Circuit Court for Prince George’s County
Case No. CAL15-25618
Case No. CAL15-25619
Case No. CAL15-25620
Case No. CAL16-00341

                                                        REPORTED

                                           IN THE COURT OF SPECIAL APPEALS

                                                     OF MARYLAND

                                                          No. 1056

                                                   September Term, 2016



                                                        J.H., ET AL.

                                                             v.

                                           PRINCE GEORGE’S HOSPITAL CENTER



                                              Leahy,
                                              Reed,
                                              Rodowsky, Lawrence F.,
                                                   (Senior Judge, Specially Assigned),

                                                           JJ.


                                                    Opinion by Leahy, J.


                                              Filed: July 27, 2017
       Suffering from the harmful effects of mental illness, J.H., C.B., M.G., and B.N.

(collectively “Appellants”), were brought to Prince George’s Hospital Center 1 (“Appellee”

or the “Hospital”) on separate occasions for emergency mental health evaluations to

determine whether each should be admitted for involuntary psychiatric treatment. Each

Appellant was afforded a hearing before an administrative law judge (“ALJ”), during

which their counsel argued for their release on the ground that the Hospital failed to comply

in various respects with the preadmission procedures set out in Maryland Code (1982, 2015

Repl. Vol.), Health-General Article (“Health-Gen.”), § 10-601 et seq. 2          Each ALJ

concluded the evidence established that Appellants qualified for involuntary admission to

the Hospital’s inpatient psychiatric unit in accordance with Health-Gen. § 10-632(e), and

that none of the alleged preadmission procedure violations warranted Appellants’ release.

       Counsel filed a petition for judicial review for each Appellant and a motion to

consolidate their cases in the Circuit Court for Prince George’s County. The circuit court




       1
         Prince George’s Hospital Center is a member institution in the Dimensions
Healthcare System. Dimensions Healthcare System is a not-for-profit healthcare system
owned by Dimensions Health Corporation. Dimensions Healthcare System,
https://www.dimensionshealth.org/about-us/ (last visited July 25, 2017).
       2
         The preadmission procedures include but are not limited to: 1) a physician must
evaluate an individual within 6 hours of arrival to the hospital (Health-Gen. § 10-
624(b)(2)); 2) the hospital must give individuals written notice of their admission status
within 12 hours of the individual’s initial admission (Health-Gen. § 10-631(b)); 3) the
hospital may not keep an individual in the emergency room in excess of 30 hours (Health-
Gen. § 10-624(b)(4)); and 4) the involuntary admission hearing must be held within 10
days of the date of the initial confinement (Health-Gen. § 10-632(b)). These procedures
are discussed in detail in Part I.C infra.
granted the motions to consolidate and, after argument, affirmed the ALJs’ decisions with

respect to each Appellant.

      Before this Court, Appellants challenge the ALJs’ decisions and present issues 3

derivative of one overarching question: During involuntary admission hearings are

hospitals required to affirmatively prove compliance with preadmission procedures beyond

the statutorily prescribed involuntary admission elements contained in Health-Gen.

§ 10-632(e)?

      For the reasons that follow, we affirm the decisions ordering the involuntary

admission of each Appellant. We hold that at an involuntary admission hearing, the

Hospital has the burden to prove the involuntary admission elements enumerated in Health-

Gen. § 10-632(e) by clear and convincing evidence, and that the patient has the burden,

pursuant to Code of Maryland Regulations (“COMAR”) 10.21.01.09G(2), to raise with

particularity any alleged violations of preadmission procedures. Once raised, the burden


      3
          Appellants’ questions as stated in their brief read:

      1. “In each case, did the ALJ err in ordering involuntary admission without
      first ensuring compliance with statutory requirements intended to safeguard
      patients’ due process rights?”
          a. “Before ordering involuntary admission, must an ALJ determine
              whether the evidence establishes compliance with the requirements in
              Title 10, subtitle 6, of the Health-General Article of the Maryland
              Code?”
          b. “Does the Hospital have the burden of proving compliance with these
              statutory requirements?”
          c. “Did the Hospital fail, in each case, to prove compliance with these
              statutory requirements?”
          d. “Did the failure to prove statutory compliance in each case rob the
              ALJ of jurisdiction or raise a due process concern substantial enough
              to prohibit involuntary admission?”
                                               2
shifts to the Hospital to demonstrate, by a preponderance of the evidence, its compliance

with the particular procedural violations raised.

                                       BACKGROUND

                            A.     Involuntary Admission Hearings

       The following is a summary of the testimony presented at each hearing and the

ALJ’s findings as to each Appellant.

                       1.        J.H.’s Involuntary Admission Hearing

       Before J.H. was involuntarily admitted into the psychiatric unit at the Hospital, she

lived with her daughter, K.H., and her two-year-old granddaughter. K.H testified that she

witnessed her mother’s ability to care for herself decline over the last several years. J.H.

was not taking her medications for her psychiatric and other medical conditions, and

refused to attend scheduled doctors’ appointments. After her mother became “very

aggressive and verbally abusive,” K.H. filed a petition for the emergency evaluation of J.H.

on September 2, 2015. That same day, the police brought J.H. to the Hospital’s emergency

room for evaluation.

       On September 16, 2015, an ALJ held an involuntary admission hearing for J.H. At

the outset of the hearing, J.H.’s counsel stated that he “[would] be bringing up that the

notice of admission status and the detention in the emergency room both exceeded the time

limits[.]”

       Dr. Prasad, J.H.’s treating physician, testified for the Hospital. In regard to J.H.’s

eligibility for admission under Health-Gen. § 10-632(e)(2)(i)-(v)—the controlling statute

in this case—Dr. Prasad testified that J.H. has been diagnosed with chronic schizophrenia,

                                               3
diabetes, and hypertension. She had been admitted to the Hospital several times during the

year-and-a-half prior to the hearing. He explained that upon discharge, J.H. would refuse

to comply with her treatment regimen of psychiatric medication and outpatient care,

resulting in her readmission. J.H. failed to maintain her personal hygiene, often stayed in

bed, and only occasionally ate meals. Dr. Prasad presented J.H. with the option to

voluntarily admit herself, but she refused because she was unable to “appreciate[] the

nature of her mental illness and need for current treatment.” He testified that J.H. also

refused to accept outpatient treatment for her mental illness and medical conditions, which,

if left untreated, posed a considerable threat to her health. In Dr. Prasad’s professional

opinion, J.H. needed institutional care and there was no less restrictive treatment available

for her.

       Next, Dr. Prasad testified that J.H. was certified by two physicians and given notice

of her admission status. He did not know how long J.H. waited in the emergency room

and said that he would need to “look in the record” for that information. Neither counsel

revisited this open issue. In fact, on cross-examination, J.H.’s counsel asked only one

question: “How did my client get to the hospital, Doctor?”

       K.H. testified that she could not provide the care J.H. required and that J.H. could

no longer live with her. K.H. also raised a concern regarding her two-year-old daughter’s

safety, referencing J.H.’s cavalier attitude toward storing and disposing of her prescription

medications in places accessible by the child.

       After the conclusion of the Hospital’s case, J.H’s counsel moved to have her

released. He alleged that J.H.’s involuntary admission hearing was not conducted within

                                             4
10 days of J.H.’s initial confinement. He also stated that the Hospital failed to demonstrate

when the certifications were completed, or when the Hospital gave J.H. notice of her

admission status, or how long J.H. was in the emergency room. Because the Hospital failed

to comply with the applicable preadmission procedures, counsel for J.H. argued the ALJ

was deprived of jurisdiction to conduct the involuntary admission hearing.

       The ALJ denied J.H.’s motion for release, finding that although “the time periods

aren’t really crystal clear . . . [J.H.] is having her hearing in a timely fashion.”

       J.H. was the only witness offered in support of her case. J.H. testified that she

intended to continue with her outpatient psychiatric and medical treatment, but she no

longer required medication for schizophrenia or diabetes. Her primary reason for no longer

taking Haldol—a prescription for schizophrenia—was the unpleasant side-effects. As for

the medication for her other medical conditions, J.H. said she no longer had diabetes or

high blood pressure because “[she] lost about 79 pounds and that put [her] sugar right.”

       With respect to the alleged preadmission procedure violations, the ALJ declined to

make a finding on J.H.’s admission date because “[h]er admission date wasn’t testified

to[.]” Then the ALJ made express findings for each involuntary admission element the

Hospital is required to prove pursuant to Health-Gen. § 10-632(e)(2)(i)-(v). 4 First, the ALJ

found that J.H. “has a mental disorder diagnosed as schizophrenia chronic.” Second, the

ALJ determined that J.H. requires inpatient care and treatment. Regarding the third


       4
           We note that Health-Gen. § 10-632(e)(2) contains six elements; however, the last
element only applies to individuals who are 65 or over. Because none of the Appellants in
the underlying cases are 65 years of age or older, the ALJs were only required to consider
the first five elements.
                                                5
element, the ALJ found that although J.H. “is mentally ill and unpredictable, [] she hasn’t

really done anything to anybody . . . that would make her dangerous to others.” But he did

find that she posed a danger to herself, reasoning that he did not

       . . . believe the patient’s testimony that she is no longer diabetic. Her
       daughter testified that she has chronic kidney disease, which is often caused
       by diabetes. She also has hypertension, and the diabetes, both of which . . .
       can kill you if they’re not controlled and treated.
                Not bathing, not eating, the patient doesn’t look like she’s starving,
       but . . . not taking your medication for medical conditions, thinking that you
       don’t have these medical conditions, which are serious and life threatening,
       does threaten your own life and safety and it’s caused by [J.H.’s] mental
       illness.

Fourth, he concluded that J.H. was “unwilling and unable to be voluntarily admitted.”

Lastly, the ALJ reasoned that “there [wa]s no less restrictive form of intervention for her

[based on] Dr. Prasad’s testimony about her continued history of being discharged and not

taking medication and relapsing.”      After reciting his findings, the ALJ ordered the

involuntary admission of J.H.

                     2.     C.B.’s Involuntary Admission Hearing

       Before C.B. was involuntarily admitted into the psychiatric unit at the Hospital on

September 12, 2015, she lived alone. A.B., her father, testified that although he and her

mother helped C.B. with cutting the grass and grocery shopping, C.B. was not able to

maintain the cleanliness of her home. On one visit, A.B. noticed that dirt was visible on

the floors and the kitchen sink was clogged and the “water smell[ed] like it [had] been in

there for three months.” A.B. became increasingly concerned for his daughter’s wellbeing

after one shopping trip she went on with her mother. Apparently C.B. opened the car door

while the car was moving and got out. A.B. also explained that one grocery store banned

                                             6
C.B. for three years after an incident in which she became verbally aggressive with other

store patrons. After observing C.B.’s “gradual deterioration,” C.B.’s parents filed a

petition for emergency evaluation on September 11, 2015, and brought her to the Hospital.

       On September 16, 2015, an ALJ held an involuntary admission hearing to determine

whether C.B. should be involuntarily admitted for psychiatric treatment. C.B. was not

present at the hearing. At the outset of the hearing, C.B.’s counsel requested her release,

vaguely asserting there was an error in the emergency petition and notice of admission.

       The Hospital called as its witnesses Dr. Mirmirani, director of psychiatric services

and C.B.’s treating physician, and A.B. Dr. Mirmirani testified to the circumstances of

C.B.’s admission and emergency evaluation. When evaluating C.B., Dr. Mirmirani was

not able to have a meaningful conversation with C.B. regarding voluntary admission

because “she [wa]s very psychotic, very preoccupied, refused to engage in conversation[,]”

and “she has . . . no insight, very poor judgment about her psychiatric condition[.]” Dr.

Mirmirani confirmed that two physicians signed the certification and that C.B. was notified

of her rights and refused to sign the consent as reflected in the following testimony:

              [By counsel]:        . . . Before you is the petition for emergency
                                   evaluation filed by [C.B.’s] father?

              Dr. Mirmirani:       That’s correct.

              [By counsel]:        And the date of that petition?

              Dr. Mirmirani:       Is 9/11/2015.

              [By counsel]:        Okay. Does the record reflect that she was given
                                   her notification of admission status and rights?

              Dr. Mirmirani:       Yes, ma’am.

                                             7
              [By counsel]:        Did she sign it?

              Dr. Mirmirani:       She refused to sign.

              [By counsel]:        Thank you. Could you please read what -- what
                                   it says? What the completer of this document
                                   had [sic] wrote?

              Dr. Mirmirani:       Yes. She said she refused, is paranoid, and she
                                   “said she was tricked.”

                                              * * *

              [By counsel]:        Does the record reflect that two qualifying
                                   physicians did the certifications for [C.B.]?

              Dr. Mirmirani:       Yes, ma’am.

              [By counsel]:        Was [C.B.] given her notice of hearing today?

              Dr. Mirmirani:       Yes. Yes, ma’am.

              [By counsel]:        Does the record reflect that?

              Dr. Mirmirani:       Yes, ma’am.

       Dr. Mirmirani then testified to the Health-Gen. § 10-632(e)(2)(i)-(v) involuntary

admission elements. Dr. Mirmirani indicated that C.B. was diagnosed with chronic

schizophrenia. Dr. Mirmirani prescribed anti-psychotic medication to C.B., but she refused

to take the medication. He testified that C.B. “walk[s] around . . . talking to herself” and

is “under the influence of internal stimuli . . . which is a psychotic process that she’s

responding [to] and . . . [she] continues to be psychotic.” Although she had wandered to

the neighbor’s home and the shopping center and caused a disturbance, Dr. Mirmirani

testified that he did not believe C.B. presented a risk to others. However, Dr. Mirmirani


                                             8
opined that C.B. was a danger to herself because she had lost a lot of weight, was not eating,

and was preoccupied with her “internal psychotic process.” He also opined that C.B.

required institutional treatment because she was not caring for herself and her psychosis

rendered her “incapable of even believing that she has mental illness and needs treatment.”

Based on C.B.’s six or seven year history of mental illness and severe psychosis, Dr.

Mirmirani testified that there was no less restrictive alternative.

       On cross-examination, C.B.’s counsel inquired into the alleged procedural error in

the petition filed by C.B.’s father:

              [C.B.’s counsel]:        Doctor, you mentioned there’s an emergency
                                       petition. The question number 10 on the
                                       emergency petition which says the petitioner or
                                       the person to be evaluated is a danger. What
                                       does it say as to what her danger is?

              Dr. Mirmirani:           Well, it says she’s disturbing the neighbors - -

              [C.B.’s counsel]:        Is that number 9, Doctor, or is - -

              Dr. Mirmirani:           Number 10, I’m sorry.

              [C.B.’s counsel]:        Number 10, her dangerousness, it says is not
                                       applicable.

              Dr. Mirmirani:           Not applicable.

       C.B.’s counsel then asked a set of questions, presumably to show that C.B.’s name

and status did not appear on the notice of admission status form. Dr. Mirmirani clarified

on redirect, however, that the patient’s first name was at the end of the notice of admission

status form, where, below the nurse’s signature it read “I certified that I have informed

[C.B.] of his or her admission status and rights [in] accordance with the provision of Health


                                                 9
General Article 10 and Criminal Procedure Article, Notice of Admission.” During the

hearing, C.B.’s father also testified that his daughter posed a danger to herself and others,

and the “not applicable” “could have been a mistake.”

       After the close of the Hospital’s case, C.B.’s counsel did not call any witnesses and

proceeded directly to closing arguments.            C.B.’s counsel demanded C.B.’s release,

reasserting that there was an error in the emergency petition because it did not state how

C.B. was a danger to others, and alleging generally that the Hospital did not prove

compliance with all relevant preadmission procedures. He also argued, for the first time,

that there was no evidence that the petition had been presented to a judge, or that Dr.

Mirmirani saw C.B. within 48 hours of her admission.

       The ALJ denied C.B.’s motion for release, finding that the Hospital demonstrated

that the proper procedures were followed. The ALJ noted that no one from the patient’s

side testified to any alleged errors, and that “if the patient wishes to challenge [the

Hospital’s compliance with preadmission procedures], it’s up to the patient to present

evidence that the procedures were not, in fact, followed and that the error was of severe

magnitude to require release because no other remedy would be sufficient and that has not

been done in this case.” With respect to the alleged error in the petition, the ALJ

determined the error did not require C.B.’s release because the petition was completed by

A.B. and noted that “I’m willing to assume that [the petition] was summoned by a judge

because [A.B.] doesn’t have any authority to [] have the police or the sheriff pick up his

daughter off the street and bring her into - - to an emergency room for evaluation. When a

civilian fills out that petition, the court has to approve it.”

                                               10
       Next, the ALJ made express findings for each involuntary admission element

enumerated in Health-Gen. § 10-632(e)(2)(i)-(v). First, the ALJ found that C.B has chronic

schizophrenia. Then, he determined that C.B. required institutional care and treatment.

With respect to the third element, the ALJ found that C.B. was a danger to herself because

of her inability to care for herself, and because she “got out of a moving car” and was so

“disruptive and hostile” that a grocery store banned her. Fourth, he concluded that C.B “is

unwilling to be voluntarily admitted.” Lastly, the ALJ determined that

       there is no less restrictive form of intervention that’s available for her that’s
       consistent with her welfare because she does not cooperate with mental
       health professional[s] except when she’s forced to in a hospital.
               Dr. Mirmirani said his plan is to take her to a clinical review panel
       and have her involuntarily medicated if necessary. [A.B.] testified that she
       hasn’t seen an outpatient psychiatrist or taken her medications in the last six
       months at least and certainly she has decompensated.

After reciting his findings, the ALJ ordered the involuntary admission of C.B.

                     3.     M.G.’s Involuntary Admission Hearing

       A police officer found M.G. on the street, walking shoeless in traffic. She appeared

confused and was almost hit by a car. The officer brought M.G. to the emergency room of

the Hospital and filed an emergency petition for M.G.’s involuntary admission in

September 2015. 5 On September 16, 2015, an ALJ held an involuntary admission hearing

for M.G. In his opening statement, M.G.’s counsel alleged the Hospital violated the



       5
         The exact dates are not in the record. The emergency petition, certificates for
involuntary admission, and the petition for involuntary admission were not admitted as
documentary evidence at the involuntary admission hearings. The circuit court noted in its
opinion: “[a]lthough it is not insurmountable to require the Hospital to enter such medical
records at the IVA hearing, the statutory scheme as written does not require this.”
                                              11
preadmission procedures by keeping M.G. in the emergency room for 41 hours.

       The Hospital called Dr. Mirmirani, the director of psychiatric services and M.G.’s

treating physician, as its only witness. Dr. Mirmirani diagnosed M.G. with substance-

induced psychosis 6 and psychotic chronic mental illness. M.G. may have had an additional

mental illness, according to Dr. Mirmirani, however, M.G. was unable to relate her medical

history.

       On admission, M.G. was psychotic and agitated. The Hospital staff had to restrain

M.G. and administer medication intramuscularly. On the day of the hearing, M.G. was still

experiencing psychosis but had agreed to voluntarily take the prescribed antipsychotic

medication. Despite M.G.’s improvement—resulting from the medication and treatment—

Dr. Mirmirani testified that M.G. did not agree to voluntarily admit herself and that she

“[had] very poor judgment about the need for psychiatric care at this time.” Dr. Mirmirani

testified that M.G. was a threat to her own safety because the officer found her incoherent,

walking in the street and that she was still experiencing psychosis at the time of the hearing.

He opined that M.G. requires institutional care and treatment for daily monitoring to

stabilize her psychosis and to accurately diagnose her additional mental illnesses.

       M.G.’s counsel did not call any witnesses, moved to release M.G., and argued in

closing that M.G.’s time in the emergency room exceeded the statutorily prescribed time,

and “[t]here’s no evidence that [M.G.] . . . was ever certified here, whether [M.G.] was

ever given notice of her admission status, [and notice] of this hearing.” Maintaining that



       6
           The substance was phencyclidine, or “PCP.”
                                              12
the preadmission procedures are jurisdictional, M.G.’s counsel argued that she must be

released unless the Hospital could demonstrate that it complied with the preadmission

procedures.

       The ALJ agreed that the Hospital did not present evidence regarding the procedural

issues. Caught off-guard by M.G.’s procedural error arguments, the Hospital’s counsel

requested clarification on the specific procedural issues. A lengthy colloquy then ensued

between the parties and the ALJ. The ALJ reiterated his prior conclusion that the Hospital

did not present evidence regarding the procedural issues, which “are affirmative

obligations by . . . the Hospital.” The ALJ told the Hospital that the procedural issues “are

necessary to make a case for me to find that the patient needs to stay here. Anyone can

testify to that effect, but I think you need to alert your witnesses that those items are

necessary.” Acknowledging that the law and medicine dictated conflicting outcomes, the

ALJ explained:

       I can’t really have the Hospital reopen their case because [M.G.] didn’t
       present a case. [She] just presented argument. [She] didn’t present any
       evidence, so there’s no evidence for the Hospital to rebut. So, legally, I must
       find that [M.G.’s counsel] is correct that the necessary procedures have not
       been shown to have been followed, and that [M.G.] is entitled to be
       discharged.

The Hospital’s counsel objected, arguing that “[M.G.] clearly is not in any condition to

leave the hospital at this time[.]” The ALJ then determined that “[t]he only remedy that

[he] could grant would be to allow the Hospital to reopen their case and present that

evidence.” The ALJ permitted the Hospital to continue its direct examination of Dr.

Mirmirani on the limited issue of “how [M.G.] came to be admitted,” reasoning that:


                                             13
       [M.G.] raises a preliminary issue, the amount of time that she allegedly spent
       in the emergency room. It’s not up to the Hospital to rebut that point during
       your case in chief. That’s an affirmative defense, if you will, by which
       [M.G.] could move for release based on being outside the statutory limits in
       the emergency room. So, I don’t fault the Hospital for not addressing that
       during their presentation.
              As an administrative law judge, my function is basically to try to
       dispense low level justice and do the best for all the parties. I don’t think it
       would be good for either the patient or the hospital to discharge her based on
       the possible technical deficiency and the hospital’s evidence.
              . . . I’ll allow [the Hospital] to reopen [its] case if you want to recall
       Dr. Mirmirani on the issue of how [M.G.] came to be admitted here to this
       unit.
              . . . I’ll allow cross examination to include the issue of how [M.G.]
       came to the emergency room and how long she was there before she was
       transferred. I can only assume that those answers are in the medical records.

       The Hospital’s counsel then recalled Dr. Mirmirani, who explained that the

Hospital’s emergency room differed from others in that it had a two-step process. The first

step is triage and initial assessment by an emergency room physician in the main

emergency room. The second step is a 23-hour stabilization unit where the patient is treated

by a psychiatrist. In M.G.’s case, she was treated by both an emergency room physician

and Dr. Ganjoo, a psychiatrist. Dr. Mirmirani was not able to testify to the length of M.G.’s

stay in either the first or second step.

       Each party then presented closing arguments. M.G.’s counsel reiterated that the

ALJ should grant M.G.’s release because of preadmission procedural errors—the length of

stay and the notice of admission. After closing arguments, the ALJ denied M.G.’s motion

for release, finding that procedural deficiencies were not “prejudicial to [M.G.]” and did

not require her release.     Addressing the primary violation—that [M.G.] was in the

emergency room allegedly for 41 hours—the ALJ found:


                                              14
               Dr. Mirmirani testified about the uniqueness of this hospital’s
       emergency room, having a 23-hour stabilization bed where [M.G.]
       apparently spent some time. That doesn’t really circumvent the necessity of
       getting the patient out of the emergency room if she’s going to be admitted
       to a psychiatric unit. But it does show that she -- even if she was in that
       unit for 41 hours, which is not really established by any evidence, she
       hasn’t been prejudiced by it, nor has she been prejudiced by any possible
       failure to inform her of her admission status or her rights.
               As I said, she is represented. She is here at the hearing. She has the
       same outlook as far as being released or retained as she would have if all
       those procedures were followed. I’m not sure that they weren’t followed.
       So, I do not grant the motion for release based on any procedural errors. So,
       I find that any procedural errors, if there were any, are not of such magnitude
       as to require the patient’s release.

(Emphasis added). Then the ALJ made express findings pertaining to each involuntary

admission element enumerated in Health-Gen. § 10-632(e)(2)(i)-(v). First, the ALJ found

that M.G. had “substance abuse psychosis with possible underlying schizophrenia.”

Second, the ALJ determined that M.G. required inpatient care and treatment. Third, the

ALJ concluded that M.G. was a danger to herself because, among other reasons, an officer

found her walking in traffic unaware of her surroundings. Fourth, he concluded that J.H.

was unwilling and unable to be voluntarily admitted. Lastly, the ALJ determined that there

was no available less restrictive form of intervention because M.G. was still psychotic and

she lacked insight and judgment. After announcing his findings, the ALJ ordered the

involuntary admission of M.G.

                     4.     B.N.’s Involuntary Admission Hearing

       B.N.’s family member petitioned for her emergency evaluation on December 30,

2015. On January 13, 2016, an ALJ held an involuntary admission hearing. This time, as

a preliminary matter, B.N.’s counsel asserted his argument that the Hospital had the burden


                                             15
of proof to establish compliance with the preadmission procedures in Health-Gen. § 10-

601 et seq. before the parties could address the merits (the five elements enumerated in

Health-Gen. § 10-632(e)(2)). The Hospital’s position was that it bore the burden of proof,

by clear and convincing evidence, to establish the five elements contained in Health-Gen.

§ 10-632(e)(2), but neither the statute nor the corresponding regulation placed the burden

on the Hospital to establish compliance with the preadmission procedures.

       The ALJ reviewed the applicable regulations and determined that COMAR

10.21.01.09G is silent as to which party bears the burden of proof as to the preadmission

procedures and the applicable evidentiary standard for proving whether the Hospital

followed those procedures (i.e., by clear and convincing evidence or by a preponderance

of the evidence). Without placing the burden of proof on either party or articulating the

applicable evidentiary standard, the ALJ then requested that the Hospital present testimony

regarding the preadmission procedures followed by the Hospital.

       The Hospital called its only witness, Dr. Maddineni, B.N.’s treating physician and

a board certified doctor in the field of psychiatry. He testified that B.N.’s family member

petitioned for her emergency evaluation on December 30, 2015, and that she was brought

to the Hospital on January 1, 2016. B.N. was evaluated in the emergency room on the same

day at 11:30 a.m. After she was medically cleared in the emergency room, B.N. was

transferred to the Assessment Stabilization Center (“ASC”), which is part of the psychiatric

emergency room. On January 2, 2016, Dr. Rahman evaluated B.N. and determined that

she qualified for involuntary admission. Dr. Rahman took the steps to transfer B.N. to the

inpatient unit on January 2, 2016; however, there were no available inpatient beds at the

                                            16
Hospital or any nearby facilities. B.N. remained in the ASC until she was admitted to the

inpatient unit on January 4, 2016.

       In regard to the prerequisites in Health-Gen. § 10-632(e)(2), Dr. Maddineni testified

that B.N. was presenting manic symptoms—rapid speech, flood of ideas, extremely

disorganized, irritable, agitated, and insomnia—and psychotic symptoms—hearing voices,

actively hallucinating, paranoid delusions, and religious delusions. For example, B.N. had

the delusion that “God healed her of all medical and psychological problems” including

her HIV, hypertension, and bipolar disorder such that she no longer requires medication.

Because of these symptoms, Dr. Maddineni opined that B.N. needed inpatient treatment.

Dr. Maddineni testified that B.N.’s failure to manage her HIV and hypertension with

medication could result in contracting AIDS, or an increased opportunity for infections, a

stroke, or organ failure. B.N. was not voluntarily taking her medication and was not

cooperating with treatment. Additionally, Dr. Maddineni testified to an instance on

January 8, 2016, in which B.N. required involuntary medication because she became

agitated, hallucinated, invaded the personal space of other patients and staff, and accused

other patients and staff of trying to harm her. In addition to being a danger to herself, Dr.

Maddineni testified that B.N. threatened other patients and staff. In Dr. Maddineni’s

opinion, there was no less restrictive form of psychiatric care appropriate for B.N.

       After the Hospital rested its case, B.N.’s counsel moved for B.N.’s release,

reiterating that there were preadmission procedure violations, including “there was no

indication [B.N.] was given her notice of admission status [and] no indication [B.N.] was

ever given her notice of the hearing.” Further, B.N.’s counsel argued that B.N had

                                             17
remained in the emergency room for 75 or 76 hours. The ALJ then permitted the Hospital

to reopen its case to conduct a re-direct examination of Dr. Maddineni.

       On re-direct, Dr. Maddineni testified that the Hospital completed the application for

involuntary admission on January 4, 2016; that the application provided B.N. with notice

of a hearing; and that the Hospital gave B.N. the notice on January 4, 2016. At the

completion of this redirect testimony, counsel for the Hospital asked:

       [Hospital’s Counsel:]        Your Honor, are there any other items that we need to
                                    address procedurally?

       Judge:                       Any questions from the doctor on -- based on that
                                    testimony, [counsel for B.N.]?

       [B.N.’s Counsel:]            No, Your Honor.

       The only witness who testified in B.N.’s case was B.N. herself. She testified that

she was not a danger to herself or others; and that she “is not a psychiatric patient” and she

“[doesn’t] have problems like [schizophrenia].” B.N.’s counsel proceeded to raise, through

argument, additional procedural violations not raised earlier in the hearing without asking

his witness or the Hospital’s witness, Dr. Maddineni, any questions about the alleged

violations.   He argued that Dr. Maddineni’s testimony did not establish that B.N. was

evaluated within six hours of admission as required by Health-Gen. § 10-624(b)(2). He

also asserted that B.N.’s hearing was not held within the 10-day statutory period because

she was brought to the hospital on January 1, 2016, for an emergency evaluation, and that

the hearing was held on January 13, 2016.

       At the conclusion of the hearing, the ALJ announced his findings, determining that

there were no procedural violations and that all of the conditions for admission were met

                                             18
by clear and convincing evidence. With respect to the procedural violations raised by

B.N.’s counsel, the ALJ found that although B.N. spent 75-76 hours in the emergency

room—well in excess of the 30-hour statutory limit—the violation did not warrant release

because there was “no other available space in any other hospitals for her.” Regarding the

10-day hearing requirement, the ALJ found that B.N.’s hearing occurred within the 10-day

statutory requirement because although B.N. was brought to the inpatient unit for

emergency evaluation on January 1, after 75-76 hours she was admitted to the Hospital on

January 4, and the hearing was held on January 13, 2016.

       On the merits, the ALJ made express findings on each element contained in Health-

Gen. § 10-632(e)(2) that: 1) B.N. had schizophrenia and bipolar disorder; 2) B.N. required

inpatient care and treatment; 3) there was no less restrictive form of intervention because

B.N. would not seek out mental health care or take medication on her own, 4) B.N. was

unwilling to voluntarily admit herself; and 5) B.N. was a danger to herself because of her

inability to sleep and seek treatment. He found that she was possibly a danger to others

because of her manic and agitated behavior. The ALJ then ordered the involuntary

admission of B.N.

                      B.     Judicial Review in the Circuit Court

       On September 28, 2015, J.H., C.B., and M.G. separately petitioned the circuit court

for judicial review and jointly filed a motion to consolidate their cases on November 19,

2015. The Hospital consented to the consolidation, which the circuit court granted on

December 7, 2015. On January 19, 2016, B.N. petitioned the circuit court for judicial

review. B.N.’s counsel—who represented all Appellants during their involuntary review

                                            19
hearings—moved to join the consolidated cases on February 2, 2016, and the circuit court

granted this motion on February 23, 2016. 7

       After hearing argument on March 16, 2016, the circuit court issued its memorandum

opinion and order affirming the ALJ’s determinations in each case on June 14, 2016. The

circuit court concluded that during the involuntary admission hearings, the Hospital was

only required to prove the relevant Health-Gen. § 10-632 elements because “[n]either

[Health-Gen.] § 10-632 nor COMAR 10.21.01.09 mention that the facility has a burden to

produce evidence of procedural compliance with any other conditions.” The circuit court

also concluded that COMAR 10.21.01.09G(3) “affirmatively placed the burden of

production on the individual patient to raise the issue and produce evidence of a substantial

procedural error.” Although the circuit court noted that Appellants’ counsel “broadly

raised the possibility of numerous procedural errors,” counsel failed to “provide evidence

to establish exactly what, if any, procedural errors actually occurred that required

[Appellants’] release.” The order was docketed on June 22, 2016.

       Appellants noted their timely appeal on July 11, 2016.




       7
         While we are not bound by the circuit court’s decision to consolidate the cases, we
will maintain the consolidation for our review. Appellants’ cases share common questions
on appeal regarding whether the preadmission procedures are jurisdictional and which
party bears the burden of proof with respect to the Hospital’s compliance with those
procedures, but Appellants’ cases differ with respect to the alleged preadmission procedure
violations and which violations were raised with particularity. As we explain in Part I.E,
J.H., unlike C.B., M.G. and B.N., failed to raise the alleged preadmission procedure
violations timely and with particularity.
                                              20
                                      DISCUSSION

                                            I.

       Appellants contend that the ALJ erred by ordering the involuntary admission of

Appellants without first finding that the Hospital complied with the preadmission

procedures contained in Health-Gen. § 10-601 et seq. Appellants’ argument, reframed for

clarity, is that the preadmission procedures are procedural safeguards, such that

noncompliance results in “a substantial deprivation of due process” prohibiting involuntary

admission.    Appellants assert that establishing the Hospital’s compliance with the

preadmission procedures is a “jurisdictional prerequisite.” The Hospital counters that a

plain reading of the involuntary admission statute indicates that a hospital is required to

prove only the elements enumerated in Health-Gen. § 10-632(e).

       Whether hospitals are required to affirmatively prove compliance with

preadmission procedures during involuntary admission hearings presents a novel question.

Before we undertake an analysis of Title 10, Subtitle 6 of the Health General Article and

its concomitant regulations, we consider the history that culminated in their passage.

             A. The Evolution of Law on Involuntary Admission in Maryland

       During the 1960s and 1970s, the purpose of involuntary commitment changed from

“achieving social control by compelling treatment” to an emphasis on individuals’

constitutionally protected right to liberty. Donald H. J. Hermann, Barriers to Providing

Effective Treatment: A Critique of Revisions in Procedural, Substantive, and Dispositional




                                            21
Criteria in Involuntary Civil Commitment, 39 Vand. L. Rev. 83, 85 (1986). 8 The shift

toward protecting the constitutional rights of individuals facing involuntary commitment

is reflected, for example, in the Supreme Court’s decision in 1967 in Specht v. Patterson,

386 U.S. 605 (1967). The Specht case involved a petitioner who had been convicted for

indecent liberties under one Colorado statute that carried a maximum sentence of 10 years,

but who was then committed under another Colorado sex offender statute for an

indeterminate term of “from one day to life” without notice and full hearing. Id. at 607.

Specht filed a writ of habeas corpus, which was dismissed by the trial court and affirmed

by the Court of Appeals.       The Supreme Court reversed, recognizing that “[t]hese

commitment proceedings whether denominated civil or criminal are subject both to the

Equal Protection Clause of the Fourteenth Amendment . . . and to the Due Process

Clause.” Id. at 608 (citation omitted).

       In 1975, the Supreme Court considered an action brought under 42 U.S.C. § 1983

by Mr. Donaldson, who, at the initiation of “his father, who thought that his son was

suffering from ‘delusions,’” was confined as a mental patient in a Florida State Hospital in

1957 and kept in custody there against his will for nearly 15 years.          O’Connor v.

Donaldson, 422 U.S. 563, 564–66 (1975). Throughout his confinement Mr. Donaldson

repeatedly, but unsuccessfully, demanded his release. Id. Donaldson’s challenge was not

to the initial commitment, but instead, focused upon the nearly 15 years of confinement



       8
        Mr. Hermann explains that, historically, an individual’s civil rights in this regard
were limited “in favor of achieving social control by compelling treatment in conformity
with the police power and a parens patriae policy.” Hermann, supra, at 85.
                                            22
that followed. Id. at 567. A jury in the United States District Court for the Northern District

of Florida found that O’Connor, the hospital superintendent, and others, violated Mr.

Donaldson’s constitutional right to freedom and the Court of Appeals affirmed. In the

Supreme Court, Justice Stewart writing for the majority queried, “may the State fence in

the harmless mentally ill solely to save its citizens from exposure to those whose ways are

different? One might as well ask if the State, to avoid public unease, could incarcerate all

who are physically unattractive or socially eccentric.” Id. at 567. The Court held that

“mere public intolerance or animosity cannot constitutionally justify the deprivation of a

person’s physical liberty. . . . In short, a State cannot constitutionally confine without more

a nondangerous individual who is capable of surviving safely in freedom by himself or

with the help of willing and responsible family members or friends.” Id. at 576.

        In Maryland, the development of the right to procedural due process for persons

involuntarily committed occurred during the 1970s and the early 1980s. Prior to this

change in the law, regulations did not provide, for example, for mandatory involuntary

admission hearings before patients were formally admitted to inpatient psychiatric

facilities.   See Neil Solomon, Involuntary Commitment and Due Process: The New

Maryland Regulations, 3 Md. L. F. 115, 115–16 (1973) [hereinafter Solomon, Involuntary




                                              23
Commitment]. 9 Rather, Maryland employed an ex parte commitment procedure. 10 Before

he became a judge, then-practicing attorney Howard S. Chasanow commented a decade

before the law finally changed in Maryland, that Maryland “permit[ted] an indeterminate

commitment without a judicial hearing[,]” and that “[t]he problem of hospitalization of the

mentally ill is one that is ever growing in scope, and because of its magnitude, should be

of vital interest to doctors and lawyers as well as the general public.” Howard Chasanow,

Civil and Criminal Commitment of the Mentally Ill in Maryland, 21 Md. L. Rev. 279, 279,

281 (1961). Chasanow acknowledged that the primary criticism of ex parte commitment

procedures was “that they [we]re unconstitutional as violative of the Due Process clause of

the Fourteenth Amendment.” Id. at 282–84. Although he ultimately concluded in that

article that Maryland’s involuntary commitment laws were adequate to protect the rights

of patients, he foreshadowed the need to promulgate the very regulations at issue in this

appeal, observing that Maryland should develop “some type of emergency commitment

procedure for those in need of immediate treatment but who do not submit to examination




       9
         Neil Solomon, M.D., Ph.D., was the Secretary of the Department of Health and
Mental Hygiene (“DHMH”) for the State of Maryland from 1969 to 1979. Maryland
Manual Online, Former Secretaries, http://msa.maryland.gov/msa/mdmanual/09dept/html
/biosf.html (last visited July 25, 2017). In his capacity as Secretary, Solomon was the
named defendant in Anderson v. Solomon, 315 F. Supp. 1192 (D. Md. 1970) and in Johnson
v. Solomon, 484 F. Supp. 278 (D. Md. 1979), both cases discussed infra.
       10
           Once a patient was committed, “no one was charged with the duty of looking out
for the interests of those patients” who were involuntarily admitted. Solomon, Involuntary
Commitment, supra, at 116. Instead, after involuntary admission, a patient had to seek his
or her own release through a habeas corpus petition or a petition for a judicial hearing. Id.
                                             24
at the request of near relatives or friends[.]” 11 Id. at 305.

       A class action filed in the United States District Court of Maryland in 1970 while

Neil Solomon served as Secretary of DHMH precipitated the ensuing regulatory reforms.

Anderson v. Solomon, 315 F. Supp. 1192 (D. Md. 1970); see Solomon, Involuntary

Commitment, supra, at 116. In Anderson, a class of patients involuntarily admitted to state

mental institutions challenged the constitutionality of the involuntary commitment statute

(then codified at Article 59, §§ 12-13), that permitted their involuntary admission without

a hearing or any due process of law. Id. at 1193. The State moved to dismiss the complaint


       11
           During his tenure on the Court of Appeals, Judge Chasanow had the opportunity
to revisit this topic in a slightly different context. In Bergstein v. State, 322 Md. 506 (1991),
Judge Chasanow, writing for the Court, recognized a committed individual’s
constitutionally protected right to liberty.
        Bergstein was committed to DHMH as a result of being found not guilty by reason
of insanity. Id. at 510. After a period of time DHMH granted Bergstein conditional release.
Id. at 511. After Bergstein violated the terms of his release, the state’s attorney filed a
petition to revoke his conditional release, which the DHMH hearing examiner granted. Id.
Bergstein unsuccessfully sought judicial review in the circuit court, and then noted an
appeal to this Court. Id. at 514. The Court of Appeals decided to hear the case before this
Court issued its decision. Id.
        Bergstein’s primary contention on appeal was that his due process rights were
violated when the DHMH hearing examiner relied on hearsay evidence. Id. The Court
ultimately held that reliable hearsay evidence “is admissible at a hearing to revoke
conditional release of an individual who was committed to a mental health facility after
being found not guilty of a crime by reason of insanity.” Id. In deciding this case, however,
Judge Chasanow noted the distinction between violations of probation, which result in
criminal proceedings, and violations of conditional release, which may result in
recommitment. Id. at 516. Judge Chasanow recognized that “[c]onditional release . . . is
not a tool of the penal system.” Id. Instead, “it is a therapeutic release of a mentally ill
individual from a psychiatric hospital as part of a continuing course of treatment[,]” such
that “the deprivation of liberty involved in the initial hospitalization or in rehospitalization
clearly is not imposed as a punishment.” Id. Thus, he explained, a patient’s violation of
conditional release does not automatically result in recommitment. Id. The test for
recommitment after a violation of conditional release is whether the patient is a danger to
him or herself or society. Id.
                                               25
on the grounds that the General Assembly had enacted recent changes to Article 59

effective July 1, 1970. Id. Acknowledging that Article 59 had been completely rewritten

(see 1970 Md. Laws, ch. 407 (S.B. 210)), the Court denied the motion to dismiss, reasoning

that the allegations in the complaint were still applicable to the revised law. Id. The Court

explained that a “particularly serious constitutional question [was] raised by those

provisions in both the old and the revised law which permit the involuntary commitment

of persons for an indefinite period on the certificate of two physicians, without a prior

judicial or administrative hearing, or a mandatory subsequent judicial or administrative

hearing.” Id. at 1194 (footnote omitted). The Court then identified the statutory provisions,

which raised constitutional concerns. Id. First, the revised statute “d[id] not provide for a

mandatory hearing, at any time, for persons who have been involuntarily committed[.]” Id.

The Court opined that “[i]t can hardly be doubted that procedural due process requires that

a hearing be held at some reasonable point in time before a person can be indeterminately

committed.” Id. (citations omitted). Second, it “d[id] not require that a check be made by

an independent agency (legal, medical or administrative) charged with the duty of looking

out for the interests of patients unable for one reason or another to institute and prosecute

such proceedings as necessary to protect their rights.” Id. Third, the revised statute limited

involuntary admission to people requiring treatment for the protection of themselves or

another, but the statute did not require the physicians’ certification to include that




                                             26
determination. 12 Id. at 1194–95.

       The Anderson class-action suit prompted the Office of the Attorney General to

conduct a study of Maryland’s existing involuntary civil commitment procedures.

Solomon, Involuntary Commitment, supra, at 116. According to Solomon’s article, the

Office of the Attorney General concluded that Maryland’s involuntary commitment law

was likely unconstitutional and the law should be updated to “afford greater protection” to

involuntarily admitted patients. Id.

       Following Anderson, Maryland’s involuntary admission procedures first appeared

as regulations published by DHMH. 13 The regulations were signed on June 12, 1973, and

became effective October 1, 1973. 14 A primary focus in revising the involuntary admission


       12
           This is now a requirement in Health-Gen. § 10-616(a)(2)(iii) (The physicians’
certificates must contain “[a]n opinion that admission to a facility . . . is needed for the
protection of the individual or another.”)
       13
        Effective July 1, 2017, the “Department of Health and Mental Hygiene” has been
renamed as the “Maryland Department of Health.” 2017 Md. Laws, ch. 214 (S.B. 82).
       14
           The regulations appeared in the Maryland Agency Rules and Regulations
(“MARR”) publication in 1974. See MARR 10.04.03.03G (1974). MARR was the first
attempt by the Secretary of State’s Office to adopt a uniform codification system for
regulations. Richard J. Colbourn & Dennis Schnappe, Research Guide for Maryland
Regulations, Division of State Documents, 2 (1992). For a number of reasons, including
the lack of authority of the Secretary of State’s Office to do more than establish publishing
guidelines, this effort was unsuccessful and left incomplete.
       In 1974, the General Assembly passed the State Documents Law, now codified in
the State Government Article of the Maryland Code, formalizing the rule-making process
by which regulations are created. Maryland Code (1984, 2014 Repl. Vol.), State
Government Article (“SG”), § 7-201 et seq.; Colbourn, supra, at 2. Judge Wilner, writing
for the Court of Appeals, explained that “the principal purpose of [the State Documents
Law] was to create the Maryland Register (Register) as a mechanism for giving public
notice of certain agency actions, including the proposed and final adoptions of regulations,
and COMAR, to serve as a permanent repository of agency regulations.” Delmarva Power
                                             27
regulations was creating procedures to protect a patient’s due process rights. 15 Added to

the law were new procedural safeguards, including the requirement of a mandatory hearing

conducted by a hearing officer 16 within 5 working days of confinement and optional

periodic review hearings at the request of the patient. MARR 10.04.03.03G (1974). The

regulations placed the burden on the State, by clear and convincing evidence, to establish

at the involuntary admission hearing that the patient had a mental illness, required inpatient

treatment, and was a danger to him or herself or others. Id.; see also Solomon, Involuntary



& Light Co. v. Pub. Serv. Comm’n of Md., 370 Md. 1, 24 (2002).
      The involuntary admission regulations, therefore, although effective in 1973, first
appeared in COMAR in 1978. See COMAR 10.21.01.09 (1978).
       15
            Solomon articulated these considerations in his article:

       The first major question facing [DHMH] in formulating the new regulations
       concerned the point in time which would be most appropriate for setting the
       hearing to determine the propriety of an involuntary admission. Due process
       considerations naturally suggested a pre-admission hearing in order that
       absolutely no deprivation of liberty would be imposed before the State had
       proven that such confinement was necessary. . . . The due process argument
       that a pre-confinement hearing is required must be weighed in light of the
       resulting difficulties in carrying out such necessary evaluations.

                                              ***

             The balancing process among the various interests and rights at stake
       led [DHMH] to devise an arrangement whereby an individual would be
       temporarily confined at an appropriate facility, after which a series of
       procedures would be initiated to preserve the due process rights of the
       proposed patient.

Solomon, Involuntary Commitment, supra, at 116.
       16
         A hearing officer is “any impartial officer designated by the Secretary of [DHMH]
to conduct and make administrative decisions after the hearing is held[.]” MARR
10.04.03.02D (1974).
                                               28
Commitment, supra, at 117. Through these regulations, DHMH attempted to strike a

balance between protecting the rights of patients who were involuntarily admitted, and

“society’s interest in minimizing potential injury to its members by involuntarily

hospitalizing persons genuinely in need of care or treatment for the protection of

themselves or others.” Solomon, Involuntary Commitment, supra, at 118. At the time

Solomon published his article, the parties to Anderson agreed to settle the case in light of

the revisions to the regulations, pending the court’s approval. Id. at 116.

       In 1979, another lawsuit against Dr. Solomon in his capacity as Secretary, Johnson

v. Solomon triggered the next wave of reforms. 484 F. Supp. 278 (D. Md. 1979). A class

action was initiated on behalf of children in civil confinement. Id. at 280. The class alleged

that its members were “denied periodic review as to whether continued hospitalization is

necessary” once civilly committed. Id. at 281. The class argued, inter alia, that the lack

of mandatory periodic review (“meaning a review that is automatically initiated by the

court at the appropriate time rather than having to wait for the committed person . . . to

initiate such review”) in the Maryland Juvenile Causes Act and State civil commitment

laws violated the Fourteenth Amendment due process rights of the litigants and all

members of the class. Id. at 288. The Court found that “[s]ince commitments must now

be made in terms of constitutionally adequate standards, mandatory periodic review is a

necessary complement to this overall approach.”            Id. at 290 (footnote omitted).

Accordingly, the Court concluded that “the absence of a mandatory review of juveniles

committed to mental institutions by juvenile courts is unconstitutional.” Id. at 313. The

Court ordered the State to “adopt a review process satisfying constitutional

                                             29
prerequisites[.]” Id. at 313.

       DHMH then amended the regulations in 1981. See 8 Md. Reg. 1635 (Oct. 2, 1981)

(notice of final regulations on involuntary admission to mental health facilities and

adoption by the Secretary of DHMH); 8 Md. Reg. 1244–46 (July 10, 1981) (notice of re-

proposed regulations on involuntary admission to mental health facilities); 7 Md. Reg.

2268–71 (Nov. 28, 1980) (notice of proposed regulations on involuntary admission to

mental health facilities). The 1981 revisions required, among other things, that the record

must demonstrate by clear and convincing evidence three additional elements to establish

that a patient qualified for involuntary commitment. COMAR 10.21.01.07M (1981); 7

Md. Reg. 2271 (Nov. 28, 1980). Thus, in addition to establishing that the person 1) had a

mental disorder, 2) was in need of institutional inpatient care or treatment, and 3) presented

a danger to him or herself or others, the new regulations also required that the record

demonstrate that 4) the patient was unwilling or unable to be voluntarily admitted, 5) there

is no less restrictive form of treatment available, and, 6) for patients over 65 years of age,

an additional evaluation was conducted. Id.

       In 1982, the General Assembly re-codified the State’s health laws into the Health-

General Article (civil commitment laws are located in Title 10) and simultaneously

codified the involuntary admission regulations in the new statute. See Comm’n to Revise

Annotated Code Report on H.B. 200 (Dec. 10, 1981). The purpose of this “revision” was

to “basically codif[y] the most significant parts of current agency regulation.” Summary

of S.B. 437, Bill File (1982). The 1981 regulations governing involuntary admissions and

the corresponding statute enacted in 1982—Health-Gen. § 10-601 et seq.—remain

                                             30
substantially the same today.

                                   B. Standard of Review

       We next consider the applicable standard of review, which, in this appeal, requires

some statutory interpretation.

       Although a well-reasoned opinion in the circuit court is clearly helpful to the parties

and this Court on appeal, our review is limited to the ALJs’ decisions in the underlying

cases. Bd. Of Physician Quality Assurance v. Banks, 354 Md. 59, 68–69 (1999) (citing

United Parcel v. People’s Counsel, 336 Md. 569, 576–77 (1994)); see also Comptroller of

Md. v. Miller, 169 Md. App. 321, 343 (2006). We apply a different standard to the ALJs’

findings of fact from the standard we apply to their conclusions of law. In regard to the

findings of fact, our role “‘is limited to determining if there is substantial evidence in the

record as a whole to support the agency’s findings[.]’” Banks, 354 Md. at 67–68 (quoting

United Parcel, 336 Md. at 577). Our review of the ALJs’ conclusions of law is not so

narrow—especially in the context of the underlying involuntary admission hearings. We

explain.

       Ordinarily, when a commission or board of review within an administrative agency

sits in a quasi-judicial role in a contested case, appellate courts accord deferential review

to the decision of that commission or board interpreting the agency’s enabling statute and

the corresponding regulations.     See Adventist Health Care Inc. v. Md. Health Care

Comm’n, 392 Md. 103, 118–120 (2006). Chief Judge Bell, writing for the Court of Appeals

in Adventist, thoroughly explained the rationale for this:

       Administrative agencies possess an “expertise” and, thus, have a greater

                                             31
      ability to evaluate and determine the matters and issues that regularly arise,
      or can be expected to be presented, in the field in which they operate or in
      connection with the statute that they administer.

                                          ***

      Moreover, “th[e] authority delegated to executive branch agencies may
      include a broad power to promulgate legislative-type rules or regulations in
      order to implement the statute. Such rules or regulations will often, of
      necessity, embody significant discretionary policy determinations.” Christ
      v. Dep’t of Natural Resources, 335 Md. 427, 445 (1994). This Court has
      stated that, in the exercise of that authority, “[a] great deal of deference is
      owed an administrative agency’s interpretation of its own regulation.”
      Maryland Transp.        Authority v. King, 369 Md. 274, 288 (2002).
      Furthermore:

             “[A]gency rules are designed to serve specific needs of the
             agency, are promulgated by the agency, and are utilized on a
             day-to-day basis by the agency. A question concerning the
             interpretation of an agency’s rule is as central to its operation
             as an interpretation of the agency’s governing statute. Because
             an agency is best able to discern its intent in promulgating a
             regulation, the agency’s expertise is more pertinent to the
             interpretation of an agency’s statute than to the interpretation
             of its governing statute.”

      Md Comm’n on Human Relations v. Bethlehem Steel Corp., 295 Md. 586,
      593 (1983). See also Pollock v. Patuxent Inst. Bd. of Review, 374 Md. 463,
      477 n.6 (2003) (“[A]n agency is best able to discern its intent in promulgating
      a regulation. Thus, an agency’s interpretation of the meaning and intent of
      its own regulation is entitled to deference [citations omitted]”); Maryland
      Transp. Authority v. King, 369 Md. 274, 288–289 (2002) (“[A]n agency’s
      interpretation of an administrative regulation is ‘of controlling weight unless
      it is plainly erroneous or inconsistent with the regulation.’ [citations
      omitted]”).

Id.

      The rationale undergirding the deference normally accorded agencies in interpreting

the statutes and regulations they administer does not apply to the ALJs’ decisions in the

underlying cases. In other administrative review regulatory schemes by which the Office

                                            32
of Administrative Hearings (“OAH”) is delegated authority to conduct hearings on behalf

of an agency or commission, the ALJ typically issues a recommended decision, which the

agency or commission may adopt, modify, or reject; see, e.g., COMAR 31.02.01.09-1

(Maryland Insurance Administration); or, the applicable regulation permits a party to

appeal a final decision by an ALJ to a commission or board within the agency, see COMAR

14.03.01.12 (Regulation provides for review of decisions issued by an ALJ by the Appeal

Board of the Commission on Human Relations). A party may then file a petition for

judicial review of the final agency decision in the circuit court.

       Here, the administrative agency has no role in involuntary admission hearings other

than as a party. In 1992, DHMH promulgated regulations assigning the role of the impartial

hearing officer to OAH. 17 See 19 Md. Reg. 1708 (Sept. 18, 1992) (notice of final rule); 19

Md. Reg. 1319-26 (July 10, 1992) (notice of proposed rule); see also COMAR

10.21.01.09A (“An ALJ from the OAH shall conduct a hearing at the inpatient facility[.]”).

Moreover, appellate review of involuntary admission hearings has been in the exclusive

jurisdiction of the courts since 1982. The statute states specifically that:

       (a) The Board of Review does not have jurisdiction to review the

       17
         Between 1973 and 1992, an impartial hearing officer designated by the Secretary
of DHMH conducted the involuntary admission hearings. MARR 10.04.03.02D (1974).
In 1989, however, the General Assembly formed the OAH as an independent agency
created to adjudicate administrative hearings in response to the findings and
recommendations of the Governor’s Task Force on Administrative Hearing Officers
commissioned by then-Governor William Schaefer. See Final Report of the Governor’s
Task Force on Administrative Hearing Officers, (June 28, 1998) (explaining that the Task
Force was formed to investigate concerns that parties “may not receive a fair hearing before
[a] Hearing Officer” because “these Hearing Officers are subject to the control and
supervision of the agency which as rendered a decision or taken some action that is the
subject of the appeal heard by the Hearing Officer”); 1989 Md. Laws, ch. 788 (S.B. 658).
                                              33
       determination of a hearing officer on an involuntary admission under this
       subtitle.
       (b) The determination of the hearing officer is a final decision of the
       Department for the purpose of judicial review of a final decision under the
       Administrative Procedure Act.

Health-Gen. § 10-633(a)-(b). Although DHMH has its own Board of Review, this Board

had never possessed jurisdiction to review involuntary admission hearing determinations. 18

       The independence ALJs retain in involuntary admission decisions may, perhaps,

warrant even greater deference in reviewing their factual findings. Because ALJs are

situated outside of and independent from DHMH, however, without the subject matter

expertise traditionally present when an agency sits in the quasi-judicial role, we should not

afford deference to the ALJs’ legal interpretations of the involuntary admission statutes

and the concomitant regulations promulgated by DHMH. Accordingly, we review all of

the ALJs’ legal conclusions de novo.

                        C. Preadmission Procedural Requirements

       Title 10, Subtitle 6 of the Health-General Article contains provisions governing civil

commitment generally, including voluntary admission, involuntary admission, and

emergency evaluations. An individual with a mental illness may apply voluntarily for

admission to a hospital.     See Health-Gen. § 10-609.        An individual may also be

involuntarily admitted, either by application for involuntary admission by “any person who




       18
         During the 2017 Session, the General Assembly passed a law to phase out the
Board of Review of DHMH and ultimately repeal the Board of Review in its entirety. 2017
Md. Laws, ch. 103 (H.B. 127). The repeal provisions take effect January 1, 2018.
                                             34
has a legitimate interest in the welfare of the individual,” Health-Gen. § 10-614, or, by a

petition for emergency evaluation under Health-Gen. §10-624.

       All four Appellants were brought to the Hospital on petitions for emergency

evaluation and so we undertake a review of the preadmission procedures applicable to

petitions for emergency evaluations. A peace officer or person in a profession listed in

Health-Gen. §§ 10-622(d) and 10-623(a), or any other interested person, may petition for

the emergency evaluation of an individual “if the petitioner has reason to believe that the

individual: [h]as a mental disorder; and [t]he individual presents a danger to the life or

safety of the individual or of others.” Health-Gen. § 10-622(a). A peace officer “shall take

an emergency evaluee to the nearest emergency facility” upon a petition signed by a peace

officer or a professional. Health-Gen. § 10-624(a).

       When the petitioner is not a peace officer or one of the professionals enumerated in

Health-Gen. § 10-623(a), the petition must be presented to the court for immediate review.

If the court makes a finding of probable cause “that the emergency evaluee has shown the

symptoms of a mental disorder and that the individual presents a danger to the life or safety

of the individual or others,” then the court shall endorse the petition. Health-Gen. § 10-

623(b). Once a petition is endorsed by the court, a peace officer must take the individual

to the nearest emergency facility for evaluation. Health-Gen. § 10-624(a). If the petition

lacks probable cause, “no further action may be taken under the petition.” Health-Gen.

§ 10-623(c).

       The emergency facility is required to accept the individual if the petition is properly

executed. Health-Gen. § 10-624(b)(1). The facility must evaluate the individual within 6

                                             35
hours after the individual is brought to the facility “to determine whether the emergency

evaluee meets the requirements for involuntary admission.” Health-Gen. § 10-624(b)(2).

The facility must release the individual unless the individual requests voluntary admission

or meets the requirements for involuntary admission. 19 Health-Gen. § 10-624(b)(3). An

emergency facility may not keep an individual for more than 30 hours. Health-Gen.

§ 10-624(b)(4). 20

       If an individual qualifies for involuntary admission and refuses to agree to

voluntary admission, “the examining physician shall take the steps needed for involuntary

admission of the emergency evaluee to an appropriate facility[.]” Health-Gen. § 10-625(a).

Within 6 hours of receiving notification, DHMH is required to admit the individual to an


       19
          The requirements for involuntary admission under Part III of Subtitle 6 are
actually presented as limitations. The statute reads: “A facility . . . may not admit the
individual . . . unless:

       (1) The individual has a mental disorder;
       (2) The individual needs inpatient care or treatment;
       (3) The individual presents a danger to the life or safety of the individual or
       of others;
       (4) The individual is unable or unwilling to be admitted voluntarily; and
       (5) There is no available, less restrictive form of intervention that is
       consistent with the welfare and safety of the individual.

Health-Gen. § 10-617(a) (emphasis added). There are additional limitations for individuals
who are 65 or over, which are not pertinent to this appeal because none of the Appellants
are 65 years of age or older. See Health-Gen. § 10-617(b).
       20
          This Court undertook a review of Maryland’s statutory scheme for involuntary
admission in effect in 2003. See Furda v. State, 193 Md. App. 371, 411 (2010). Judge
Hollander, writing for this Court, considered whether an emergency mental health
evaluation conducted pursuant to Health-Gen. § 10-620 to -630 constitutes a commitment
under federal law, id. at 376, and concluded that “the term does not extend to a brief
hospitalization for purposes of an emergency mental health evaluation.” Id. at 410–11.
                                             36
appropriate inpatient facility. Health-Gen. § 10-625(b)(2). Then, within 12 hours of an

individual’s initial admission, the inpatient facility is required to give the individual a

notice of the admission status and notice of involuntary admission hearing rights, including

the right to call or write a lawyer and the availability of legal aid and lawyer referral

services. Health-Gen. § 10-631(a)-(b).

       Within 10 days of an individual’s confinement at an inpatient facility under Health-

Gen. § 10-625, whether the confinement be through an application for involuntary

admission or a petition for emergency evaluation, OAH shall conduct a hearing “to

determine whether the individual is to be admitted to a facility . . . as an involuntary patient

or released without being admitted.” Health-Gen. § 10-632(b); COMAR 10.21.01.09A.

The individual remains in observation status until she is formally admitted into an inpatient

hospital following an involuntary admission hearing. COMAR 10.21.01.07F(3); Solomon,

Involuntary Commitment, supra, at 117 (“[W]hile an individual is on ‘Observation Period’

status, he [or she] is not officially or formally committed as a mental patient.”).

           D. Health-Gen. § 10-632(e) and the Involuntary Admission Hearing.

       Bringing Appellants’ primary contention back into focus, we now examine whether

the ALJ erred by ordering the involuntary admission of Appellants without first finding

that the Hospital complied with the preadmission procedures contained in Health-Gen.

§ 10-601 et seq. The Hospital asserts that a plain reading of the involuntary admission

statute indicates that a hospital is required to prove only the elements enumerated in Health-

Gen. § 10-632(e).

       We begin with the plain language of the statute and the instruction by the Court of

                                              37
Appeals that an “ordinary, popular understanding of the English language dictates

interpretation of its terminology.” Kushell v. Dep’t of Nat. Res., 385 Md. 563, 576 (2005)

(citation omitted). “‘If the language of the statute is unambiguous and clearly consistent

with the statute’s apparent purpose, our inquiry as to legislative intent ends ordinarily and

we apply the statute as written, without resort to other rules of construction.’” Williams v.

Peninsula Reg’l Med. Ctr., 440 Md. 573, 580 (2014) (citation omitted). Courts should not

analyze individual provisions in isolation, but rather as part of a complete statutory scheme.

Outmezguine v. State, 335 Md. 20, 41 (1994) (citation omitted). Courts aim to “avoid

constructions that are illogical, unreasonable, or inconsistent with common sense.” Frost

v. State, 336 Md. 125, 137 (1994) (citations omitted).

       The provisions governing involuntary admission are found in Health-Gen.

§ 10-632, which we set out in its entirety: 21

       (a) Right to hearing. — Any individual proposed for involuntary admission
       under Part III of this subtitle shall be afforded a hearing to determine whether
       the individual is to be admitted to a facility or a Veterans’ Administration
       hospital as an involuntary patient or released without being admitted.
       (b) Time of hearing. — The hearing shall be conducted within 10 days of the
       date of the initial confinement of the individual.
       (c) Time of hearing — Postponement. — (1) The hearing may be postponed
       for good cause for no more than 7 days, and the reasons for the postponement
       shall be on the record.


       21
          Effective July 1, 2017, the General Assembly enacted an outpatient civil
commitment (“OCC”) pilot program “to allow for the release of an individual who is
involuntarily admitted for inpatient treatment under [Health-Gen.] § 10-632 . . . on
condition of the individual’s admission into the pilot program.” 2017 Md. Laws, ch. 576
(H.B. 1383). This pilot program is limited to Baltimore City at this time and meant to
“improve services for individuals in Baltimore City who have a serious mental illness and
have not been well served by the public behavioral health system[.]” Fiscal Note, H.B.
1383 (2017).
                                                 38
              (2) A decision shall be made within the time period provided in
              paragraph (1) of this subsection.
       (d) Rules and regulations; designation of hearing officer. — The Secretary
       shall:
              (1) Adopt rules and regulations on hearing procedures; and
              (2) Designate an impartial hearing officer to conduct the hearings.
       (e) Decision — The hearing officer shall:
              (1) Consider all the evidence and testimony of record; and
              (2) Order the release of the individual from the facility unless the
              record demonstrates by clear and convincing evidence that at the time
              of the hearing each of the following elements exist as to the individual
              whose involuntary admission is sought:
                      (i) The individual has a mental disorder;
                      (ii) The individual needs in-patient care or treatment;
                      (iii) The individual presents a danger to the life or safety of the
                      individual or of others;
                      (iv) The individual is unable or unwilling to be voluntarily
                      admitted to the facility; [and]
                      (v) There is no available less restrictive form of intervention
                      that is consistent with the welfare and safety of the individual;
                      (vi) If the individual is 65 years old or older and is to be
                      admitted to a State facility, the individual has been evaluated
                      by a geriatric evaluation team and no less restrictive form of
                      care or treatment was determined by the team to be appropriate.
       (f) Notice of hearing. — The parent, guardian, or next of kin of an individual
       involuntarily admitted under this subtitle:
              (1) Shall be given notice of the hearing on the admission; and
              (2) May testify at the hearing.
       (g) Surrendering firearms. — If a hearing officer enters an order for
       involuntary commitment under Part III of this subtitle and the hearing officer
       determines that the individual cannot safely possess a firearm based on
       credible evidence of dangerousness to others, the hearing officer shall order
       the individual who is subject to the involuntary commitment to:
              (1) Surrender to law enforcement authorities any firearms in the
              individual’s possession; and
              (2) Refrain from possessing a firearm unless the individual is granted
              relief from firearms disqualification in accordance with § 5-133.3 of
              the Public Safety Article.

Health-Gen. § 10-632. Subsection (e)(2) instructs that the hearing officer, after considering

all evidence and testimony, order the release of an individual from a hospital “unless the


                                              39
record demonstrates by clear and convincing evidence that at the time of the hearing each

of the [involuntary admission elements] exist as to the individual whose involuntary

admission is sought[.]” In regard to the involuntary admission elements (Health-Gen.

§ 10-632(e)(2)), the General Assembly identified the burden of proof—clear and

convincing evidence—but did not identify which party bears this burden.           Notably,

compliance with the preadmission procedures is not one of these elements, nor does the

statute provide anywhere that the hearing officer must make findings in regard to

preadmissions procedures.

      Although the statute does not provide a definitive answer, it points us to another

source of law—the corresponding regulations promulgated by DHMH—that provide

additional instruction on how involuntary preadmission procedures are conducted. See

Health-Gen. § 10-632(d)(1) (“The Secretary shall [a]dopt rules and regulations on hearing

procedures.”) The regulation pertaining to involuntary admission hearings is found in

COMAR 10.21.01.09. In pertinent part, this regulation provides:

      F. Burden of Proof. The burden of proof is on the inpatient facility to
      demonstrate by clear and convincing evidence that:
            (1) The individual has a mental disorder;
            (2) The individual needs inpatient care or treatment;
            (3) The individual presents a danger to the life or safety of the
            individual or of others;
            (4) The individual is unable or unwilling to be admitted voluntarily;
            (5) There is no available, less restrictive form of intervention that is
            consistent with the welfare and safety of the individual; and
            (6) If the individual is 65 years old or older and is being referred for
            admission to a State inpatient facility or VA hospital, a GES team has
            determined that there is no available, less restrictive form of care or
            treatment that is adequate for the needs of the individual.

      G. Findings and Conclusions.        After the evidence and testimony are

                                           40
       presented, and following summation and argument by the parties, the ALJ
       shall:
              (1) Consider all evidence and testimony of record;
              (2) Rule on issues raised by the individual that relate to the process
              by which the:
                     (a) Individual was taken into and confined during
                     observation status;
                     (b) Individual's admission status was changed according to the
                     provisions of Regulation .08B of this chapter; or
                     (c) Individual is presented for a semiannual hearing under the
                     provisions of Regulation .08C of this chapter;
              (3) Order the release of the individual from the inpatient facility if:
                     (a) An error in the process occurred;
                     (b) The error in the process is substantial; and
                     (c) No other available remedy is consistent with due process
                     and the protection of the individual’s rights;
              (4) Order the release of the individual from the inpatient facility unless
              the inpatient facility meets the burden of proof outlined in § F of this
              regulation[.]

COMAR 10.21.01.09 (bold headings and emphasis added).                Clearly, this regulation

addresses additional procedures, rights, and responsibilities of the parties at involuntary

admission hearings. First, we observe that DHMH addresses the involuntary admission

elements and preadmission procedures in separate sections.

      Focusing on Section F, the burden of proof is expressly placed on the inpatient

facility (here, the Hospital) to establish the involuntary admission elements. COMAR

10.21.01.09F. The regulation reiterates that the burden of proof is by clear and convincing

evidence. We note that Section F pertains to only the involuntary admission elements and,

like the statutory provision on involuntary admission hearings, compliance with the

preadmission procedures is absent from the enumeration of involuntary admission

elements.

       Unlike the statute, Section G of the regulation addresses how a party may raise an

                                              41
issue regarding compliance with the preadmission procedures.                     See COMAR

10.21.01.09G. This section fills in the gap left by the statute. The regulation expressly

places the burden on the individual whose involuntary admission is sought to “raise” issues

“relate[d] to the process by which the: [i]ndividual was taken into and confined during

observation status[.]” COMAR 10.21.01.09G(2)(a).

       The regulation, however, fails to specify which party bears the burden to prove

procedural compliance once the issue is raised. Viewing the statutory scheme as a whole,

in light of its purpose—protecting individuals’ liberty interests—it only follows that the

burden of proof shifts to the hospital. 22 See Arrington v. Dep’t of Human Res., 402 Md.

79, 101 (2007) (holding that, where Maryland Rule 15-207(e)(4) did not specify which

party bore the burden of proof, the burden is on the party with a “‘peculiar means of

knowledge’ enabling him or her to establish the fact” (citation omitted)). This burden-

shifting framework is appropriate in light of the circumstances surrounding emergency

petitions for involuntary admission. The patient most likely lacks the cognition during the

evaluation and observation period to document the pertinent procedural events; including

his or her time of arrival at the hospital, the time of receipt of the notice of admission status,

the duration between arrival and evaluation, and the duration between arrival and

admission to an appropriate facility. The hospital, however, maintains and controls access

to the patient’s medical records, which are likely the only documentary evidence to




       22
         At oral argument before this Court, the Hospital conceded that it bears the burden
of proof once a patient raises the issue with particularity.
                                               42
establish the hospital’s compliance or non-compliance with the preadmission procedures.

       The regulation also fails to identify the hospital’s burden of proof for establishing

its compliance with specific issues raised by the individual at the involuntary admission

hearing. We look to Maryland Code (1984, 2014 Repl. Vol.), State Government Article

(“SG”), § 10-217 for guidance. This provision states that “[t]he standard of proof in a

contested case shall be the preponderance of the evidence unless the standard of clear and

convincing evidence is imposed on the agency by regulation, statute, or constitution.”

Accordingly, we conclude that the hospital has the burden of proof by a preponderance of

the evidence, to establish its compliance with the specific preadmission procedures at issue.

       Fortunately, the statute also addresses what the remedy should be for non-

compliance. COMAR 10.21.01.09G(3) provides that the ALJ must “[o]rder the release of

the individual from the inpatient facility if: (a) an error in the process occurred; (b) [t]he

error in the process is substantial; and (c) [n]o other available remedy is consistent with

due process and the protection of the individual’s rights[.]” From this three-part test we

observe that the hospital’s non-compliance with a preadmission procedure does not

automatically result in the release of the individual from the hospital. Establishing that an

error occurred is only one part of the three-part test. See COMAR 10.21.01.09G(3)(a).

The procedural violation only results in the individual’s release from the hospital if 1) the

error was substantial and 2) there is no other remedy available that is consistent with due

process and the protection of the individual’s rights. COMAR 10.21.01.09G(3)(b)-(c).

       Based on the foregoing review of the applicable statute and regulations, we hold

that the individual bears the burden at an involuntary admission hearing to raise any

                                             43
preadmission procedural violations. Once the issue is raised, the burden shifts to the

hospital to establish, by a preponderance of the evidence, either its compliance with respect

to the alleged procedural violation, or that the violation was not substantial or that “[n]o

other remedy [wa]s consistent with due process and the protection of the individual’s

rights[.]” 23

                   1. The Preadmission Procedures are Not “Jurisdictional.”

        Appellants assert that an individual is not “lawfully in [a hospital’s] custody” if the

hospital failed to comply with the preadmission procedures and, as a result, the hospital’s

noncompliance deprives the OAH of jurisdiction to conduct an involuntary admission

hearing.

        Appellants’ contention is essentially an issue of statutory construction similar to that

addressed in Motor Vehicle Administration v. Jones, 380 Md. 164 (2004). In Jones, an

ALJ suspended the respondent’s driver’s license because the respondent refused to submit

to a chemical breath test after failing a field sobriety test during a traffic stop. Id. at 169.

The respondent sought judicial review in the circuit court, challenging the ALJ’s decision

by asserting that the Motor Vehicle Administration (“MVA”) must also establish at the


        23
          We acknowledge that the Court of Appeals has held that a petitioner must be
released from a mental institution and returned to prison to serve his original sentence when
it concluded that a provision in the Defective Delinquent Act (since repealed) requiring the
examiner to disclose the results of the psychological evaluation to the court and advise the
petitioner of his hearing rights was mandatory and was not complied with. See Moss v.
Director, Patuxent Inst., 279 Md. 561, 568 (1977). Moss, however, is distinguishable from
the case sub judice because COMAR 10.21.01.09G(3) provides that even when a patient
raises a preadmission procedure issue, in order to warrant release, the error must have been
substantial and “[n]o other available remedy [was] consistent with due process and the
protection of the individual’s rights.”
                                               44
suspension hearing prior to suspending an individual’s driver’s license, that the respondent

was offered a chemical test within the two-hour statutory limitation as required under

[Maryland Code (1977, 1999 Repl. Vol., 2003 Supp.), Courts and Judicial Proceedings

Article (“CJP”),] § 10-303. Id. at 172.

       The circuit court concluded that the MVA had the burden to establish compliance

with the two-hour statutory limitation and that there was no evidence in the record that the

test was offered within that time limit. Id. After the circuit court reversed the ALJ’s

decision, the MVA filed a petition for certiorari requesting that the Court of Appeals

determine “whether § 16-205.1(f)(7)(i) implicitly requires that, in a § 16-205.1 suppression

hearing, the [MVA] must also establish that the arresting officers satisfied the requirements

of the provisions of [CJP] § 10-303[.]” Id. at 175. After applying the canons of statutory

interpretation and reviewing the legislative history, the Court held that “the text of § 16-

205.1(f)(7)(i) [] is clear and unambiguous and limits the issues to be considered by an ALJ

in a suspension hearing to the six enumerated issues of § 16-205.1(f)(7)(i)(1-6)”—whether

the test was offered within the two-hour statutory time limit was not among those six

elements. Id. at 168, 177.

       The Court reasoned that the use of the word “only” in the language of the statute—

“at the hearing the only issues shall be”—served as a limiting word which excluded other

possible elements. Id. at 174, 177 (emphasis added). “If the Legislature intended the ALJ

to consider whether the officers requested the chemical breath test within two hours of his

apprehension, it would have included a seventh factor under (f)(7)(i).” Id. at 177. In further

support of this interpretation of the statute, the Court observed that “the Legislature

                                             45
appear[d] to be concerned solely with the issue of whether the refusal was informed and

not with the lapse of time between the suspect’s apprehension and the test being requested.”

Id.

       Applying the principles of statutory construction, we look to the plain language of

Health-Gen. § 10-632—the statutory provision governing the involuntary admission

hearing. Subsection 10-632(e)(2) states that “[t]he hearing officer shall . . . [o]rder the

release of the individual from the facility unless the record demonstrates by clear and

convincing evidence that at the time of the hearing each of the following elements exist as

to the individual whose involuntary admission is sought.” (Emphasis added). This

subsection sets forth six elements that must be established before the ALJ may order the

involuntary commitment of an individual. Health-Gen. § 10-632(e)(2). Similar to Jones,

none of the preadmission procedures are included in the enumerated list of involuntary

admission elements that must be established at the involuntary admission hearing. See

Jones, 380 Md. at 177.

       As discussed supra, DHMH promulgated revisions to the involuntary admission

regulations in 1981 and the General Assembly followed suit in 1982 by enacting into the

Maryland Code the procedures in the regulations to protect individuals’ liberty interests.

See, e.g., Solomon, Involuntary Commitment, supra, at 115. The General Assembly

intended that the “[s]ix elements must exist for the hearing officer to determine the

appropriateness of the involuntary admission.” Fiscal Note, S.B. 437 (1982).

       Nothing in the legislative history indicates that the General Assembly intended that

a hospital must demonstrate compliance with the preadmission procedures as a condition

                                            46
precedent to ordering involuntary admission. Appellants, therefore, are incorrect in their

contention that it is a “jurisdictional” prerequisite that a hospital establish compliance with

preadmission procedures during an involuntary commitment hearing. Instead, a hospital

must only demonstrate compliance with preadmission procedures in those cases in which

the patient raises procedural irregularities with particularity.

      E. Application of Law to Each Appellant’s Involuntary Admission Hearing

       Appellants argue that the Hospital’s errors in the preadmission procedures were

substantial and required each ALJ to release each Appellant. COMAR 10.21.01.09G(3)(c).

The Hospital contends that the ALJs reviewed and ruled on the preadmission procedural

violations raised by Appellants under the appropriate standard articulated in COMAR

10.21.01.09G(3).

       We evaluate each Appellant’s contentions in turn.

                      1.     J.H.’s Involuntary Admission Hearing.

       Counsel for J.H. alleged, at the outset of the hearing before the ALJ, that “we will

be bringing up that the notice of admission status and the detention in the emergency room

both exceeded the time limits[.]” Then, at the conclusion of the Hospital’s case, he again

alleged that the Hospital exceeded the statutory time limits for notifying J.H. of her notice

of admission status and for the time she spent in the emergency room, and added that there

was no evidence that the Hospital completed her certifications or that she was granted an

involuntary admission hearing within the applicable time limits. J.H.’s counsel could not

provide any factual support for these broad allegations, but maintained that it was the

Hospital’s burden to present evidence that the Hospital had complied with the preadmission

                                              47
procedures specified in Title 10, Subtitle 6 of the Health-General Article and corresponding

COMAR provisions.

       For the reasons stated in the preceding examination of the statute and regulations

governing involuntary commitment proceedings, we determine that the ALJ properly

placed the initial burden on J.H.’s counsel to raise the alleged preadmission procedural

violations with sufficient particularity so that the Hospital would have had the opportunity

to submit evidence in response. The ALJ said “if the patient is asking for a release based

on some violation of the necessary procedures, I think it’s incumbent upon the patient to

show that those procedures were, in fact, violated[.]” We note that J.H.’s counsel did not

take the opportunity to ask Dr. Prasad, on cross-examination, about either of the alleged

procedural violations.    In fact, J.H.’s counsel only asked one question on cross-

examination: “How did my client get to the hospital, Doctor?”

       In each instance, J.H.’s counsel did not raise the procedural defects with

particularity. As a result the burden did not shift to the Hospital and the ALJ was not

required to make findings regarding those alleged violations. Furthermore, in regard to

the requirement that patients have an involuntary admission hearing within 10 days, the

ALJ concluded that even if there was a procedural violation, it did not warrant J.H.’s

release, reasoning that J.H. had a hearing in a “timely fashion” and any error was not

substantial. We agree, and hold that the ALJ did not err in denying J.H.’s motion for release

and admitting J.H. to the Hospital.

                     2.     C.B.’s Involuntary Admission Hearing.

       C.B. contends that her due process rights were infringed because the Hospital did

                                             48
not establish compliance with the maximum allowable time for evaluation and observation

in the emergency room. At the outset of the hearing, C.B.’s counsel indicated that he would

“be bringing up the defect in the emergency petition and the notice of admission” without

identifying any specific errors. The Hospital proceeded to examine its witness, Dr.

Mirmirani, regarding the contents of the notice of admission, but had no notice of a specific

allegation of error. During the cross-examination, C.B.’s counsel intimated there were

errors in the notice of admission status form when he questioned Dr. Mirmirani about

whether C.B.’s name was on the form, and, why the words “not applicable” were written

by the petitioner (C.B.’s father) next to the question concerning whether C.B. posed a

danger to herself or others. On re-direct, however, Dr. Mirmirani explained that the

patient’s first name was at the end of the notice of admission status form and that a nurse

informed C.B. of her status. More importantly, C.B.’s father testified at the involuntary

admission hearing that his daughter did pose a danger to herself and to others, and that his

notation of “not applicable” on the form was probably in error. Thus, in regard to the

alleged errors in the notice of admission status form and petition, C.B.’s counsel timely

raised the alleged errors, and the ALJ properly shifted the burden to the Hospital. As the

transcript demonstrates, the Hospital then presented evidence showing compliance with the

preadmission procedures.

       After the close of evidence, C.B.’s counsel attempted to raise an additional

procedural violation—the time C.B. spent in the emergency room. The ALJ found that

C.B. did not raise the alleged procedural violation in time and with particularity. We agree.

C.B.’s counsel’s bald allegation—“we don’t know how long she was in the emergency

                                             49
room[]”—during closing remarks was too little too late. Under the circumstances, the

burden did not shift to the Hospital to under COMAR 10.21.01.09G(3). We hold that the

ALJ did not err in denying C.B.’s motion for release and admitting C.B. to the Hospital.

                    3.     M.G.’s Involuntary Admission Hearing.

       M.G. contends that she was not afforded due process because the Hospital kept her

in the emergency room for approximately 41 hours prior to her admission to an inpatient

psychiatric unit—in excess of the 30-hour statutory limit—and that her record does not

indicate that the Hospital provided her with her notice of admission status.

       In this case, M.G.’s counsel did attempt to establish the duration of M.G.’s

evaluation in the emergency room during his cross-examination of Dr. Mirmirani. Dr.

Mirmirani testified that he was not certain exactly how long M.G. was in the emergency

room, but conceded that her stay may have exceeded the 30-hour statutory maximum

because she was placed in the ASC after her evaluation.

       As we have explained, we defer to the ALJ’s findings of fact, and if the facts in the

record allow reasoning minds to reach the same determination as the ALJ, “then [the

determination] is based upon substantial evidence, and the court has no power to reject that

conclusion.” Liberty Nursing Ctr., Inc. v. Dep’t of Health & Mental Hygiene, 330 Md.

433, 443 (1993). The applicable regulation provides that where an error in process is

established, the ALJ must determine whether it is “substantial” and whether “there is no

other remedy [] consistent with due process and the protection of the individual’s rights.”

COMAR 10.21.01.09G. In this case, although M.G. was not transferred to an inpatient

psychiatric unit within the time prescribed in the statute, the emergency room physicians

                                            50
performed their initial evaluation and concluded that M.G. required inpatient treatment.

The emergency room physicians began administering that treatment in the ASC prior to

her transfer to an available bed in the inpatient unit. On this record, we hold that the ALJ’s

determination that the preadmission procedure violation was not substantial and did not

warrant M.G.’s release was legally correct and supported by substantial evidence.

       M.G.’s counsel raised the alleged errors in the notice of admission status and

certifications only after the Hospital rested its case. In this case, however, the ALJ

permitted the Hospital to re-open its case. 24 Dr. Mirmirani took the witness stand again

and testified to the notice of admission status and the certifications procedures that the

Hospital followed. Although Dr. Mirmirani could not clearly state when the emergency

physician gave M.G. notice of her admission status, he did testify that two licensed

physicians certified M.G. The ALJ determined that, to the extent any procedural violation

was established, it was not substantial. We do not find error in the ALJ’s assessment that,

to the extent M.G. established any procedural violation, it was not substantial. We affirm

the ALJ’s rulings on M.G.’s motion for release and order admitting her to the Hospital.

                     4.     B.N.’s Involuntary Admission Hearing.

       B.N. contends that her due process rights were infringed because she remained in

the emergency room for 76 hours, her involuntary admission hearing took place more than

10 days after her initial confinement, and she was not evaluated within 6 hours of her



       24
         Although Appellants did not challenge this on appeal, we note that an ALJ has
broad discretion to reopen a case to receive additional evidence. See Eastern Outdoor
Advertising Co. v. Mayor and City Council of Balt., 146 Md. App. 283, 304 (2002).
                                             51
arrival.

       B.N.’s counsel stated these allegations of procedural violations at the outset of the

involuntary admission hearing and argued that the Hospital bore the burden to demonstrate

compliance with all relevant statutory preadmission requirements before proceeding to

present evidence on the merits of the case (i.e., the involuntary admission elements). The

ALJ, after determining that COMAR 10.21.01.09G was silent as to which party bore the

burden to prove the Hospital’s compliance with preadmission procedures, instructed the

Hospital “to present whatever testimony you wish to present or not on any issue that is

relevant in today’s hearing[.]” Without expressly stating so, the ALJ properly placed the

burden on the Hospital to prove that either the Hospital complied with that preadmission

procedure or the alleged errors were not substantial. See COMAR 10.21.01.09G(3).

       With respect to the duration of time in the emergency room, Dr. Maddineni’s

testimony corroborated B.N.’s allegation that she spent 75 or 76 hours in the emergency

room—well in excess of the 30-hour statutory time limit. Procedural violations, however,

do not result in a patient’s automatic release. If the Hospital can establish either that the

errors were not substantial or that no “available remedy [wa]s consistent with due process

and the protection of the individual’s rights,” the ALJ is not required to release the patient.

COMAR 10.21.01.09G(3). In this case, Dr. Maddineni testified that after B.N. was

evaluated in the emergency room, she was transferred to the ASC, which is part of the

psychiatric unit in the emergency room, because there were no available inpatient beds.

Again, we mind the deference accorded the ALJ under COMAR 10.21.01.09G(3) to

determine whether a violation is substantial and whether there was “no available remedy

                                              52
[] consistent with due process and the protection of the individual’s rights.” We hold that

the ALJ’s determination that the Hospital’s violation of the 30-hour statutory maximum

did not warrant B.N.’s release was supported by substantial evidence.

       We also discern no error in the ALJ’s ruling that there was no violation with respect

to the 10-day statutory hearing requirement. B.N. was admitted to the Hospital on January

4, 2016, and the hearing was held on January 13, 2016. B.N.’s involuntary admission

hearing occurred within 10 days of her admission. Similarly, we find no error in the ALJ’s

decision that there was no violation of the requirement that patients be evaluated within 6

hours of arrival at the Hospital. Dr. Maddineni testified that B.N. was brought to the

emergency room on January 1, 2016 and evaluated at 11:30 a.m. on the same day.

Although the record did not establish that B.N. was evaluated within 6 hours of her arrival,

she was evaluated promptly. It was reasonable for the ALJ to conclude that any violation

with respect to this preadmission procedure was not substantial.

       In conclusion, we hold that the ALJ applied the legal burden of proof accurately in

all four cases. We agree that J.H. did not raise her alleged preadmission procedure

violations in time or with particularity and that the Hospital established its compliance with

the preadmission procedures with respect to C.B. We agree with the circuit court’s

observation that although Appellants’ counsel “broadly raised the possibility of numerous

procedural errors,” counsel failed to “provide evidence to establish exactly what, if any,

procedural errors actually occurred that required [Appellants’] release.” In regard to M.G.

and B.N., the record supports the ALJs’ decisions that the violations of the preadmission

procedures were not substantial and there was “no other available remedy consistent with

                                             53
due process and the protection of the individual’s rights.” COMAR 10.21.01.09G(3)(c).

In all of four cases, the records demonstrate that the Hospital presented evidence on, and

the ALJs examined, each element contained in Health-Gen. § 10-632(e)(2), establishing

that the patients were suffering from serious mental illness and required inpatient treatment

in order to protect them from harming themselves or others. We hold that the ALJs’

decisions ordering the involuntary admissions of Appellants were legally correct and

supported by substantial evidence.

                                                  JUDGMENTS OF THE CIRCUIT
                                                  COURT AFFIRMED.
                                                  COSTS TO BE PAID BY
                                                  APPELLANTS.




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