Opinions, Advice and Legislation Quarterly News
July-September 1998

Opinions

  1. General Assembly
  2. Health Care - Insurance

Advice Letters

  1. Benefit Changes
  2. Bonds
  3. Constitutional Law
  4. Courts and Judges
  5. Home Rule
  6. Internet - Pornography
  7. Legal Services Corporation
  8. Licensing
  9. Medicaid - Restitution
  10. Public Ethics Law
  11. Retroactive Rulemaking
  12. Student Information
  13. Tort Claims Act
  14. Welfare Procurement Contracts

General Assembly

Question: After an election-year session or after a new General Assembly is convened, does the Joint Committee on Legislative Ethics have jurisdiction over alleged ethics law violations regarding legislator conduct that occurred during the term preceding the convening of a new General Assembly?

Question: If the Joint Committee recommends further investigation, can the presiding officers refer the matter to an investigating committee either before the election or after the convening of a new General Assembly?

Question: What legal or prudential considerations restrain a house of a new General Assembly from disciplining or expelling a member for alleged unethical conduct that occurred during a prior term?

Answer: The Joint Committee and ethics investigating committees have continuing jurisdiction over allegations of ethics law violations, even if the conduct occurred during a prior term of the General Assembly. In addition, the respective houses may take some actions to discipline a member for pre-term conduct, including censure. Well-grounded historical practice indicates, however, that a member should not be expelled from a new General Assembly for alleged violations known to the voters at the time that the legislator was reelected.

Opinion No. 98-017
July 9, 1998

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Health Care - Insurance

Question: May a health care provider bill an HMO member for amounts in excess of the reimbursement paid to the HMO?

Answer: A provider under contract with an HMO may not balance bill a member for any covered service. The provider may bill the member directly for any non-covered service.

Except in the case of a point-of-service HMO policy, a non-contracting provider who provides a covered service to an HMO member may not balance bill the member. If the member is covered under a point-of-service HMO policy and the member's contract contains a cost-sharing provision authorizing balance billing, a non-contracting provider may balance bill the HMO member. In all cases, a non-contracting provider may directly bill an HMO member for any non-covered service.

The provisions of Maryland law relating to balance billing apply to out-of-state practitioners and facilities to the fullest extent permitted by the United States Constitution. They do not apply to an out-of-state practitioner or facility that is not under contract with an HMO and does not otherwise have the necessary minimum contacts with the State to be governed by Maryland law.

Opinion No. 98-018
September 28, 1998

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Benefit Changes

Question: Does Maryland law require that a developer give residential lot purchasers actual notice of benefit charges levied on those lots?

Answer: Maryland law does not require actual notice so long as there was constructive notice in recorded instruments that are part of the chain of title.

Letter to Sen. Gloria Lawlah
September 3, 1998

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Bonds

Question: Can the proceeds of bonds be disbursed to cover the costs of acquisition of a building when the title, but not the text, of the bill refer to the acquisition of that building?

Answer: Yes.

Letter to Del. Louise V. Snodgrass
September 17, 1998

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Constitutional Law

Question: May an employee in the Executive Branch of State Government be sued? May a local volunteer fire company vote to limit participation in parades or exclude political candidates from participation?

Answer: There are many instances where Executive Branch employees can be sued. The First Amendment does not preclude a volunteer fire company, which is a private entity, from excluding political candidates from its parade.

Letter to Del. Adelaide Eckardt
August 11, 1998

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Courts and Judges

Question: Does new Maryland Rule 16-204 contemplate the transfer of jurisdiction of juvenile cases from the District Court in Montgomery County to the Circuit Court for Montgomery County?

Answer: In Montgomery County, the District Court will continue to have exclusive jurisdiction over juvenile cases and related proceedings, despite the establishment of a family law division within the circuit courts.

Letter to Sen. Ida G. Ruben
July 14, 1998

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Home Rule

Question: Does Baltimore County have the authority to enact an ordinance imposing a juvenile curfew? Are there constitutional issues raised by proposed legislation?

Answer: Baltimore County as a charter home rule county, has the express power to enact police power measures, including a juvenile curfew ordinance. Such legislation raises constitutional concerns.

Although the Supreme Court has issued no definitive ruling, the Attorney General's Office has drafted a model curfew ordinance to address such possible constitutional objections.

Letter to Del. Joseph J. Minnick
September 29, 1998

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Internet - Pornography

Question: Could an internet service provider be liable for child pornography produced by third parties but accessible through the provider's service?

Answer: Federal law generally prevents the imposition of liability on such providers.

Letter to Del. Ellen Willis Miller
September 16, 1998

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Legal Services Corporation

Question: Does Phillips v. Washington Legal Foundation, 66 U.S.L.W. 4468 (U.S. S.Ct. June 15, 1998) have any impact on Maryland's IOLTA program?

Answer: No.

Letter to Robert J. Rhudy, Esq.
July 10, 1998

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Licensing

Question: Is an applicant for renewal of a professional engineer's license required to supply his Social Security number to the licensing authority?

Answer: Yes.

Letter to Sen. Norman R. Stone, Jr.
August 7, 1998

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Medicaid - Restitution

Question: Does the State have the authority and duty to seek restitution for any overpayments made to managed care organizations under the State's Medicaid Program?

Answer: The State may obtain restitution for any overpayments which have been made to managed care organizations. Although there does not appear to be a legal duty at the present time to seek such reimbursement, State officials have indicated an intention to seek refunds of any excessive payments made to MCOs.

Letter to Del. Robert L. Flanagan
July 23, 1998

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Public Ethics Law

Question: Are the proposed changes to the Maryland Ethics Law governing members of the General Assembly constitutional?

Answer: Yes. Comments are directed at four areas of the proposed changes to the Ethics Law: (a) investigation and resolution of ethics complaints against legislators; (b) rulemaking by the Joint Committee on Legislative Ethics; (c) statutory restrictions on the receipt of certain outside public compensation by members of the General Assembly and candidates for legislative office; and (d) mandatory disqualification of legislators from participation and voting under certain circumstances.

Letter to Hon. Benjamin Cardin
August 6, 1998

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Retroactive Rulemaking

Question: Is the Department of Budget and Management prevented by law from adopting certain State employee pay regulations that would operate retroactively to July 1, 1998?

Answer: The Administrative Procedure Act does not generally bar retroactive regulations nor does it prohibit the regulations in question.

Letter to Sen. Christopher Van Hollen
July 2, 1998

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Student Information

Questions:
1. Does the Public Information Act permit a PTA to obtain public school student phone numbers and provide them to a private contractor who will operate a message system for the PTA?
2. May a public school use a private contractor to operate a similar system for school messages?

Answers:
1. An exception to a category of records that is normally not disclosable under the Public Information Act permits the custodian of the records to give information about home addresses and phone numbers to a PTA. There are no restrictions on the use of this information by the PTA.
2. Although the matter is not free from doubt, a public school could provide the same records to a private contractor to run a message system itself for the school.

Letter to Sen. Martin G. Madden
September 4, 1998

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Tort Claims Act

Question: Did the recent amendment of the Maryland Tort Claims Act to include employees of certain county-funded State agencies require the counties or those agencies to pay for State insurance coverage?

Answer: No.

Letter to Sen. Walter M. Baker
September 25, 1998

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Welfare Procurement Contracts

Question: Is a capital construction contract a "procurement contract" for purposes of a requirement in the Welfare Innovation Act of 1998 that the Board of Public Works designate certain types of procurement contracts to be subject to the Act's provision concerning the hiring of welfare recipients?

Answer: Capital construction contracts are procurement contracts for this purpose and could be so designated by the Board.

Letter to Del. Samuel Rosenberg
August 20, 1998

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To obtain a copy of any item in this newsletter, call Deborah Spence at 410-576-6327
Or e-mail dspence@oag.state.md.us
Maryland Attorney General's Office
Issue Date 1998.