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 10.28.04.06 - Proceedings under Health Occupations Article, Section11-313, Annotated Code of Maryland - Sanctions, Hearings, and Final Order
Universal Citation: MD Code Reg 10.28.04.06
Current through Register Vol. 51, No. 19, September 20, 2024
A. Surrender of License.
(1) The Board may require conditions for
surrender of a license, including, but not limited to:
(a) The admission of a violation of the
Maryland Optometry Act;
(b) The
admission of facts;
(c) A statement
of the circumstances under which the surrender was offered or
accepted;
(d) Restrictions on
future licensure;
(e) Conditions
for reinstatement of the license; or
(f) An agreement that the respondent may not
again apply for reinstatement of the license.
(2) A letter of surrender is a final order of
the Board and is a public record pursuant to State Government Article, §10-611, Annotated
Code of Maryland, unless the Board determines that disclosure of the surrender
is not in the public interest.
B. Hearings on Charges or Notice of Initial Denial.
(1) Hearings shall be conducted
pursuant to State Government Article, Title 10, Annotated Code of
Maryland.
(2) The Board may
delegate its authority to hear contested cases to the Office of Administrative
Hearings.
(3) Proceedings are not
open to the public and all records, including the recommended decision, shall
be treated as confidential and sealed.
(4) If a matter has been delegated to the
Office of Administrative Hearings, the administrative law judge presiding over
the proceedings shall issue to the Board a recommended decision containing:
(a) Proposed or final findings of
fact;
(b) Proposed or final
conclusions of law;
(c) A proposed
sanction; or
(d) Any combination of
§B(4)(a)-(c) of this regulation pursuant to the Board's
delegation.
C. Burden of Proof.
(1) A licensee against whom the Board has
issued a notice of initial denial has the burden to demonstrate by a
preponderance of the evidence that the licensee is entitled to licensure or to
receive the benefit sought which the Board has initially denied.
(2) The Board has the burden to demonstrate
by a preponderance of the evidence that the licensee has committed a violation
or violations of the Maryland Optometry Act.
D. Exceptions and Exceptions Hearing.
(1) If a matter has been delegated by the
Board to the Office of Administrative Hearings, a party may file exceptions to
the administrative law judge's proposed findings of fact, proposed conclusions
of law, and proposed sanction, as set out in the recommended decision, before
the Board makes a final decision.
(2) Within 15 days after the issuance of the
recommended decision, or as otherwise specified by the administrative law judge
in the recommended 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. The exceptions shall state with particularity:
(a) The finding of fact, conclusion of law,
or other matter excepted to; and
(b) The relevant portions of the record
supporting the party's exception.
(4) Within 10 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. The answer shall state with particularity a response to
an exception and the relevant portions of the record supporting that
response.
(6) Unless otherwise
permitted, the Board may not consider a party's response to an answer to
exceptions.
(7) Unless otherwise
agreed by the parties and permitted by the Board, an exceptions hearing shall
be scheduled for the next meeting of the Board following receipt of the
parties' exceptions and any answer to exceptions.
(8) 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 over 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 any
rulings reasonably necessary to facilitate the effective and efficient progress
of the hearing.
(e) The party who
filed the exceptions shall proceed first and may reserve part of the allotted
time for rebuttal.
(9)
Unless otherwise agreed by the parties and permitted by the Board, the parties
may not, in any answer to exceptions, or in the hearing on exceptions,
reference any document or other evidence or offer any exhibit that is outside
the record of the evidentiary hearing before the administrative law
judge.
(10) If neither party files
exceptions within the time specified in §D(2) of this regulation, the
Board shall consider only the recommended decision of the administrative law
judge and the record of the evidentiary hearing in making its final
decision.
E. Board Final Decision and Order.
(1) After review of the
record and deliberation, the Board shall issue a final order consisting of
findings of fact, conclusions of law, and the sanction or disposition to be
imposed.
(2) Upon a finding that
there has been a violation of the Maryland Optometry Act, the Board may order
that the licensee be fined, reprimanded, or placed on probation, or that the
license be suspended or revoked.
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