Chapter 07. Sanctions and Disciplinary Proceedings
Regulation .01 Scope.LinkCopy Citation
These regulations govern procedures for disciplinary and licensing proceedings before the Board.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Administrative prosecutor” means the attorney assigned from the Office of the Attorney General to prosecute the Board’s administrative charges on behalf of the State.
(2)
“Charges” means the accusations or grounds for action that the Board alleges a respondent committed which concerns:
(a)
A disciplinary action against a licensee that may result in sanctions against a licensee;
(b)
Intent to deny an initial application for licensure;
(c)
An action against an individual practicing nursing home administration or assisted living management without a license; or
(d)
Other action authorized by law or regulation against an individual, licensee, or applicant that entitles the respondent to a contested case hearing.
(3)
“Charging document” means the document that includes the charges that initiates a Board action against a respondent and gives formal notice to the respondent of an action by the Board.
(4)
Complaint.
(a)
“Complaint” means an allegation or report received by the Board that indicates:
(i)
A Board licensee may have committed an act or omission for which the licensee may be disciplined or sanctioned;
(ii)
An applicant may have committed an act or omission that could result in the denial of the applicant’s application for a license; or
(iii)
An individual may be practicing either nursing home administration or assisted living management without a license.
(b)
“Complaint” may include, but is not limited to, the following:
(i)
Consumer complaints and complaints from the public;
(ii)
Reports or allegations from a government entity concerning a nursing home or assisted living program at which the licensee, applicant, or individual is or was employed;
(iii)
Media reports;
(iv)
Statements on Board applications for licensure;
(v)
Reports from anonymous sources; or
(vi)
Information from any source that warrants an investigation.
(5)
“Preliminary investigation” means a review of the allegations in a complaint by the Board and the response from a respondent, if sought and provided, that determines whether there is a sufficient basis for a formal Board investigation.
(6)
“Respondent” means a licensee, applicant, or individual who:
(a)
Is under investigation by the Board; or
(b)
Has been charged by the Board.
Regulation .03 Complaints, Investigations, and Disposition of Complaint.LinkCopy Citation
A.
Complaint.
(1)
Any person, government entity, public officer, association, or the Board may submit to the Board a complaint against any licensee, applicant, or individual for due cause.
(2)
The Board shall investigate and take appropriate action as to any complaint filed with the Board that alleges or indicates that:
(a)
A licensee has failed to meet any standard governing the practice of the licensee’s profession;
(b)
A licensee or an applicant has violated disciplinary grounds of the Board; or
(c)
An unlicensed individual:
(i)
Is practicing nursing home administration or assisted living management in this State without a license or proper authorization; or
(ii)
Has represented to the public that the individual is authorized to practice nursing home administration or assisted living management in this State without a license or proper authorization from the Board.
(3)
The Board may investigate responses in a Board licensure application that may warrant denial of the application.
B.
Representation by Counsel.
(1)
A respondent may be represented by counsel in any matter before the Board and at any stage of the proceedings.
(2)
If the matter goes to a hearing, a respondent may be represented by:
(a)
The respondent; or
(b)
An attorney who is:
(i)
Admitted to the Maryland Bar; or
(ii)
Specially admitted to practice law pursuant to Maryland Rule 19-217.
(3)
An administrative prosecutor assigned to the Board by the Office of the Attorney General shall prosecute disciplinary matters in Board proceedings.
(4)
The Board may be represented by and obtain the advice of counsel assigned to it by the Office of the Attorney General in all proceedings.
C.
Confidentiality of Proceedings.
(1)
Except as otherwise provided by law, the proceedings of the Board are confidential. The parties may not waive the confidentiality provided by this regulation.
(2)
The Office of Administrative Hearings’ proceedings involving the adjudication of a Board-contested case and the administrative law judge's proposed decision are confidential. The parties may not waive the confidentiality of the proceedings or of the residents whose medical records or care are reflected in the record of the proceedings.
(3)
Except as otherwise provided by law, even after a final decision is issued by the Board, the parties may not reveal the identity of any residents or patients referenced in the Board proceeding.
D.
Investigation of Complaint.
(1)
After receipt of a complaint, the Board staff:
(a)
Shall send an acknowledgement to the complainant;
(b)
Shall present the complaint to the disciplinary committee of the Board; and
(c)
May forward the complaint to another regulatory agency that has jurisdiction over the matter.
(2)
The Board's disciplinary committee shall:
(a)
Review a complaint over which the Board has jurisdiction; and
(b)
Make a recommendation to the Board on whether to open a formal investigation of a complaint. The disciplinary committee may recommend to the Board closure of the case based on a preliminary investigation of the complaint.
(3)
Prior to or after a decision on whether to open a formal investigation of a complaint, the Board may send a summary or a copy of the complaint, either in its entirety or redacted, to the licensee, applicant, or individual who is the subject of the complaint to obtain a response to the allegations made in the complaint.
(4)
Participation in review of complaints made to the Board is not a basis for recusal of a Board member, Board counsel, or the administrative prosecutor from further proceedings in the case.
(5)
If the Board votes for a formal investigation, an investigator shall be assigned to the investigation.
(6)
As part of its investigation, the Board may issue investigative subpoenas requiring attendance and testimony or the production of records or tangible objects. The subpoena shall be:
(a)
Signed by:
(i)
The Board’s Executive Director; or
(ii)
A Board officer;
(b)
Served by:
(i)
U.S. first-class mail;
(ii)
Certified mail to the address the respondent is required to maintain with the Board;
(iii)
Hand delivery in-person or by courier;
(iv)
Delivery service for which a signature is required;
(v)
Electronic means; or
(vi)
A method otherwise agreed to by the person or government entity to whom the subpoena is directed or the person’s counsel.
E.
Subpoenas. If service of the subpoena is provided by electronic means, under §D(6)(b)(v) of this regulation, and no response or delivery receipt is obtained from the e-mail address to which service of the subpoena was provided, the Board shall serve the subpoena through other means under §D(6)(b) of this regulation.
F.
Except as otherwise provided by law, Board investigations are confidential.
G.
For each complaint, after a review of the complaint, pertinent investigative material, and the disciplinary committee’s recommendation, the Board shall:
(1)
Close the case;
(2)
Close the case with a nonpublic informal advisory letter to the licensee; or
(3)
Vote to take any of the following actions:
(a)
Charge the licensee with a violation or violations of Health Occupations Article, §§9-314 or 9-3A-12, Annotated Code of Maryland, or a violation or violations of Regulation .06 of this chapter;
(b)
Summarily suspend a license or issue a Notice of Intent to Summarily Suspend;
(c)
Issue an intent to deny an application for licensure;
(d)
Issue a cease and desist order; or
(e)
Take any action against a respondent authorized by the subtitle or law that entitles the respondent to a contested case hearing.
H.
Referral to Prosecutor.
(1)
After a vote for disciplinary action or actions, the matter shall be referred to an administrative prosecutor for prosecutorial action.
(2)
After the administrative prosecutor has drafted the charging document, notice, or order of the disciplinary action or actions, if acceptable, a Board officer or the Board Executive Director shall sign the charging document, notice, or order of the disciplinary action or actions and the licensee, applicant, or individual shall be served.
Regulation .04 Pre-Hearing Procedures.LinkCopy Citation
A.
The charging document shall:
(1)
Give reasonable notice of the Board’s action;
(2)
Comply with State Government Article, §10-207, Annotated Code of Maryland;
(3)
Notify the respondent of, if applicable:
(a)
Any proceedings scheduled before the Board and the consequences of failing to appear for those proceedings; and
(b)
An opportunity to request a hearing within a certain period of time and the consequences of failing to request a hearing; and
(4)
Be accompanied by a letter of procedure notifying the respondent of the applicability of the Administrative Procedure Act to the Board's proceedings.
B.
If the respondent does not participate in the Board proceeding without a valid reason, the Board may nevertheless proceed in adjudicating the case or issue a default order.
C.
If the Board initiates an investigation or 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.
A notice of denial of a provisional license does not entitle the applicant, nursing home, or assisted living program to a hearing under this chapter.
E.
After the administrative prosecutor has drafted the charging document, if acceptable, a Board officer or the Board Executive Director shall sign the charging document.
F.
An investigation and prosecution of charges may proceed if a respondent's license expires after a Board investigation has been initiated or charges have been issued.
G.
Service of the Charging Document. If the Board issues a charging document, the charging document shall be served upon the respondent at the address the respondent maintains for purposes of licensure or the respondent’s last known address by:
(1)
U.S. first-class mail;
(2)
Certified mail;
(3)
Hand delivery in person or by courier;
(4)
Delivery service for which a signature is required;
(5)
Electronic means; or
(6)
A method otherwise agreed to by the respondent or respondent’s counsel.
H.
If service of the charging document is provided by electronic means, under §G(5) of this regulation, and no response or delivery receipt is obtained from the e-mail address to which service of the charging document was provided, the Board shall serve the charging document through other means under §G of this regulation.
I.
Case Resolution Conference.
(1)
After service of the charging document or notice of initial denial, the Board shall offer a respondent the opportunity for a case resolution conference.
(2)
Matters admitted, revealed, negotiated, or otherwise discussed at a case resolution conference are confidential and without prejudice and may not be used by the respondent, administrative prosecutor, or Board in any subsequent proceedings, unless the information is otherwise discovered or available by other appropriate means.
(3)
Recommendations of the case resolution conference committee are not binding on the Board, which may:
(a)
Accept the proposed resolution; or
(b)
Modify a proposed settlement.
(4)
If the respondent and the administrative prosecutor are unable to reach an agreement for settlement that is proposed by the case resolution conference committee, or the Board, the matter shall proceed to a hearing on the charges.
(5)
Participation in a case resolution conference is not a basis for recusal of a Board member, Board counsel, or Board prosecutor from further proceedings in a case.
J.
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 copies of documents that the opposing party intends to be produced at the hearing within 30 days of service of the request.
(2)
Mandatory Discovery.
(a)
At least 15 days before the prehearing conference, if scheduled, or 45 days before the scheduled hearing date, whichever is earlier, each party shall provide to the other party:
(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 testimony, which includes the opinion offered and the factual basis and reasons underlying the opinion.
(b)
Upon motion, if the Board Chair or the Board Chair’s designee, who shall be a Board member, or the Office of Administrative Hearings, as appropriate, finds that the expert report is not sufficiently specific, or otherwise fails to comply with the requirements of this section, or the proposed expert is unqualified, the testimony of the expert and any report of the expert shall be excluded from the hearing.
(c)
If an expert adopts a sufficiently specific charging document as the expert report, that adoption shall satisfy the requirements set forth in this section.
K.
Motions and Orders for a Hearing Before the Board.
(1)
Motions shall:
(a)
Be in writing and filed with the Board and shall include the pertinent facts and legal authorities relied upon;
(b)
Be decided by the Chair of the Board or the Chair’s designee, who shall be a Board member;
(c)
Be served upon the opposing party’s legal counsel, if the opposing party is represented, and upon the opposing party, if not represented by legal counsel; and
(d)
Contain a certificate of service.
(2)
Unless shortened or extended by the presiding officer, the opposing party has 15 days from service of the motion to respond to the motion.
(3)
Except as otherwise provided by this regulation, the Chair of the Board or the Chair’s designee, who shall be a Board member, may decide any issues needed to facilitate Board proceedings after the charging document is issued.
(4)
Parties may be notified of decisions and orders from this chapter by the Board’s Executive Director, who may also sign decisions and orders on behalf of the Board or the Board decision maker.
L.
Pre-Hearing Conference for Hearings Before the Board.
(1)
The Board may hold a pre-hearing conference.
(2)
If the Board holds a pre-hearing conference, at minimum:
(a)
A Board member shall attend; and
(b)
Both parties shall disclose any:
(i)
Anticipated witnesses; and
(ii)
Documents anticipated to be offered into evidence.
(3)
Both parties have a continuing duty to supplement their disclosures of witnesses and documents.
(4)
The parties shall comply with the pre-hearing conference instructions and orders.
(5)
In the case of unforeseen circumstances which would otherwise impose an extraordinary hardship on a party:
(a)
If a prehearing conference is scheduled, witnesses or documents may not be added to the list after the prehearing conference; or
(b)
If no prehearing conference is scheduled, witnesses or documents may not be added to the list later than 15 days before the hearing.
(6)
The prohibition against adding witnesses does not apply to witnesses or documents to be used for impeachment or rebuttal purposes.
(7)
Failure to comply with discovery, pre-hearing conference instructions, or orders may result in the exclusion of witnesses from testifying or documents from being admitted or default.
Regulation .05 Hearings and Final Decisions.LinkCopy Citation
A.
Hearings shall be conducted in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.
(1)
The Board may delegate the Board’s authority to hear contested cases to the Office of Administrative Hearings on a case-by-case basis.
(2)
Proceedings are not open to the public.
(3)
Hearings may be held by electronic means.
B.
Burden of Proof. A party asserting the affirmative of an issue bears the burden of proof regarding the issue.
C.
Order of Procedure. The party with the burden of proof shall present their case first.
D.
Hearings Conducted Before the Board.
(1)
The Board shall notify the parties of the date, time, and place of the hearing.
(2)
Each hearing shall be held before a majority of the Board.
(3)
The delegation for an evidentiary hearing to an administrative law judge shall be by the Board at its discretion.
(4)
Presiding Officer. For hearings before the Board, the Board Chair, or, in the Chair's absence, a member designated by the Chair shall be the presiding officer of the hearing. The presiding officer shall:
(a)
Have complete charge of the hearing proceedings;
(b)
Rule on any matter to facilitate the hearing;
(c)
Permit the examination of witnesses;
(d)
Rule on the admissibility of evidence;
(e)
Admit evidence; and
(f)
Adjourn or recess the hearing from time to time.
(5)
The presiding officer, at the presiding officer's discretion, may set reasonable time limits on arguments and presentation of evidence.
(6)
The presiding officer shall be responsible for decorum in a hearing and can suspend the proceedings as necessary to maintain decorum.
(7)
Legal Advisor and Counsel for the Board. A representative of the Office of the Attorney General shall act as legal advisor and counsel to the Board.
(8)
Administrative Prosecutor.
(a)
The Board may request the Office of the Attorney General, Health Occupations and Prosecution Unit to participate as the administrative prosecutor in any hearing to present the case on behalf of the State.
(b)
The administrative prosecutor that presents the case on behalf of the State shall have the same rights with regard to the submission of evidence, examination, cross-examination of witnesses, presentation of summation and argument, and filing of objections, exceptions, and motions as does the respondent and respondent’s counsel for any party.
(9)
Examination of Witnesses and Introduction of Evidence.
(a)
The rules of evidence in all hearings under these regulations shall be as set forth in State Government Article, §10-213, Annotated Code of Maryland.
(b)
Every party has the right to call witnesses and present evidence, cross-examine every witness called on behalf of the Board or other party, and present summation and argument and file objections, exceptions, and motions.
(c)
When a party is represented by counsel, all submission of evidence, examination and cross-examination of witnesses, and filing of objections, exceptions, and motions shall be done and presented solely by counsel.
(d)
The presiding officer, or any person designated by the presiding officer for that purpose, may examine any witness called to testify. Any member of the Board may examine any witness called to testify.
E.
Evidentiary Hearings Conducted at the Office of Administrative Hearings.
(1)
Unless specified otherwise in this chapter, hearings delegated to the Office of Administrative Hearings are governed by the Office of Administrative Hearings Rules of Procedure, pursuant to COMAR 28.02.01.
(2)
Proceedings are not open to the public.
(3)
The Board action concerning charges against a nursing home administrator or an assisted living manager may be consolidated for the evidentiary hearing at the Office of Administrative Hearings, with a disciplinary action against a nursing home or assisted living program, brought by the Department if:
(a)
The licensed nursing home administrator or licensed assisted living manager of the Board action administered or managed the facility that is the subject of the Department’s action; and
(b)
The issues and facts in the cases are sufficiently similar.
(4)
If a matter has been delegated to the Office of Administrative Hearings, unless otherwise specified by the Board, the administrative law judge presiding over the proceedings shall issue to the Board a proposed decision which shall include:
(a)
Proposed findings of fact;
(b)
Proposed conclusions of law; and
(c)
A proposed sanction.
F.
Exceptions and Exceptions Hearing.
(1)
If a matter has been delegated by the Board to the Office of Administrative Hearings or to an individual member of the Board, a party may file exceptions to the proposed decision before the Board makes a final decision.
(2)
Unless otherwise permitted by the Board, within 21 days after the issuance of the proposed 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 and shall state with particularity the:
(a)
Finding of fact;
(b)
Conclusion of law or other matter excepted to; and
(c)
Relevant portions of the record supporting the party’s exception.
(4)
Unless otherwise permitted by the Board, within 15 business 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 and shall state with particularity:
(a)
A response to an exception; and
(b)
The relevant portions of the record supporting that response.
(6)
Unless otherwise agreed to by the parties and permitted by the Board, an exceptions hearing shall be scheduled for the next meeting of the Board after receipt of the parties’ exceptions and any answer to exceptions.
(7)
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 at 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 rulings reasonably necessary to facilitate the exceptions hearing.
(e)
The respondent and the administrative prosecutor may not exceed 30 minutes to present oral argument per side, unless approved by the presiding officer.
(f)
The party who filed the exceptions shall proceed first and may reserve part of the allotted time for rebuttal.
(8)
Unless otherwise agreed to by the parties and permitted by the Board, in an answer to exceptions or in the hearing on exceptions, the parties may not reference any document or other evidence or offer an exhibit that is outside the record of the evidentiary hearing before the administrative law judge.
(9)
If neither party files exceptions within the time specified in §C(2) of this regulation, in making the Board's final decision, the Board shall consider only the:
(a)
Proposed decision of the administrative law judge; and
(b)
Record of the evidentiary hearing.
G.
Final Decision. After a formal hearing is conducted, the Board shall issue a written final decision to be sent to the parties upon issuance which shall include:
(1)
Findings of fact;
(2)
Conclusions of law;
(3)
An order; and
(4)
Appeal rights, if applicable.
Regulation .06 Grounds for Sanctioning and Sanctions.LinkCopy Citation
A.
The Board may deny a license to any applicant, suspend or revoke the license of a licensee, place on probation, reprimand, or fine a licensee after proper notice and a hearing, if the applicant or licensee:
(1)
Violated any of the provisions of law or regulations pertaining to the licensing or practice of nursing home administration or assisted living management;
(2)
Violated any of the provisions of the law or regulations of the:
(a)
Licensing or oversight authority or agency of the State for nursing homes or assisted living programs; or
(b)
Federal entity having jurisdiction over the operation of nursing homes;
(3)
Is incompetent to engage in the practice of nursing home administration or assisted living management or to act as a nursing home administrator or assisted living manager;
(4)
Engaged in fraud, deceit, or misrepresentation in the licensee’s or applicant’s capacity as a nursing home administrator or assisted living manager;
(5)
Wrongfully transferred or surrendered possession of, either temporarily or permanently, an individual’s license;
(6)
Paid, gave, caused to be paid or given, or offered to pay or be given to any person a commission or other valuable consideration for the solicitation or procurement, either directly or indirectly, of nursing home or assisted living program patronage;
(7)
Used fraudulent, misleading, or deceptive advertising;
(8)
Falsely impersonated another licensee;
(9)
Endangered or sanctioned the endangerment of the safety, health, or life of any resident of a nursing home or assisted living program;
(10)
Violated a resident’s rights or allowed a resident’s rights to be violated;
(11)
Failed to oversee and facilitate the nursing home’s or assisted living program’s quality improvement processes to the extent that the safety, health, or life of any resident has been endangered;
(12)
Willfully permitted the unauthorized disclosure of information relating to a resident or the resident’s records;
(13)
Discriminated against residents, employees, or staff on account of race, religion, national origin, sexual orientation, or disability;
(14)
Violated the Code of Ethics set forth under COMAR 10.33.06;
(15)
Engaged in sexual behavior that would be considered unethical or unprofessional according to professional standards of conduct, including, but not limited to:
(a)
Sexual behavior with a resident or patient in the context of a professional evaluation, treatment, procedure, or service to the resident or patient, regardless of the setting in which the professional service is rendered;
(b)
Sexual behavior with a resident or patient under the pretext of diagnostic or therapeutic intent or benefit;
(c)
Solicitation of a sexual relationship, whether consensual or nonconsensual, with a resident or patient;
(d)
Sexual advances requesting sexual favors;
(e)
Therapeutically inappropriate or intentional touching of a sexual nature;
(f)
A verbal comment of a sexual nature;
(g)
Physical contact of a sexual nature with a resident or patient;
(h)
Discussion of unnecessary sexual matters with a resident or patient;
(i)
Direct or indirect observation of a resident or patient while the resident or patient is undressing or dressing;
(j)
Taking photographs or video of a resident or patient for a sexual purpose;
(k)
Sexual harassment of staff, students, or volunteers;
(l)
An unnecessary sensual act or comment;
(m)
Sexual contact with an incompetent or unconscious client, patient, or resident; or
(n)
Offering to provide services or material in exchange for sexual favors;
(16)
Practiced as a nursing home administrator or assistant living manager in the State without a license from the Board or without proper authorization to practice as a nursing home administrator or assistant living manager;
(17)
Falsified continuing education records; or
(18)
Failed to cooperate with an investigation, proceedings, or other requirements of the Board.
B.
The Board may, after due notice and an opportunity to be heard, suspend or revoke an AIT’s participation in a Board-approved AIT program, upon substantial evidence that the AIT has committed any of the actions listed in §A of this regulation.
C.
A licensee shall notify the Board in writing within 30 days if the licensee has been sanctioned by a licensing authority of another state for the practice as a nursing home administrator or assistant living manager.
D.
On finding that there has been a violation of Health Occupations Article, Title 9, Annotated Code of Maryland, or this subtitle, and in accordance with the applicable notice and due process procedures, the Board may order that the:
(1)
Licensee be fined;
(2)
Licensee be reprimanded;
(3)
Licensee be placed on probation with appropriate terms and conditions;
(4)
Licensee’s license be suspended, with or without terms and conditions; or
(5)
Licensee’s license be revoked.
E.
The Board may order any of the sanctions listed in §A of this regulation in combination or individually as appropriate for the violations committed by the licensee.
Regulation .07 Sanctioning Guidelines.LinkCopy Citation
A.
If the Board concludes that a licensee has violated a ground for discipline under Health Occupations Article, §§9-314(b) or 9-3A-12(b), Annotated Code of Maryland, or under this chapter, the Board shall:
(1)
Determine the applicable sanction range according to the guidelines set forth in Regulation .08 of this chapter;
(2)
Consider the applicable aggravating and mitigating factors set forth in §J of this regulation to determine whether the sanction should fall outside the indicated range of sanctions; and
(3)
After considering any applicable aggravating and mitigating factors, impose the appropriate sanction.
B.
The Board is not required to make findings of fact with respect to any of the factors for determining the sanction indicated by the sanctioning guidelines.
C.
In the event that a licensee’s violation of the Board’s statutes or regulation does not fall within a sanction range, the Board shall so indicate and use its best judgment to determine the appropriate sanction and consider, to the extent possible, the factors in the sanctioning guidelines.
D.
If the Board deviates from the sanctioning guidelines, the Board shall state its reasons for the deviation.
E.
A departure from the sanctioning guidelines is not an independent ground for an appeal or challenge of a Board action.
F.
Notwithstanding this regulation, in order to resolve a disciplinary proceeding, the Board and the licensee may agree to a surrender of license or a Consent Order with terms and sanction agreed to by the Board and the licensee.
G.
In a case where there are multiple and distinct violations, the Board may impose a sanction greater than the maximum indicated by the sanctioning guidelines for each individual violation.
H.
If probation or suspension is imposed, the Board may impose appropriate terms and conditions for the probation or suspension. If a licensee violates the terms or conditions of the probation or suspension, the Board may take further disciplinary action against the licensee, as provided in the Board order.
I.
Pursuant to Health Occupations Article, §§9-314.1 and 9-3A-13, Annotated Code of Maryland, if a civil fine is imposed, the fine may not exceed $1,000 for a first violation or $5,000 for any subsequent violation of the same provision.
J.
Aggravating and Mitigating Factors.
(1)
Mitigating Factors. In determining whether the sanction falls outside the indicated range of sanctions guidelines listed in Regulation .08 of this chapter, the Board may consider the following mitigating factors:
(a)
Absence of a prior disciplinary record;
(b)
That the licensee reported the violation to the Board;
(c)
That the licensee:
(i)
Voluntarily admitted violation;
(ii)
Provided full disclosure to the Board; and
(iii)
Cooperated during Board proceedings;
(d)
That the licensee implemented remedial measures to correct or mitigate harm arising from the violation;
(e)
That the licensee made a timely good-faith effort to make restitution or otherwise rectify the consequences of the violation;
(f)
Evidence of the licensee’s rehabilitation or potential for rehabilitation;
(g)
Absence of premeditation to commit the violation;
(h)
Absence of potential harm to or adverse impact on the public;
(i)
That the incident was isolated and is not likely to recur; or
(j)
If the licensee has worked at the nursing home or assisted living program for a limited period, and the violation was present before beginning work at the facility or program.
(2)
Aggravating Factors. In determining whether the sanction of the licensee falls outside the indicated range of sanctions guidelines listed in Regulation .08 of this chapter, the Board may consider the following aggravating factors:
(a)
The licensee’s previous criminal or administrative disciplinary history;
(b)
If the violation was committed deliberately or with gross negligence or recklessness;
(c)
If the violation had the potential for, or caused, serious resident harm;
(d)
If the violation was part of a pattern of detrimental conduct;
(e)
If the licensee pursued the licensee’s financial gain over a resident’s welfare;
(f)
That the resident was especially vulnerable;
(g)
That the licensee attempted to:
(i)
Conceal the violation;
(ii)
Falsify or destroy evidence; or
(iii)
Present false testimony or evidence;
(h)
That the licensee failed to cooperate with the Board’s investigation; or
(i)
That the licensee’s previous attempts at rehabilitation were unsuccessful.
Regulation .08 Guidelines for Disciplinary Sanctions.LinkCopy Citation
A.
Patient Safety.
B.
Fraud, Deceit, or Misrepresentation.
C.
General Misconduct.
D.
Records Violation Without Fraudulent or Deceitful Intent.
E.
Administrator-In-Training Violations by Nursing Home Administrator.
Regulation .09 Surrender of License.LinkCopy Citation
A.
This regulation pertains to the surrender of a license when:
(1)
A licensee is under investigation by the Board; or
(2)
Charges have been issued by the Board against a licensee.
B.
The surrender of a licensee’s license may be rejected by the Board.
C.
Letter of Surrender.
(1)
The language of the Letter of Surrender is subject to the approval of the Board.
(2)
If the Letter of Surrender is approved by the Board, it shall be signed by the respondent and the Board’s Executive Director.
(3)
The Letter of Surrender may include, but is not limited to:
(a)
The circumstances that resulted in the surrender;
(b)
The time period before the respondent may apply for reinstatement if the surrender is not permanent; and
(c)
Conditions before the respondent may apply for reinstatement.
(4)
The Letter of Surrender is a final order that is the result of formal discipline, and a public document, under:
(a)
General Provisions Article, §4-333, Annotated Code of Maryland; and
(b)
Health Occupations Article, §1-607, Annotated Code of Maryland.
Regulation .10 Summary Suspensions.LinkCopy Citation
A.
Pursuant to its authority under State Government Article, §10-226(c), Annotated Code of Maryland, the Board shall order the summary suspension of a license if the Board determines that the public health, safety, or welfare imperatively requires emergency action against the licensee.
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 notice of intent to summarily suspend a license.
(2)
If the Board votes to issue a notice of 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:
(a)
A proposed order of summary suspension which is unexecuted by the Board and includes:
(i)
The statutory authority on which the action has been taken;
(ii)
Allegations of fact that the Board believes demonstrate that the public health, safety, or welfare imperatively requires emergency action against the licensee; 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 to show cause as to why the Board should not execute the order of summary suspension, 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 no later than 5 days before a pre-deprivation show cause hearing is scheduled before the Board.
(b)
Service of the notice of intent to summarily suspend shall be made as provided under COMAR 10.33.07.04G and H that includes proof of delivery.
(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 to prosecute the case.
C.
Pre-Deprivation 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 as to why the respondent’s license should not be suspended before the Board executes the order of summary suspension.
(2)
Pre-Deprivation 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 at 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 rulings reasonably necessary to facilitate the effective and efficient operation of the hearing.
(d)
The respondent and the administrative prosecutor may not exceed 30 minutes each to present oral argument.
(e)
The respondent shall proceed first and may reserve part of the allotted time for rebuttal.
(f)
The presiding officer:
(i)
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, if the presiding Board member believes that the documents or exhibits are necessary for a fair hearing; and
(ii)
May not allow testimony by any witness unless agreed to by the parties and approved by the presiding Board member in advance of the hearing.
(g)
A Board member may be recognized by the presiding member to ask questions of either party appearing before the Board.
D.
Post-Deprivation Opportunity to be Heard.
(1)
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 a license or providing a respondent with an opportunity for a pre-deprivation hearing if the Board determines that:
(a)
The public health, safety, or welfare imperatively requires the immediate suspension of the license; and
(b)
Prior notice and an opportunity to be heard are not feasible.
(2)
Time — Service and Hearing.
(a)
An order of summary suspension under §D(1) of this regulation shall be served on the respondent promptly after its execution as provided by COMAR 10.33.07.04G and H that includes proof of delivery.
(b)
The respondent shall be provided an opportunity for a post-deprivation hearing before the Board within 15 days after the effective date of the summary suspension, which shall provide the respondent with an opportunity to show cause as to why the Board should lift the summary suspension and reinstate the license.
(3)
If the respondent requests a hearing under §B(3)(a)(iii) of this regulation, that hearing shall:
(a)
Be conducted before the Board; and
(b)
Provide the respondent with an opportunity to show cause as to why the Board should lift the summary suspension and reinstate the license.
E.
Burdens of Production and Persuasion.
(1)
In a show cause proceeding under §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 does not imperatively require the immediate suspension of a license.
(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; or
(c)
Issue an order agreed to by the parties.
(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)
Terminate or rescind the order for summary suspension; or
(c)
Issue an order agreed to by the parties.
(3)
An order for summary suspension or other order issued by the Board after the initiation of summary suspension proceedings are final orders of the Board and public records under General Provisions Article, §4-333, Annotated Code of Maryland.
G.
Post-Deprivation Opportunity for an Evidentiary Hearing.
(1)
If the Board orders the summary suspension of a license under §§C or D of this regulation, the respondent shall have an opportunity for an evidentiary hearing before the Board, or, if the Board delegates the matter to the Office of Administrative Hearings, before an administrative law judge.
(2)
The respondent may request an evidentiary hearing within 10 days after the Board issues the order of summary suspension.
(3)
An evidentiary hearing may be consolidated with a hearing on charges issued by the Board that include the facts which form the basis for the summary suspension.
(4)
An evidentiary hearing shall be conducted under the contested case provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.
(5)
If the Board delegates the matter to the Office of Administrative Hearings, unless otherwise specified by the Board, the administrative law judge shall issue a proposed decision to the Board with:
(a)
Proposed findings of fact;
(b)
Proposed conclusions of law; and
(c)
A proposed disposition.
(6)
If the hearing is one combined with charges, and the Board delegates the matter to the Office of Administrative Hearings, the administrative law judge’s determination of the merits of the summary suspension shall be based only on the parts of the record available to the Board when the Board voted for summary suspension.
(7)
The parties may file exceptions to the proposed decision, as provided in State Government Article, §10-216, Annotated Code of Maryland.
(8)
An order issued by the Board after a pre-deprivation or post-deprivation hearing is a public record under:
(a)
Health Occupations Article, §1-607, Annotated Code of Maryland; and
(b)
General Provisions Article, §4-333, Annotated Code of Maryland.
Regulation .11 Cease and Desist Orders.LinkCopy Citation
A.
The Board may issue a cease and desist order to an unlicensed individual practicing nursing home administration or assisted living management without a license or authorization from the Board.
B.
The cease and desist order shall be served upon the respondent as provided by COMAR 10.33.07.04G and H that includes proof of delivery.
C.
The respondent is entitled to a prompt opportunity to be heard by the Board to contest the cease and desist order. This opportunity to be heard shall be conducted by argument and record evidence, without witness testimony.
D.
If the Board upholds the cease and desist order under §C of this regulation, if requested, the respondent shall be entitled to an evidentiary hearing pursuant to the procedures under Regulation .05 of this chapter.
Regulation .12 Show Cause Hearings.LinkCopy Citation
A.
The Board may conduct a show cause hearing to determine whether a respondent violated an order of the Board.
B.
An order of the Board includes, but is not limited to:
(1)
Final decisions and orders;
(2)
Consent orders; or
(3)
Any order imposing probation, suspension, or another term or condition that the respondent is required to comply with.
C.
Failure to comply with any term or condition of an order of the Board is a violation of the order of the Board.
D.
Service of the show cause order shall be as provided by COMAR 10.33.07.04G and H.
E.
If the Board determines there is no genuine dispute of material facts that cannot be resolved at the show cause hearing, the show cause hearing may be conducted by argument by the parties and records offered for consideration by the Board.
F.
The Board, in its discretion, may allow for an evidentiary hearing if it determines there is a genuine dispute of material fact that cannot be resolved at the show cause hearing.
Regulation .13 Petitions for Reinstatement Following License Revocation or Surrender.LinkCopy Citation
A.
In order for a revoked or surrendered license to be reinstated, the individual whose license was revoked or surrendered shall petition the Board for reinstatement.
B.
A surrendered license in this regulation means a surrender, approved by the Board, while the individual was licensed and under investigation or charges had been issued by the Board.
C.
An individual who petitions the Board for reinstatement following the revocation or surrender of the individual’s license may petition for reinstatement only pursuant to the terms of the Board’s order revoking the license or the Letter of Surrender. The Board may set conditions precedent and a time period for petitioning for reinstatement or may permanently revoke or require permanent surrender.
D.
If the Board’s order revoking the license or the Letter of Surrender does not contain a time period for petitioning for reinstatement, the individual may petition for reinstatement after 3 years from revocation.
E.
A petitioner for reinstatement shall comply with all reasonable requests for information by the Board.
F.
The decision of the Board on whether to grant or deny the petition for reinstatement is a discretionary decision by the Board.
G.
If the Board denies a petition for reinstatement, the Board may set conditions precedent and a time period for further petitions for reinstatement.
H.
If the Board grants reinstatement, the Board may impose probationary conditions and restrictions along with the reinstatement.
Chapter annotations
Authority: Health-General Article, §§2-104 and 19-1809; Health Occupations Article, §§1-212, 1-602—1-609, 9-205, 9-313—9-316.1, 9-3A-11—9-3A-17, and
9-401—9-407; State Government Article, §§10-201—10-226; Annotated Code of Maryland
9-401—9-407; State Government Article, §§10-201—10-226; Annotated Code of Maryland
History: Effective date: January 19, 2026 (53:1 Md. R 22)