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09.32.06 - Unemployment Insurance - Final Regulations

FINAL ACTION ON REGULATIONS
MARYLAND REGISTER, VOLUME 45, ISSUE 14,
FRIDAY, JULY 6, 2018

Subtitle 32 UNEMPLOYMENT INSURANCE

09.32.06 Board of Appeals — Appeals Procedure

Labor and Employment Article,§§8-101, 8-5A-02, 8-5A-05, 8-5A-10, 8-504, 8-604 and 8-605, Annotated Code of Maryland

Notice of Final Action
[18-077-F]

On May 29, 2018, the Board of Appeals adopted the repeal of existing Regulations .01, .08, and .09, amendments to and the recodification of existing Regulations .02, .03, .10, and .11 to be Regulations .01, .02, .08, and .09, respectively, new Regulation .03, and amendments to Regulations .04 and .07 under COMAR 09.32.06 Board of Appeals—Appeals Procedure. This action, which was proposed for adoption in 45:8 Md. R. 424—426 (April 13, 2018), has been adopted as proposed.

Effective Date: July 16, 2018.

DONNA WATTS-LAMONT
Chairperson
Board of Appeals

[.02] .01 Appeals and Petitions for Review from Lower Appeals to the Board of Appeals.
  A. Manner of Filing.
    (1) An appeal from [or a petition for review of] a hearing examiner’s decision, or a petition for review to request a discretionary appeal of a hearing examiner’s decision under Labor and Employment Article, §8-5A-10(b)(2), Annotated Code of Maryland, shall be in writing and signed by the appealing party or the appealing party’s attorney or authorized representative.
    (2) [The] An appeal or a petition for review may be filed only by mail, facsimile, [or] hand delivery to the administrative office of the Board of Appeals as listed on the hearing examiner decision, or other method of transmission established by the Board of Appeals. The appeal may not be filed by electronic mail.
    (3) When filed by an attorney or authorized representative, an appeal from or petition for review of a hearing examiner’s decision shall be accompanied by a certification that a copy of the appeal or petition for review and all accompanying papers were mailed, or otherwise delivered in accordance with the format and procedures established by the Board of Appeals, to all other parties in the case. Failure to include the certification does not affect a determination as to the timeliness of the appeal. Failure to include the certification may result in a dismissal of the appeal or petition for review.
    (4) In the event of an appeal or a petition for review from a hearing examiner’s decision involving more than one claimant on the same issue, the appeal or petition for review may be filed by the individual claimants or by an attorney or authorized representative on the claimants’ behalf. The attorney or authorized representative shall submit, together with the appeal or petition for review, a list containing the names, [and] addresses, appeal numbers, and the last four digits of the Social Security numbers of the claimants who are parties to the appeal or petition for review.
    (5) In the event of an appeal or petition for review from a hearing examiner’s decision involving a review determination issued under the Labor and Employment Article, Title 8, Subtitle 6, Annotated Code of Maryland, the employer, or the employer’s attorney or authorized representative, shall include the name of the employer, the employer’s address, employer account number, if any, the review determination number and a copy of the hearing examiner’s decision.
  B. Time for Filing.
    (1) [An] Under Labor and Employment Article, §8-5A-10(a)(1), Annotated Code of Maryland, an appeal or petition for review from a hearing examiner’s decision involving a determination or redetermination of a claim shall be filed by a party within 15 calendar days after Lower Appeals sends a decision [is mailed] to the last known address of the party.
    (2) Under Labor and Employment Article, §8-5A-10(a)(2), Annotated Code of Maryland, an appeal from a hearing examiner’s decision involving a review determination shall be filed by an employer within 30 calendar days after Lower Appeals sends the hearing examiner’s decision to the employer at the employer’s last known address.
    [(2)] (3) (text unchanged)
    [(3)] (4) An appeal or petition for review is considered filed on the earliest of the following dates:
      (a)—(b) (text unchanged)
      (c) The date on the appeal or petition for review itself when the envelope has an illegible postmark; [or]
      (d) The date an appeal or petition for review is received by facsimile transmission at the administrative office of the Board of Appeals[.]; or
      (e) The date an appeal is otherwise filed in accordance with the format and procedures established by the Board of Appeals.
  C. (text unchanged)

[.03] .02 Hearings.
  A. (text unchanged)
  B. Notice of Hearing.
    (1) The [interested parties] Board of Appeals shall [be] give[n] interested parties at least [7 calendar] 15 business days notice in writing of the time and place of any hearing before the Board of Appeals.
    (2) Notice is sufficient when mailed to the party, postage prepaid, or otherwise delivered to the party in accordance with the format and procedures established by the Board of Appeals, at the last known [post office] address of the party.
    (3) In the case of appeals or petitions for review filed under Regulation [.02].01A(3) of this chapter, notice mailed or otherwise delivered to the attorney or authorized representative, plus notice mailed or otherwise delivered to each individual appellant who filed an individual appeal or a petition for review or to those persons who requested an individual notice, shall be sufficient notice to all parties represented by the attorney or authorized representative. This subsection shall also apply to notices of hearings in labor disputes in which the Board of Appeals has jurisdiction to issue original determinations.
    (4) (text unchanged)
  C.—G. (text unchanged)
  H. Procedure at Hearing.
    (1)—(4) (text unchanged)
    (5) The Chairman shall preside at the hearings before the Board of Appeals and shall make all evidentiary and procedural rulings at the hearings. If the Chairman is not present at a hearing, each associate member shall, on alternate hearing days, exercise the powers of the Chairman at the hearing.
    (6) Two members of the Board of Appeals shall constitute a quorum for the purpose of any hearing under this regulation.
    (7) If the decision of the three members of the Board of Appeals is not unanimous, the decision of the majority of the members shall control. The minority member may file a dissenting opinion, together with the reasons for that dissent. Each member of the Board of Appeals who participates in a Board of Appeals hearing shall sign the decision on the case and shall indicate his or her concurring opinion, and shall state the reasons for that concurrence.

  I. Evidence.
    (1)—(4) (text unchanged)
    (5) Additional Records. The Board of Appeals, for good cause shown, may grant a party up to 10 calendar days after a hearing to submit additional records.
  J. Subpoenas.
    (1)—(2) (text unchanged)
    (3) Requests for subpoenas shall:
      (a)—(d) (text unchanged)
      (e) Be delivered to the scheduling authority at least [5] 10 business days before the hearing date.
  K.—M. (text unchanged)
   N. Reopening of Dismissed Case.
    (1) (text unchanged)
    (2) A request for the reopening of 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 delivery of a hearing notice; or
        (ii) (text unchanged)
      (b)—(c) (text unchanged)
    (3) (text unchanged)
    (4) A dismissal issued by the Board of Appeals after a scheduled hearing may be reopened only by a majority vote of the Board of Appeals taken within 10 calendar days of the date of the dismissal.
    (5)—(6) (text unchanged)
  O. Failure to Appear Before Hearing Examiner.
    (1) (text unchanged)
    (2) A request for a hearing to determine if there is good cause for failing to appear shall be in writing, and shall be sent to the opposing party or parties. The Board of Appeals may order that a second hearing be held before a hearing examiner if the party establishes a reason listed in COMAR [09.32.11.02O(2)(a)—(c)] 09.32.11.02 for reopening a case or a procedural or due process violation.
  P. 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 Board of Appeals shall have authority to approve a fee higher than the maximum allowed under §P(1) of this regulation based upon the complexity of the case and the reasonableness of the fees.
    (3) (text unchanged)
  Q. (text unchanged)
   R. Postponement of Hearings.
    (1) A request for the postponement of a case shall be in writing, addressed to the scheduling authority, and accompanied by a notation that a copy of the request was simultaneously mailed, or otherwise delivered in accordance with procedures established by the Board of Appeals, to the opposing party in the case.
    (2)—(4) (text unchanged)
    (5) A request for a postponement that is not received by the scheduling authority 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 Board of Appeals until after the time set in §R(2) of this regulation;
      (b)—(c) (text unchanged)
  S. (text unchanged)
  T. Telephone Conference Hearings Before Special Examiners.
    (1)—(2) (text unchanged)
    (3) In all telephone hearings, documentary evidence that a party participating by telephone intends to offer must be provided to the special examiner and all other parties at least 5 calendar days before the hearing. The special examiner may refuse to consider evidence that is not timely provided. Before the acceptance into evidence of documents at a telephone hearing, the special examiner shall allow the opposing party to cross–examine the submitting party or witness concerning the nature and veracity of the proffered document.
     (4) (text unchanged)
    (5) A party’s failure to call into a hearing, failure to answer the telephone, failure to have a telephone available for a hearing, or failure to be ready to proceed with the hearing shall be considered as a failure to appear at the hearing if these conditions exist for more than 10 minutes after the scheduled time for the hearing.

.03 Withdrawal of Decision by the Board of Appeals.
   A. At any time within 10 calendar days of a decision pursuant to Labor and Employment Article, §8-806(h), Annotated Code of Maryland, the Board of Appeals may withdraw its decision by vote of a majority of its members. Notice shall promptly be given to all parties of the withdrawal. Upon withdrawing a decision, the Board of Appeals may issue a revised decision or hold the case for further hearing or argument. The 10-day period is not tolled by the filing of petitions, appeals, or correspondence from any party.
  B. A request for the Board of Appeals to withdraw its decision under §A of this regulation does not toll the time limit for filing an appeal to circuit court.

.04 Remand to Hearing Examiner.
  A. (text unchanged)
  B. If a case is remanded for a new hearing, the previous decision of the hearing examiner shall remain in effect unless vacated by the Board of Appeals until the issuance of a new decision by a hearing examiner. [Upon] Unless the Board of Appeals orders otherwise, upon the convening of the new hearing, the appellant before the Board of Appeals shall have the burden of going forward. If the appellant before the Board of Appeals does not appear at the remand hearing, the previous decision of the hearing examiner shall remain in effect or be reinstated.
  C. (text unchanged)

.07 Employer Appeals Arising Under Labor and Employment Article, [8-602(c) or 8-617(g)] §8-605(b), Annotated Code of Maryland.
  A. An employer aggrieved by [any decision of the Secretary] a decision of the Lower Appeals Division appealable under Labor and Employment Article, [§8-602(c) or 8-617(g)] §8-605(b), Annotated Code of Maryland, [including, but not limited to, the determination of its status as an employer, whether services performed for it are services in employment, the correct employer contribution rate, and whether any particular benefit charges should be placed against the employer's benefit account may file an appeal in writing within 15 days after notice of the Secretary's decision was mailed to the employer's last known address] may file an appeal or petition for review within 30 calendar days after Lower Appeals sends the decision to the employer. The provisions of Regulations [.02 and .03] .01 and .02 of this chapter apply to these appeals.
  B. An appeal or petition for review shall include the following information:
    (1) The name, address, [and] employer account number, if any, and review determination number; and
(2) A [statement] copy of the decision of the [Secretary] Lower Appeals Division that is being appealed[; and].
[(3) The date of the Secretary's decision.]
  C. The Board may refer an appeal or petition for review from Lower Appeals to a special examiner for a hearing and a proposed decision, which, if adopted by the Board of Appeals, shall be appealable to a circuit court of the State.

[.10] .08 Judicial Review [of Employer Account Appeals].
Within 30 calendar days after the Board of Appeals mails or otherwise delivers its decision to [the employer’s last known address, an employer] a party, a party aggrieved by the decision may secure judicial review of the decision by [appeal to the courts according to] appealing the decision in accordance with the provisions of Labor and Employment Article, §8-5A-12, Annotated Code of Maryland, the Maryland Rules of Procedure, and the appropriate rules of court.

[.11] .09 Records and Transcripts.
   A. (text unchanged)
   B. The Board of Appeals shall maintain a record of all testimony and proceedings before the Board of Appeals and its special examiners [or in connection with an appeal pursuant to these regulations].
  C.—E. (text unchanged)