Chapter 26. Sanctioning Guidelines
Regulation .01 Scope.LinkCopy Citation
A.
This chapter shall be used by the Board as a guide for sanctioning licensees and certificate holders in formal and informal disciplinary proceedings.
B.
The Board shall take into consideration a range of activity within certain types of conduct rather than assigning particular sanctions to each specific violation.
C.
There may be conduct by a licensee or certificate holder that does not fall squarely within a particular category of misconduct contained in Regulation .07 of this chapter. In that event, the Board will use its discretion to determine the appropriate category and sanction.
D.
The Board shall make determinations that maximize the protection of the public’s health while maintaining the rights of licensees and certificate holders.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Board” means the Maryland State Board of Nursing.
(2)
“Certificate holder” means an individual who has been issued a certificate by the Board to practice as a certified nursing assistant, a certified dialysis technician, or a certified medication technician.
(3)
“Conditions” means any requirements in a public or nonpublic order that a licensee or certificate holder is required to satisfy, which include, but are not limited to:
(a)
Treatment and counseling for a psychological or physical illness, including, but not limited to substance abuse;
(b)
Submission to drug and alcohol testing;
(c)
Abstinence from specified drugs;
(d)
Abstinence from alcohol;
(e)
Remedial training;
(f)
Inspection of a private practice site;
(g)
Monitoring;
(h)
Evaluation;
(i)
Supervision;
(j)
Compliance with a rehabilitation agreement;
(k)
Testing of clinical skills;
(l)
Submission of written reports;
(m)
A demonstration of knowledge or competency;
(n)
Submit to a physical or mental health examination;
(o)
Limitation of practice; and
(p)
Limitation on the administration of prescription or specified drugs to clients.
(4)
“Conduct” means behavior or action or a failure to behave or act, which results in a violation of the Maryland Nurse Practice Act or regulations adopted by the Board.
(5)
“Licensee” means an individual who:
(a)
Has been issued a license or certification by the Board to practice as:
(i)
A registered nurse;
(ii)
A licensed practical nurse;
(iii)
An advanced practice registered nurse;
(iv)
An electrologist;
(v)
A licensed direct-entry midwife; or
(vi)
A licensed certified midwife; or
(b)
Has a multistate licensure privilege to practice licensed practical nursing or registered nursing under the Nurse Licensure Compact.
(6)
“Multistate licensure privilege” has the meaning set forth in COMAR 10.27.01.01B.
(7)
“Recklessly” means characterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious, sometimes deliberate, disregard for or indifference to that risk.
(8)
“Sanction” means a disciplinary action against a licensee or certificate holder, including a reprimand, probation, suspension, revocation, or a monetary penalty.
Regulation .03 Application.LinkCopy Citation
A.
This chapter is not applicable to cases in which the Board, after investigating a matter, decides to issue a public advisory letter in lieu of discipline in accordance with Health Occupations Article, §8-317(h) or 8-6B-19(h), Annotated Code of Maryland.
B.
This chapter is not applicable to:
(1)
An individual seeking an initial license or certificate; or
(2)
The summary suspension of a licensee or certificate holder under State Government Article, §10-226, Annotated Code of Maryland, or Health Occupations Article, §8-317(g), Annotated Code of Maryland.
C.
This chapter is not applicable to violations for which a mandatory sanction or penalty is set by statute or regulation.
D.
The severity of sanctions is ranked as follows, from least severe to most severe:
(1)
Reprimand;
(2)
Probation;
(3)
Suspension; and
(4)
Revocation.
E.
The addition of a monetary penalty to a sanction does not change the ranking of the severity of the sanction.
F.
If a monetary penalty is added to a sanction, a sanction with a higher monetary penalty is more severe than the same sanction with a lesser monetary penalty.
G.
When a licensee or certificate holder’s conduct results in multiple violations of the Maryland Nurse Practice Act or regulations adopted by the Board, the Board:
(1)
May consider sanctions that are greater than those imposed for a single violation; and
(2)
Has discretion to apply the category with the highest maximum sanction.
H.
In the event that a licensee’s or certificate holder’s violation of the Maryland Nurse Practice Act or regulations adopted by the Board does not fall within a particular category of misconduct included in Regulation .07 of this chapter, the Board shall:
(1)
Use its discretion to determine the appropriate sanction; and
(2)
Consider, to the extent possible, the sanctioning guidelines set forth in Regulation .07 of this chapter.
I.
In the event that the Board determines that a licensee’s or certificate holder’s violation of the Maryland Nurse Practice Act or regulations adopted by the Board falls within more than one category of misconduct established under Regulation .07 of this chapter, the Board shall, in its discretion, determine the category under which the violation shall be adjudicated.
J.
The period of a suspension may be stayed in whole or in part.
K.
Any sanction imposed by the Board in accordance with the sanctioning guidelines set forth in Regulation .07 of this chapter may be accompanied by conditions reasonably related to the violation or to the rehabilitation of the licensee or certificate holder.
L.
The inclusion of conditions with any sanction is within the discretion of the Board and does not factor into a determination of whether a particular sanction falls within or outside of the sanctioning guidelines set forth in Regulation .07 of this chapter, nor does it increase the severity of the sanction.
M.
The Board is not required to make findings of fact or to articulate its reasoning for imposing a sanction that falls within the range of sanctions set forth in Regulation .07 of this chapter.
N.
If the Board imposes a sanction that departs from the sanctioning guidelines set forth in Regulation .07 of this chapter, the Board shall state its reasons for doing so in its final decision and order.
O.
A departure from the sanctioning guidelines set forth in Regulation .07 of this chapter is not a ground for any hearing or appeal of a Board action.
P.
To resolve a pending disciplinary matter, the Board and licensee or certificate holder may agree to a consent order or the surrender of the license or certificate under terms and conditions agreed to by the Board and the licensee or certificate holder.
Regulation .04 Aggravating and Mitigating Factors.LinkCopy Citation
A.
Depending on the facts and circumstances of each case, and to the extent that the facts and circumstances apply, the Board may consider aggravating and mitigating factors in determining whether the sanction in a particular case should fall outside the range of sanctions established by the sanctioning guidelines set forth in Regulation .07 of this chapter.
B.
Aggravating factors include, but are not limited to:
(1)
A prior criminal or administrative discipline history;
(2)
Whether the violation was committed:
(a)
Deliberately
(b)
With gross negligence; or
(c)
Recklessly;
(3)
Whether the violation has the potential for, or caused, serious harm;
(4)
Whether the violation was a part of a pattern of unacceptable conduct;
(5)
Whether the licensee or certificate holder pursued their own financial gain over another individual’s welfare;
(6)
Whether the individual affected by the violation was vulnerable;
(7)
Whether the licensee or certificate holder attempted to hide the error or misconduct from clients or others;
(8)
Whether the licensee or certificate holder:
(a)
Concealed, falsified, or destroyed evidence; or
(b)
Presented false testimony or evidence;
(9)
Whether the licensee or certificate holder failed to cooperate with a lawful investigation conducted by the Board; and
(10)
Whether previous attempts to rehabilitate the licensee or certificate holder were unsuccessful.
C.
Mitigating Factors include, but are not limited to:
(1)
Absence of a prior disciplinary record;
(2)
The length of time since any prior violation;
(3)
Whether the licensee or certificate holder self-reported to the Board;
(4)
Voluntary admission of misconduct with full disclosure to the Board and cooperation with the Board’s investigation;
(5)
Implementation of remedial measures to correct or mitigate harm arising from the misconduct;
(6)
Timely good-faith efforts to make restitution or to rectify consequences of misconduct;
(7)
Evidence of rehabilitation or rehabilitative potential;
(8)
Absence of actual or potential harm;
(9)
Absence of adverse impact; and
(10)
Whether the violation was an isolated incident and not likely to recur.
D.
The existence of one or more aggravating or mitigating factors does not impose any requirement on the Board to make findings of fact or to articulate its reason for not exercising its discretion to impose a sanction outside of the range of sanctions set forth in Regulation .07 of this chapter.
E.
Nothing in this regulation requires the Board to make findings of fact with respect to the existence or nature of any aggravating or mitigating factor.
Regulation .05 Imposition of a Monetary Penalty.LinkCopy Citation
A.
Instead of or in addition to a reprimand, probation, suspension, or revocation, the Board may impose a monetary penalty in accordance with Health Occupations Article, §8-316(b), 8-6A-10(b), or 8-6B-20, Annotated Code of Maryland.
B.
Subject to consideration of the aggravating and mitigating factors set forth in Regulation .04 of this chapter, if the Board elects to impose a monetary penalty, the Board shall use the sanctioning guidelines set forth in Regulation .07 of this chapter to determine an appropriate monetary penalty.
Regulation .06 Payment of a Monetary Penalty.LinkCopy Citation
A.
The licensee or certificate holder shall pay any monetary penalty imposed by the Board under the provisions of this chapter:
(1)
By cashier’s check or money order made payable to the Board;
(2)
Within 60 days of the date of the order; and
(3)
In person or by certified mail to the Board.
B.
The Board shall pay all monies collected by the Board under the provisions of this chapter into the General Fund of the State.
C.
Filing an appeal under State Government Article, §10-222, Annotated Code of Maryland, or Health Occupations Article, §8-318, 8-6A-11, or 8-6B-21, Annotated Code of Maryland, does not automatically stay payment of a monetary penalty imposed by the Board under this chapter.
D.
If a licensee or certificate holder fails to pay, in whole or in part, a monetary penalty imposed by the Board under this chapter, the Board may not restore, reinstate, or renew a license or certificate until the monetary penalty has been paid in full.
E.
In its discretion, the Board may refer all cases of delinquent payment to the Central Collection Unit of the Department of Budget and Management to institute and maintain proceedings to ensure prompt payment.
Regulation .07 Sanctioning Guidelines.LinkCopy Citation
Subject to the provisions of this chapter, the Board may impose sanctions for violations of the Maryland Nurse Practice Act and its regulations according to the guidelines set forth in the following categories:
A.
Abuse — Physical and Psychological.
B.
Criminal History.
C.
Disciplined by Another Licensing, Military, or Disciplinary Authority.
D.
Diversion of Controlled Substances or Prescription Drugs or Manufacture, Sale, or Distribution of any Substance for an Illegal or Illegitimate Purpose.
E.
Noncompliance with Board Orders.
F.
Practice Inconsistent with Generally Accepted Standards of Care.
G.
Sexual Misconduct.
H.
Substance Abuse.
I.
Unauthorized Practice.
J.
Unprofessional Conduct.
K.
Physical or Mental Incompetence.
L.
Fraud, Deceit, or Misrepresentation.
M.
Expulsion from Safe Practice Program.
Chapter annotations
Authority: Health Occupations Article, §§1-606, 8-205(a)(1), 8-316, 8-6A-10, 8-6B-18, 8-6C-20, and 8-6D-10, Annotated Code of Maryland
History: Effective date: April 16, 2012 (39:7 Md. R. 492)
History: Regulation .02B amended effective September 10, 2018 (45:18 Md. R. 834)
History: Regulation .07M amended effective September 10, 2018 (45:18 Md. R. 834)