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 10.28.04.07 - Summary Suspension of a License
Universal Citation: MD Code Reg 10.28.04.07
Current through Register Vol. 51, No. 19, September 20, 2024
A. Pursuant to its authority under State Government Article, §10-226(c)(2), Annotated Code of Maryland, the Board shall order the summary suspension of a license if the Board determines that there is a substantial likelihood that a licensee poses a risk of harm to the public health, safety, or welfare.
B. Notice of Intent to Summarily Suspend.
(1) Based on information
gathered in an investigation or otherwise provided to the Board, the Board may
vote to issue:
(a) A notice of an intent to
summarily suspend a license; or
(b)
An order of summary suspension.
(2) If the Board votes to issue a notice of
an intent to summarily suspend a license or an order of summary suspension, the
Board shall refer the matter to an administrative prosecutor for
prosecution.
(3) A notice of intent
to summarily suspend a license shall include, but is not limited to:
(a) A proposed order of summary suspension
which is unexecuted by the Board and which includes:
(i) The statutory authority on which the
action has been taken;
(ii)
Allegations of fact which the Board believes demonstrate a substantial
likelihood that the licensee poses a risk of harm to the public health, safety,
or welfare; and
(iii) Notice to the
respondent of the right to request a full hearing on the merits of the summary
suspension if the Board executes the proposed order of summary suspension;
and
(b) An order or
summons to appear before the Board:
(i) To
show cause why the Board should not execute the order of summary suspension;
and
(ii) Which notifies the
respondent of the consequences of failing to appear.
(4) Service.
(a) The Board shall serve a respondent with a
notice of intent to summarily suspend a license not later than 5 days before a
predeprivation show cause hearing is scheduled before the Board.
(b) Service of the notice of intent to
summarily suspend shall be made:
(i)
Personally upon the respondent;
(ii) By certified mail to the address the
respondent is required to maintain with the Board; or
(iii) By any other reasonable means to effect
service.
(c) If the
Board is unable to serve the notice of intent to summarily suspend a license
upon the respondent as described in §B(4)(a) and (b) of this regulation,
the Board may nevertheless proceed in prosecuting the case.
C. Predeprivation Opportunity to Be Heard.
(1) If the Board
issues a notice of intent to summarily suspend a license, the Board shall offer
the respondent the opportunity to appear before the Board to show cause why the
respondent's license should not be suspended before the Board executes the
order of summary suspension.
(2)
Predeprivation Show Cause Hearing Before the Board.
(a) The hearing shall be a non-evidentiary
hearing to provide the parties with an opportunity for oral argument on the
proposed summary suspension.
(b)
The Board member presiding over the hearing shall determine all procedural
issues and may impose reasonable time limits on each party's oral
argument.
(c) The presiding Board
member shall make any rulings reasonably necessary to facilitate the effective
and efficient operation of the hearing.
(d) The respondent and the administrative
prosecutor shall each be limited to 30 minutes in which to present oral
argument.
(e) The respondent shall
proceed first and may reserve part of the allotted time for rebuttal.
(3) The Board member who presides
over the hearing:
(a) May allow either the
respondent or the administrative prosecutor to present documents or exhibits
which are relevant and material to the proceedings and which are not unduly
repetitious when the presiding Board member believes that the documents or
exhibits are necessary in order for a fair hearing; and
(b) May not allow testimony by any witness
unless agreed to by the parties and approved by the Board in advance of the
hearing.
(4) The members
of the Board may be recognized by the presiding member to ask questions of
either party appearing before the Board.
D. Summary Suspension of a License Without Prior Notice or an Opportunity To Be Heard.
(1) In extraordinary circumstances, the Board
may, after consultation with Board counsel, order the summary suspension of a
license without first issuing a notice of intent to summarily suspend the
license or providing a respondent with an opportunity for a predeprivation
hearing if:
(a) The Board determines that the
public health, safety, and welfare requires the immediate suspension of the
license and that prior notice and an opportunity to be heard is not
feasible;
(b) The order of summary
suspension is served upon the respondent within 24 hours after its execution;
and
(c) The respondent is provided
with an opportunity for a hearing before the Board within 15 days after the
effective date of the summary suspension.
(2) If the respondent requests a hearing
pursuant to §D(1)(c) of this regulation, that hearing shall be conducted
before the Board as provided in §C(2) of this regulation and shall provide
the respondent with an opportunity to show cause why the Board should lift the
summary suspension and reinstate the license.
E. Burdens of Production and Persuasion.
(1) In a show cause proceeding pursuant to
§C of this regulation, the respondent may present argument in opposition
to the allegations presented in the order for summary suspension or which
otherwise demonstrate that the public health, safety, or welfare is not at
risk.
(2) The administrative
prosecutor bears the burden of demonstrating by a preponderance of the evidence
that the health, safety, or welfare of the public imperatively requires the
Board to summarily suspend the respondent's license.
F. Disposition.
(1) If the Board issues a notice of intent to
summarily suspend a license before summarily suspending a license, the Board
may, after the show cause hearing, vote to:
(a) Order a summary suspension;
(b) Deny the summary suspension;
(c) Enter into an order agreed upon by the
parties; or
(d) Enter into any
interim order warranted by the circumstances of the case, including one
providing for stay of the summary suspension subject to certain
conditions.
(2) If the
Board orders a summary suspension before a show cause hearing, the Board may,
at the conclusion of the hearing, vote to:
(a)
Affirm its order of summary suspension;
(b) Rescind the order for summary
suspension;
(c) Enter into an order
agreed upon by the parties; or
(d)
Enter into any interim order warranted by the circumstances of the case,
including one providing for a stay of the summary suspension subject to certain
conditions.
(3) An order
for summary suspension or any other order of the Board issued after the
initiation of summary suspension proceedings are final orders of the Board and
public records pursuant to State Government Article, §10-611, Annotated
Code of Maryland.
G. Post-Deprivation Opportunity for an Evidentiary Hearing.
(1) If the Board orders the summary
suspension of a license pursuant to §C or D of this regulation, the
respondent shall be provided with the opportunity for an evidentiary hearing
before the Board or before an administrative law judge, if the Board delegates
the matter to the Office of Administrative Hearings.
(2) The respondent may request an evidentiary
hearing within 10 days after the Board issues the order of summary
suspension.
(3) Unless otherwise
agreed by the parties, a hearing shall be provided within 45 days after the
respondent's request.
(4) An
evidentiary hearing may be consolidated with a hearing on charges issued by the
Board which include the facts which form the basis for the summary
suspension.
(5) An evidentiary
hearing shall be conducted pursuant to the contested case provisions of State
Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.
(6) If the Board has delegated the matter to
the Office of Administrative Hearings, the administrative law judge shall issue
to the Board a recommended decision with:
(a)
Proposed or final findings of fact;
(b) Proposed or final conclusions of
law;
(c) A proposed disposition;
or
(d) Any combination of
§G(6)(a)-(c) of this regulation pursuant to the Board's delegation of the
matter to the Office of Administrative Hearings.
(7) If the hearing is one combined with
charges, the administrative law judge's determination as to the merits of the
summary suspension shall be based only on those parts of the record that were
available to the Board at the time it voted for the summary
suspension.
(8) The parties may
file exceptions to the recommended decision as provided in State Government
Article, §10-216, Annotated
Code of Maryland.
(9) An order
issued by the Board after a post-deprivation evidentiary hearing is a final
order of the Board and is a public record pursuant to State Government Article,
§10-611, Annotated
Code of Maryland.
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