Code of Maryland Regulations
Title 10 - MARYLAND DEPARTMENT OF HEALTH
Part 4
Subtitle 28 - BOARD OF EXAMINERS IN OPTOMETRY
Chapter 10.28.04 - Rules of Procedure for Board Hearings
Section 10.28.04.05 - Proceedings under Health Occupations Article, Section11-313, Annotated Code of Maryland
Universal Citation: MD Code Reg 10.28.04.05
Current through Register Vol. 51, No. 19, September 20, 2024
A. Investigation of Complaints.
(1) The Board
may:
(a) Make a preliminary review of each
complaint; and
(b) Recommend that
cases involving complaints over which the Board has no jurisdiction be
closed.
(2) The Board
may send a copy of the complaint, either in its entirety or redacted, to the
licensee who is the subject of the complaint to obtain a response to the
allegations made in the complaint.
(3) Board subpoenas may be issued by the
Board over the signature of the administrator.
B. Prosecution of Complaint.
(1) For each complaint, after reviewing any
completed investigative information or reports, the Board shall:
(a) Dismiss the complaint;
(b) Close the case with informal
action;
(c) Issue a cease and
desist order;
(d) Refer the matter
for further investigation;
(e)
Refer the matter to an administrative prosecutor; or
(f) Vote to:
(i) Charge a licensee with a violation of
Health Occupations Article, §11-313, Annotated
Code of Maryland;
(ii) Consider the
matter as a basis for summary suspension pursuant to State Government Article,
§10-226(c)(2),
Annotated Code of Maryland;
(iii)
Initially deny licensure or reinstatement of a license; or
(iv) Accept the surrender of a license
subject to conditions acceptable to the Board.
(2) The Board may refer a complaint or other
disciplinary matter to the administrative prosecutor at any time, whether or
not it has voted to charge a licensee with violations of the Maryland Optometry
Act.
C. Charges and Notice of Initial Denial.
(1) If the Board
issues charges or a notice of initial denial, the document shall be:
(a) Served upon the respondent by certified
mail at the address the respondent is required to maintain with the Board;
or
(b) Hand delivered in
person.
(2) Charges or a
notice of initial denial shall:
(a) Inform the
respondent of the statutory basis for the charges or denial of
licensure;
(b) Allege sufficient
facts which the Board believes constitute either a basis for:
(i) Violation of the Maryland Optometry Act;
or
(ii) Denial of
licensure;
(c) Notify
the respondent of any proceedings scheduled before the Board or of an
opportunity to request a hearing within a certain period of time and the
consequences of failing to appear for those proceedings or to request a
hearing; and
(d) Be accompanied by
a letter of procedure notifying respondent of the applicability of the
Administrative Procedure Act to the Board's proceedings.
(3) If the Board is unable to serve the
charges or notice of initial denial upon the respondent as described in
§C(1) of this regulation or attempt any other reasonable means to effect
service, the Board may nevertheless proceed in prosecuting the case.
(4) 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. 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, within 15 days, the following:
(a) A
list of the witnesses to be called;
(b) Copies of all documents intended to be
produced at the hearing; or
(c)
Both §D(1)(a) and (b) of this regulation.
(2) Mandatory Discovery.
(a) Each party shall provide to the other
party not later than 15 days before the prehearing conference, if scheduled, or
45 days before the scheduled hearing date, whichever is earlier:
(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's testimony, which includes the opinion offered and the factual
basis and reasons underlying the opinion.
(b) If the Board, or the Office of
Administrative Hearings, as appropriate, finds that the report is not
sufficiently specific, or otherwise fails to comply with the requirements of
this section, the Board or the Office of Administrative Hearings, as
appropriate, shall exclude from the hearing the testimony of the expert and any
report of the expert.
(c) The
Board, or the Office of Administrative Hearings, as appropriate, shall consider
and decide arguments regarding the sufficiency of the report:
(i) At the prehearing conference, if
scheduled; or
(ii) Immediately
before the scheduled hearing.
(d) If an expert adopts a sufficiently
specific charging document as the expert's report, that adoption satisfies the
requirements set forth in this section.
(3) Parties are not entitled to discovery of
items other than those listed in §D(1) and (2) of this
regulation.
(4) Both parties have a
continuing duty to supplement their disclosures of witnesses and
documents.
(5) Absent unforeseen
circumstances which would otherwise impose an extraordinary hardship on a
party, witnesses or documents may not be added to the list:
(a) After the prehearing conference, if
scheduled; or
(b) Later than 15
days before the hearing, if no prehearing conference is scheduled.
(6) The prohibition against adding
witnesses does not apply to witnesses or documents to be used for impeachment
or rebuttal purposes.
(7)
Construction.
(a) In hearings conducted by an
administrative law judge of the Office of Administrative Hearings, this
regulation shall be construed, whenever possible, as supplementing and in
harmony with COMAR 28.02.01.
(b) In
the event of a conflict between this regulation and COMAR 28.02.01, this
regulation applies.
E. Case Resolution Conference.
(1) After service of charges or notice of
initial denial, the Board shall offer a respondent the opportunity for a case
resolution conference.
(2) At any
other time during disciplinary proceedings, the Board may offer or the
respondent may request a case resolution conference to discuss a disciplinary
matter.
(3) The Board may deny a
respondent's request for a case resolution conference except as provided in
§E(1) of this regulation.
(4)
Matters admitted, revealed, negotiated, or otherwise discussed at a case
resolution conference are without prejudice and may not be used by the
respondent, administrative prosecutor, or the Board in any subsequent
proceedings, unless the information is otherwise discovered or available
through another source.
(5) The
Board is not bound by the recommendations of the case resolution conference
committee and may:
(a) Modify a proposed
settlement;
(b) Require additional
conditions; or
(c) Reject the
recommendation and require the respondent to proceed to a hearing.
(6) If the respondent and the
administrative prosecutor are unable to reach an agreement for settlement that
is recommended by the case resolution conference committee and ratified by the
Board, the matter shall proceed to a hearing on the charges or on a notice of
initial denial.
(7) If the
respondent disagrees with the recommendation of the case resolution conference
committee, the respondent may elect to proceed to a hearing in the matter,
regardless of whether or not the Board has ratified the recommendation of the
case resolution conference committee.
(8) Participation in a case resolution
conference is not ordinarily a basis for recusal of a Board member, Board
counsel, or Board prosecutor from further proceedings in a case.
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