Current through Register Vol. 51, No. 19, September 20, 2024
A. An individual
who violates any provision of Heath Occupations Article, Title 14, Subtitle 5C,
Annotated Code of Maryland, is guilty of a misdemeanor and on conviction is
subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year, or
both.
B. An individual who violates
any provision of Health Occupations Article, Title 14, Subtitle 5C, Annotated
Code of Maryland, or any regulation in this chapter, is subject to a civil fine
of not more than $5,000 to be levied by the Board.
C. The Board shall pay any penalty collected
under §A or B of this regulation into the Board of Physicians
Fund.
D. Employment of Unlicensed
Polysomnography Practitioner.
(1) A person who
violates Health Occupations Article, § 14-5 C-22.1, Annotated Code of
Maryland, is subject to a civil fine of not more than $5,000.
(2) The Board shall pay any fine collected
under §D of this regulation into the State's General Fund.
E. Failure to Make a Required
Report.
(1) The Board may impose a fine up to
$1,000 for a hospital, related institution, alternative health system, or
employer who fails to make a report to the Board required by Regulation .11 of
this chapter.
(2) The Board shall
deposit any funds collected under §E(1) of this regulation into the
State's General Fund.
F.
General Application of Sanctioning Guidelines.
(1) Sections F and G of this regulation and
Regulation .16A and B of this chapter do not apply to offenses for which a
mandatory sanction is set by statute or regulation.
(2) Except as provided in §G of this
regulation, for violations of the sections of the Maryland Polysomnography Act
listed in the sanctioning guidelines, the Board shall impose a sanction not
less severe than the minimum listed in the sanctioning guidelines nor more
severe than the maximum listed in the sanctioning guidelines for each
offense.
(3) Ranking of Sanctions.
(a) For the purposes of this regulation, the
severity of sanctions is ranked as follows, from the least severe to the most
severe:
(b) A stayed suspension in which the stay is
conditioned on the completion of certain requirements is ranked as
probation.
(c) A stayed suspension
not meeting the criteria for §F(3)(b) of this regulation is ranked as a
reprimand.
(4) The Board
may impose more than one sanction, provided that the most severe sanction
neither exceeds the maximum nor is less than the minimum sanction permitted in
the chart.
(5) Any sanction may be
accompanied by conditions reasonably related to the offense or to the
rehabilitation of the offender. The inclusion of conditions does not change the
ranking of the sanction.
(6) If a
licensee has violated more than one ground for discipline as set out in the
sanctioning guidelines:
(a) The sanction with
the highest severity ranking shall be used to determine which ground will be
used in developing a sanction; and
(b) The Board may impose concurrent sanctions
based on other grounds violated.
(7) Notwithstanding the sanctioning
guidelines set forth in Regulation .13 of this chapter, in order to resolve a
pending disciplinary action, the Board and the licensee may agree to a
surrender of license or a consent order with terms and sanction agreed to by
the Board, the administrative prosecutor, and the licensee.
(8) Depending on the facts and circumstances
of each case, and to the extent that the facts and circumstances apply, the
Board may consider the aggravating and mitigating factors set out in §G(4)
and (5) of this regulation and may in its discretion determine, based on those
factors, that an exception should be made and that the sanction in a particular
case should fall outside the range of sanctions listed in the sanctioning
guidelines.
(9) If the Board
imposes a sanction that departs from the sanctioning guidelines as set forth in
Regulation .13 of this chapter, the Board shall state its reasons for doing so
in its final decision and order.
G. Aggravating and Mitigating Factors.
(1) Depending on the facts and circumstances
of each case, and to the extent that the facts and circumstances apply, the
Board may consider the aggravating and mitigating factors set out in §H(4)
and (5) of this regulation and may in its discretion determine, based on those
factors, that an exception should be made and that the sanction in a particular
case should fall outside the range of sanctions listed in the sanctioning
guidelines.
(2) Nothing in this
regulation requires the Board or an Administrative Law Judge to make findings
of fact with respect to any of these factors.
(3) The existence of one or more of these
factors does not impose on the Board or an Administrative Law Judge any
requirement to articulate its reasoning for not exercising its discretion to
impose a sanction outside of the range of sanctions set out in the sanctioning
guidelines.
(4) Mitigating factors
may include, but are not limited to, the following:
(a) The absence of a prior disciplinary
record;
(b) The offender
self-reported the incident;
(c) The
offender voluntarily admitted the misconduct, made full disclosure to the
Board, and was cooperative during the Board proceedings;
(d) The offender implemented remedial
measures to correct or mitigate the harm arising from the misconduct;
(e) The offender made good faith efforts to
make restitution or to rectify the consequences of the misconduct;
(f) The offender has been rehabilitated or
exhibits rehabilitative potential;
(g) The misconduct was not
premeditated;
(h) There was no
potential harm to patients or the public or other adverse impact; or
(i) The incident was isolated and is not
likely to recur.
(5)
Aggravating factors may include, but are not limited to, the following:
(a) The offender has a previous criminal or
administrative disciplinary history;
(b) The offense was committed deliberately or
with gross negligence or recklessness;
(c) The offense had the potential for or
actually did cause patient harm;
(d) The offense was part of a pattern of
detrimental conduct;
(e) The
offender committed a combination of factually discrete offenses adjudicated in
a single action;
(f) The offender
pursued his or her financial gain over the patient's welfare;
(g) The patient was especially
vulnerable;
(h) The offender
attempted to hide the error or misconduct from patients or others;
(i) The offender concealed, falsified, or
destroyed evidence or presented false testimony or evidence;
(j) The offender did not cooperate with the
investigation; or
(k) Previous
attempts to rehabilitate the offender were unsuccessful.
(6) A departure from the sanctioning
guidelines set forth in Regulation .13 of this chapter is not a ground for any
hearing or appeal of a Board action.
H. Offenses Related to Continuing Medical
Education Credits.
(1) If a licensee has
submitted an application claiming the completion of continuing medical
education credits and the licensee fails to document the completion of such
continuing medical education credits when audited by the Board, the licensee
may be charged under one or more of the following, as appropriate:
(a) Health Occupations Article, § 14-5
C-17(a)(3), Annotated Code of Maryland;
(b) Health Occupations Article, § 14-5
C-17(a)(10), Annotated Code of Maryland; and
(c) Health Occupations Article, § 14-5
C-17(a)(11), Annotated Code of Maryland.
(2) Upon a finding of a violation, the Board
may impose any discipline authorized under Health Occupations Article, §
14-5 C-17, Annotated Code of Maryland, and the sanctioning
guidelines.
I. Payment
of Fines.
(1) An individual shall pay to the
Board any fine imposed under this regulation within 15 calendar days of the
date of the order, unless the order specifies otherwise.
(2) Filing an appeal under State Government
Article, §10-222, Annotated
Code of Maryland, does not stay payment of a fine imposed by the Board pursuant
to this regulation.
(3) If an
individual fails to pay, in whole or in part, a fine imposed by the Board
pursuant to this regulation, the Board may not restore, reinstate, or renew a
license until the fine has been paid in full.
(4) In its discretion, the Board may refer
all cases of delinquent payment to the Central Collection Unit of the
Department of Budget and Management to institute and maintain proceedings to
ensure prompt payment.