# COMAR Title 10 — Maryland Department of Health

## Subtitle 46 — Board of Occupational Therapy Practice

### Chapter 07 — Sanctioning Guidelines

**Authority:** Health Occupations Article, §§1-606 and 10-315, Annotated Code of Maryland

**Administrative History:** Effective date: April 16, 2012 (39:7 Md. R. 494)

**Administrative History:** Chapter revised effective October 23, 2017 (44:21 Md. R. 984)

#### Regulation .01 Scope.

*COMAR 10.46.07.01*

A. This chapter shall be used by the Board and the Maryland Office of Administrative Hearings as a framework for imposing discipline.

B. The Board and the Maryland Office of Administrative Hearings shall take into consideration a range of activity within certain types of conduct rather than assigning particular sanctions to each specific violation.

C. The Board is aware that there may be conduct by a licensee that does not fall squarely within a particular grid contained in Regulation .06 of this chapter. In that event the Board will use its best judgment to determine the appropriate sanction.

D. The Board and the Maryland Office of Administrative Hearings shall make determinations that maximize the protection of the public’s health while maintaining the rights of licensees.

#### Regulation .02 Definitions.

*COMAR 10.46.07.02*

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

B. Terms Defined.

  (1) “Board” means the Maryland State Board of Occupational Therapy Practice.

  (2) “Conditions” means requirements in a public or non-public order that a licensee is required to satisfy which include but are not limited to:

    (a) Treatment and counseling for an emotional or physical illness;

    (b) Submission to drug and alcohol testing;

    (c) Abstinence from specified drugs;

    (d) Abstinence from alcohol;

    (e) Remedial training;

    (f) Inspection;

    (g) Monitoring;

    (h) Evaluation;

    (i) Supervision;

    (j) Testing of clinical skills;

    (k) Submission of written reports;

    (l) A demonstration of knowledge or competency;

    (m) Limitation of practice;

    (n) Limitation on the administration of specified drugs to patients;

    (o) The provision of pro bono occupational therapy to the poor, elderly, or disabled;

    (p) Obeyance of Maryland Occupational Therapy Practice Act, federal, state, and local laws; and

    (q) The payment of a civil penalty.

  (3) “Conduct” means behavior or action or a failure to behave or act that results in a violation of the Maryland Occupational Therapy Practice Act or the regulations adopted by the Board.

#### Regulation .03 Application.

*COMAR 10.46.07.03*

A. This chapter shall be used by the Board as a guide for sanctioning licensees in formal and informal actions and proceedings.

B. Except as provided in Regulation .05 of this chapter, the Board shall impose a sanction not less severe than the minimum listed in Regulation .06 of this chapter, nor more severe than the maximum listed in Regulation .06 of this chapter.

C. When conduct results in multiple violations of the Maryland Occupational Therapy Practice Act and the regulations adopted by the Board, the Board shall consider sanctions that are greater than those imposed for a single violation.

D. This chapter is not applicable to disciplinary matters reviewed by the Board that are initially closed.

E. Unless otherwise indicated, the period of a suspension may be stayed in whole or in part.

F. A respondent placed on suspension or probation shall have conditions attached to the suspension or probation which focus on the conduct and steps needed to assure public protection.

G. Consent orders shall:

  (1) Include an acknowledgement of the violation or violations; and

  (2) Indicate that the respondent accepts personal responsibility for the respondent's behavior.

H. If the conduct is not described in Regulation .06 of this chapter, the Board shall use its judgment to determine appropriate sanctions.

I. A departure from the sanctioning guidelines alone may not be grounds for any hearing or appeal of any Board action before the Board or the Maryland Office of Administrative Hearings.

J. The sanctioning guidelines are not applicable to:

  (1) Individuals seeking an initial license; or

  (2) The summary suspension of a license under State Government Article, §10-226, Annotated Code of Maryland.

K. Notwithstanding the sanctioning guidelines, a respondent may surrender a license.

#### Regulation .04 Aggravating and Mitigating Factors.

*COMAR 10.46.07.04*

A. Sanctions in a particular case may fall outside the range of the sanctioning guidelines established by the Board.

B. Depending on the facts and circumstances of each case, and to the extent that the facts and circumstances 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 the sanctioning guidelines:

  (1) Aggravating factors:

    (a) Previous criminal or administrative discipline history;

    (b) Whether the offense was committed deliberately or with gross negligence or recklessness;

    (c) Whether the offense has the potential for, or caused, serious patient harm;

    (d) Whether the offense was part of a pattern of detrimental conduct;

    (e) Whether the respondent pursued the respondent's financial gain over the patient’s welfare;

    (f) Whether the patient was especially vulnerable;

    (g) Whether the respondent attempted to hide error or misconduct from patients or others;

    (h) Whether the respondent:

      (i) Concealed, falsified, or destroyed evidence; or

      (ii) Presented false testimony or evidence;

    (i) Whether the respondent willfully and without legal justification failed to cooperate with a lawful investigation conducted by the Board; and

    (j) Whether previous attempts to rehabilitate the respondent were unsuccessful; and

  (2) Mitigating factors:

    (a) Absence of a prior disciplinary record;

    (b) The passage of time since any prior offenses;

    (c) Whether the respondent self-reported to the Board;

    (d) Cooperation with the Board’s investigation;

    (e) Full disclosure to the Board;

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

    (g) Timely good-faith efforts to make restitution or to rectify consequences of misconduct;

    (h) Evidence of rehabilitation or rehabilitative potential;

    (i) Absence of premeditation to commit the offense;

    (j) Absence of potential harm to the public;

    (k) Absence of adverse impact;

    (l) Whether the offense was an isolated incident and not likely to recur;

    (m) How and when the respondent has been involved in community service and the value of the community service to the community; and

    (n) Voluntary admissions of misconduct.

#### Regulation .05 Disciplinary Guidelines.

*COMAR 10.46.07.05*

The following guidelines shall be used by the Board as a guide for sanctioning licensees in formal and informal actions and proceedings:

A. Abuse — Physical and Emotional.

B. Criminal Convictions or Plea of Nolo Contendere.

C. Disciplined by Another Licensing or Disciplinary Authority.

D. Diversion of Controlled Substances or Prescription Drugs.

E. Failure to Renew a License When the Licensee Has Continued to Practice.

F. Noncompliance with Board Orders.

G. Incompetent Practice or Misconduct.

H. Sexual Misconduct.

I. Substance Abuse.

J. Unauthorized Practice.

K. Unethical Conduct.