Chapter 02. Hearings Before the Board of Physicians

“Administrative reinstatement” means the reactivation of an inactive or expired license.

“Administrative reinstatement” does not include postdisciplinary reinstatement.

Health Occupations Article, §§14-5A—14-5F, Annotated Code of Maryland; or

Health Occupations Article, Title 15, Annotated Code of Maryland.

The Board for initial licensure, for administrative expungement, or for administrative reinstatement; or

Disciplinary panel for postdisciplinary reinstatement.

“Complaint” means an allegation or report that:

“Complaint” includes, but is not limited to, the following:

Is composed of 11 Board members; and

Addresses:

The final written decision of the Board or disciplinary panel which results from a contested case proceeding or other formal proceeding and which contains findings of fact, conclusions of law, and a disposition which:

An order that denies postdisciplinary reinstatement of a license; or

An order to cease and desist from the practice of medicine.

“Investigation” means the gathering of the information necessary for the Board or a disciplinary panel to determine one or more of the following:

“Investigation” includes:

Treat the medical or surgical ailment, symptom, or problem in question; and

Would likely be familiar with the risks and benefits of treatments provided for that ailment, symptom, or problem.

The reactivation of a revoked or suspended license; or

The reactivation of a license surrendered while the licensee was under investigation or subject to disciplinary charges.

Given notice to answer allegations concerning violations of a statute over which the Board or a disciplinary panel has jurisdiction;

Notified as to a potential summary suspension pursuant to State Government Article, §10-226(c), Annotated Code of Maryland; or

Given notice to answer allegations concerning violations of a Board or disciplinary panel order.

Reprimands;

Places on probation;

Fines;

Suspends or revokes a license;

Disciplines by a consent order; or

Accepts a letter of surrender in lieu of charges or further investigation or prosecution.

Respond either in writing or by an appearance before the Board or a disciplinary panel; and

Present reasons and argument why a particular order should not be entered.

Shall review a complaint in light of the preliminary investigation; and

May direct further investigation, referral for peer review, closure without charges, or closure with an advisory letter.

Except as provided in §C(4)(b) of this regulation, upon the receipt of a timely written request from a psychiatrist who is the subject of a complaint concerning the quality of the psychiatric care provided by that psychiatrist, a quorum of a disciplinary panel shall review a subpoena for mental health records made or held by that psychiatrist before the subpoena is enforced.

Section C(4)(a) of this regulation does not apply to:

Section C(4)(b) of this regulation does not affect any rights which an individual may have under Health-General Article, Annotated Code of Maryland, to contest a subpoena in court.

Meet the standards of quality medical care; or

Keep adequate medical records.

Consider both the final peer review report and any written response submitted within the time period specified in §D(4) of this regulation; and

Determine whether there is reasonable cause to charge a respondent with failure to meet appropriate standards of quality care.

The day the complainant actually discovered the facts that form the basis of the complaint; or

The day when a reasonable person exercising due diligence should have discovered the facts that form the basis of the complaint.

Criminal convictions;

Sexual misconduct;

Other boundary violations;

Reciprocal actions under Health Occupations Article, §14-404(a)(21), Annotated Code of Maryland;

Ongoing substance abuse;

Fraudulent concealment of material information; or

Acts that occurred while a patient was a minor.

Close a complaint investigation without charges;

Take informal action by issuing a nonpublic advisory letter;

Request the respondent to enter into a disposition agreement with the disciplinary panel if the respondent suffers from substance abuse or a physical, mental, or emotional condition which may otherwise jeopardize medical care;

Except as provided in §E(1) of this regulation, vote to charge a respondent with a violation of a ground under Health Occupations Article, §14-404, Annotated Code of Maryland, or COMAR 10.32.07, or another statute which gives the Board or disciplinary panel authority;

Vote to deny administrative reinstatement; or

Accept a surrender on terms acceptable to the disciplinary panel.

In addition to charging, the disciplinary panel assigned to the complaint may vote to summarily suspend or vote an intent to summarily suspend the license of the respondent pursuant to State Government Article, §10-226(c), Annotated Code of Maryland.

A vote to summarily suspend the license of the respondent may be taken before the disciplinary panel charges the respondent.

After service of the charging document, the respondent and the complainant shall be offered a meeting with the disciplinary panel that was originally assigned the complaint and which sits as a DCCR. The meeting is a voluntary, informal settlement, proceeding to explore the possibility of a consent order or other resolution of the matter. The proceedings concerning a summary suspension are governed by Regulation .08 of this chapter and do not entail a meeting before a DCCR.

If the respondent and the administrative prosecutor each do not agree with the proposed settlement offered by the DCCR, the matter proceeds to a hearing before the Office of Administrative Hearings.

Except for the DCCRs consideration of a proposed resolution of a case achieved through the conference with the DCCR, the disciplinary panel, the parties, and the complainant may not make use of any commentary, admissions, facts revealed, or positions taken, including any disposition recommended by the DCCR, in the subsequent stages of the disciplinary proceedings unless the subject matter is available from other sources or is otherwise discovered. The respondent, administrative prosecutor, and complainant are prohibited from revealing this material.

The complainant and respondent may attend and participate as authorized by statute. The complainant may be accompanied by Board staff but not by any other person.

As soon as formal charges are issued; and

Until a disciplinary panel’s final decision is issued.

Proposed findings of fact;

Proposed findings of fact and proposed conclusions of law; or

Proposed findings of fact, proposed conclusions of law, and proposed disposition.

The delegation to the Office of Administrative Hearings is limited to making proposed findings of fact on allegations which are disputed;

The disciplinary panel may rescind the delegation if:

If a delegation to the Office of Administrative Hearings has been rescinded pursuant to §B(2)(b) of this regulation, the disciplinary panel shall set the case on the disciplinary panel docket for the disciplinary panel to issue conclusions of law and a disposition based on the undisputed material facts, after giving the parties a reasonable opportunity for written and oral argument.

The delegation to the Office of Administrative Hearings is limited to making proposed findings of fact and conclusions of law on allegations which are disputed; and

The disciplinary panel may rescind the delegation if:

If a delegation to the Office of Administrative Hearings has been rescinded pursuant to §B(3)(b) of this regulation, the disciplinary panel shall set the case on the disciplinary panel docket for the disciplinary panel to issue a disposition based on the undisputed material facts and conclusions of law, after giving the parties a reasonable opportunity for written and oral argument.

The parties execute a proposed consent order settling all aspects of the case; and

The disciplinary panel initially assigned the complaint agrees to that proposed consent order.

A list of witnesses to be called; and

Copies of documents intended to be produced at the hearing.

The respondent shall notify the administrative prosecutor not later than 45 days after the issuance of charges of any statement made to the respondent by the patient which was not recorded in the respondent’s medical record of the patient, and which affected the patient’s course of treatment, including but not limited to:

The respondent shall notify the administrative prosecutor not later than 45 days after the issuance of charges of:

The notices required by §C(2)(a) and (b) of this regulation shall be in writing and shall state:

Unless the respondent has provided the notice required by §C(2) of this regulation, the administrative law judge shall exclude from the hearing any evidence described in §C(2)(a) or (b) of this regulation.

Each party shall provide to the other party not later than 15 days prior to the prehearing conference or 45 days prior to the scheduled hearing, whichever is earlier:

If the administrative law judge finds that the report is not sufficiently specific, or otherwise fails to comply with the requirements of this section, the administrative law judge shall exclude from the hearing:

The administrative law judge shall consider and decide arguments concerning the sufficiency of the report at the prehearing conference and may require that the report be timely amended, if insufficient, to allow the opposing party ample opportunity to prepare for hearing.

If an expert adopts the written report of the disciplinary panel’s peer reviewer or reviewers, or adopts a sufficiently specific charging document as the expert’s report, that adoption is considered to satisfy the requirements set forth in §C(3) of this regulation.

The prehearing conference, if scheduled; or

If no prehearing conference is scheduled, 15 days prior to the hearing.

In hearings conducted by an administrative law judge of the Office of Administrative Hearings, §C of this regulation shall, whenever possible, be construed as supplementing and in harmony with COMAR 28.02.01.

In the event of a conflict between §C of this regulation and COMAR 28.02.01, §C of this regulation shall apply.

Any party may file with the disciplinary panel, that delegated the case to an administrative law judge, exceptions to a proposed decision of an administrative law judge within 15 days of its issuance. A party may file a response to any exceptions within 15 days of the date the exceptions are filed. The disciplinary panel may extend the period for filing exceptions and responses. The disciplinary panel may grant a party filing exceptions the opportunity to file a reply to a response within a stated period of time as determined by the disciplinary panel in any specific case. No further exceptions or responses of any kind may be accepted.

Format.

Exceptions, responses, and replies may refer to the record by citing the exhibit number or the transcript page.

The disciplinary panel chair or the disciplinary panel chair’s designee may in each case rule on specific procedural issues with respect to written exceptions.

The disciplinary panel may not accept additional evidence through the written exceptions process.

If either party files exceptions, the disciplinary panel shall schedule a hearing, ordinarily 30 days after the receipt of responses to the exceptions, after which the disciplinary panel shall issue an order containing the disciplinary panel’s findings of fact, conclusions of law, and disposition.

The presiding disciplinary panel member, usually the disciplinary panel chair, shall:

The party who filed the first exceptions shall ordinarily proceed first.

Both parties consent to the admission of additional documentary evidence and the disciplinary panel determines that acceptance of the additional evidence would promote the just and efficient completion of the process; or

The disciplinary panel determines that either:

An exceptions hearing; or

Other formal disciplinary panel proceedings.

When a time period is not stated in an order for revocation, the disciplinary panel may not entertain an application for postdisciplinary reinstatement until at least 3 years after the date of the order.

A revocation of a license may not be for less than 1 year and may be permanent.

The disciplinary panel may not entertain an application for postdisciplinary reinstatement after an order of revocation unless:

The disciplinary panel that issued the final order revoking or suspending the respondent shall entertain applications for reinstatement pursuant to the procedures and standards of Regulation .06B of this chapter.

Except as a disciplinary panel order directs otherwise in a specific case, if a licensee subject to probation or suspension fails to renew a license:

Section C(3)(a) of this regulation does not:

A written application for reinstatement on a form prescribed by the Board;

The appropriate fee;

Written responses to any questions the disciplinary panel may propose concerning the reasons the license was revoked or surrendered and the petitioner’s current fitness to practice; and

Evidence of the completion of continuing medical education credits to the same extent as if the petitioner had been continuously licensed;

If the letter of surrender indicates that the surrender or the revocation order is for a certain length of time, the time period has expired; or

If the letter of surrender or revocation order does not indicate a time certain, 3 years have passed since the date of the order; and

If the letter of surrender makes reinstatement contingent on certain conditions, those conditions have occurred;

May conduct an informal inquiry which shall include, if requested, an opportunity for the petitioner to have a personal interview with the panel;

May consider the petitioner’s history; and

May consider presentations from both the petitioner and the administrative prosecutor’s office.

Probation;

Requirements for supervision;

Further review of competence or performance;

Limitations on practice; or

Other conditions that the disciplinary panel considers necessary; or

For a conviction, at least:

For a plea of guilty, including an Alford plea, or a plea of nolo contendere, at least one of the following:

Lack of conviction or plea;

Whether the crime is one involving moral turpitude;

Misidentity of the respondent with the defendant in the criminal matter; and

Other relevant issues, if any, other than mitigation.

Proposed order for summary suspension; and

Show cause notice letter providing an opportunity to the respondent to show cause why the order should not be issued.

The statutory authority upon which the order is based;

Notification that the respondent may request a full hearing to appeal the summary suspension, if executed by the disciplinary panel; and

Statements of investigatory information which serve as a basis for the order.

The disciplinary panel shall serve the respondent:

The disciplinary panel may choose to serve the respondent personally.

The disciplinary panel determines that the health, welfare, and safety of the public or the physician imperatively requires immediate suspension;

Notice and opportunity to be heard before the action is not feasible; and

The respondent is provided with a postdeprivation opportunity to be heard within 15 days by the disciplinary panel, that voted to summarily suspend the license.

Shall allow for consideration of oral presentations and documents considered by the presiding disciplinary panel member to be relevant and material to the proceeding and not unduly repetitious; and

May not admit oral testimony or witnesses.

For the purposes of this regulation, the severity of sanctions is ranked as follows, from the least severe to the most severe:

A stayed suspension in which the stay is conditioned on the completion of certain requirements is ranked as probation.

A stayed suspension not meeting the criteria for §A(3)(b) of this regulation is ranked as a reprimand.

A fine listed in the sanctioning guidelines may be imposed in addition to but not as a substitute for a sanction.

The addition of a fine does not change the ranking of the severity of the sanction.

The sanction with the highest severity ranking should be used to determine which ground will be used in developing a sanction; and

The disciplinary panel may impose concurrent sanctions based on other grounds violated.

The absence of a prior disciplinary record;

The offender self-reported the incident;

The offender voluntarily admitted the misconduct, made full disclosure to the disciplinary panel and was cooperative during the disciplinary panel proceedings;

The offender implemented remedial measures to correct or mitigate the harm arising from the misconduct;

The offender made good faith efforts to make restitution or to rectify the consequences of the misconduct;

The offender has been rehabilitated or exhibits rehabilitative potential;

The misconduct was not premeditated;

There was no potential harm to patients or the public or other adverse impact; or

The incident was isolated and is not likely to recur.

The offender has a previous criminal or administrative disciplinary history;

The offense was committed deliberately or with gross negligence or recklessness;

The offense had the potential for or actually did cause patient harm;

The offense was part of a pattern of detrimental conduct;

The offender committed a combination of factually discrete offenses adjudicated in a single action;

The offender pursued his or her financial gain over the patient’s welfare;

The patient was especially vulnerable;

The offender attempted to hide the error or misconduct from patients or others;

The offender concealed, falsified or destroyed evidence, or presented false testimony or evidence;

The offender did not cooperate with the investigation; or

Previous attempts to rehabilitate the offender were unsuccessful.

Practicing medicine without a license in violation of Health Occupations Article, §14-601, Annotated Code of Maryland; or

A violation of an order of cease and desist from practicing medicine without a license.

The extent to which the respondent derived any financial benefit from the improper conduct;

The willfulness of the improper conduct;

The extent of actual or potential public harm caused by the improper conduct; and

The deterrent effect of the fine.

Except as specified in §C(3)(b) of this regulation, the Board may impose fines as follows:

If the conduct resulted in harm to any patient, the Board may consider each patient seen to be a separate violation when imposing a fine listed in §C(3)(a) of this regulation.

Except as provided in §E(2) or (3) of this regulation, if a licensee has submitted an application claiming the completion of continuing medical education credits and the licensee fails to document the completion of such continuing medical education credits when audited by the Board, the disciplinary panel may impose a civil fine under Health Occupations Article, §14-316(d)(5), 14-5A-13(d)(2), 14-5B-12(d)(2), 14-5D-12(g), or 15-307(f), Annotated Code of Maryland, of up to $100 per missing continuing medical education credit in lieu of a sanction under Health Occupations Article, §14-404, 14-5A-17, 14-5B-14, 14-5D-14, or 15-314, Annotated Code of Maryland.

Section E(1)(a) of this regulation does not limit the Board’s or disciplinary panel’s authority to require completion of the missing continuing medical education credits.

If a licensee has willfully falsified an application with respect to continuing medical education credits, the licensee may be charged under one or more of the following, as appropriate:

Upon a finding of a violation, the disciplinary panel may impose any discipline authorized under Health Occupations Article, §14-404(a), 14-405.1, 14-5A-17, 14-5B-17, 14-5C-17, 14-5D-14, 14-5E-16, 14-5F-18, 15-314, or 15-316, Annotated Code of Maryland, and the sanctioning guidelines.

If a licensee has been previously fined or otherwise disciplined under §E(1) or (2) of this regulation, the disciplinary panel may, for a subsequent offense relating to continuing medical education credits, charge a licensee under one or more of the following, as appropriate:

Upon a finding of a violation, the disciplinary panel may impose any discipline authorized under Health Occupations Article, §14-404(a), 14-405.1, 14-5A-17, 14-5B-17, 14-5C-17, 14-5D-14, 14-5E-16, 14-5F-18, 15-314, or 15-316, Annotated Code of Maryland, and the sanctioning guidelines for a subsequent offense.

The disciplinary panel may not apply the sanction described in §E(1) of this regulation in determining a sanction for a licensee previously fined or disciplined for an offense related to continuing medical education credits.

Issue a license; or

Deny the application.

Failing to meet the minimal qualifications or requirements of licensure;

Committing an act or an omission constituting grounds for discipline under Health Occupations Article, §14-404, Annotated Code of Maryland;

Failing to complete the application or failing to provide additional information requested by the Board in connection with the application;

Submitting false or misleading information in connection with the application; or

Failing to cooperate with the Board’s investigation of the application.

The Administrative Procedure Act;

COMAR 28.02.01; and

COMAR 10.32.02.04C, which shall, whenever possible, be construed as supplementing and in harmony with COMAR 28.02.01.

The Administrative Procedure Act;

COMAR 28.02.01; and

COMAR 10.32.02.04C which shall, whenever possible, be construed as supplementing and in harmony with COMAR 28.02.01.

Is a public document; and

Is effective immediately unless the order states otherwise.

A respondent may challenge the factual or legal basis of the initial order by filing a written opposition within 30 days of its issuance, and may include a request for a hearing.

The Board shall consider that opposition and shall provide a hearing if requested.

After considering the written opposition and the presentation at the hearing, if any, the Board may issue a final order to rescind, modify, or affirm the cease and desist order.

The Board shall serve the final order by hand delivery, certified mail, or first-class mail to the last known address of the respondent.

The respondent may seek judicial review of the Board’s final order as provided in the Administrative Procedure Act.

The Board may impose a fine as provided in Regulation .09C of this chapter on any individual who violates a cease and desist order.

Before imposition of a fine for violation of a cease and desist order, the Board shall give notice of the alleged violation, and an opportunity for a hearing.

The hearing may not concern issues:

The only issues to be considered at the hearing are:

The Board shall issue a final order stating whether a violation occurred and if so, the amount of the fine.

The respondent may seek judicial review of the Board’s final order as provided in the Administrative Procedure Act.

The application is submitted more than 3 years after the imposition of an administrative action by the Board or after administrative reinstatement or termination of suspension of the license, whichever is later;

The licensee had no incidents of a public sanction since the administrative action identified in the application occurred; and

The licensee is not currently under probation or investigation by the Board.

Failure to pay taxes or unemployment insurance contributions under Health Occupations Article, §1-213(b), Annotated Code of Maryland;

Failure to complete continuing medical education requirements under Health Occupations Article, §14-316(d), Annotated Code of Maryland;

Failure to renew a license on time under Health Occupations Article, §14-606(a)(5), Annotated Code of Maryland; or

Failure to notify the Board in writing of change of name or address within the time required under Health Occupations Article, §14-316(f).