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BOCE : sanction

Update: March 26th, 2012

"The DHMH revisions to COMAR 10.43.16 were approved and submitted for final publication in the 4/6/12 Maryland Register with an effective implementation date of 4/16/2012. As previously announced on this website, these mandatory disciplinary sanctioning guidelines were required of every Board to promote better consistency, fairness, and administrative structure in issuing license/registration disciplinary sanctions. You may view the draft regulations by clicking on the Proposed Sanctioning Guidelines header below on this page. No substantive changes were made to the draft. Only one (1) public comment was submitted regarding a clarification. The public may view the final, published version at the online Maryland Register to be posted on 4/6/12. If any questions, please contact Ms. Adrienne Congo, Board Regulations Project Mgr. at 410-764-2965."

 

PROPOSED : Maryland Register
Issue Date: January 27, 2012
Volume 39 • Issue 2 • Page 195-200

Subtitle 43 BOARD OF CHIROPRACTIC AND MASSAGE THERAPY EXAMINERS

10.43.16 Sanctioning Guidelines
Authority: Health Occupations Article, §§1-606, 3-313, and 3-315, Annotated Code of Maryland
Notice of Proposed Action
[12-034-P]
The Secretary of Health and Mental Hygiene proposes to adopt new Regulations .01―.06 under a new chapter, COMAR 10.43.16 Sanctioning Guidelines. This action was considered by the Board of Chiropractic and Massage Therapy Examiners at a public meeting on December 8, 2011, notice of which was given by publication in 38:24 Md. R. 1552 (November 18, 2011), pursuant to State Government Article, §10-506(c)(1), Annotated Code of Maryland.
Statement of Purpose
The purpose of this action is to establish guidelines for the Board’s use when disciplining a licensee of the Board for a violation of the Maryland Chiropractic Act or COMAR 10.43.
Comparison to Federal Standards
There is no corresponding federal standard to this proposed action.
Estimate of Economic Impact
The proposed action has no economic impact.
Economic Impact on Small Businesses
The proposed action has minimal or no economic impact on small businesses.
Impact on Individuals with Disabilities
The proposed action has no impact on individuals with disabilities.
Opportunity for Public Comment
Comments may be sent to Michele A. Phinney, Director, Office of Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 West Preston Street, Room 512, Baltimore, MD 21201, or call 410-767-6499 (TTY 800-735-2258), or email to regs@dhmh.state.md.us, or fax to 410-767-6483. Comments will be accepted through February 27, 2012. A public hearing has not been scheduled.
 
 
.01 Scope.
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 shall complete a worksheet for each complaint considered by the Board that is not initially closed.
D. The Board is aware that there may be conduct by a licensee that does not fall squarely within a particular guideline contained in Regulation .06 of this chapter. In that event the Board will so indicate on the worksheet and use its best judgment to determine the appropriate sanction.
E. 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.
 
.02 Definitions.
A. In this chapter, the following terms have the meanings indicated.
B. Terms Defined.
(1) “Board” means the Maryland State Board of Chiropractic and Massage Therapy Practice.
(2) “Conditions” means requirements in a public or nonpublic 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 chiropractic and massage therapy to the poor, elderly, or disabled;
(p) Obeyance of Maryland Chiropractic and Massage 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 Chiropractic and Massage Therapy Practice Act or the regulations adopted by the Board.
 
.03 Application.
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 Chiropractic and Massage 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 does not apply 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 and shall so state in the sanctions worksheet.
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.
 
.04 Worksheet.
A. The Board shall complete a sanctions worksheet after considering each disciplinary matter.
B. The sanctions worksheet shall, at a minimum:
(1) Briefly summarize the conduct that constituted the violation or violations meriting action;
(2) Identify the severity of the conduct;
(3) Describe other factors that the Board considered in determining the recommended sanctions imposed including but not limited to:
(a) Aggravating factors as outlined in Regulation .05 of this chapter;
(b) Mitigating factors as outlined in Regulation .05 of this chapter; and
(c) Prior disciplinary history; and
(4) Identify the recommended sanctions.
C. The Board’s summary of the conduct that constituted the violation or violations need not:
(1) Be exhaustive; or
(2) Include every violation meriting action by the Board.
D. The existence of one or more aggravating or mitigating factors contained in Regulation .05 of this chapter does not impose on the Board any requirement to make findings of fact or to articulate its reasoning for not exercising its discretion to impose a sanction outside the range of sanctions.
E. A copy of the sanctions worksheet may be obtained by the respondent or the respondent’s legal representative.
 
.05 Aggravating and Mitigating Factors.
A. Sanctions in a particular case may fall outside the range of the sanctioning guidelines established by the Board.
B. If the sanctions imposed by the Board fall outside the range of the sanctioning guidelines the Board shall state its reasons on its worksheet.
C. 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.
___________________________
 
.06 Disciplinary Guidelines.
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.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
 
Maximum
 
 
Least
 
 
 
to
 
 
 
Greatest
(1) Unnecessary or disruptive behavior which may include verbal comments, directed to a patient, resulting in minimal harm or a risk of harm
Reprimand
Suspension for up to 5 years, and probation for up to 5 years, and conditions
Reprimand to suspension and probation for up to 5 years
 
(2) Physical abuse resulting in significant physical or emotional injury
Suspension for 3 years, without stay for at least 30 days and probation for 3 years, and conditions
Revocation
Suspension for 3 years, without stay for at least 30 days, and probation for 3 years to revocation
 
 
B. Criminal Convictions or Plea of Nolo Contendere.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
Maximum
 
 
Least
 
 
to
 
 
 
Greatest
(1) Convicted of or pleads guilty or nolo contendere to a felony or to a crime involving moral turpitude
Suspension for 1 year and probation for 1 year, and conditions
Revocation
Suspension for 1 year and probation for 1 year, to revocation
 
(2) Convicted of or pleads guilty or nolo contendere to a sexual offense
Suspension for 5 years, without stay for at least 60 days, and probation for 5 years, and conditions
Revocation
Suspension for 5 years, without stay for at least 60 days, and probation for 5 years, to revocation
 
 
C. Disciplined by Another Licensing or Disciplinary Authority.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
 
Maximum
 
 
Least
 
 
 
 
 
 
to
 
 
 
 
 
 
 
Greatest
(1) Conduct resulting in no physical or psychological harm
Reprimand
Reprimand and probation for up to 3 years, and conditions
Reprimand to reprimand and probation for up to 3 years
 
(2) Conduct resulting in financial injury
Reprimand
Revocation
Reprimand to revocation
 
(3) Conduct resulting in physical or psychological harm or a risk of physical or psychological harm
Suspension for 3 years, without stay for at least 10 days, and probation for 3 years, and conditions
Revocation
Suspension for 3 years, at least 10 days without stay, and probation for 3 years to revocation
 
(4) Misrepresentation or fraud
Suspension for 2 years, without stay for at least 5 days, and probation for 2 years, and conditions
Revocation
Suspension for 2 years, without stay for at least 5 days, and probation for 2 years to revocation
 
(5) Conduct not provided for in §C(1)—(4) of this regulation
Reprimand
Revocation
Reprimand to revocation
 
 
D. Diversion of Controlled Substances or Prescription Drugs.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
 
Maximum
 
 
Least
 
 
 
 
 
to
 
 
 
 
 
 
 
Greatest
(1) Diversion without harm to self or others
Reprimand and conditions, and probation for 1 year
Suspension for up to 5 years, and probation for up to 5 years, and conditions
Reprimand and probation for 1 year to suspension for up to 5 years and probation for up to 5 years
 
(2) Diversion creating risk of harm
Suspension for 3 years and probation for 3 years, and conditions
Suspension for up to 5 years and probation for up to 5 years, and conditions
Suspension for 3 years and probation for 3 years to suspension for up to 5 years and probation for up to 5 years
 
(3) Diversion with harm
Suspension for 5 years, without stay for at least 90 days, and probation for 5 years, and conditions
Revocation
Suspension for 5 years, without stay for at least 90 days, and probation for 5 years, to revocation
 
 
E. Failure to Renew a License When the Licensee Has Continued to Practice.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
 
Maximum
 
 
Least
 
to
 
 
Greatest
(1) Failure to renew a license and practicing for up to 1 year
Reprimand
Revocation
Reprimand to suspension for 2 years, and probation for 2 years
 
(2) Failure to renew a license and practicing for 1 year or longer
Suspension for 2 years, and probation for 2 years, and conditions
Revocation
Suspension for 2 years, and probation for 2 years, to revocation
 
 
F. Noncompliance with Board Orders.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
 
Maximum
 
 
Least
 
 
 
 
 
to
 
 
 
 
 
 
Greatest
(1) Failure to comply with a Board order
Suspension for 3 years, without stay for at least 10 days, and probation for 3 years, and conditions
Revocation
Suspension for 3 years, without stay for at least 10 days, probation for 3 years, to revocation
 
(2) Failure to comply with a Board order with additional unprofessional conduct
Suspension for 3 years, without stay for at least 30 days, and probation for 3 years, and conditions
Revocation
Suspension for 3 years, without stay for at least 30 days, and probation for 3 years, to revocation
 
(3) Failure to comply with a Board order with serious physical injury or death of a patient, or the risk of significant physical injury or death
Suspension for 5 years, without stay for at least 1 year, and probation for 5 years, and conditions
Revocation
Suspension for 5 years, without stay for at least 1 year, and probation for 5 years, to revocation
 
 
G. Incompetent Practice Or Misconduct.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
 
Maximum
 
 
Least
 
 
 
 
to
 
 
 
 
 
Greatest
(1) Practice below acceptable standards with a low risk of patient harm
Reprimand and conditions
Suspension for 1 year, and probation for 1 year, and conditions
Reprimand to suspension for 1 year, and probation for 1 year
 
(2) Practice below acceptable standards with patient harm or risk of patient harm
Suspension for 3 years, without stay for at least 30 days, and probation, and conditions
Revocation
Suspension for 3 years, without stay for at least 30 days, and probation, to revocation
 
(3) Practice below acceptable standards with serious physical injury or death of a patient, or a risk of significant physical injury or death
Suspension for 3 years, without stay for at least 90 days, and probation for 3 years, and conditions
 Revocation
Suspension for 3 years, without stay for at least 90 days, and probation for 3 years, to revocation
 
 
H. Sexual Misconduct.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
Maximum
 
 
Least
 
 
 
 
 
 
 
 
 
to
 
 
 
 
 
 
 
 
 
Greatest
(1) Unsolicited conduct of a sexual nature excluding physical contact that serves no diagnostic or treatment purpose
Reprimand and conditions
Revocation
Reprimand to Suspension for 1 year, and probation for 1 year
 
(2) A personal relationship that violates professional ethics
Suspension for 1 year, and probation for 1 year, and conditions
Suspension for up to 5 years, probation for up to 5 years, and conditions
Suspension for 1 year, and probation for 1 year, to suspension for up to 5 years, and probation for up to 5 years
 
(3) Physical contact of a sexual nature that does not include force, intimidation, the use of drugs, or alcohol, and that serves no diagnostic or treatment purpose
Suspension for 2 years, without stay for at least 90 days, and probation for 2 years, and conditions
Revocation
Suspension for 2 years, without stay for at least 90 days, and probation for 2 years, to suspension for up to 7 years, without stay for at least 90 days, and probation for up to 7 years
 
(4) Sexual conduct involving, but not limited to, force intimidation, the use of drugs, or alcohol, or multiple victims
Suspension for 5 years, without stay for at least 1 year, and probation for 5 years, and conditions
Revocation
Suspension for 5 years, without stay for at least 1 year, and probation for 5 years to revocation
 
 
I. Substance Abuse.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
 
Maximum
 
 
Least
 
 
 
to
 
 
 
Greatest
(1) Misuse of drugs or alcohol without harm to others
Suspension for 2 years and probation for 2 years, and conditions
Suspension for up to 5 years, and probation for up to 5 years, and conditions
Suspension for 2 years and probation for 2 years, to suspension for up to 5 years and probation for up to 5 years
 
(2) Misuse of drugs or alcohol with patient harm or a risk of patient harm
Suspension for 5 years, without stay for at least 90 days, probation for 5 years, and conditions
Revocation
Suspension for 5 years, without stay for at least 90 days, and probation for 5 years to revocation
 
 
J. Unauthorized Practice.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
 
Maximum
 
 
Least
 
 
 
 
 
 
 
to
 
 
 
 
 
 
 
 
Greatest
(1) Licensee knowingly allows an unauthorized individual to practice outside their scope of practice without patient harm or minimal patient harm
Reprimand and conditions
Suspension for 2 years, and probation for 2 years, and, conditions
Reprimand to suspension for 2 years, and probation for 2 years
 
(2) Licensee knowingly allows an unauthorized individual to practice outside their scope of practice with greater than minimal patient harm
Suspension for 5 years, without stay for at least 30 days, and probation for 5 years, and conditions
Revocation
Suspension for 5 years, without stay for at least 30 days, and probation for 5 years to revocation
 
(3) An unauthorized individual practices outside their scope of practice without patient harm or minimal patient harm
Reprimand
Suspension for 2 years, and probation for 2 years, and, conditions
Reprimand to suspension for 2 years, and probation for 2 years
 
(4) An unauthorized individual practices outside their scope of practice with greater than minimal patient harm
Suspension for 5 years, without stay for at least 30 days, and probation, and conditions
Revocation
Suspension for 5 years, without stay for at least 30 days, and probation, to revocation
 
 
K. Unethical Conduct.
 
Severity
Tier/Conduct
Sanction Range
Duration
 
Minimum
Maximum
 
 
Least
 
 
 
 
 
 
 
 
 
 
 
 
To
 
 
 
 
 
 
 
 
 
 
 
 
Greatest
(1) Unethical Conduct resulting in no physical or psychological harm
Reprimand and conditions
Suspension for up to 2 years, and probation for up to 2 years, and conditions
Reprimand to suspension for up to 2 years, and probation for up to 2 years
 
(2) Unethical conduct resulting in financial injury
 Suspension for 3 years, and probation for 3 years, and conditions
Revocation
Suspension for 3 years, and probation for 3 years, to revocation
 
(3) Unethical conduct resulting in physical or psychological harm or a risk of physical or psychological harm
Suspension for 3 years, and probation for 3 years, and conditions
Revocation
Suspension for 3 years, and probation for 3 years, to revocation
 
(4) Unethically, and without legal justification, fails to cooperate with a lawful investigation conducted by the Board
Suspension for 5 years, without stay for at least 30 days, and probation, for 5 years, and conditions
Revocation
Suspension for 5 years, without stay for at least 30 days, and probation for 5 years, to revocation
 
(5) Unethical conduct resulting from misrepresentation or fraud
Suspension for 5 years, and probation for 5 years, and conditions
Revocation
Suspension for 5 years, and probation for 5 years, to revocation
 
(6) Threatens, forces, intimidates, or influences a person to change or withhold evidence before the Board or the Office of Administrative Hearings.
Suspension for 5 years, without stay for at least 90 days, and probation for 5 years, and conditions
Revocation
Suspension for 5 years, without stay for at least 90 days, and probation for 5 years, to revocation
 
(7) Unethical Conduct resulting from any violation not provided for in §K(1)—(6) of this regulation
Reprimand
Revocation
Reprimand to revocation
 
 
 
 
JOSHUA M. SHARFSTEIN, M.D.
Secretary of Health and Mental Hygiene