Current through Register 1543, March 14, 2025
(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
(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.
