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09.32.10 - Division of Unemployment Insurance - Proposed Regulations

PROPOSED ACTION ON REGULATIONS
MARYLAND REGISTER, VOLUME 45, ISSUE 1,
FRIDAY, JANUARY 5, 2018

Title 09 DEPARTMENT OF LABOR, LICENSING, AND REGULATION

Subtitle 32 Unemployment Insurance

09.32.11 Lower Appeals Division — Appeals Procedure

Authority: Labor and Employment Article, §8-504, Annotated Code of Maryland

Notice of Proposed Action
[17-322-P]

The Secretary of Labor, Licensing, and Regulation proposes to amend Regulations .01, .02, and .04 under COMAR 09.32.11 Lower Appeals Division — Appeals Procedure.

Statement of Purpose

The purpose of this action is to propose revisions to reflect statutory changes restoring employers’ first level of appeal to the Lower Appeals Division before appealing to the Board of Appeals in employer account cases. An additional purpose is to update language to conform to terms of Labor and Employment Article, Title 8, Annotated Code of Maryland.

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 Judy Smylie, Director/Chief Hearing Examiner, Lower Appeals Division, Department of Labor, Licensing, and Regulation, 1100 N. Eutaw Street, Room 511, Baltimore, MD 21201, or call 410-767-2421, or email to judy.smylie@maryland.gov, or fax to 410-767-2532. Comments will be accepted through February 5, 2018. A public hearing has not been scheduled.

.01 Filing of Appeal.
  A. Manner of Filing.
    (1) An appeal from a claims examiner’s determination or an appeal of a review determination shall be in writing and signed by the party appealing, or the party’s attorney or authorized representative. The appeal may be filed by mail, by facsimile, by hand delivery to the Lower Appeals administrative office at the Lower Appeals Division address listed on the benefit determination or review determination, or by [electronic mail] other electronic means in a format approved by the Chief Hearing Examiner.
    (2) In the event of an appeal from a determination of a claims examiner involving more than one claimant on the same issue, the appeal may be filed by the individual claimants or by an authorized representative on their behalf. The authorized representative shall submit, together with the appeal, a list containing the names, addresses, and last four digits of the Social Security numbers of the claimants who are parties to the appeal.
  B. Time for Filing.
    (1) An appeal from a claims examiner’s determination shall be filed within 15 calendar days after the determination is mailed or otherwise sent to the last known address of the party.
    (2) An appeal from a review determination shall be filed within 30 calendar days after the review determination is mailed or otherwise sent to the last known address of the party.
    [(2)] (3) An appeal is considered filed on the earliest of the following dates:
      (a) — (c) (text unchanged)
      (d) The date an appeal is received by facsimile or other electronic [mail] means in a format approved by the Chief Hearing Examiner at the administrative office of the Lower Appeals Division.
    [(3)] (4) The period for filing an appeal from the claims examiner’s determination or an appeal of a review determination may be extended by the Hearing Examiner for good cause shown.

.02 Hearings Before the Hearing Examiner
  A. (text unchanged)
  B. Notice of Hearing.
    (1) The interested parties shall be given at least 7 business days notice in writing of the time and place of any hearing before the Hearing Examiner.
    (2) Notice is sufficient when mailed to the party, postage prepaid, at the last known post office address of the party or by electronic means in a format approved by the Chief Hearing Examiner, if the party has opted to receive notice by electronic means.
    (3) In the case of appeals filed under Regulation .01A(2) of this chapter, notice [mailed to the attorney or authorized representative, plus notice mailed] sent in accordance with §B(2) of this regulation to the attorney or authorized representative, and to each individual appellant who filed an individual appeal or who requested individual notice, shall be sufficient notice to all parties represented by the attorney or authorized representative.
    (4) (text unchanged)
  C. Pretrial Conference. In appeals of review determinations resolving issues arising under Labor and Employment Article, §8-602(a)(2) and (5), Annotated Code of Maryland, the Chief Hearing Examiner may consider a motion of a party requesting a scheduling conference to resolve preliminary issues including, but not limited to, the exchange of documentation, the exchange of lists of potential witnesses, and proposed stipulations.
  [C.] D. — [D.] E. (text unchanged)
  [E.] F. Issues. The Hearing Examiner shall inquire fully into the facts of the particular case. A Hearing Examiner shall consider the issue expressly ruled upon in the determination of the claims examiner or the review determination from which the appeal was filed.
  [F.] G. (text unchanged)
  [G.] H. Attorney’s Fees.
    (1) (text unchanged)
    (2) Requests for approval of fees greater than 200 percent of the claimant’s weekly benefit amount shall be accompanied by an itemized account of services rendered in the case. A request for the excess fee shall be submitted within 30 calendar days of the date of the issuance of the decision. The Chief Hearing Examiner shall have authority to approve a fee higher than the maximum allowed under [§G(1)] §H(1) of this regulation based upon the complexity of the case and the reasonableness of the fee. The fee shall be reviewable by the Board of Appeals upon written protest of either the claimant or the attorney.
    (3) The fee amounts set out in [§G(1)] §H(1) and (2) of this regulation may be awarded for each level of appeal.
    (4) (text unchanged)
  [H.] I. (text unchanged)
  [I.] J. Evidence.
    (1) — (2) (text unchanged)
    (3) Agency Record. For purposes of an appeal from a claims examiner’s determination, the official Agency record shall consist of the appeal letter and envelope or other evidence showing its manner of submission, and the Agency Fact Finding Report. For purposes of an appeal from a review determination, the official Agency record shall consist of the appeal letter and envelope or other evidence showing its manner of submission, and the review determination under review. Upon request of a party to an appeal for information from other records of the Department, the Hearing Examiner shall forward the request to the Secretary so that information that may be relevant and pertinent and that is not by definition a part of the Agency record, may be furnished by the Secretary. Upon request, any party shall be furnished with any information contained in the official Agency record, or other Agency documents in the custody of the Secretary that may be pertinent or material to the case. Requests for this information shall be made at least 3 business days before the hearing and shall state, as nearly as possible, the nature of the information desired. Requests made after this time will be granted only at the discretion of the scheduling authority. The records of the Department of Labor, Licensing, and Regulation shall be deemed self-authenticating for purposes of admission under the Rules of Evidence. The Hearing Examiner shall admit the Agency record, including the Agency Fact-Finding Report, into evidence at the hearing, without the need for an Agency representative to appear at the hearing to authenticate or introduce it. The Hearing Examiner shall consider the Agency record when making a final decision, giving weight to the Agency Fact-Finding Report that the Hearing Examiner deems appropriate.
    (4) Evidence of Medical Condition. In any case where the medical condition of a party is at issue, the Hearing Examiner, for good cause shown, may grant a party up to 10 calendar days after the hearing to submit written medical documentation.
  [J.] K. — [L.] M. (text unchanged)
  [M.] N. Withdrawal of Appeals. At any time before the hearing, a party appealing from a determination of a claims examiner or appealing a review determination may request that the appeal be withdrawn, and the Hearing Examiner shall permit the withdrawal. After the hearing has commenced or concluded, a withdrawal may be permitted for good cause shown. A request for withdrawal shall be submitted in writing or placed on the record during a hearing. An approved withdrawal is a final decision and is not subject to a request to reopen.
  [N.] O. Dismissal of Appeal When Appealing Party Fails to Appear. If a party appealing the determination of a claims examiner or appealing a review determination fails to appear at a hearing after having been given the required notice, the Hearing Examiner may issue a decision on the facts available or may dismiss the appeal. Failure to be present at the location designated for the hearing within 10 minutes of the time scheduled shall be considered a failure to appear within the meaning of this section.
  [O.] P. Request by Appealing Party to Reopen Dismissed Case.
    (1) (text unchanged)
    (2) A request to reopen a case may be granted for the following reasons:
      (a) The party received the hearing notice on or after the date of the hearing as a result of:
        (i) An untimely or incorrect mailing or electronic transmission of a hearing notice; or
        (ii) (text unchanged)
      (b) (text unchanged)
      (c) A party requested a postponement for the reasons listed in [§O(2)(a)] §P(2)(a) or (b) of this regulation, but it was improperly denied.
    (3) (text unchanged)
    (4) A request to reopen a case dismissed by a Hearing Examiner shall be delivered or postmarked within 7 business days after the date the dismissal was mailed to the last known address of the requesting party. The Chief Hearing Examiner may:
      (a) Grant the requesting party up to 10 calendar days to provide documentary evidence of the reason for the requested reopening; or
       (b) (text unchanged)
    (5) — (8) (text unchanged)
  [P.] Q. (text unchanged)
  [Q.] R. Postponement of Hearings.
    (1) (text unchanged)
    (2) Subject to the requirements of [§Q(5)] §R(5) of this regulation, a request for postponement shall be considered only if the request is received by the Chief Hearing Examiner at least 3 business days before the hearing.
    (3) – (4) (text unchanged)
    (5) A request for a postponement that is not received by the Chief Hearing Examiner at least 3 business days before the hearing may be granted for good cause if:
      (a) The request for postponement was postmarked at least 5 calendar days before the hearing date but was not received by the Lower Appeals Division until after the time set in [§Q(2)] §R(2) of this regulation;
      (b) An error on the part of the Lower Appeals Division has caused such a delay in the requesting party’s receipt of the hearing notice that the requirement of [§Q(2)] §R(2) of this regulation could not reasonably be met, and the requesting party has taken timely and reasonable steps to request a postponement as soon as possible after receipt of the hearing notice; or
      (c) (text unchanged)
  [R.] S. Witness Fees.
    (1) (text unchanged)
    (2) Fees allowed in accordance with [§R(1)] §S(1) of this regulation for witnesses subpoenaed shall be paid by the Lower Appeals Division.
  [S.] T. Telephone Conference Hearings.
    (1) — (2) (text unchanged)
    (3) In all telephone hearings, documentary evidence which a party intends to offer shall be mailed, or sent via electronic means in a format approved by the Chief Hearing Examiner if the parties have opted to receive notice by electronic means, to the Hearing Examiner and all other parties [at least 5 days] before the hearing. The Hearing Examiner may refuse to consider evidence that is not timely [mailed] sent to or received by the Hearing Examiner and all parties before the hearing. Before the acceptance of any evidence [received by mail], the Hearing Examiner shall allow the opposing party to cross-examine the submitting party or witness concerning the nature and authenticity of the proffered [document] evidence. A party shall be afforded all rights at a telephone hearing to which the party would be entitled at a regular hearing, subject only to the limitations of the physical arrangement.
    (4) (text unchanged)

.04 Review by the Board of Appeals.
If the Hearing Examiner does not affirm the determination of the claims examiner or the review determination, the decision shall be accompanied by the notice of the right of appeal to the Board of Appeals. If the Hearing Examiner affirms the determination of the claims examiner or the review determination, the decision shall be accompanied by the notice of the provisions of the law providing for petition for review to request a discretionary appeal.

KELLY M. SCHULZ
Secretary of Labor, Licensing, and Regulation