of the undergraduate degree program.

(e) (text unchanged) C. (text unchanged)

.11 School Social Worker. [A.] To obtain certification as a school social worker, the applicant

shall be licensed by the Maryland State Board of Social Work Examiners as a:

[(1)] A.—[(3)] C. (text unchanged) [B. On or after December 1, 2008, but not later than March 31,

2009, the Maryland State Board of Education shall initiate a review to consider amending this regulation to include additional criteria to obtain certification as a school social worker, if such criteria are considered appropriate.]

NANCY S. GRASMICK State Superintendent of Schools




Subtitle 01 STATE LOTTERY AGENCY 14.01.10 Video Lottery Terminals Authority: State Government Article, Title 9, Subtitle 1A, Annotated Code of

Maryland


The Maryland State Lottery Agency proposes to amend Regulation .13 under COMAR 14.01.10 Video Lottery Terminals. This action was considered at the Maryland State Lottery Commission open meeting held on June 23, 2011, notice of which was given pursuant to State Government Article, §10-506(c), Annotated Code of Maryland.

Statement of Purpose The purpose of this action is to revise the video lottery employee

license fees and renewal fees to be consistent with the previous change in the license term from 1 year to 3 years.




businesses.


Opportunity for Public Comment Comments may be sent to Robert W. Howells, Regulations

Coordinator, Maryland State Lottery Agency, 1800 Washington Boulevard, Suite 330, Baltimore, MD 21230, or call 410-230-8789, or email to [email protected], or fax to 410-230-8727. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.13 Video Lottery Employee Licenses. A. — B. (text unchanged) C. Gaming Employee License. The Commission may issue a

gaming employee license to an individual who has: (1) (text unchanged) (2) Paid a license fee of [$200] $150; (3) — (10) (text unchanged)

D. — G. (text unchanged) H. Term; Renewal.

(1) (text unchanged) (2) The Commission may renew the license if, before the term

of the license expires, the licensee: (a) — (d) (text unchanged) (e) Pays a nonrefundable application fee of:

(i) [$200] $150 for gaming employees; or (ii) (text unchanged)

I. (text unchanged)

STEPHEN L. MARTINO Director

State Lottery Agency

Title 31 MARYLAND INSURANCE

ADMINISTRATION Subtitle 12 HEALTH MAINTENANCE ORGANIZATIONS; ENTITIES THAT

ACT AS HEALTH INSURERS 31.12.08 Payments to Nonparticipating Providers

Authority: Health-General Article, §19-710.1(k), Annotated Code of Maryland.


The Insurance Commissioner proposes to amend Regulation .04 under COMAR 31.12.08 Payments to Nonparticipating Providers.

Statement of Purpose The purpose of this action is to clarify how a health maintenance

organization shall calculate the annual rate schedule for certain CPT codes or HCPCS codes when paying a nonparticipating provider under certain circumstances.

Ch. 664, Acts of 2009, added a requirement to Health-General Article, §19-710.1(k), Annotated Code of Maryland, that the Maryland Insurance Administration, in consultation with the Maryland Health Care Commission, adopt regulations to implement Health-General Article, §19-710.1, Annotated Code of Maryland. Emergency regulations were adopted January 1, 2010, as COMAR 31.12.08 and were permanently adopted March 8, 2010. After COMAR 31.12.08 was permanently adopted, the Maryland Insurance Administration became aware of a payment scenario that was overlooked in the original regulations. The proposed action clarifies how a health maintenance organization that receives a bill from a nonparticipating provider, with a service code for which the HMO had no occurrences from a similarly contracted provider in the same geographic area, shall develop the annual rate schedule.




businesses.


Opportunity for Public Comment Comments may be sent to Katrina Lawhorn, Regulations

Coordinator, Maryland Insurance Administration, 200 St. Paul Place, Baltimore, Maryland 21202, or call 410-468-2450, or email to [email protected], or fax to 410-468-2020. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled.

.04 Annual Rate Schedule. A.—B. (text unchanged)



C. The rate in the annual rate schedule for each CPT code or HCPCS code shall be developed as follows:

(1) For each type of similarly licensed provider, the rate [paid] for the CPT code or HCPCS code shall be equal to:

(a) If the health maintenance organization has received claims for occurrences of the CPT code or HCPCS code from participating providers who are similarly licensed providers in the same geographic area for the reference year, the total amount allowed for the occurrences of the CPT code or HCPCS code to participating providers who are similarly licensed providers in the same geographic area during the reference year divided by the total number of occurrences paid for the same CPT code or HCPCS code to participating providers who are similarly licensed providers in the same geographic area during the reference year[.]; or

(b) If the health maintenance organization has not received any claims for occurrences of the CPT code or HCPCS code from participating providers who are similarly licensed providers in the same geographic area for the reference year, the total amount of the contracted rates that the health maintenance organization has entered into with all similarly licensed participating providers in the same geographic area for the reference year for the CPT code or HCPCS code divided by the total number of contracts with similarly licensed participating providers in the same geographic area for the reference year who had entered into contracts with the health maintenance organization for the CPT code or HCPCS code.

(2) (text unchanged) D. (text unchanged)

THERESE M. GOLDSMITH Insurance Commissioner

1041


General Notices

Notice of ADA Compliance The State of Maryland is committed to ensuring that individuals with disabilities are able to fully participate in public meetings. Anyone planning to attend a meeting announced below who wishes to receive auxiliary aids, services, or accommodations is invited to contact the agency representative at least 48 hours in advance, at the telephone number listed in the notice or through Maryland Relay.

BOARD OF ARCHITECTS

Subject: Public Meeting Date and Time: August 22, 2011, 10 a.m. Place: 500 N. Calvert St., 3rd Fl. Conf. Rm., Baltimore, MD Contact: Pamela J. Edwards (410) 230-6263

[11-17-30]

ATHLETIC COMMISSION

Subject: Public Meeting Date and Time: August 25, 2011, 2 — 4:30 p.m. Place: 500 N. Calvert St., 3rd Fl. Conf. Rm., Baltimore, MD Contact: Patrick Pannella (410) 230-6223

[11-17-21]

CHESAPEAKE BAY TRUST

Subject: Public Meeting Date and Time: September 14, 2011, 3 — 6 p.m. Place: Loews Hotel, Annapolis, MD Contact: Heather Adams (410) 974-2941

[11-17-22]

BOARD FOR THE CERTIFICATION

OF RESIDENTIAL CHILD CARE PROGRAM ADMINISTRATORS

Subject: Public Meeting Date and Time: September 9, 2011, 9 a.m. Place: Metro Executive Bldg., 4201 Patterson Ave., Baltimore, MD Contact: Carol Johnson (410) 764-5996

[11-17-13]

MARYLAND COLLECTION AGENCY

LICENSING BOARD

Subject: Public Meeting on Regulations Date and Time: August 17, 2011, 10:30 a.m. — 12:30 p.m. Place: 500 N. Calvert St., Baltimore, MD Contact: Kelly Mack (410) 230-6079

[11-17-11]

GOVERNOR’S OFFICE OF CRIME CONTROL AND PREVENTION

Subject: Public Meeting Date and Time: September 8, 2011, 3 — 5 p.m. Place: Howard Co. Police Dept., Ellicott City, MD Contact: Jessica Winpigler (410) 821-2829

[11-17-09]

GOVERNOR’S OFFICE OF CRIME CONTROL AND PREVENTION

Subject: Public Meeting Date and Time: September 12, 2011, 3 — 5 p.m. Place: Loch Raven Library, Baltimore, MD Contact: Jessica Winpigler (410) 821-2829

[11-17-10]

MARYLAND STATE BOARD OF

EDUCATION

Subject: Public Meeting Date and Time: August 30, 2011, 9 a.m. — 5 p.m.; Additional Dates: August 31, September 27 — 28, and October 25 — 26, 2011 Place: 200 W. Baltimore St., Baltimore, MD Add’l. Info: The State Board of Education is pleased to receive oral public comment at each of its regular monthly meetings. In order to allow the State Board sufficient time for its other business, the total time allotted to public comment will generally be limited to 30 minutes. Individuals seeking to speak to the Board will be given 3 minutes each. Persons desiring to speak to the State Board must call (410-767-0467) or e-mail ([email protected]) the Board office no earlier than 1 week prior to the meeting to register to speak. Registration will be accepted on a first-come, first-served basis. In order to make the limited time available most effective, speakers are urged to provide multiple written copies of their comments or other material amplifying their views. Contact: Charlene L. Necessary (410) 767-0467

[11-17-08]

ELEVATOR SAFETY REVIEW

BOARD

Subject: Public Meeting Date and Time: August 31, 2011, 1:30 — 5 p.m. Place: 500 N. Calvert St., 2nd Fl. Conf. Rm., Baltimore, MD Contact: Raquel M. Meyers (410) 230-6379

[11-17-01]

DEPARTMENT OF HEALTH AND MENTAL HYGIENE/MARYLAND

BOARD OF PHYSICIANS

Subject: Public Meeting Date and Time: August 24, 2011, 9 — 10 a.m. Place: 4201 Patterson Ave., Rms. 108/109, Baltimore, MD Add’l. Info: Appropriate auxiliary aids services provided for qualified individuals upon request. Call Ellen D. Smith at (410) 764-2477. Contact: Tammy Austin (410) 764-4769

[11-17-16]

DEPARTMENT OF HEALTH AND

MENTAL HYGIENE/ LABORATORIES ADMINISTRATION

Subject: Public Meeting Date and Time: September 6, 2011, 8:30 a.m. — 12 p.m. Place: 201 W. Preston St., O’Conor Bldg., Rm. L-37, Baltimore, MD Contact: Georgette P. Zoltani (410) 764-2899

[11-17-24]

BOARD OF HEATING, VENTILATION, AIR-

CONDITIONING, AND REFRIGERATION CONTRACTORS

(HVACR)

Subject: Public Meeting Date and Time: September 14, 2011, 9:30 a.m. — 12 p.m. Place: 500 N. Calvert St., Rm. 302, Baltimore, MD Contact: Steve Smitson (410) 230-6169

[11-17-15]

MARYLAND STATE LOTTERY

COMMISSION

Subject: Public Meeting Date and Time: August 25, 2011, 10 a.m. — 12 p.m. Place: Montgomery Park Business Center, 1800 Washington Blvd., Ste. 330, Baltimore, MD Contact: Marie A. Torosino (410) 230-8790

[11-17-31]

GENERAL NOTICES 1042


MARYLAND HEALTH CARE COMMISSION

Subject: Public Meeting Date and Time: September 15, 2011, 1 p.m. Place: Maryland Health Care Commission, 4160 Patterson Ave., Conf. Rm. 100, Baltimore, MD Add’l. Info: Individuals requiring special accommodations are requested to contact Valerie Wooding at (410) 764-3460, or the Department of Health and Mental Hygiene TTY at (410) 383-7755, not later than 20 days before the meeting to make arrangements. Contact: Valerie Wooding (410) 764-3460

[11-17-02]

MARYLAND HEALTH CARE

COMMISSION

Subject: Formal Start of Review Add’l. Info: Solomons Nursing Center — Docket No. 11-04-2317 — Addition of 12 comprehensive care beds to the current facility located at 13325 Dowell Road, Solomons — Cost: $3,504,204.

Pursuant to COMAR 10.24.01 et seq., on August 12, 2011, the Maryland Health Care Commission hereby gives notice of docketing of the above-referenced application.

Persons desiring to become interested parties in the Commission’s review of the above-referenced application must meet the requirements of COMAR 10.24.01.01B(2) and (20) and must also submit written comments to the Commission no later than close of business September 12, 2011. These comments must state with particularity the State Health Plan standards or review criteria that you believe have not been met by the applicant as stated in COMAR 10.24.01.08F.

Questions may be directed to Paul Parker, Acting Director, Center for Hospital Services at (410) 764-3261, or send to the MHCC, 4160 Patterson Avenue, Baltimore, Maryland 21215. Contact: Ruby Potter (410) 764-3276

[11-17-32]

MARYLAND HEALTH CARE

COMMISSION

Subject: Formal Start of Review Add’l. Info: Knollwood Center — Docket No. 11-02-2316 — Construction of a new, relocated building to house 87 currently licensed CCF beds to be relocated from the existing building, 9 additional waiver beds to be licensed at the existing facility and 14 CCF beds which will be transferred from Hammonds Lane Center — Cost: $16,542,696.

Pursuant to COMAR 10.24.01 et seq., on August 12, 2011, the Maryland Health Care Commission hereby gives notice of docketing of the above-referenced applications.

Persons desiring to become interested parties in the Commission’s review of the above-referenced applications must meet the requirements of COMAR 10.24.01.01B(2) and (20) and must also submit written comments to the Commission no later than close of business September 12, 2011. These comments must state with particularity the State Health Plan standards or review criteria that you believe have not been met by the applicant as stated in COMAR 10.24.01.08F.

Questions may be directed to Paul Parker, Acting Director, Center for Hospital Services at (410) 764-3261, or send to the MHCC, 4160 Patterson Avenue, Baltimore, Maryland 21215. Contact: Ruby Potter (410) 764-3276

[11-17-33]

BOARD OF PODIATRIC MEDICAL

EXAMINERS

Subject: Public Meeting Date and Time: September 8, 2011, 1 p.m. Place: 4201 Patterson Ave., Rm. 110, Baltimore, MD Contact: Sheri Henderson (410) 764-4785

[11-17-03]


EXAMINERS

Subject: Public Meeting Date and Time: October 13, 2011, 1 p.m. Place: 4201 Patterson Ave., Rm. 110, Baltimore, MD Contact: Sheri Henderson (410) 764-4785

[11-17-04]

BOARD OF PODIATRIC MEDICAL EXAMINERS

Subject: Public Meeting Date and Time: November 10, 2011, 1 p.m. Place: 4201 Patterson Ave., Rm. 110, Baltimore, MD Contact: Sheri Henderson (410) 764-4785

[11-17-05]


EXAMINERS

Subject: Public Meeting Date and Time: December 8, 2011, 1 p.m. Place: 4201 Patterson Ave., Rm. 110, Baltimore, MD Contact: Sheri Henderson (410) 764-4785

[11-17-06]

PROCUREMENT ADVISORY COUNCIL (PAC)

Subject: Public Hearing Date and Time: August 23, 2011, 2 — 4 p.m. Place: 201 W. Preston St., L-2, Baltimore, MD Contact: Melissa Hodges (410) 260-7335

[11-17-18]

BOARD OF PUBLIC ACCOUNTANCY

Subject: Public Meeting Date and Time: September 13, 2011, 9 a.m. — 11 p.m. Place: 500 N. Calvert St., 2nd Fl. Conf. Rm., Baltimore, MD Contact: Dennis L. Gring (410) 230-6224

[11-17-07]

COMMISSION TO COORDINATE

THE STUDY, COMMEMORATION, AND IMPACT OF SLAVERY’S

HISTORY AND LEGACY IN MARYLAND

Subject: Public Meeting Date and Time: August 31, 2011, 11 a.m. — 1 p.m. Place: Edward C. Papenfuse State Archives Bldg., 350 Rowe Blvd., Annapolis, MD Contact: Chris Haley (410) 260-6478

[11-17-17]

MARYLAND TRANSPORTATION

AUTHORITY

Subject: Public Meeting Date and Time: August 25, 2011, 9 — 11 a.m. Place: Maryland Transportation Authority, Point Breeze Complex, 2310 Broening Hwy., Ste. 160, Baltimore, MD Add’l. Info: A portion of this meeting may be held in closed session. Contact: Cindy Taylor (410) 537-1002

[11-17-12]

WORKERS’ COMPENSATION

COMMISSION

Subject: Public Meeting Date and Time: September 8, 2011, 9 — 11 a.m. Place: 10 E. Baltimore St., Baltimore, MD Add’l. Info: Portions of this meeting may be held in closed session. Contact: Amy Lackington (410) 864-5300

[11-17-14]

Updated on 4/27/2011

COMAR PDF ORDER FORM

Titles Agency Name Price1 Subscription2 Quantity Total

Complete set of COMAR PDF format $1,000 $500 _____ _____ Title 01 Executive Department $35 $24 _____ _____ Title 02 Office of the Attorney General $22 $13 _____ _____ Title 03 Comptroller of the Treasury $30 $20 _____ _____ Title 04 General Services $16 $10 _____ _____ Title 05 Housing and Community Development $78 $50 _____ _____ Title 07 Human Resources $80 $53 _____ _____ Title 08 Natural Resources $78 $51 _____ _____ Title 09 Labor, Licensing and Regulation $89 $60 _____ _____ Title 10 Health & Mental Hygiene (All parts) ** $272 $180 _____ _____ Title 10 Part 1 ** $48 $32 _____ _____ Title 10 Part 2 ** $75 $50 _____ _____ Title 10 Part 3 ** $75 $50 _____ _____ Title 10 Part 4 ** $50 $35 _____ _____ Title 10 Part 5 ** $69 $50 _____ _____ Title 11 Transportation (All parts) ** $106 $75 _____ _____ Title 11 Part 1 (Transportation) ** $42 $25 _____ _____ Title 11 Parts 2 & 3 (MVA)** $74 $50 _____ _____ Title 12 Public Safety and Correctional Services $67 $43 _____ _____

Title 13A Board of Education $63 $42 _____ _____ Title 13B Higher Education Commission $25 $15 _____ _____ Title 14 Independent Agencies $87 $60 _____ _____ Title 15 Agriculture $48 $30 _____ _____ Title 16 Juvenile Service $23 $15 _____ _____ Title 17 Budget and Management $28 $16 _____ _____ Title 18 Assessments and Taxation $20 $12 _____ _____

Title 19A State Ethics Commission $24 $14 _____ _____ Title 20 Public Service Commission $49 $32 _____ _____ Title 21 State Procurement Regulations $48 $30 _____ _____ Title 22 State Retirement and Pension System $22 $13 _____ _____ Title 23 Board of Public Works $18 $11 _____ _____ Title 24 Business and Economic Development $34 $20 _____ _____ Title 25 State Treasurer $16 $9 _____ _____ Title 26 Environment (All parts) ** $189 $125 _____ _____ Title 26 Part 1 ** $54 $35 _____ _____ Title 26 Part 2 ** $83 $52 _____ _____ Title 26 Part 3 ** $57 $38 _____ _____ Title 26 Part 4 ** $37 $24 _____ _____ Title 27 Critical Area Comm. for the Chesapeake and Atlantic Coastal Bays $18 $10 _____ _____ Title 28 Office of Administrative Hearings $16 $9 _____ _____ Title 29 State Police $30 $18 _____ _____ Title 30 MD Institute for Emergency Medical Services Systems $25 $17 _____ _____ Title 31 Maryland Insurance Administration $68 $45 _____ _____ Title 32 Aging $25 $15 _____ _____ Title 33 State Board of Elections $42 $25 _____ _____ Title 34 Planning $31 $18 _____ _____ Title 35 Veterans Affairs $16 $9 _____ _____

Individual Binders (COMAR PDF’s binders not included) $15 S & H $9.00 _____ _____ Total: _____

Prices are for single user license only ~ Multi-user licenses are available. Please call 410-260-3876 for pricing information. 1 Price is per copy of each Title 2 Subscription (optional) - Receive updated information quarterly. ~ If ordered, subscription quantities MUST match Title quantities. ** See the following pages for description of contents

COMAR PRINT ORDER FORM (8 ½ x 11 format) Titles Agency Name Price1 Subscription2 Quantity Total

Complete set of COMAR (includes binders) $1,400 $700 _____ _____ Title 01 Executive Department $47 $30 _____ _____ Title 02 Office of the Attorney General $31 $20 _____ _____ Title 03 Comptroller of the Treasury $41 $25 _____ _____ Title 04 General Services $23 $12 _____ _____ Title 05 Housing and Community Development $103 $70 _____ _____ Title 07 Human Resources $104 $70 _____ _____ Title 08 Natural Resources $102 $70 _____ _____ Title 09 Labor, Licensing and Regulation $116 $75 _____ _____ Title 10 Health & Mental Hygiene (All Parts)** $345 $230 _____ _____ Title 10 Part 1 ** $65 $40 _____ _____ Title 10 Part 2 ** $99 $70 _____ _____ Title 10 Part 3 ** $99 $70 _____ _____ Title 10 Part 4 ** $69 $42 _____ _____ Title 10 Part 5 ** $91 $62 _____ _____ Title 11 Transportation (All parts) ** $137 $85 _____ _____ Title 11 Part 1 (Transportation)** $55 $35 _____ _____ Title 11 Parts 2 & 3 (MVA) ** $102 $70 _____ _____ Title 12 Public Safety and Correctional Services $86 $55 _____ _____

Title 13A Board of Education $83 $60 _____ _____ Title 13B Higher Education Commission $34 $20 _____ _____ Title 14 Independent Agencies $112 $75 _____ _____ Title 15 Agriculture $63 $40 _____ _____ Title 16 Juvenile Service $32 $20 _____ _____ Title 17 Budget and Management $38 $25 _____ _____ Title 18 Assessments and Taxation $28 $18 _____ _____

Title 19A State Ethics Commission $33 $20 _____ _____ Title 20 Public Service Commission $64 $42 _____ _____ Title 21 State Procurement Regulations $65 $42 _____ _____ Title 22 State Retirement and Pension System $33 $18 _____ _____ Title 23 Board of Public Works $26 $15 _____ _____ Title 24 Business and Economic Development $47 $25 _____ _____ Title 25 State Treasurer $23 $12 _____ _____ Title 26 Environment (All parts) ** $241 $160 _____ _____ Title 26 Part 1 ** $72 $42 _____ _____ Title 26 Part 2 ** $109 $72 _____ _____ Title 26 Part 3 ** $76 $50 _____ _____ Title 26 Part 4 ** $51 $30 _____ _____ Title 27 Critical Area Comm. for the Chesapeake and Atlantic Coastal Bays $26 $15 _____ _____ Title 28 Office of Administrative Hearings $23 $12 _____ _____ Title 29 State Police $40 $22 _____ _____ Title 30 MD Institute for Emergency Medical Services Systems $34 $20 _____ _____ Title 31 Maryland Insurance Administration $90 $62 _____ _____ Title 32 Aging $34 $18 _____ _____ Title 33 State Board of Elections $57 $35 _____ _____ Title 34 Planning $42 $25 _____ _____ Title 35 Veterans Affairs $23 $12 _____ _____

Binders $15 S & H $9.00 _____ _____ Shipping & Handling Total: _________ Order Total: _____

1 Price is per copy of each Title Binder included with purchase of Title 2 Subscription (optional) - Receive updated information bi-annually ~ If ordered, subscription quantities MUST match Title quantities. ** See the following pages for description of contents

Shipping/Handling Publication Total Shipping $ 0-50 $15 $ 51-150 $20 $ 151-300 $25 $ 301-400 $35 $400 + please call Subscription Department. State agencies using courier, may omit

Note: COMAR prices are subject to change. Check the date on the lower right hand corner of this form. If the form is more than two months old, call the COMAR Subscription Manager (410-974-2486) to confirm prices. Fees are not refundable.



SPECIAL PUBLICATIONS

Publication / Handbook Print Price S & H Quantity Total

Preventive Maintenance Handbook (PM Handbook) $15 $5 _____ _____ Vehicle Inspection Handbook $40 $9 _____ _____ Forest Conservation Technical Manual 3rd Edition, 1997 $25 $9 _____ _____ Forest Conservation Law $20 $9 _____ _____ Control of Ionizing Radiation (including supplements up to 19) $130 $12 _____ _____ Total _____ If more than one quantity, shipping charges may vary, please call 410-260-3876 for pricing information.

Just In 26.12.01.01 Print Price S & H Quantity Total

Control of Ionizing Radiation supplements 18 & 19 ONLY $42 $9 _____ _____ If more than one quantity, shipping charges may vary, please call 410-260-3876 for pricing information.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Date ____________________________ Account Number _____________________________ Name________________________________________________________________________ Company_____________________________________________________________________ Address______________________________________________________________________ City______________________________State____________Zip_________________________ Tel.___________________________________ Fax___________________________________ Email: _______________________________________________________________________ _______ Check enclosed, made payable to Division of State Documents _______ Visa/Master Card/American Express/Discover card payment: Acct.#_________________________________________ Exp.____________

Signature __________________________Tel:_____________________________ Return form & payment to: Office of the Secretary of State, Division of State Documents ~ State House ~ Annapolis, MD 21401 ~ Tel: 410-260-3876 ~ 800-633-9657 ext. 3876 ~ Fax: 410-280-5647

CODE OF MARYLAND REGULATIONS

Titles 10, 11, and 26 consist of more than one volume. Each volume may be purchased separately.

Title 10 Department of Health and Mental Hygiene: Part & Subtitles

Part 1 01 Procedures 02 Division of Reimbursements 03 Health Statistics 04 Fiscal 05 Freestanding Ambulatory Care Facilities 06 Diseases 07 Hospitals 08 Health Facilities Grants Part 2 09 Medical Care Programs Part 3 10 Laboratories 11 Maternal and Child Health 12 Adult Health 13 Drugs 14 Cancer Control 15 Food 16 Housing 17 Sanitation 18 Human Immunodeficiency Virus (HIV) Infection and Acquired Immunodeficiency Syndrome (AIDS) 19 Dangerous Devices and Substances 20 Kidney Disease Program 21 Mental Hygiene Regulations 22 Developmental Disabilities Part 4 23 Advance Directive Registry 24 Maryland Health Care Commission 25 Maryland Health Care Commission 26 Board of Acupuncture 27 Board of Nursing 28 Board of Examiners in Optometry 29 Board of Morticians and Funeral Directors 30 Commission on Kidney Disease 31 Health Occupation Boards 32 Board of Physicians 33 Board of Examiners of Nursing Home Administrators 34 Board of Pharmacy 35 Postmortem Examiners Commission 36 Board of Examiners of Psychologists Part 5 37 Health Services Cost Review Commission 38 Board of Physical Therapy Examiners 39 Board of Nursing – Certified Nursing Assistants 40 Board of Podiatric Medical Examiners 41 Board of Examiners for Audiologists, Hearing Aid Dispensers, and Speech-Language Pathologists 42 Board of Social Work Examiners 43 Board of Chiropractic Examiners 44 Board of Dental Examiners 45 Maryland Community Health Resources Commission 46 Board of Occupational Therapy Practice 47 Alcohol and Drug Abuse Administration 48 Child Abuse and Neglect Medical Reimbursement Program 49 State Anatomy Board 50 Tissue Banks 51 Vacant 52 Preventive Medicine 53 Board of Nursing—Electrology Practice Committee 54 Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) 55 State Board of Spinal Cord Injury Research 56 Board of Dietetic Practice 57 Board for Certification of Residential Child Care Program Professionals 58 Board of Professional Counselors and Therapists 59 Catastrophic Health Emergencies

Title 11 Department of Transportation – Volume & Subtitles Volume 1 01 Office of the Secretary 02 Transportation Service Human Resources System 03 Maryland Aviation Administration 04 State Highway Administration 05 Maryland Port Administration 06 Mass Transit Administration 07 Maryland Transportation Authority 08 Vacant 09 Vacant 10 Vacant Volume 2 and Volume 3 11 Motor Vehicle Administration – Administrative Procedures 12 MVA – Licensing of Businesses and Occupations 13 MVA – Vehicle Equipment 14 MVA – Vehicle Inspections 15 MVA – Vehicle Registration 16 MVA – Vehicle Operations 17 MVA – Driver Licensing and Identification Documents 18 MVA – Financial Responsibility Requirements 19 MVA – School Vehicles 20 MVA – Motorcycle Safety Program 21 MVA – Commercial Motor Vehicles 22 MVA – Preventive Maintenance Program 23 MVA – Drivers’ Schools, Instructors, Driver Education Program Title 26 Department of the Environment – Part & Subtitles Part 1 01 General Provisions 02 Occupational, Industrial, and Residential Hazards 03 Water Supply, Sewerage, Solid Waste, and Pollution Control

Planning and Funding 04 Regulation of Water Supply, Sewage Disposal, and Solid Waste 05 Board of Well Drillers 06 Waterworks and Waste Systems Operators 07 Board of Environmental Sanitarians Part 2 08 Water Pollution 09 Maryland CO2 Budget Trading Program 10 Oil Pollution and Tank Management 11 Air Quality 12 Radiation Management Part 3 13 Disposal of Controlled Hazardous Substances 14 Hazardous Substance Response Plan 15 Disposal of Controlled Hazardous Substances ― Radioactive Hazardous Substances 16 Lead 17 Water Management 18 Susquehanna River Basin Commission Part 4 19 Oil and Gas Resources 20 Surface Coal Mining and Reclamation under Federally Approved Program 21 Mining 22 Coastal Facilities Review 23 Nontidal Wetlands 24 Tidal Wetlands 25 Ballast Water Management 26 Community Right-to-Know Fund 27 Hazardous Material Security

Last Updated 4/2010

Date: ____________

Existing Account#: _____________

eCOMAR Order Form

Name: __________________________________________________________________ Business Name: __________________________________________________________ Address: ________________________________________________________________ City: _______________________ State: ____________ Zip Code: ________________ Phone: __________________ Fax: _________________ Email: ______________________________________________ COMAR codification: ______________________ ;

(ex: 08.02.02*) ______________________ ;

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______________________ ;

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* Each codification entered is considered a separate document

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Return Options: Mail to: Fax: Division of State Documents 410-280-5647 State House Annapolis, Maryland 21401

* For documents containing tables, maps, graphics etc. additional fees may apply. —————— • For additional information, please call 410-974-2486 ext. 3876 or 800-633-6957 ext. 3876 or email your questions and inquiries to: [email protected] • Please allow up to 2 business days for turnaround.

Basic Page Pricing per Document*

1 — 20 $10 21— 40 $15 41 — 60 $20 61 — 80 $25 81 — 100 $30 101 — 120 $40 121 — 140 $50 141 — 160 $60 161 — 180 $70 181 — 200 $80 201 — 220 $90 221 — 240 $100 241 — 260 $110 260 — 280 $120 281 — 300 $130 Over 300 Call for pricing

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Maryland Register Archive Order Form The Division of State Documents has created pdf files of all the Maryland

Register issues since 1974. The issues from 1974—2003 are scanned images in pdf format of the actual Register and, as such, are not searchable, while the issues beginning with 2004 are searchable text in pdf format.

Single issues of the Maryland Register from 1974—present

_____ $10 Per issue of the Register from 1974—present via emailed pdf file. Please specify Issue(s): _______________________________________

_____ $15 Per issue of the Maryland Register from 1974—present via mailed hard-copy Please specify Issue(s): _______________________________________ An archival library of all Maryland Register issues from 1974—2003:

_____ $375 2 DVDs (1974 — 2010)

_____ $50 One year of the Maryland Register from 1974—2003 (unsearchable): Please specify Year(s): ______________________________

_____ $100 A single year of issues from 2004 forward will be available in January of the year following their publication. These will be searchable, on CD. Please specify: 2004 2005 2006 2007 2008 2009 2010

Note: All products purchased are for individual use only. Resale or other compensated transfer of the information in printed or electronic form is a prohibited commercial purpose (see State Government Article, §7-206.2, Annotated Code of Maryland).

By purchasing a product, the buyer agrees that the purchase is for individual use only and will not sell or give the product to another individual or entity.

Please order by faxing the completed form to: Fax: 410-280-5647

By mailing it to: Division of State Documents State House Annapolis, MD 21401

By email to:

[email protected]

Business/Firm: ___________________________________________

Name: __________________________________________________

Billing Address: __________________________________________

_______________________________________________________

City, State, Zip ___________________________________________

Tel: _______________________Fax:_________________________

By calling: 410-260-3876

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1/2011

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Money Order or Check # ____________ Amount: $___________ or

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Maryland Register Print and E-Version Order Form

The Maryland Register is a biweekly publication containing proposed, emergency, and final administrative regulations as well as other State government information. The Register serves as the temporary supplement to the Code of Maryland Regulations (COMAR). Any change to the text of regulations published in COMAR, whether by adoption, amendment, repeal, or emergency action, must first be published in the Register.

See separate Order Form for the Maryland Register Archive Issues from 1974 — 2010.

_____ $225 A single year of print 1st Class Mail Delivery.

_____ $190 A single-user annual eSubscription, which would provide a searchable pdf text file of each issue, emailed directly to one recipient’s email address.

_____ $130 Per additional user, per account subscription. Call 410-260-3876 for details.

Note: All products purchased are for individual use only. Resale or other compensated transfer of the information in printed or electronic form is a prohibited commercial purpose (see State Government Article, §7-206.2, Annotated Code of Maryland).

By purchasing a product, the buyer agrees that the purchase is for individual use only and will not sell or give the product to another individual or entity.

Please order by faxing the completed form to: Fax: 410-280-5647

By mailing it to: Division of State Documents State House Annapolis, MD 21401

By email to:

[email protected]

By calling: 410-260-3876

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Business/Firm: ___________________________________________

Name: __________________________________________________

Billing Address: __________________________________________

_______________________________________________________

City, State, Zip ___________________________________________

Tel: _______________________Fax:_________________________

Recipient’s Email:_________________________________________

Last updated on 1/2011

(Please circle payment choice and complete the order form)

Money Order or Check # ____________ Amount: $___________ or

VISA, MasterCard, American Express, Discover ~ Amount: $______________

Card # ______________________________________________________ Card Exp. Date: ____________

Signature: __________________________________________ Phone: _______________________

Date: ________________________

Acct.# _______________________


Issue Date: August 12, 2011 -...

Documents

Transcript of Issue Date: August 12, 2011 -...