# COMAR Title 10 — Maryland Department of Health

## Subtitle 28 — Board of Examiners in Optometry

### Chapter 17 — Disciplinary Sanctions and Monetary Penalties

**Authority:** Health Occupations Article, §§1-606 and 11-314, Annotated Code of Maryland

**Administrative History:** Effective date: October 1, 2012 (39:19 Md. R. 1237)

#### Regulation .01 Scope.

*COMAR 10.28.17.01*

This chapter establishes standards for sanctions and monetary penalties not exceeding $5,000 against any optometrist in the State if, after a hearing, the Board finds that there are grounds under Health Occupations Article, §11-314, Annotated Code of Maryland, to impose a sanction or monetary penalty.

#### Regulation .02 Definitions.

*COMAR 10.28.17.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Board” means the State Board of Examiners in Optometry.

  (2) “License” means a license issued by the Board to practice optometry.

  (3) “Licensee” means an optometrist who is licensed by the Board to practice optometry.

  (4) “Penalty” means monetary penalty.

  (5) “Sanction” means a formal disciplinary action against a license such as a reprimand, probation, suspension, or revocation.

#### Regulation .03 Imposition of a Penalty — General.

*COMAR 10.28.17.03*

Imposition of a Penalty After a Hearing. If, after a hearing under Health Occupations Article, §11-315, Annotated Code of Maryland, the Board finds that there are grounds under Health Occupations Article, §11-313, Annotated Code of Maryland, to suspend or revoke a license, the Board may impose a penalty as set forth in this chapter:

A. Instead of, or in addition to, suspending the license; or

B. In addition to revoking the license.

#### Regulation .04 Guidelines for Disciplinary Sanctions and Imposition of Penalties.

*COMAR 10.28.17.04*

A. Subject to the provisions of this section, the Board may impose sanctions and penalties for violations of the Maryland Optometry Act and its regulations according to the guidelines set forth in the following chart:

B. If a licensee is found in violation of more than one category enumerated in this chapter, the category or categories containing the highest maximum sanction and penalty shall prevail.

C. Notwithstanding the guidelines set forth in this chapter, in order to resolve a pending disciplinary action, the Board and licensee may agree to a surrender of license or a consent order with terms, sanction, and penalty agreed to by the Board and the licensee.

D. A departure from the guidelines set forth in this chapter alone is not grounds for any hearing or appeal of a Board action.

#### Regulation .05 Mitigating and Aggravating Factors to Be Considered in the Assessment of the Sanction.

*COMAR 10.28.17.05*

Depending upon the facts and circumstances of each case, and to the extent that they apply, the Board may consider the following aggravating and mitigating factors in determining whether the sanction in a particular case should fall outside the range of sanctions established by the guidelines. These factors may include, but are not limited to, the following:

A. Mitigating Factors:

  (1) The licensee’s lack of a prior disciplinary record;

  (2) The licensee self-reported the violation to the Board;

  (3) The licensee’s full and voluntary admissions of misconduct to the Board and cooperation during Board proceedings;

  (4) Implementation of remedial measures to correct or mitigate harm arising from the misconduct;

  (5) Timely good-faith effort to make restitution or to rectify consequences of misconduct;

  (6) Evidence of rehabilitation or rehabilitative potential;

  (7) Absence of premeditation to commit the misconduct;

  (8) Absence of potential harm or adverse impact to the public; and

  (9) The licensee’s conduct was an isolated incident and not likely to recur.

B. Aggravating Factors:

  (1) The licensee has a previous criminal or administrative disciplinary history;

  (2) The violation was committed deliberately or with gross negligence or recklessness;

  (3) The violation had the potential for, or caused, serious patient or public harm;

  (4) The violation was part of a pattern of detrimental conduct;

  (5) The licensee was motivated to perform the violation for financial gain;

  (6) The vulnerability of the client or clients;

  (7) The licensee lacked insight into the wrongfulness of the conduct;

  (8) The licensee committed the violation under the guise of treatment; and

  (9) Previous attempts at rehabilitation of the licensee were unsuccessful.

C. The existence of one or more of these factors does not impose on the Board or an Administrative Law Judge any requirement to articulate its reasoning for not exercising its discretion to impose a sanction outside of the range of sanctions set forth in this chapter.

D. Nothing in this regulation requires the Board or an Administrative Law Judge to make findings of fact with respect to any of these factors.

#### Regulation .06 Payment of Penalty.

*COMAR 10.28.17.06*

A. A licensee shall pay to the Board a penalty imposed under this chapter as of the date the Board's order is issued, unless the Board's order specifies otherwise.

B. Filing an appeal under State Government Article, §10-222, Annotated Code of Maryland, or Health Occupations Article, §11-318, Annotated Code of Maryland, does not automatically stay payment of a penalty imposed by the Board under this chapter.

C. If a licensee fails to pay, in whole or in part, a penalty imposed by the Board under this chapter, the Board may not restore, reinstate, or renew a license until the penalty has been paid in full.

D. 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.

E. The Board shall pay all monies collected under this chapter into the State's General Fund.