Reese v. Department of Health & Mental Hygiene

HOLLANDER, Judge. The State of Maryland has “long supported the reduction of inpatient psychiatric hospital beds in favor of community-based programs.” Williams v. Wasserman, 164 F.Supp.2d 591, 634 (D.Md.2001) (Blake, J.). Indeed, since the 1970’s, the State’s “deinstitutionalization” of patients diagnosed with mental illness and developmental disabilities “has been dramatic.” Id. In large measure, that change was prompted by advocates for the disabled, based on their view that disabled individuals are entitled to, and would prefer, community treatment in lieu of institutional care.

But, as this case demonstrates, not every developmentally disabled person who needs professional care prefers placement in the community. In this appeal, the guardian of a mentally retarded adult complains because the State has declined to institutionalize her ward in a State-run facility for the mentally retarded. In 2004, Mary L. Reese, appellant, and the late William Massa, 1 as guardians of Virginia Massa, sought to admit Ms. Massa, the mentally retarded daughter of Mr. Massa, to a State-operated intermediate care facility, known as a State residential center (“SRC”). As we shall see, in this case the application process implicated federal and State law.

By letter dated July 19, 2005, S. Anthony McCann, then the Secretary of the Maryland Department of Health and Mental Hygiene (the “Department”), appellee, denied the application, based on his determination that placement in the community was an appropriate, less restrictive alternative. The Department subsequently opposed appellant’s request for a hearing ¹⁰⁸ at the Office of Administrative Hearings (“OAH”), at which appellant sought to present evidence as to Ms. Massa’s condition. The Department claimed that the denial of a request for admission to a SRC is not a contested case under the Administrative Procedure Act (“APA”), Md.Code (2004, 2006 Supp.), §§ 10-201 through 10-226 of the State Gov’t. Article (“S.G.”), and therefore there was no entitlement to such a hearing.

OAH agreed with the Department and denied the request. Thereafter, Ms. Reese appealed the OAH decision to the Department’s Board of Review (the “Board”), which upheld OAH by order dated December 12, 2005. She then filed a petition for judicial review in the Circuit Court for Montgomery County. On March 15, 2006, the court granted the Department’s motion to dismiss.

This appeal followed. Appellant presents three issues, which we quote: 1. Whether the State’s policy of preventing individuals with qualifying developmental disabilities from obtaining admission to State Residential Centers (“SRCs”) violates the freedom of choice requirement of the federal Medicaid statute and its implementing regulations. 2. Whether the State has failed to furnish Medicaid services it agreed to provide Ms. Massa with “reasonable promptness” in violation of federal Medicaid law. 3.

Whether the State’s interpretation of Md.Code Ann. Health-Gen. Art. § § 7-503 and 7-504, which forecloses any review of the Secretary’s denial of SRC admission, violates Appellant’s due process rights. For the reasons that follow, we shall vacate and remand. I. STATUTORY & REGULATORY FRAMEWORK To understand the facts and the issues, it is helpful to begin with a brief review of the federal and State statutory schemes.

The Medicaid program, established by Title XEX of the Social Security Act, Title 42 U.S.C. § 1396 , et seq., is a “jointly funded collaboration” in which the federal and state governments furnish medical services to low income persons who are ¹⁰⁹ unable to meet the costs of their own medical care, as well as long-term care for eligible persons. Dept. of Health & Mental Hygiene v. Campbell, 364 Md. 108, 112 , 771 A.2d 1051 (2001); see 42 U.S.C. §§ 1396 -1396v; Md.Code (1982, 2000 Repl.Vol., 2005 Repl.Vol., 2006 Supp.), § 15-103(a)(2) of the Health-General Article (“H.G.”). Medicaid beneficiaries include low income adults and children, the elderly, and the disabled. 42 U.S.C. § 1396a(a)(10)(A); COMAR 10.09.24.03D(4) (including a disabled person in the list of “Medically Needy”). State participation in Medicaid is voluntary.

Campbell, 364 Md. at 112 , 771 A.2d 1051 . But, once a state opts to participate, it must operate its program in compliance with federal statutory and regulatory requirements. 42 U.S.C. 1396a(a)(l). A participating state must develop a state Medicaid Plan for the provision of services that the state intends to provide under the program, which is reviewed by the Health Care Financing Administration (“HCFA”). 42 U.S.C. § 1396a. Once HCFA approves the plan, the state is eligible for federal funding.

Campbell, 364 Md. at 112 , 771 A.2d 1051 . When the state implements a plan for medical assistance, the plan becomes mandatory. 42 U.S.C. § 1396a(a)(l). Maryland has opted to participate in the Medicaid program through the Maryland Medical Assistance Program. Campbell, 364 Md. at 112 , 771 A.2d 1051 .

The program is administered by the Department and overseen at the federal level by the Department of Health and Human Services (“HHS”). 2 According to appellant, Maryland’s State Medicaid Plan indicates that Maryland provides services to eligible retarded persons in an Intermediate Care Facility for the Mentally Retarded (“ICF-MR”). 42 U.S.C. § 1396d(d). 3 ICF-MRs ¹¹⁰ provide residential health and rehabilitative services to mentally retarded individuals under “such standards as may be prescribed by the Secretary [of HSS].” 42 U.S.C. § 1396d(d). 4 Maryland has four ICF-MR facilities, all of which are designated SRCs. See Maryland Health Care Commission, An Analysis and Evaluation of the CON Program (2002). 5 They are operated by the Maryland Developmental Disabilities Administration (“DDA”), an agency within the Department. H.G. §§ 7-201, 7-501. In 1981, Congress created the Home and Community Based Services Waiver program (“HCBS”), which allows states to offer long-term care, not otherwise available through their Medicaid programs, to serve eligible individuals in their own homes and communities, instead of hospitals, nursing facilities, or ICF-MRs. 42 U.S.C. § 1396n(c)(l).

See S.Rep. No. 97-139 & H.R.Rep. No. 97-208, 97th Cong., 1st Sess. 1981, ¹¹¹ reprinted in 1981 U.S.Code Cong. & Admin.News p. 396 & 1981 U.S.Code Cong. & Admin.News p. 1010. The federal regulation states: “Section 1915(c) of the Act permits States to offer, under a waiver of statutory requirements, an array of home and community-based services that an individual needs to avoid institutionalization.” 42 C.F.R. § 441.300 .

Under 42 U.S.C. § 1396n(c)(l), the Medicaid statute allows states to apply for a waiver from HHS to pay for community-based services “pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or nursing facility or [ICF-MR] the cost of which could be reimbursed under the State plan.” 6 Pursuant to 42 C.F.R. § 441.302 (d), a waiver will not be granted unless a state furnishes adequate assurances that, when a recipient is determined to be likely to require the level of care provided in a hospital, NF, or ICF/MR, the recipient or his/ her legal representative will be— (1) Informed of any feasible alternatives available under the waiver; and (2) Given the choice of either institutional or home and community-based services. See 42 U.S.C. § 1396n(c)(2) (“A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that ... such individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility ¹¹² services, or services in an intermediate care facility for the mentally retarded[.]”). • Like many other states, Maryland strongly favors home and community based care for the developmentally disabled over state-run institutional care. 7 As the State has recognized, its efforts in regard to deinstitutionalization have led to the closure or downsizing of many state residential facilities. Indeed, Maryland “has been in the forefront” in developing community and home based care for the mentally disabled. Williams, 164 F.Supp.2d at 634 . 8 H.G. § 7-102 reflects the State’s policy favoring community placement.

It provides, in part: § 7-102. Legislative policy. To advance the public interest, it is the policy of this State: * * * (4) To foster the integration of individuals with developmental disability into the ordinary life of the communities where these individuals live; (5) To support and provide resources to operate community services to sustain individuals with developmental disability in the community, rather than in institutions; ¹¹³ The statutory scheme implements the policy favoring non-institutional placements by setting strict institutional admissions requirements and by imposing on the Department the burden to demonstrate to a hearing officer, by clear and convincing evidence, that such an admission is appropriate. H.G. § 7-502 provides: § 7-502.

Admissions. (a) Approval by Secretary. — The Secretary shall approve the admission of an individual to a State residential center only if: (1) The findings of the evaluation are that the individual: (1) Has mental retardation; and (ii) For adequate habilitation, needs residential services; and (2) There is no less restrictive setting in which the needed services can be provided and that is available to the individual or will be available to the individual within a reasonable time. (b) When the Secretary may not approve. — The Secretary may not approve the admission of an individual to a State residential center if: (1) The findings of the evaluation are that the individual: (i) Does not have mental retardation; or (ii) Has mental retardation but does not need residential services for adequate habilitation; or (2) There is a less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time. (c) Providing least restrictive service. — The Secretary shall provide an individual with the appropriate least restrictive service consistent with the individual’s welfare, safety, and plan of habilitation, if the individual: (1) Has an application for services that has been approved under § 7-404(c) of this title; or (2) Is considered eligible for transfer under Subtitle 8 of this title by the Director or the Director’s designee. ¹¹⁴ Notably, H.G. § 7-503 provides for a hearing only if the Secretary approves the admission to a SRC, but not if he or she denies an application for admission.

It states: § 7-503. Hearings; notice. (a) Hearing on admission. — Within 21 days after the admission of an individual to a State residential center, a hearing officer of the Department shall hold a hearing on the admission in accordance with the rules and regulations that the Secretary adopts. (e) Findings supporting admission. — (1) At the hearing, in order to certify the admission of the individual, it must be affirmatively shown by clear and convincing evidence that the conclusions leading to the decision to admit the individual are supported by the following findings: (i) The individual has mental retardation; (ii) The individual needs residential services for the individual’s adequate habilitation; and (iii) There is no less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time after the hearing.

(2) If the hearing officer shall find from the admissible evidence that the conclusions leading to the admission are not proved, the hearing officer shall so certify and the individual shall be released from the State residential center. (3) If the hearing officer shall find from clear and convincing evidence that all of the admission requirements have been proved, the hearing officer shall so certify and the individual’s admission shall be considered approved. (4) If the hearing officer certifies the admission of an individual to a State residential center, the hearing officer shall, at the conclusion of the hearing, write on the certification form any additional services of habilitation that are not included in the evaluation report, but that the hearing officer finds from the evidence are needed by the individual. ¹¹⁵ (5) If the hearing officer certifies the admission of an individual to a State residential center, the hearing officer shall, at the conclusion of the hearing, advise that individual and the legal counsel of the individual’s right to seek judicial release from the State residential center under § 7-507 of this subtitle. The hearing officer shall also advise that individual and the legal counsel of: (i) The individual’s rights under the appeal provisions of §§ 10-222 and 10-223 of the State Government Article; and (ii) The individual’s right to file a petition for habeas corpus under § 7-506 of this subtitle. [9] H.G. § 2-206 sets forth the “powers and duties” of the Board of Review of the Department.

H.G. § 2-206(c) provides, in part: § 2-206. Powers and duties. (c) Appeals to be heard and determined by Board.— Except as expressly provided otherwise, the Board shall hear and determine any appeal from: (1) A decision of the Secretary or any unit in the Department in a contested case that is subject to judicial review under § 10-215 of the State Government Article; (2) A decision of the Secretary or any unit in the Department that is subject to judicial review under any provision of law other than §§ 10-125,10-128 and 10-215 of the State Government Article; and (3) An action of or inaction by any unit in the Department for which the Secretary, by rule or regulation, provides for review by the Board. Moreover, H.G. § 2-207(a) states: ¹¹⁶ § 2-207.

Appeals to Board; judicial review. (a) Right of appeal. — If any person is aggrieved by any decision, action, or inaction on the part of the Secretary or of any unit in the Department for which an appeal to the Board is provided by this subtitle, that person is entitled to appeal as provided in this section. H.G. § 7-504 is of particular import here, as it pertains to judicial review in matters regarding SRC’s. It states: § 7-504.

Determination of hearing officer. (a) Review by Board of Review of Department prohibited. — The Board of Review of the Department does not have jurisdiction to review the determination of a hearing officer on an admission under this subtitle. (b) Final decision of Department for purposes of judicial review. — The determination of the hearing officer is a final decision of the Department for purpose of judicial review of final decisions under Title 10, Subtitle 2 of the State Government Article. Finally, we point to Subtitle 4 of the Health-General Article, titled: “Provision of Services.” Section 7-406, which appellant invoked when she asked the Secretary to review his decision, states: 10 (a) Request for informal hearings. — An applicant for services or a recipient of services under this title may: (1) Request an informal hearing before the Secretary’s designee on any action or inaction of the Secretary made under this title; and (2) Request the Secretary to review the decision of the informal hearing.

(b) Procedure. — After the Secretary receives a request for a review, the Secretary shall conduct the review in accordance with Title 10, Subtitle 2 of the State Government Article. ¹¹⁷ Notwithstanding the State’s policy in favor of home and community based care, the Department acknowledges that, “[u]nder federal law, a Medicaid recipient does have the right to choose among available providers. See 42 U.S.C. § 1396a(a)(23).” But, appellee insists that it is not required to place Ms. Reese in a SRC in order to comply with federal law. It explains: “Maryland has chosen to implement that ‘freedom of choice’ requirement for the Waiver Program by paying for placements at institutions other than SRCs, and the federal government has approved Maryland’s plan.” Appellee asserts: “There is nothing in the record to suggest that Ms. Reese has tried to locate another institution or that the Department has refused to pay for care at another institution.” It adds: “[T]here is no basis for concluding that Maryland has not complied with the requirements of the Medicaid statute.” With the statutory framework in mind, we turn to review the factual and procedural history pertinent to this case.

II

FACTUAL AND PROCEDURAL SUMMARY Ms. Massa was born on September 19, 1944. At the age of 16, she was stricken with viral encephalitis that left her profoundly retarded. She is covered by Medicaid. 11 Ms. Massa resided at Great Oaks Center, a SRC, from the early 1970’s until 1996, when the State closed that facility. At that time, Ms. Massa’s father opposed the Department’s decision to transfer his daughter to a community residential placement.

The disagreement culminated in a Settlement Agreement in the Spring of 1996 12 between the Department and Mr. Massa, by which Ms. Massa was to be moved to her current residence, a community home operated by the Arc of Howard ¹¹⁸ County. Among other things, the Settlement Agreement addressed Mr. Massa’s concerns about community placement with regard to staffing, choice of roommates, medical care, and wheelchair accessibility. Paragraph 13 of the Settlement Agreement provides: The parties consent to mediation should there be any dispute arising from an alleged failure of any party to fulfill the terms of the Agreement. The mediation will be conducted by the Office of Administrative Hearings.

After mediation, the parties may avail themselves of other applicable remedies. On October 27, 2004, Ms. Massa’s co-guardians sought her admission to the Holly Center, a SRC located on the Eastern Shore. Appellant’s affidavit avers that, on January 24, 2005, the Department indicated that Ms. Massa would be permitted to move to the Holly Center on February 15, 2005. Two weeks later, however, the Department advised that Ms. Massa’s admittance had been postponed, pending approval by the Secretary.

In May of 2005, pursuant to the Settlement Agreement, the parties participated in mediation, which proved unsuccessful. Consequently, a hearing on the merits was scheduled at OAH for late July 2005. But, on July 12, 2005, the Department asked OAH to cancel the hearing, claiming it was “premature” because the Secretary had not yet rendered his decision concerning Ms. Massa’s admission to the Holly Center. If Ms. Massa’s application were denied, explained the Department, a hearing would be unnecessary because “there is no provision in the [SRC] statute for a hearing before OAH.” Appellant’s attorney responded the next day, claiming that the Department “has consistently delayed and resisted making a final decision with respect to Ms. Massa’s admission to Holly Center.” Her counsel added: “Ms. Massa is entitled to this hearing that was scheduled and agreed upon by counsel following the mediation.

Ms. Massa has been awaiting an admission decision from the Department that is clearly not forthcoming.” ¹¹⁹ In a letter of July 19, 2005, to appellant and Mr. Massa, Secretary McCann denied the application for Ms. Massa’s admission to Holly Center. The letter stated: I reviewed Ms. Massa’s file carefully in considering whether to grant your request that she be admitted to Holly Center. I applaud your continued, in-depth involvement in your daughter’s/ward’s life and your work with the Developmental Disabilities Administration (“DDA”) and the providers. Although DDA and Mr. Massa initially disagreed about where Ms. Massa should be served when Great Oaks closed in 1996, agreement was reached that Ms. Massa be served in the community.

You now ask that Ms. Massa be transferred from her community residential and day service providers of 9 years and admitted to Holly Center, a state residential center (“SRC”). As explained below, Maryland law requires that I deny your request for admission. Both the State of Maryland and the federal government have strong policies favoring community-based services over institutional ones ... Effective this year, House Bill 794, requires that all barriers that prevent an individual in a SRC from living in the community be identified.

Additionally, it is now Maryland law that each individual has a right to receive services in the most integrated setting available. The admission criteria to a DDA operated and funded SRC incorporate these policies. Admission to a SRC is predicated on there not being an appropriate residential placement in the community. An individual can be admitted only if there is no less restrictive setting in which the needed services can be provided and that is available to the individual.

Additionally, unlike admission to other types of facilities or programs to which an individual may admit him/herself, only the Secretary can authorize admission to an SRC. The legislature has mandated other safeguards to assure that an individual is not inappropriately admitted to a SRC. The statute requires an independent review by the Office of Administrative Hearings (“OAH”) within twenty-one days ¹²⁰ after admission as well as an annual re-evaluation. Thus, the statutory scheme is to permit admission into a SRC only if there are no community options.

For Ms. Massa to be admitted to Holly Center, I would have to find that services in the community are not currently meeting her needs and that there is no community provider who could do so. I do not so find. Rather my review of her file discloses that: 1) Ms. Massa has been living in the community for over nine years; 2) DDA is meeting the conditions in the Settlement Agreement; 3) In the community, Ms. Massa has improved her ability to walk and to perform activities of daily living; 4) During this time, the staff providing services to Ms. Massa have been remarkably stable. Two of the staff at the day treatment program have been with Ms. Massa since 1996; at her home, one staff person has been there since 1996, two since 1997, and one since 1998; 5) Both the residential and the day programs provide Ms. Massa with a broad range of community activities; 6) Although there was some delay in medical follow-up treatment because of the retirement of Ms. Massa’s physician, a new physician has been found and medical appointments are timely; 7) If Ms. Massa’s physician recommends occupational therapy, physical therapy or any medical service, DDA will fund those services, if not covered by Medicaid; 8) Ms. Massa’s dietary needs are being monitored by her physician who is satisfied with her current weight; and 9) There is open communication between DDA’s Southern Regional Office and you to discuss an issues related to Ms. Massa’s care.

This indicates to me that Ms. Massa is receiving residential services that meet her habilitation needs in a less restrictive setting than Holly Center. ¹²¹ To be noted is, that under DDA’s Home and Community Based Waiver, Ms. Massa could choose to receive residential services in an institution rather than the community. However, what you have requested is her admission to a state-run institution, Holly Center. I want to be clear that I am not denying Ms. Massa’s right to choose to be served in an ICF-MR. I am denying her admission to a state residential center, the admission standards for which are set forth in law.

If you wish to explore transferring Ms. Massa to another community provider or to an intermediate care facility, other than a SRC, DDA’s regional office will work with you (Emphasis added.) Two advisory letters were appended to Secretary McCann’s letter. One was a letter of March 22, 2004, to Thomas Middleton, Chair of the Maryland Senate Finance Committee, signed by Robert McDonald, Esquire, Chief Counsel, Opinions and Advice, Maryland Office of the Attorney General, and the former Maryland Attorney General, Joseph Curran. They wrote: You have asked for our opinion whether State law concerning care of a developmentally disabled individual is consistent with federal law and the Supreme Court decision in Olmstead v. L.C., 527 U.S. 581 , 119 S.Ct. 2176 , 144 L.Ed.2d 540 (1999). We have reviewed the recent letter of advice on this issue by Assistant Attorney General Kathryn M. Rowe, a copy of which is attached.

Letter to Honorable J. Lowell Stolzfus dated January 27, 2004. Ms. Rowe’s letter accurately describes the Olmsteod case, the requirements of the federal Medicaid law, and the current State law that favors home and community based care over institutional care for mentally retarded individuals. In our view, Maryland law is consistent with the Olmstead decision, which primarily concerned the right of mentally disabled individuals to community placement under the Americans with Disabilities Act (“ADA”) in certain circum ¹²² stances. As Ms. Roe’s letter notes, the restrictions in State law on admission to State residential facilities for mentally retarded persons may appear to be at odds with the requirement of the Medicaid law that a Medicaid beneficiary who needs the level of care provided in a hospital, nursing facility, or intermediate care facility have an option to choose institutional services even if that individual also qualifies for home or community based services. 1 See 42 CFR § 441.302 (d)(2).

However, we understand that the Department of Health and Mental Hygiene has adopted a policy of satisfying the “choice” requirement by offering out-of-State institutional placements to Medicaid beneficiaries at State expense. We also understand that the federal Department of Health and Human Services, the agency that promulgated the regulation cited above and that implements the Medicaid waiver program, has accepted Maryland’s policy as compliance with the choice requirement. 2 (Emphasis added.) The other letter was written by Kathryn Rowe, Assistant Attorney General, to the Honorable J. Lowell Stoltzfus, dated January 27, 2004. She wrote: You have asked for advice as to whether there is a conflict between Maryland law and federal law with respect to the rights of an individual with developmental disability to chose between care in a state residential facility and a community based care facility. It is my view that there is a theoretical conflict between State law and the federal law with respect to Medicaid recipients’ rights of choice.

There is no conflict with respect to persons whose services are not funded by Medicaid. Moreover, with respect to Medicaid recipients, it ¹²³ is my view that it may be possible to resolve this conflict in ways that are consistent with State law. FEDERAL LAW Medicaid The regulations implementing the waiver authority specify that the state must assure that when a recipient is determined to be likely to require the level of care provided in a hospital, nursing facility, or immediate care facility for the mentally retarded, that individual or his or her legal representatives will be informed of any feasible alternatives available under the waiver, and given the choice of either institutional or home and community based services. 42 C.F.R. § 441.302 (d). Cramer v. Chiles, 33 F.Supp.2d 1342 (S.D.F[la].1999).

Thus, there can be no question that federal law requires that a Medicaid recipient in need of residential services be given the choice between institutional and home or community based services. However, it is worthy of note that federal policy generally favors home and community based services over institutional ones. See Executive Order of June 18, 2001, stating that the “United States is committed to community-based alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans,” and letters of January 14, 2000 to state medicaid directors and governors, stating that the Olmstead decision “confirms what this Administration already believes: that no one should have to live in an institution or a nursing home if they can live in the community with the right support.”1-] See also 42 U.S.C. § 1396a(a)(31) and (44)(A). Olmstead v. L.C. In Olmstead v. L.C., 527 U.S. 581 , 119 S.Ct. 2176 , 144 L.Ed.2d 540 (1999), the Supreme Court held that the Americans with Disabilities Act (ADA) requires placement of persons with mental disabilities in community settings rather than in institutions where “the State’s treatment professionals have determined that community placement is ap ¹²⁴ propriate, the transfer from institutional care to a less restrictive setting is not opposed by the individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Because this decision expressly recognizes that the ADA does not require less restrictive care where the individual opposes it, there is no conflict between this case and the federal law and regulations relating to Medicaid services for the developmentally disabled.

STATE LAW Maryland law very strongly favors home and community based care over institutional care. Health General Article § 7-102 provides that, “[t]o advance the public interest, it is the policy of this State: (4) To foster the integration of individuals with developmental disability into the ordinary life of the communities where these individuals live; (5) To support and provide resources to operate community services to sustain individuals with developmental disability in the community, rather than in institutions. (6) To require the Administration to designate sufficient resources to foster and strengthen a permanent comprehensive system of community programming for individuals -with developmental disability as an alternative to institutional care.”n With respect to State facilities for the mentally retarded the law reflects this policy by denying admission to any person unless it is shown that the person has mentally [sic] retardation, that residential services are needed for adequate habitation, and that there is no less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time. HG § 7-502(a) and (b).

These findings must be confirmed at a hearing held after admission, HG § 7-503(e), and the individual must be re-evaluated annually to determine whether institutional placement is still neces ¹²⁵ sary, HG § 7-505. Thus, under Maryland law, a person is not qualified for admission to a State facility for the retarded if home or community based care is available and would be appropriate.11 DISCUSSION The restriction on admissions to State residential facilities for the mentally retarded does make it more difficult to comply with the requirement of federal law that Medicaid beneficiaries who qualify for home or community based services be given the option of institutional services instead. However, the choice provisions of federal law do not give a Medicaid recipient a right to receive services from an unwilling provider. See 42 U.S.C. § 1396a(a)(23).

Nor do these restrictions make compliance with the federal law impossible. Where a Medicaid recipient chooses institutional over home or community services, the State could pay for services for the person in an institution in another state. Federal law requires this opinion only for Medicaid recipients, and not for persons who receive State or privately funded services. (Emphasis added.) On July 22, 2005, the Department filed a “Motion to Dismiss” the OAH hearing.

It claimed that “the applicable statute does not give Ms. Massa a right to an adjudicatory hearing” with regard to the Secretary’s decision to deny her admission to Holly Center. In her opposition, appellant argued that her due process rights would be violated if she were not granted an opportunity to be heard. In a one line order, an Administrative Law Judge (“ALJ”) granted the Department’s motion on July 25, 2006. As a result, no hearing was held.

Ms. Reese wrote to Secretary McCann on August 24, 2005, requesting an informal hearing pursuant to H.G. § 7-406 with regard to his denial of Ms. Massa’s admission to Holly Center. On the same day, Ms. Reese wrote to the Board, stating that she was “appealing the Office of Administrative Hearing’s dismissal of the ... case ...,” and she asked that the matter ¹²⁶ be set “for hearing before the Department’s Board of Review.” On August 26, 2005, the Board acknowledged receipt of Reese’s request for a hearing, and informed appellant of its procedures set forth in COMAR 10.01.05. She was advised that she would be notified of the time and date of the hearing. 13 On September 14, the Board liaison wrote to appellant, stating: “A copy of the record concerning the above captioned case is enclosed.” 14 She was also informed of her right to submit a brief, and told that a hearing had been set for October 27, 2005. It was later postponed.

In the meantime, on September 14, 2005, the Department filed a “Motion to Dismiss.” It contended that, under H.G. § 7-504(a) and H.G. § 2-206(c), the Board did not have jurisdiction to review the Secretary’s decision. The matter was eventually reset for December 8, 2005. On December 5, 2005, appellant filed a “Brief of Appellant Mary L. Reese,” a “Motion to Supplement the Record,” and a “Motion for Leave of the Board to File Appellant’s Brief.” The motion to supplement the record included a number of exhibits, such as an affidavit of appellant; the Settlement Agreement; some of Ms. Massa’s medical records; and opinion letters from the Office of the Attorney General regarding the legality of Maryland’s SRC provisions. The motion for leave stated: Although Code of Maryland Regulations (COMAR) § 10.01.06.07.B requires that appellants provide notice of the intention to file a brief within 30 days after the liaison acknowledges receipt of the notice of appeal, Ms. Reese had filed her notice of appeal pro se and had not yet engaged ¹²⁷ this law firm to represent her during the time period in question.

In addition, while COMAR § 10.01.06.07.C requires that appellants file a brief within 40 days after receiving a copy of the record and transcript from the liaison, Ms. Reese never received such a transcript because there was no initial hearing in this proceeding. In fact, six days before the initial hearing scheduled by Office of Administrative Hearings (“OAH”) was to take place, Secretary McCann issued a letter denying Ms. Massa’s admission to Holly Center. OAH subsequently dismissed the July 26th hearing from the docket in light of the Secretary’s decision. Thus, Ms. Reese has never been allowed to exercise her due process right to a fair hearing under the U.S. and Maryland Constitutions.

The only evidence in the record on which the Board has to determine whether to affirm, deny, or remand the Secretary’s letter ruling is the letter itself. Therefore, the Board needs an adequate record and a written explanation of the complexities at issue prior to making its decision. The Department opposed appellant’s motion to supplement the record. On December 8, 2005, the Board convened for the hearing.

With regard to appellant’s motion to supplement the record, the Department urged the Board to deny the request because the materials were not part of the record before OAH. Appellant’s counsel responded that, without the supplemental information, the record was inadequate for the Board to make a decision. The following colloquy is relevant: [CHAIRPERSON]: ... There are two barriers [to admitting the materials].

One, we haven’t read it. Two, the Attorney General won’t admit it. And, three, it was late. So regardless of where you go from there or why you’re here, that doesn’t solve the problem for the Board.

We’re restricted legally to what is in the record. We are not — we are an appeals board. [APPELLANT’S COUNSEL]: I understand. I understand your concern. And should the Board wish to postpone so ¹²⁸ that they could have an ample opportunity to read our submissions, we would be willing — we would be willing to accommodate. [CHAIRPERSON]: Thank you.

And what is your response? [COUNSEL FOR DEPARTMENT]: My response is that I would oppose any postponement. Because for the simple reason that these materials that were submitted should not be supplemented, should not supplement the record. Because the record, as you said, should only be of what took place below. And what took place below, is a dismissal of the hearing.

And I believe that [appellant’s counsel] is mis-characterizing the purpose of today’s hearing. It is not so that this Board could review the Secretary of the Department’s decision regarding Ms. Massa’s denial — the denial of Ms. Massa’s admission to the Holly Center. It is only the propriety of the ALJ’s dismissal of the case before OAH. And that is it.

And that — it has no bearing on the merits of Ms. Massa’s issue with the denial. [APPELLANT’S COUNSEL]: The ALJ’s decision dismissing the hearing that was scheduled for July 26th, and [that] was set by Judge Pratt, of the Office of Administrative Hearings after a mediation in May, I believe, where he heard both sides. The Attorney General’s arguments as well as Ms. Reese’s arguments as to why Ms. Massa belongs in an SRC. And that that’s the most appropriate place for her, decided to set a hearing for July 26th. And the State moved even before that hearing date was set to dismiss the hearing, because the Secretary had not made a decision as to whether Ms. Massa should be admitted to Holly Center.

So they moved to dismiss the hearing even before there was any opportunity for Ms. Reese or Ms. Massa to make their case as to why she should go to an SRC. The Secretary then made his decision. And after he denied admission to the SRC, then the State moved to ¹²⁹ dismiss, because a decision had been made. And, therefore they believe that she should not be given an opportunity to be heard and make her arguments as to refute the denial.

So Ms. Reese has not been given an opportunity to present her side of the story, either before [sic] the Secretary made his decision. She also requested, through written correspondence and several phone calls, meetings with the Secretary to explain her reasons why Ms. Massa is best suited to live in a State Residential Center. The hearing did not take place, because the Secretary made his decision six days before the hearing was set to take place. And then the Judge promptly dismissed the hearing upon motion of the Department.

And issued a one-sentence order saying that he dismissed the case. And did not provide any reasons or rationale for why the case was dismissed. We ask that the Board hear the merits of the case, whether it be today or after they’ve had an appropriate time to go through the exhibits that we have provided. Because due process requires that Ms. Reese at least be given a chance to make her ease.

And have an opportunity to be heard ... (Emphasis added.) The Chair emphasized that the purpose of the hearing was to determine whether the Board was “allowed to hear it. That’s all we are talking about.” It determined that it would not accept the supplemental record, but indicated that it “was willing to hear the case on the record of the information we have read.” Appellant’s counsel responded (emphasis added): Our problem with your suggestion, Madam Chairwoman, is that the core of our argument at this point is there is no record. Because ... [tfhere has been no meaningful opportunity for Ms. Reese and Ms. Massa to make their case to anyone here other than a mediator.

And we know that that doesn’t count. ¹³⁰ What counts is the opportunity to make your case to a decision maker. That is why we saw a need to supplement the record when we got involved in the case. So we would ask the Board members to give some consideration to our supplemental record. The Board reiterated that it would not permit supplementation of the record.

Appellant’s counsel also asked the Board to remand the case to an ALJ “in order for a hearing on the merits to be heard____” The Department responded that a “remand would be improper,” because the OAH “does not have jurisdiction to hear the case.” The following exchange is also pertinent: [COUNSEL FOR APPELLANT]: The facts before the Secretary ... were incomplete. And Ms. Reese did not receive an opportunity to meet -with the Secretary or anyone else from the Department ... and present the factual evidence that shows that there is no less restrictive setting for her ward to be in. [COUNSEL FOR APPELLEE]: And the decision that was made by the Secretary, and what went into that decision, is not before the Board at this time. And should not go into your decision as to whether or not to dismiss this case or remand it. The only thing before this Board today is whether or not the ALJ was proper in dismissing the case.

The merits of the case, as you have already noted on the record, have no bearing on the Board’s decision today. [COUNSEL FOR APPELLANT]: If the merits have no bearing, then due process, procedurally, requires that Ms. Reese, at some point during this administrative process, be given an opportunity to be heard. She has been deprived of that right. And that’s why we ask the Board to please remand the case to an Administrative Law Judge so that due process can be provided to Ms. Reese. [APPELLEE’S COUNSEL]: The law says that if an individual meets the criteria for admission to a State residential center, then they’re entitled to a hearing. ¹³¹ And that is because the public policy in the State of Maryland is — favors community placement versus institutional care. To put someone into an institution, into a State residential center, is — infringes on a liberty interest.

And so the hearing that is held pursuant to 7-502 of the Health General Article, is to ensure that the individual meets the criteria, so that their liberty interest is not infringed upon. As far as due process requiring a hearing in this circumstance, where Ms. Massa’s admission was denied, due process only requires a hearing when the State seeks to deprive an individual of a liberty or a property interest. Ms. Massa does not have a liberty or property interest in being admitted to a State residential center. There is federal law that allows Ms. Massa to choose whether she wants to be served in the community or in a State residential center____The Department is saying that she cannot reside at the Holly Center.

If she chooses to reside at an ICFMR, an Intermediate Care Facility for the Mentally Retarded, she can do so in another state. On December 12, 2005, the Board filed an “Order” affirming the decision of the ALJ, based on “the entire record of this case.” It also “adopt[ed] the Findings of Fact and Conclusion of the Law set forth therein.” 15 Thereafter, on January 11, 2006, appellant filed a “Petition for Judicial Review” in the circuit court. She requested review of: 1. The July 19, 2005 decision of S. Anthony McCann, Secretary, Department of Health and Mental Hygiene (“DHMH”), denying Ms. Massa admission to a state residential center. 2.

The July 25, 2005 Order of Administrative Law Judge William C. Herzing dismissing the hearing scheduled for July 26, 2005 before the Office of Administrative Hearings ¹³² (“OAH”) in light of the Secretary’s decision to deny Ms. Massa admission to an SRC. 3. The December 12, 2005 Order of the Board of Review of DHMH affirming Judge Herzing’s Order dismissing the hearing scheduled for July 25, 2005, thereby rendering the decision of the Secretary final. The Department filed a motion to dismiss on February 21, 2006, claiming that appellant was not entitled to judicial review of the agency’s decision. It averred that, under the APA, S.G. § 10-201 et seq., only contested cases are afforded review, and “Ms. Massa’s admission to the Holly Center is not a contested case.... ” Further, the Department asserted that “federal law does not create a right to admission to a SRC, only a right to choose [ICFMR] placement over home and community based services.” It also argued that “placement in a SRC is not a privilege that is guaranteed by statute or constitution to be determined only after an opportunity for an agency hearing.” In her opposition, appellant asserted: (1) Ms. Massa has a right to admission to a SRC under H.G. § 7-502; (2) Ms. Massa has a right to admission to a SRC under federal Medicaid law; (3) appellant is entitled to procedural due process, which requires an opportunity to be heard; and (4) the Department’s “statutory construction of the Maryland Administrative Procedure Act (APA) foreclose^] any judicial review of [the Department’s] arbitrary denial of a statutory entitlement.” By “Order” dated March 20, 2006, the court granted the Department’s motion. 16 DISCUSSION I. Appellant complains that “[t]he Secretary’s denial of Ms. Massa’s admission to a SRC constitutes a wholesale denial of ¹³³ her federal right to choose between an ICF-MR and placement in the community.” In her view, the State’s practice of offering out-of-state placements to Medicaid beneficiaries, at State expense, “violates the freedom of choice requirement of federal Medicaid law,” by which eligible individuals may opt to receive care in an institution.

Characterizing as “disingenuous” appellee’s claim that denial of admission to a SRC is not denial of admission to an ICF-MR, appellant asserts: [I]n the very same letter denying Ms. Massa’s admission to an ICF/MR, Holly Center, Secretary McCann stated, “Ms. Massa could choose to receive residential services in an institution rather than the community.” ... Secretary McCann’s letter continues, “I want to be clear that I am not denying Ms. Massa’s right to choose to be served in an ICF-MR.” ... At the hearing before the Board of Review, the State similarly stated that federal law does not create a right to SRC admission, only a right to choose ICF-MR placement over home and community-based services. However, Holly Center is licensed as an ICF-MR.

In fact, the only ICF-MRs in Maryland are also registered as SRCs____ [] Secretary McCann has done precisely the opposite of what his letter purports, in direct violation of federal law. (Internal citations omitted; emphasis in original.) Appellant explains that she chose to apply for Ms. Massa’s admission to Holly Center “because it is a relatively short drive from her house in Ocean City.” She notes that if Ms. Massa were to be institutionalized in a facility outside the state, as the State suggests, it would be “virtually impossible ... to continue to be a part of [her] life.” Appellant continues: The proposition that the parent or guardian of a severely mentally retarded individual in Maryland is given a legitimate choice between an institutional or community placement by being offered an ICF-MR placement in New York, California, Wyoming, or any other state in the country is ¹³⁴ wholly impractical and an inappropriate burden upon the parents’ or guardians’ exercise of a federal statutory right. Surely Congress could not have intended that “feasible alternatives” in the Medicaid statute, see 42 U.S.C. § 1396n(c)(2)(C), include sending a mentally retarded relative or loved one to another state. In addition, appellant challenges the constitutionality of H.G. §§ 7-508 and 7-504.

In her view, the statute deprives appellant and Ms. Massa of “any due process,” and “forecloses any review of the secretary’s denial of SRC admission.” According to appellant, their due process rights were triggered because Ms. Massa has a “property interest” with respect to her claim of entitlement to a benefit — admission to a SRC. Noting that, “[u]nder federal Medicaid law, the State of Maryland must offer Ms. Massa the choice of community or institutional care,” appellant insists that she “has a constitutional due process right to be heard on the merits,” and claims that the State cannot deny “the choice of community or institutional care ... absent a meaningful opportunity to be heard.” Further, appellant argues: [B]efore the Board of Review, the Department made the entirely conclusory argument that “where Ms. Massa’s admission was denied, due process only requires a hearing when the State seeks to deprive an individual of a liberty or property interest” and “Ms. Massa does not have a liberty or property interest in being admitted to a [s]tate residential center.” According to the Department, no court has the right to review either the merits of the Secretary’s letter ruling denying SRC admission, [the ALJ’s] one-sentence order dismissing the hearing scheduled for July 26, 2005, or the Board of Review’s one-sentence decision affirming the ALJ’s dismissal of the hearing. Furthermore, the Department continues to attempt to use its proposed out-of-state alternative ... to foreclose any review of the Secretary’s denial of SRC admission. This lack of any meaningful opportunity to be heard before or after the Secretary’s denial of SRC admission wholly deprives Ms. Massa of her property interest in SRC care without procedural due pro ¹³⁵ cess as the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights require.

(Emphasis in original; citations omitted.) Ms. Reese elaborates: Ms. Massa is a profoundly mentally retarded citizen of Maryland for whom there is no “less restrictive setting” to receive residential services than an SRC ... If Ms. Reese had ever been given an opportunity to present the facts of her ward’s medical and living conditions, it would be clear to the State that Ms. Massa has a legitimate claim of entitlement to SRC admission. However, the Board of Review failed to consider the brief filed on behalf of Ms. Reese and Ms. Massa ... and affirmed [the ALJ’s] order without any knowledge of the relevant facts. Moreover, the State had already determined that Ms. Massa was eligible for SRC admission, as she had resided at Great Oaks for more than two decades until it closed in 1996 ...

It is absurd for the State to claim that she is less eligible for SRC care than when she resided at Great Oaks, when she was years younger and had not yet undergone major surgery. [17] Section 7-503 provides for a hearing only in the event of the Secretary’s grant of SRC admission.... Section 7-504 provides for judicial review of a hearing officer’s findings upon the Secretary’s grant of SRC admission.... This statutory scheme, and the State’s interpretation of it, results in no review whatsoever for a severely mentally retarded individual who has been denied admission to present evidence to dispute the Secretary’s finding that a less restrictive setting than a SRC is appropriate. (Emphasis in brief.) In addition, Ms. Reese .complains that appellee failed to provide Medicaid services to Ms. Massa with “reasonable promptness,” as required by federal law.

She points out that ¹³⁶ Ms. Massa applied for admission to Holly Center in October 2004, and currently “remains at a wholly-inadequate facility in the community where her medical needs continue to be neglected, and because of their severity, cannot be met.” According to the Department, “The only issue properly before this Court is the Department’s determination that Ms. Reese was not entitled to a hearing on the Secretary’s denial of her request for the admission of Ms. Massa to Holly Center.” With respect to the statutory scheme, it posits that there is no provision for a hearing if the Secretary derives admission to a SRC, and asks us to affirm the denial of a hearing. In reaching its conclusion, the Department maintains that the denial of a request for admission to a SRC “is not a contested case required to be decided only after an opportunity for a hearing.” Appellee explains: The APA defines a contested case as “a proceeding before an agency to determine ... a right, duty, entitlement, or privilege of a person that is required by law to be determined only after an agency hearing.” Md.Code Ann., State Gov’t § 10-202(d)(l). Contested case proceedings typically require the agency decision to be made using “trial-type” procedures like those contained in the APA. See Sugarloaf Citizen’s Ass’n v. Northeast Maryland Waste Disposal Authority, 323 Md. 641, 651 [, 594 A.2d 1115 ] (1991); Dozier [v. Department of Human Resources], 164 Md.App. [526] at 535[, 883 A.2d 1025 (2005)].

Section 7-502(b) of the Health-General Article contains no such requirements. It only requires the secretary to deny admission if the individual does not meet admission criteria. Moreover, appellee asserts “that a party is entitled to an adjudicatory hearing only if a statute, regulation or constitutional due process requires such a hearing.” It claims: “The statutes governing admissions to SRCs do not provide a hearing when the Secretary denies admission, and the Constitution does not require one.” In the Department’s view, “Due process requires a hearing only when the state seeks to ¹³⁷ deprive an individual of a liberty or property interest,” and Ms. Massa has neither a liberty nor a property interest in admission to a SRC. While recognizing that Ms. Massa may wish to reside in a SRC, appellee contends that she “has no legitimate claim of entitlement to that place of residence.” Further, the Department disputes appellant’s argument that, without a hearing, she had no opportunity for review of the Secretary’s decision.

Appellee asserts: “ ‘[C]ourts are vested with the inherent residual right to review and restrain improper exercises of administrative powers by agencies alleged to have acted arbitrarily, illegally, capriciously and unreasonably.’” (Citation omitted.) According to the Department, appellant “did not invoke that ‘inherent residual right to review,’ ... choosing instead to challenge the lack of a hearing.” 18 The Department also maintains that “[t]he denial of Ms. Massa’s request for admission to a State Residential Center did not violate her rights under federal law” to choose an institutional placement; it claims that, “[u]nder Maryland law, an individual cannot simply choose to reside at a SRC.” 19 Appellee adds: “a Medicaid recipient does not have the right to choose among available providers.” Rather, appellee insists that Ms. Reese could have pursued placement in an out-of-state institution. Claiming that “[t]here is nothing in the record to suggest that Ms. Reese has tried to locate another institution or that the Department has refused to pay for care at another institution,” the Department urges that “there is no basis for concluding that Maryland has not complied with the [choice] requirements of the Medicaid statute.” In this regard the Department states: ¹³⁸ The Secretary, in his letter denying Ms. Massa’[s] request for admission to Holly Center, acknowledged that Ms. Massa, as a Waiver Program participant, had the right to choose to live in an institution and offered assistance to Ms. Reese in locating an institution for her ward. To date, Ms. Reese has not requested such assistance. Instead, she insists that Ms. Massa has a right to reside at Holly Center, a SRC.

She is mistaken. The Department also relies on Maryland’s policy of favoring community placements over institutionalization. It points out that the Legislature “has plainly expressed its preference” for serving mentally retarded individuals in the community, rather than in institutions. To that end, notes appellee, the statute limits admission to state-run institutions by “setting strict admission requirements and requiring the Department to demonstrate by clear and convincing evidence to a hearing officer that each admission is appropriate.” The Department also disagrees with appellant’s contention that it has failed to provide Ms. Massa with services with “reasonable promptness.” In the Department’s view, this contention is “based on a misreading of the statute.” It explains: The Medicaid statute defines “medical assistance” as the “payment of part or all of the cost” of particular services, 42 U.S.C. § 1396d(a), and requires that states furnish such “medical assistance” with reasonable promptness, id. § 1396a(a)(8).

Thus, the statute requires prompt payment, not prompt services. Mandy R. v. Owens, 464 F.3d 1139 , 1146 (10th Cir.2006); Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir.2006); Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003). Ms. Reese has not made any claim that Maryland has failed to pay for services required by Ms. Massa. In reply, appellant reiterates that the State is required to admit to a SRC an individual who meets the specified criteria.

This entitlement, in appellant’s view, confers upon appellant a right to a hearing before denying the entitlement, even if the ¹³⁹ statute governing admittance to a SRC does not provide for such a hearing. Appellant states: [T]he entitlement to admittance to an SRC is triggered here because Ms. Massa meets all of the[ ] criteria enumerated by the statute ... Ms. Massa is a severely mentally retarded individual for whom there is no less restrictive setting to receive residential services than an SRC. Because Ms. Massa is statutorily entitled to admission, the State must first satisfy her due process right to a hearing before denying Ms. Massa that benefit to which she is entitled.

Appellant adds: “Once there is a due process right, whether the statute provides for a hearing is irrelevant ... The relevant question is not whether a statute provides for a hearing, but whether, having granted someone an entitlement that constitutes a property right, the state can deny that right absent a hearing.” Moreover, appellant maintains that, when the Department argues that Ms. Massa has an “inherent residual right to review” in the courts, it “confuse[s] the right to a hearing with the right to appellate review.” Although appellant agrees with the Department that, “in cases where the APA does not provide for appellate review, courts still retain an inherent residual right to review” agency actions, appellant points out that “Ms. Massa is not attempting to have a court review the decision of the Secretary; rather Ms. Massa merely is arguing that she is entitled to a hearing prior to the Secretary deciding her case.” Accordingly, she maintains: “[WJhether courts can review the Secretary’s decision via the residual right power is immaterial to Ms. Massa’s current claim.” In addition, appellant contends that, in “two important respects,” the Department has “misconstrued Ms. Massa’s argument regarding the [Department’s] delay in deciding her case.” First, appellant disagrees with the Department’s assertion that Ms. Massa has chosen to reside in a SRC even though she does not meet the admission requirements. She asserts: “Ms. Massa is not merely choosing to reside at an SRC, but instead, due to her many conditions, the statements ¹⁴⁰ of her care providers, and other evidence, she is entitled to reside in an SRC.” Second, appellant disagrees with the Department’s argument that Medicaid’s “reasonable promptness” requirement only concerns payment for services, rather than the provision of services. She contends: “[I]t is clear that the corresponding regulations provide that Medicaid services must be provided promptly and without delay.” II.

Title 7 of the Health-General Article is captioned “Developmental Disabilities Law.” Subtitle 5 is captioned “State Residential Centers for Individuals with Mental Retardation.” The statutory scheme relating to admission and confinement at a SRC is codified at H.G. §§ 7-501 to 7-508. Preliminarily, the Secretary has the sole responsibility to determine whether an individual meets the entrance criteria for SRC placement. The statute does not provide for a hearing at which the applicant for admission to a SRC may present his or her case prior to the Secretary’s decision. As our review of the statutory scheme reveals, the Secretary may not approve admission to a SRC if “[t]here is a less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time.” H.G. § 7-502(b)(2).

If the Secretary approves admission, however, § 7-503 requires a hearing within 21 days of admission to the SRC, conducted by a hearing officer of the Department, at which the Department must prove, by clear and convincing evidence, that the individual meets the statutory requirements for admission. See H.G. §§ 7-502, 7-503. 20 Notably, if the Secretary deter ¹⁴¹ mines that the individual does not meet the criteria for admission to a SRC, the statute does not provide the applicant with any recourse to contest that determination. In effect, then, the statute clothes the Secretary with the unilateral right to determine that an applicant is ineligible for admission to a SRC. After the Secretary determined that Ms. Massa did not qualify for admission to a SRC under H.G. § 7-502(a), appellant sought review of the Secretary’s decision before the OAH, the Board, and the circuit court.

On each