Current through Register 1531, September 27, 2024
(A)
Notice of Violation. Whenever the Department finds
upon inspection, investigation of a complaint or through information in its
possession that an applicant or licensee is not in compliance with provisions
of M.G.L. c. 111, § 5L or
105 CMR 125.000, the
Department shall notify the applicant or licensee of such violation or
deficiency. The notice shall include a statement of the violations or
deficiencies found, the provision of the law relied upon, and a reasonable
period of time for correction. A violation or deficiency may result in denial,
suspension, revocation or refusal to renew a license; a modification or
limitation of a license; a cease and desist order; and/or the imposition of a
civil or criminal penalties. After issuing a Notice of Violation, the
Department may require a written plan of correction, as specified in 105 CMR
125.022(B), or proceed to issue a Notice of Intent To Issue an Order, as
specified in 105 CMR 125.022(C).
(B)
Plan of
Correction.
(1) The applicant or
licensee shall, within ten days of receipt of a Notice of Violation, submit to
the Department a written plan of correction. The plan shall clearly identify
the licensee, state the date, reference the violation or deficiency cited,
state specific corrective action(s) and timetable(s) and date(s) for completion
for each deficiency cited, and shall be signed by either the applicant or
licensee or his or her designee.
(2) The Department will determine whether the
written plan of correction sufficiently addresses violations or deficiencies.
If upon review of the plan of correction, the Department finds that the
applicant or licensee is in compliance with
105 CMR 125.000 and/or that
the applicant or licensee has submitted an acceptable plan of correction, the
Department shall notify the applicant or licensee of its findings of compliance
and/or its acceptance or modification of the plan of correction.
(3) If upon review of the plan of correction,
the Department finds the plan of correction is unacceptable, the Department may
request that the applicant or licensee amend and resubmit the plan of
correction with five days of the date of notice or such other time as the
Department may specify for resubmission.
(4) If upon review of the plan of correction,
the Department determines that an applicant or licensee remains non-compliant
with applicable laws and regulations regarding licensure or determines that
further enforcement action is warranted, the Department may initiate
enforcement procedures as set forth in
105 CMR
125.023.
(C)
Notice of Department's Intent
to Issue an Order.
(1) Prior to
the Department issuing an order to modify, limit, deny, suspend, revoke or
refuse to renew a license, and/or to require a person to cease and desist any
activity, and/or to impose civil penalties, and/or issue a reprimand, the
applicant or licensee shall be notified in writing of the grounds for the
Department's action, the provision(s) of law relied upon, the amount of any
civil penalty, and his/her right to request an adjudicatory proceeding and/or
judicial review.
(2) If a license
is to be modified, limited, denied, revoked, suspended, or refused renewal or
if an activity is to be ceased or a civil penalty imposed by the Department,
then the aggrieved applicant or licensee may request an adjudicatory hearing
within 21 days of receipt of notification of the Department's Intent to Issue
an Order. Said request shall be filed in accordance with Standard Adjudicatory
Rules of Practice and Procedures,
801 CMR 1.01:
Formal Rules.
(D)
Denial, Revocation or Refusal
to Renew Based on Lack of Minimum Qualifications.
(1) If the Department determines that the
applicant or licensee fails to meet the age, educational, Department-approved
training requirements or other requirements for licensure specified by M.G.L.
c. Ill, § 5L, the Department shall notify the applicant or licensee in
writing that his or her license is being denied, revoked or refused renewal.
Said notice shall include the factual basis for the Department's
determination.
(2) The Department
shall afford the applicant or licensee 21 days from receipt of the written
notification to submit certified records to show that he or she meets the age,
educational, Department-approved training requirements and other requirements
for licensure.
(3) The Department
shall deny, revoke or refuse to renew the license of that applicant or licensee
without further hearing unless the applicant submits the documentation required
in 105 CMR 125.022(D)(2).
(E)
Denial, Modification,
Limitation, Revocation, or Refusal to Renew a License Based on Failure to File
Reports or Pay Fees or Maintain Insurance. No hearing shall be
afforded where denial, modification, limitation, revocation, suspension or
refusal to renew is based solely upon failure of the licensee to file timely
reports, schedules or applications, or to pay lawfully prescribed fees, or to
maintain insurance coverage as required by any law or regulation.
(F)
Administrative Procedures:
Denial, Modification, Limitation, Suspension, Revocation or Refusal to Renew a
License: Orders to Cease an Activity: Civil Penalties.
(1) All adjudicatory proceedings shall be
conducted in accordance with M.G.L. c. 30A and
801 CMR 1.01:
FormalRules.
(2)
Except for circumstances specified in 105 CMR 125.022(D), if the Department
determines that a license should be denied, modified, limited, suspended,
revoked, or refused renewal, and/or that an applicant or licensee should cease
an activity, and/or that a civil penalty should be imposed, and if the
Department notifies the applicant or licensee of its intended action, upon
receipt of a Notice of Claim for an Adjudicatory Proceeding, the Department
shall initiate a hearing pursuant to
801 CMR 1.01:
Formal Rules.
(3)
The Hearing Officer shall determine whether the Department has proved by a
preponderance of the evidence that the license should be denied, modified,
limited, suspended, revoked or refused renewal; that an activity should cease;
and/or that a civil penalty be imposed based on relevant facts as they existed
at or prior to the time the Department initiated the hearing
procedure.
(4) If the Hearing
Officer finds any single ground for denial, modification, limitation,
suspension, revocation, or refusal to renew a license; for a cessation of an
activity; and/or for imposition of a civil penalty, then the Hearing Officer
shall render a recommended decision.
(G)
Final Agency Decision and
Judicial Review.
(1) The
recommended decision of a Hearing Officer in any adjudicatory proceeding
conducted under
105 CMR 125.000 shall be
reviewed by the Commissioner. The Commissioner's decision upon this review
shall constitute a final agency decision in an adjudicatory proceeding subject
to judicial review pursuant to M.G.L. c. 30A, § 14.
(2) Any applicant or licensee that fails to
exercise its right to an adjudicatory proceeding under
105 CMR 125.000 waives both
its right to administrative review by the Commissioner and its right to
judicial review pursuant to M.G.L. c. 30A, § 14.
(H)
Civil Penalties.
(1) If the Department determines that an
applicant or licensee has not complied with an order issued pursuant to M.G.L.
c. 111, § 5L or with any provision of M.G.L. c. 111, § 5L or with any
applicable rule, regulation, license or registration adopted or issued
thereunder, the Department, in lieu of, or in addition to
suspending, denying, modifying, limiting, revoking, or refusing renewal of a
license, may assess civil penalties in an amount not exceeding $100,000 per
violation, subject to the right to a hearing specified in 105 CMR 125.022(C).
Such civil penalty may be assessed whether or not the violation was
willful.
(2)
Factors In
Determining Amount of Penalty. In determining the amount of the
civil penalty, the Department shall consider the following:
(a) The willfulness of violation;
(b) The actual and potential danger to the
public health or the environment;
(c) The actual or potential cost of such
danger to the public health or the environment;
(d) The actual or potential damage or injury
to the public health or environment;
(e) The actual and potential cost of such
damage or injury;
(f) The actual or
potential cost to the Commonwealth of enforcing provisions of
105 CMR 125.000;
(g) Whether the person being assessed the
civil penalty did everything reasonable to prevent failure to comply from
occurring, to come into compliance promptly, and to remedy and mitigate
whatever harm might have been done as a result of the failure to
comply;
(h) Whether the person
being assessed the civil penalty has previously failed to comply with any order
issued pursuant to M.G.L. c. Ill, § 5L or any other rule or regulation
adopted hereunder;
(i) Whether
imposition of a civil penalty is likely to deter future
non-compliance;
(j) The financial
condition of the person being assessed the civil penalty; and
(k) The public interest.
(3)
Civil Penalty for Operation
without a License. Practicing as a Radiologic Technologist without
a license constitutes a violation of law punishable by a civil penalty of up to
$100,000. Each day during which a radiologic technologist operates without a
license shall constitute a separate offense.
(4)
Payment of the Civil
Penalty. If after hearing, or waiver thereof, the Department
imposes a civil penalty, then the civil penalty shall be due and payable to the
Commonwealth of Massachusetts within 30 days after the date of the final agency
action.
(5)
Non-exclusivity of Civil Penalties. By imposing a
civil penalty, the Department does not waive its right to invoke other
enforcement procedures, such as modification, limitation, suspension,
revocation or refusal to renew a license or registration.
(I)
Criminal
Enforcement. The Department may elect to enforce any section
105 CMR 125.000 or
provision of M.G.L. c. 111, § 5L by seeking to have criminal sanctions
imposed. Any person who violates M.G.L. c. 111, § 5L or any rule,
regulation, license, registration, or order adopted or issued under M.G.L. c.
Ill, § 5N or 50 shall be fined not less than $100 nor more than $2,000, or
be imprisoned for a period of not more than two years, or both. Any person who
continues to violate the provisions of the aforementioned laws after due notice
by the Department shall be fined not less than $1,000 nor more than $20,000 or
be imprisoned for a period of not more than 20 years, or both. After due notice
has been issued by the Department, each day of such violation shall constitute
a separate offense.
(J)
Judicial Enforcement. The Department may apply
directly to the Supreme Judicial Court or Superior Court to enforce any
provision of M.G.L. c. 111, § 5L and/or any rule or regulation, license,
registration, or order adopted and issued there under by the Department. When a
person is engaged in or about to engage in any act or practice which
constitutes or will constitute a violation of such provision, rule, regulation,
license, registration, or order, the Department may seek to restrain such act
or practice or the use or occupation of premises or parts thereof or such other
equitable relief as public health and safety requires.
(K)
Nonexclusivity of Enforcement
Procedures. None of the enforcement procedures contained in
105 CMR 125.000 is mutually
exclusive. Any enforcement procedures may be invoked simultaneously if the
situation so requires.
