Chapter 04. Rules of Procedure for Board Hearings
Regulation .01 Scope.LinkCopy Citation
This chapter governs procedures for disciplinary matters and hearings before the State Board of Examiners in Optometry.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Administrative law judge” means the hearing officer assigned to preside over a hearing in cases which the Board has delegated to the Office of Administrative Hearings.
(2)
“Administrative Procedure Act” means State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, which governs contested cases arising from charges brought by the Board.
(3)
“Administrative prosecutor” means the attorney assigned by the Office of the Attorney General to prosecute disciplinary charges for the Board.
(4)
“Board” means the State Board of Examiners in Optometry.
(5)
“Case resolution conference” means an informal, confidential meeting between the parties to a contested case and the Board's case resolution conference committee to discuss possible settlement of a disciplinary matter pending before the Board.
(6)
“Case resolution conference committee” means a committee composed of one or more members of the Board who make recommendations to the Board regarding settlement of disciplinary matters.
(7)
“Cease and desist letter” means an informal action consisting of a nonpublic letter issued by the Board ordering:
(a)
A licensee to cease doing a specified activity; or
(b)
An unlicensed individual to cease the unauthorized practice of optometry.
(8)
“Charging document” means a nonpublic record issued by the Board which:
(a)
Alleges conduct by a licensee which the Board believes constitutes a violation under the Maryland Optometry Act;
(b)
Sets forth sections of the Maryland Optometry Act that the Board believes were violated; and
(c)
Provides notice to the licensee of disciplinary proceedings before the Board.
(9)
“Complaint” means a written allegation received by the Board that a licensee may have violated the Maryland Optometry Act and which may be grounds for an investigation or disciplinary action by the Board.
(10)
“Consent order” means a public record issued by the Board which is a final order of the Board that has been negotiated and agreed to by both the licensee and the Board to resolve a disciplinary matter.
(11)
“Contested case” means a proceeding conducted pursuant to the Administrative Procedure Act.
(12)
“Disposition agreement” means a formal nonpublic agreement, entered into with an impaired licensee in lieu of formal disciplinary action, where the licensee agrees to comply with certain conditions.
(13)
“Final order” means a public record issued by the Board resolving a contested case either by consent or after an adjudication, which includes findings of fact, conclusions of law, and a disposition which:
(a)
Denies a license;
(b)
Sanctions by reprimand, probation, fine, or suspension or revocation of a license;
(c)
Summarily suspends a license;
(d)
Dismisses charges;
(e)
Surrenders a license; or
(f)
Takes any other action that the Board is authorized to do by law.
(14)
“Imperatively requires emergency action” means a finding by the Board that an emergency action be taken against a licensee pursuant to State Government Article, §10-226(c)(2), Annotated Code of Maryland, based on investigative facts that raise a substantial likelihood of risk of harm to the public health, safety, or welfare before a full evidentiary hearing can be held.
(15)
“Informal action” means that the Board closes a case, without taking any formal disciplinary action or issuing a final order, by imposing a disciplinary sanction consisting of a:
(a)
Letter of education;
(b)
Letter of admonishment;
(c)
Cease and desist letter; or
(d)
Consent agreement.
(16)
“Investigation” means the gathering of information to assist the Board in determining whether there is reasonable cause to charge a licensee with a violation of the Maryland Optometry Act.
(17)
Letter of Admonishment.
(a)
“Letter of admonishment” means informal action consisting of a nonpublic letter issued by the Board closing the case, when the Board believes a licensee has engaged in conduct which violates the Maryland Optometry Act.
(b)
“Letter of admonishment” includes admonishment of the licensee not to repeat the actions.
(c)
“Letter of admonishment” may include an agreement that a licensee perform certain conditions in lieu of the Board taking formal disciplinary action.
(18)
“Letter of education” means informal action consisting of a nonpublic letter:
(a)
Issued by the Board when the Board does not believe that conduct rose to the level of a violation of the Maryland Optometry Act; and
(b)
In which the Board educates the licensee concerning the laws and standards of the practice of optometry.
(19)
“Letter of surrender” means a public letter accepted by the Board in which the licensee agrees to surrender the licensee's license to practice optometry, which may include conditions for the Board's acceptance of the surrender as a resolution of the case.
(20)
“Licensure” means permission to engage in a health care profession regulated by the Board, which is in any form including a certificate, registration, or license.
(21)
“Maryland Optometry Act” means Health Occupations Article, Title 11, Annotated Code of Maryland.
(22)
“Notice of initial denial” means a nonpublic record issued by the Board by which an applicant or licensee is notified that the Board intends to deny a license, change in licensure status, or some other benefit sought by the licensee.
(23)
“Penalty” means a monetary or administrative penalty imposed pursuant to Health Occupations Article, §11-314, Annotated Code of Maryland.
(24)
“Post-deprivation hearing” means a contested case hearing scheduled by the Board after the Board has issued an order for summary suspension pursuant to State Government Article, §10-226(c)(2), Annotated Code of Maryland, in which the licensee may challenge the Board's basis for issuing the order for summary suspension.
(25)
“Predeprivation hearing” means a non-evidentiary, show cause hearing held before the Board at which the licensee has an opportunity to demonstrate to the Board why it should not:
(a)
Issue an order for summary suspension pursuant to State Government Article, §10-226(c)(2), Annotated Code of Maryland; or
(b)
Take some other action which the Board is authorized by law to take.
(26)
“Preliminary investigation” means the gathering of information to be used by the Board to determine whether the Board should dismiss a complaint or conduct further investigation to determine if there is reasonable cause to charge a licensee with a violation of the Maryland Optometry Act.
(27)
“Probation” means a sanction imposed by the Board in a public final order where the licensee is:
(a)
Monitored by the Board for a period of time; and
(b)
Required to comply with certain conditions in order to avoid further disciplinary action.
(28)
“Prohibited act” means any conduct specified in the Maryland Optometry Act which can result in sanctions or penalties.
(29)
“Public record” means a document that the Board is permitted or required to disclose to the public pursuant to the State Government Article, Title 10, Subtitle 6, Annotated Code of Maryland.
(30)
“Recommended decision” means a nonpublic record issued to the Board by an administrative law judge which sets out proposed findings of fact, proposed conclusions of law, and a proposed sanction, or any combination of these actions.
(31)
“Recusal” means the disqualification of a member of the Board to participate in a proceeding because of interest, bias, or some other reason which may interfere with the Board member's participation in a case.
(32)
“Respondent” means a licensee, subject to the jurisdiction of the Board, who has been:
(a)
Given notice to answer allegations concerning violations of the Maryland Optometry Act;
(b)
Notified as to a potential emergency suspension pursuant to State Government Article, §10-226(c), Annotated Code of Maryland; or
(c)
Notified as to a potential violation of Health Occupations Article, §11-501, Annotated Code of Maryland.
(33)
“Revocation” means the removal of an optometrist's license to practice optometry.
(34)
“Sanction” means an action by the Board which:
(a)
Reprimands;
(b)
Places on probation;
(c)
Fines;
(d)
Suspends or revokes a license; or
(e)
Disciplines by a consent order.
(35)
“Show cause hearing” means a non-evidentiary hearing held before the Board in which the licensee has the opportunity to demonstrate to the Board why the Board should not issue a proposed order or take an action that the Board is legally authorized to take.
(36)
“Stay” means the withholding of an action ordered by the Board which may be subject to certain conditions.
(37)
“Summary suspension” means the indefinite suspension of a license pursuant to State Government Article, §10-226(c)(2), Annotated Code of Maryland, where the Board believes that the action is necessary to protect the public health, safety, or welfare.
(38)
“Surrender” means the voluntary relinquishing of a license to practice optometry which may be subject to certain conditions set by the Board.
(39)
“Suspension” means a temporary denial of the right to use a license and is usually defined by:
(a)
A specific period of time;
(b)
Specific dates; or
(c)
Specific conditions.
Regulation .03 Confidentiality of Proceedings.LinkCopy Citation
A.
Except as otherwise provided by law, the proceedings of the Board are confidential and that confidentiality may not be waived by the parties.
B.
The Office of Administrative Hearings' proceedings involving the adjudication of a Board contested case and the administrative law judge's recommended decision are confidential and the respondent may not waive the confidentiality of the proceedings or of the patients whose medical records or care are reflected in the record of the proceedings.
C.
To the extent possible, even after a final order is entered into by the Board, the parties shall refrain from revealing legal documents, oral statements, or information that would reveal the identity of any patients referred to in the Board's order.
Regulation .04 Representation by Counsel.LinkCopy Citation
A.
A respondent may be represented by counsel in any matter before the Board and at any stage of the proceedings.
B.
If the matter goes to a hearing, the respondent shall be represented in proper person or by an attorney who has been:
(1)
Admitted to the Maryland Bar; or
(2)
Specially admitted to practice law pursuant to Maryland Rules, Rules Governing Admission to the Bar of Maryland, Rule 14, Annotated Code of Maryland.
C.
The Board may be represented by and obtain advice of counsel assigned to it by the Office of the Attorney General in all proceedings.
Regulation .05 Proceedings under Health Occupations Article, §11-313, Annotated Code of Maryland.LinkCopy Citation
A.
Investigation of Complaints.
(1)
The Board may:
(a)
Make a preliminary review of each complaint; and
(b)
Recommend that cases involving complaints over which the Board has no jurisdiction be closed.
(2)
The Board may send a copy of the complaint, either in its entirety or redacted, to the licensee who is the subject of the complaint to obtain a response to the allegations made in the complaint.
(3)
Board subpoenas may be issued by the Board over the signature of the administrator.
B.
Prosecution of Complaint.
(1)
For each complaint, after reviewing any completed investigative information or reports, the Board shall:
(a)
Dismiss the complaint;
(b)
Close the case with informal action;
(c)
Issue a cease and desist order;
(d)
Refer the matter for further investigation;
(e)
Refer the matter to an administrative prosecutor; or
(f)
Vote to:
(i)
Charge a licensee with a violation of Health Occupations Article, §11-313, Annotated Code of Maryland;
(ii)
Consider the matter as a basis for summary suspension pursuant to State Government Article, §10-226(c)(2), Annotated Code of Maryland;
(iii)
Initially deny licensure or reinstatement of a license; or
(iv)
Accept the surrender of a license subject to conditions acceptable to the Board.
(2)
The Board may refer a complaint or other disciplinary matter to the administrative prosecutor at any time, whether or not it has voted to charge a licensee with violations of the Maryland Optometry Act.
C.
Charges and Notice of Initial Denial.
(1)
If the Board issues charges or a notice of initial denial, the document shall be:
(a)
Served upon the respondent by certified mail at the address the respondent is required to maintain with the Board; or
(b)
Hand delivered in person.
(2)
Charges or a notice of initial denial shall:
(a)
Inform the respondent of the statutory basis for the charges or denial of licensure;
(b)
Allege sufficient facts which the Board believes constitute either a basis for:
(i)
Violation of the Maryland Optometry Act; or
(ii)
Denial of licensure;
(c)
Notify the respondent of any proceedings scheduled before the Board or of an opportunity to request a hearing within a certain period of time and the consequences of failing to appear for those proceedings or to request a hearing; and
(d)
Be accompanied by a letter of procedure notifying respondent of the applicability of the Administrative Procedure Act to the Board's proceedings.
(3)
If the Board is unable to serve the charges or notice of initial denial upon the respondent as described in §C(1) of this regulation or attempt any other reasonable means to effect service, the Board may nevertheless proceed in prosecuting the case.
(4)
If the Board issues a notice of initial denial to an applicant for a license, the applicant may not withdraw the application without approval of the Board.
D.
Discovery.
(1)
Discovery on Request. By written request served on the other party and filed with the Board or the Office of Administrative Hearings, as appropriate, a party may require another party to produce, within 15 days, the following:
(a)
A list of the witnesses to be called;
(b)
Copies of all documents intended to be produced at the hearing; or
(c)
Both §D(1)(a) and (b) of this regulation.
(2)
Mandatory Discovery.
(a)
Each party shall provide to the other party not later than 15 days before the prehearing conference, if scheduled, or 45 days before the scheduled hearing date, whichever is earlier:
(i)
The name and curriculum vitae of any expert witness who will testify at the hearing; and
(ii)
A detailed written report summarizing the expert's testimony, which includes the opinion offered and the factual basis and reasons underlying the opinion.
(b)
If the Board, or the Office of Administrative Hearings, as appropriate, finds that the report is not sufficiently specific, or otherwise fails to comply with the requirements of this section, the Board or the Office of Administrative Hearings, as appropriate, shall exclude from the hearing the testimony of the expert and any report of the expert.
(c)
The Board, or the Office of Administrative Hearings, as appropriate, shall consider and decide arguments regarding the sufficiency of the report:
(i)
At the prehearing conference, if scheduled; or
(ii)
Immediately before the scheduled hearing.
(d)
If an expert adopts a sufficiently specific charging document as the expert's report, that adoption satisfies the requirements set forth in this section.
(3)
Parties are not entitled to discovery of items other than those listed in §D(1) and (2) of this regulation.
(4)
Both parties have a continuing duty to supplement their disclosures of witnesses and documents.
(5)
Absent unforeseen circumstances which would otherwise impose an extraordinary hardship on a party, witnesses or documents may not be added to the list:
(a)
After the prehearing conference, if scheduled; or
(b)
Later than 15 days before the hearing, if no prehearing conference is scheduled.
(6)
The prohibition against adding witnesses does not apply to witnesses or documents to be used for impeachment or rebuttal purposes.
(7)
Construction.
(a)
In hearings conducted by an administrative law judge of the Office of Administrative Hearings, this regulation shall be construed, whenever possible, as supplementing and in harmony with COMAR 28.02.01.
(b)
In the event of a conflict between this regulation and COMAR 28.02.01, this regulation applies.
E.
Case Resolution Conference.
(1)
After service of charges or notice of initial denial, the Board shall offer a respondent the opportunity for a case resolution conference.
(2)
At any other time during disciplinary proceedings, the Board may offer or the respondent may request a case resolution conference to discuss a disciplinary matter.
(3)
The Board may deny a respondent's request for a case resolution conference except as provided in §E(1) of this regulation.
(4)
Matters admitted, revealed, negotiated, or otherwise discussed at a case resolution conference are without prejudice and may not be used by the respondent, administrative prosecutor, or the Board in any subsequent proceedings, unless the information is otherwise discovered or available through another source.
(5)
The Board is not bound by the recommendations of the case resolution conference committee and may:
(a)
Modify a proposed settlement;
(b)
Require additional conditions; or
(c)
Reject the recommendation and require the respondent to proceed to a hearing.
(6)
If the respondent and the administrative prosecutor are unable to reach an agreement for settlement that is recommended by the case resolution conference committee and ratified by the Board, the matter shall proceed to a hearing on the charges or on a notice of initial denial.
(7)
If the respondent disagrees with the recommendation of the case resolution conference committee, the respondent may elect to proceed to a hearing in the matter, regardless of whether or not the Board has ratified the recommendation of the case resolution conference committee.
(8)
Participation in a case resolution conference is not ordinarily a basis for recusal of a Board member, Board counsel, or Board prosecutor from further proceedings in a case.
Regulation .06 Proceedings under Health Occupations Article, §11-313, Annotated Code of Maryland — Sanctions, Hearings, and Final Order.LinkCopy Citation
A.
Surrender of License.
(1)
The Board may require conditions for surrender of a license, including, but not limited to:
(a)
The admission of a violation of the Maryland Optometry Act;
(b)
The admission of facts;
(c)
A statement of the circumstances under which the surrender was offered or accepted;
(d)
Restrictions on future licensure;
(e)
Conditions for reinstatement of the license; or
(f)
An agreement that the respondent may not again apply for reinstatement of the license.
(2)
A letter of surrender is a final order of the Board and is a public record pursuant to State Government Article, §10-611, Annotated Code of Maryland, unless the Board determines that disclosure of the surrender is not in the public interest.
B.
Hearings on Charges or Notice of Initial Denial.
(1)
Hearings shall be conducted pursuant to State Government Article, Title 10, Annotated Code of Maryland.
(2)
The Board may delegate its authority to hear contested cases to the Office of Administrative Hearings.
(3)
Proceedings are not open to the public and all records, including the recommended decision, shall be treated as confidential and sealed.
(4)
If a matter has been delegated to the Office of Administrative Hearings, the administrative law judge presiding over the proceedings shall issue to the Board a recommended decision containing:
(a)
Proposed or final findings of fact;
(b)
Proposed or final conclusions of law;
(c)
A proposed sanction; or
(d)
Any combination of §B(4)(a) — (c) of this regulation pursuant to the Board's delegation.
C.
Burden of Proof.
(1)
A licensee against whom the Board has issued a notice of initial denial has the burden to demonstrate by a preponderance of the evidence that the licensee is entitled to licensure or to receive the benefit sought which the Board has initially denied.
(2)
The Board has the burden to demonstrate by a preponderance of the evidence that the licensee has committed a violation or violations of the Maryland Optometry Act.
D.
Exceptions and Exceptions Hearing.
(1)
If a matter has been delegated by the Board to the Office of Administrative Hearings, a party may file exceptions to the administrative law judge's proposed findings of fact, proposed conclusions of law, and proposed sanction, as set out in the recommended decision, before the Board makes a final decision.
(2)
Within 15 days after the issuance of the recommended decision, or as otherwise specified by the administrative law judge in the recommended decision, either party may file written exceptions with the Board.
(3)
Unless otherwise permitted by the Board, a party's written exceptions may not be longer than 25 double-spaced pages. The exceptions shall state with particularity:
(a)
The finding of fact, conclusion of law, or other matter excepted to; and
(b)
The relevant portions of the record supporting the party's exception.
(4)
Within 10 days after a party's exceptions are filed with the Board, the opposing party may file an answer to exceptions.
(5)
Unless otherwise permitted by the Board, a party's answer to exceptions may not be longer than 25 double-spaced pages. The answer shall state with particularity a response to an exception and the relevant portions of the record supporting that response.
(6)
Unless otherwise permitted, the Board may not consider a party's response to an answer to exceptions.
(7)
Unless otherwise agreed by the parties and permitted by the Board, an exceptions hearing shall be scheduled for the next meeting of the Board following receipt of the parties' exceptions and any answer to exceptions.
(8)
Exceptions Hearing.
(a)
An exceptions hearing shall be held before the Board.
(b)
The hearing shall be a non-evidentiary hearing to provide the parties with an opportunity for oral argument on the exceptions and answers to exceptions.
(c)
The Board member presiding over the hearing shall determine all procedural issues and may impose reasonable time limits on each party's oral argument.
(d)
The presiding Board member shall make any rulings reasonably necessary to facilitate the effective and efficient progress of the hearing.
(e)
The party who filed the exceptions shall proceed first and may reserve part of the allotted time for rebuttal.
(9)
Unless otherwise agreed by the parties and permitted by the Board, the parties may not, in any answer to exceptions, or in the hearing on exceptions, reference any document or other evidence or offer any exhibit that is outside the record of the evidentiary hearing before the administrative law judge.
(10)
If neither party files exceptions within the time specified in §D(2) of this regulation, the Board shall consider only the recommended decision of the administrative law judge and the record of the evidentiary hearing in making its final decision.
E.
Board Final Decision and Order.
(1)
After review of the record and deliberation, the Board shall issue a final order consisting of findings of fact, conclusions of law, and the sanction or disposition to be imposed.
(2)
Upon a finding that there has been a violation of the Maryland Optometry Act, the Board may order that the licensee be fined, reprimanded, or placed on probation, or that the license be suspended or revoked.
Regulation .07 Summary Suspension of a License.LinkCopy Citation
A.
Pursuant to its authority under State Government Article, §10-226(c)(2), Annotated Code of Maryland, the Board shall order the summary suspension of a license if the Board determines that there is a substantial likelihood that a licensee poses a risk of harm to the public health, safety, or welfare.
B.
Notice of Intent to Summarily Suspend.
(1)
Based on information gathered in an investigation or otherwise provided to the Board, the Board may vote to issue:
(a)
A notice of an intent to summarily suspend a license; or
(b)
An order of summary suspension.
(2)
If the Board votes to issue a notice of an intent to summarily suspend a license or an order of summary suspension, the Board shall refer the matter to an administrative prosecutor for prosecution.
(3)
A notice of intent to summarily suspend a license shall include, but is not limited to:
(a)
A proposed order of summary suspension which is unexecuted by the Board and which includes:
(i)
The statutory authority on which the action has been taken;
(ii)
Allegations of fact which the Board believes demonstrate a substantial likelihood that the licensee poses a risk of harm to the public health, safety, or welfare; and
(iii)
Notice to the respondent of the right to request a full hearing on the merits of the summary suspension if the Board executes the proposed order of summary suspension; and
(b)
An order or summons to appear before the Board:
(i)
To show cause why the Board should not execute the order of summary suspension; and
(ii)
Which notifies the respondent of the consequences of failing to appear.
(4)
Service.
(a)
The Board shall serve a respondent with a notice of intent to summarily suspend a license not later than 5 days before a predeprivation show cause hearing is scheduled before the Board.
(b)
Service of the notice of intent to summarily suspend shall be made:
(i)
Personally upon the respondent;
(ii)
By certified mail to the address the respondent is required to maintain with the Board; or
(iii)
By any other reasonable means to effect service.
(c)
If the Board is unable to serve the notice of intent to summarily suspend a license upon the respondent as described in §B(4)(a) and (b) of this regulation, the Board may nevertheless proceed in prosecuting the case.
C.
Predeprivation Opportunity to Be Heard.
(1)
If the Board issues a notice of intent to summarily suspend a license, the Board shall offer the respondent the opportunity to appear before the Board to show cause why the respondent's license should not be suspended before the Board executes the order of summary suspension.
(2)
Predeprivation Show Cause Hearing Before the Board.
(a)
The hearing shall be a non-evidentiary hearing to provide the parties with an opportunity for oral argument on the proposed summary suspension.
(b)
The Board member presiding over the hearing shall determine all procedural issues and may impose reasonable time limits on each party's oral argument.
(c)
The presiding Board member shall make any rulings reasonably necessary to facilitate the effective and efficient operation of the hearing.
(d)
The respondent and the administrative prosecutor shall each be limited to 30 minutes in which to present oral argument.
(e)
The respondent shall proceed first and may reserve part of the allotted time for rebuttal.
(3)
The Board member who presides over the hearing:
(a)
May allow either the respondent or the administrative prosecutor to present documents or exhibits which are relevant and material to the proceedings and which are not unduly repetitious when the presiding Board member believes that the documents or exhibits are necessary in order for a fair hearing; and
(b)
May not allow testimony by any witness unless agreed to by the parties and approved by the Board in advance of the hearing.
(4)
The members of the Board may be recognized by the presiding member to ask questions of either party appearing before the Board.
D.
Summary Suspension of a License Without Prior Notice or an Opportunity To Be Heard.
(1)
In extraordinary circumstances, the Board may, after consultation with Board counsel, order the summary suspension of a license without first issuing a notice of intent to summarily suspend the license or providing a respondent with an opportunity for a predeprivation hearing if:
(a)
The Board determines that the public health, safety, and welfare requires the immediate suspension of the license and that prior notice and an opportunity to be heard is not feasible;
(b)
The order of summary suspension is served upon the respondent within 24 hours after its execution; and
(c)
The respondent is provided with an opportunity for a hearing before the Board within 15 days after the effective date of the summary suspension.
(2)
If the respondent requests a hearing pursuant to §D(1)(c) of this regulation, that hearing shall be conducted before the Board as provided in §C(2) of this regulation and shall provide the respondent with an opportunity to show cause why the Board should lift the summary suspension and reinstate the license.
E.
Burdens of Production and Persuasion.
(1)
In a show cause proceeding pursuant to §C of this regulation, the respondent may present argument in opposition to the allegations presented in the order for summary suspension or which otherwise demonstrate that the public health, safety, or welfare is not at risk.
(2)
The administrative prosecutor bears the burden of demonstrating by a preponderance of the evidence that the health, safety, or welfare of the public imperatively requires the Board to summarily suspend the respondent's license.
F.
Disposition.
(1)
If the Board issues a notice of intent to summarily suspend a license before summarily suspending a license, the Board may, after the show cause hearing, vote to:
(a)
Order a summary suspension;
(b)
Deny the summary suspension;
(c)
Enter into an order agreed upon by the parties; or
(d)
Enter into any interim order warranted by the circumstances of the case, including one providing for stay of the summary suspension subject to certain conditions.
(2)
If the Board orders a summary suspension before a show cause hearing, the Board may, at the conclusion of the hearing, vote to:
(a)
Affirm its order of summary suspension;
(b)
Rescind the order for summary suspension;
(c)
Enter into an order agreed upon by the parties; or
(d)
Enter into any interim order warranted by the circumstances of the case, including one providing for a stay of the summary suspension subject to certain conditions.
(3)
An order for summary suspension or any other order of the Board issued after the initiation of summary suspension proceedings are final orders of the Board and public records pursuant to State Government Article, §10-611, Annotated Code of Maryland.
G.
Post-Deprivation Opportunity for an Evidentiary Hearing.
(1)
If the Board orders the summary suspension of a license pursuant to §C or D of this regulation, the respondent shall be provided with the opportunity for an evidentiary hearing before the Board or before an administrative law judge, if the Board delegates the matter to the Office of Administrative Hearings.
(2)
The respondent may request an evidentiary hearing within 10 days after the Board issues the order of summary suspension.
(3)
Unless otherwise agreed by the parties, a hearing shall be provided within 45 days after the respondent's request.
(4)
An evidentiary hearing may be consolidated with a hearing on charges issued by the Board which include the facts which form the basis for the summary suspension.
(5)
An evidentiary hearing shall be conducted pursuant to the contested case provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.
(6)
If the Board has delegated the matter to the Office of Administrative Hearings, the administrative law judge shall issue to the Board a recommended decision with:
(a)
Proposed or final findings of fact;
(b)
Proposed or final conclusions of law;
(c)
A proposed disposition; or
(d)
Any combination of §G(6)(a) — (c) of this regulation pursuant to the Board's delegation of the matter to the Office of Administrative Hearings.
(7)
If the hearing is one combined with charges, the administrative law judge's determination as to the merits of the summary suspension shall be based only on those parts of the record that were available to the Board at the time it voted for the summary suspension.
(8)
The parties may file exceptions to the recommended decision as provided in State Government Article, §10-216, Annotated Code of Maryland.
(9)
An order issued by the Board after a post-deprivation evidentiary hearing is a final order of the Board and is a public record pursuant to State Government Article, §10-611, Annotated Code of Maryland.
Regulation .08 Probation and Violation of Probation Proceedings.LinkCopy Citation
A.
If the Board imposes a period of probation as a sanction, the Board may impose conditions of probation which the Board deems appropriate, including:
(1)
Re-education or completion of approved courses;
(2)
Payment of a fine;
(3)
Providing free optometric services in a Board-approved program;
(4)
Practicing under supervision;
(5)
Monitoring by the Board or by an individual or entity approved by the Board with periodic reporting to the Board;
(6)
Periodic review of a licensee's clinical practices or billing;
(7)
Periodic audits of a licensee's billing practices;
(8)
An examination by a physician or other appropriate health care provider;
(9)
Limitation of the licensee's practice;
(10)
Obtaining a passing score on an appropriate examination; or
(11)
Any other condition the Board deems appropriate for the rehabilitation or retraining of a licensee.
B.
A term of probation may be defined by a specific period of time or the successful completion of certain conditions or acts by the licensee.
C.
A licensee seeking termination of probation shall do so only by petitioning the Board to lift the probation when the:
(1)
Specific period of time has passed; or
(2)
Licensee has successfully completed the conditions or acts required for termination.
D.
If, at any time, the Board determines that the licensee is not in compliance with the conditions of probation, the Board shall:
(1)
Charge the licensee with a violation of probation;
(2)
Take any action provided for in the final order or consent order in the event of a violation of probation, including suspension of the license;
(3)
Consider a summary suspension of the license; or
(4)
Take any other action the Board deems appropriate and which the Board is authorized to take by law.
E.
Charges for Violation of Probation.
(1)
If the Board issues charges for a violation of probation, the service shall be as provided for in Regulation .05C(1) and (3) of this chapter.
(2)
The charging document for a violation of probation shall:
(a)
Inform the respondent of the statutory provision, condition of probation, or provision of the Board's order which the Board believes has been violated;
(b)
Allege facts that constitute a basis for a violation of probation; and
(c)
Notify the respondent of any proceedings scheduled before the Board or of an opportunity to request a hearing within a certain period of time and the consequences of failing to appear for those proceedings or to request a hearing.
(3)
If the respondent requests a hearing on the charge of a violation of probation, the Board shall, before the hearing, provide the respondent with a case resolution conference as provided in Regulation .05E of this chapter, to discuss settlement of the matter.
F.
Violation of Probation Hearing. A hearing for a violation of probation shall be held as set out in Regulation .06B of this chapter.
G.
If the Board determines that the respondent has violated probation, the Board shall:
(1)
Take any action provided for in the consent order or final order in the event of a violation of probation;
(2)
Impose additional conditions of probation; or
(3)
Impose any sanction or take any other action that the Board deems appropriate and is authorized to take by law.
Regulation .09 Restoration of a License.LinkCopy Citation
A.
Reinstatement.
(1)
A licensee shall petition the Board for a lifting of a suspension of a license or a reinstatement following revocation or surrender of a license.
(2)
A licensee who petitions the Board for reinstatement pursuant to terms and conditions for reinstatement set out in a final order, letter of surrender, or other order of the Board shall apply for reinstatement only pursuant to those terms and conditions.
(3)
A licensee whose license has been revoked or surrendered for 3 years or more before filing a petition for reinstatement is not eligible for reinstatement but instead shall apply for initial licensure.
(4)
In addition to complying with any conditions for reinstatement ordered by the Board, an applicant for reinstatement shall:
(a)
File an application for reinstatement with the Board;
(b)
Meet the requirements for reinstatement set out in COMAR 10.28.05; and
(c)
Achieve a passing score on the Board's law examination.
B.
Notice of Intent to Deny Reinstatement and Opportunity for a Hearing.
(1)
If the Board issues a notice of intent to deny reinstatement, that notice shall be served as provided for in Regulations .05C(1) and (3) of this chapter.
(2)
A notice of intent to deny reinstatement shall:
(a)
Inform the applicant of the legal basis for the Board's belief that the applicant is not qualified for reinstatement, including any applicable statutory provision;
(b)
Allege any facts which the Board believes support the Board's reasons for denying reinstatement; and
(c)
Notify the respondent of any proceedings scheduled before the Board or of an opportunity to request a hearing within a certain period of time and the consequences of failing to appear for those proceedings or to request a hearing.
(3)
If the applicant requests a hearing on the notice of intent to deny reinstatement, the Board shall, before the hearing, provide the applicant with a case resolution conference as provided in Regulation .05E of this chapter, to discuss settlement of the matter.
(4)
A hearing on the notice of denial of reinstatement shall be held before the Board or be delegated to an administrative law judge and conducted pursuant to the contested case provisions of the Administrative Procedure Act.
C.
If the Board grants reinstatement of a license, it may impose any restrictions or conditions on the license or the licensee's practice that it deems appropriate.
Regulation .10 Judicial Review.LinkCopy Citation
A final order of the Board is subject to judicial review as provided in Health Occupations Article, §11-318, and State Government Article, §10-222, Annotated Code of Maryland.
Regulation .11 Imposition of Penalties.LinkCopy Citation
The Board may impose a civil monetary penalty in lieu of or in addition to a disciplinary sanction authorized by Health Occupations Article, §11-313, Annotated Code of Maryland as provided in COMAR 10.28.13.
Regulation .12 Consideration and Notice of Board Files.LinkCopy Citation
In any matter governed by this chapter, the Board may take official notice of any information contained in the Board's files.
Chapter annotations
Authority: Health Occupations Article, §§11-205, 11-313, and 11-315;
State Government Article, §10-206; Annotated Code of Maryland
State Government Article, §10-206; Annotated Code of Maryland
History: Effective date: April 11, 1983 (10:7 Md. R. 634)
History: Regulations .01 — .09 repealed and new Regulations .01 — .12 adopted effective September 3, 2001 (28:17 Md. R. 1556)