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