Current through Register 1531, September 27, 2024
(1)
Initiation. Any
person, organization, or member of the Board may make a complaint to the Board
which charges a licensee with misconduct. A complaint may be filed in any form.
The Board, in its discretion, may investigate anonymous complaints.
(2)
Complaint
Committee. The Board may establish a committee known as the
Complaint Committee to review complaints charging a licensee with misconduct.
If the Committee or a Board Investigator determines that a communication does
not relate to any of the matters set forth in 243 CMR 1.03(5), the committee or
the investigator may refer the communication to the proper authority or
regulatory agency.
(3)
(a)
Preliminary
Investigation. A Board Investigator shall conduct such preliminary
investigation, including a request for an answer from the licensee, as is
necessary to allow the Complaint Committee to determine whether a complaint is
frivolous or lacking in either merit or factual basis. If, after a preliminary
investigation of an anonymous complaint, the investigator determines that the
anonymous complaint is frivolous or lacking in either merit or factual basis,
the anonymous complaint shall not be docketed, shall be filed in a general
correspondence file, and shall remain confidential.
(b)
Subsequent Inquiry,
Investigation. After receipt and review of a complaint, if the
Complaint Committee determines that the complaint is frivolous or lacking in
either legal merit or factual basis, it may close the complaint. The Committee
shall notify the person who made the communication of its determination and the
reasons for it. As to other complaints, the Committee shall conduct, or cause
to be conducted, any reasonable inquiry or investigation it deems necessary to
determine the truth and validity of the allegations set forth in the
complaint.
(4)
Conference. To facilitate disposition, the Board or
the Complaint Committee may request any person to attend a conference at any
time prior to the commencement of an adjudicatory proceeding. The Board or
Committee shall give timely notice of the conference, and this notice must
include either a reference to the complaint or a statement of the nature of the
issues to be discussed.
(5)
Grounds for Complaint.
(a)
Specific Grounds for
Complaints Against Physicians. A complaint against a physician
must allege that a licensee is practicing medicine in violation of law,
regulations, or good and accepted medical practice and may be founded on any of
the following:
1. Fraudulent procurement of
his or her certificate of registration or its renewal;
2. Commitment of an offense against any
provision of the laws of the Commonwealth relating to the practice of medicine,
or any rule or regulation adopted thereunder;
3. Conduct which places into question the
physician's competence to practice medicine, including but not limited to gross
misconduct in the practice of medicine, or practicing medicine fraudulently, or
beyond its authorized scope, or with gross incompetence, or with gross
negligence on a particular occasion or negligence on repeated
occasions;
4. Practicing medicine
while the ability to practice is impaired by alcohol, drugs, physical
disability or mental instability;
5. Being habitually drunk or being or having
been addicted to, dependent on, or a habitual user of narcotics, barbiturates,
amphetamines, hallucinogens, or other drugs having similar effects;
6. Knowingly permitting, aiding or abetting
an unlicensed person to perform activities requiring a license.
7. Conviction of any crime;
8. Continuing to practice while his or her
registration is lapsed, suspended, or revoked;
9. Being insane;
10. Practicing medicine deceitfully, or
engaging in conduct which has the capacity to deceive or defraud.
11. Violation of any rule or regulation of
the Board;
12. Having been
disciplined in another jurisdiction in any way by the proper licensing
authority for reasons substantially the same as those set forth in M.G.L. c.
112, § 5 or 243 CMR 1.03(5);
13. Violation of
243 CMR
2.07(15): Medicare
Payments;
14. Cheating on
or attempting to compromise the integrity of any medical licensing
examination;
15. Failure to report
to the Board, within the time period provided by law or regulation, any
disciplinary action taken against the licensee by another licensing
jurisdiction (United States or foreign), by any health care institution, by any
professional or medical society or association, by any governmental agency, by
any law enforcement agency, or by any court for acts or conduct substantially
the same as acts or conduct which would constitute grounds for complaint as
defined in 243 CMR 1.03(5);
16.
Failure to respond to a subpoena or to furnish the Board, its investigators or
representatives, documents, information or testimony to which the Board is
legally entitled;
17. Malpractice
within the meaning of M.G.L. c. 112, § 61;
18. Misconduct in the practice of
medicine.
(b)
Other Grounds for Complaints Against Physicians.
Nothing in
243 CMR 1.00 shall limit the
Board's adoption of policies and grounds for discipline through adjudication as
well as through rule-making.
(6)
Docket. The
Board shall assign a docket number to all complaints and shall mark the
complaint with this number and the date filed. All subsequent papers relating
to the particular complaint shall be marked with the same docket number and
shall be placed in a file (the docket) with all other papers bearing the same
number.
(7)
Order for
Answering and Answer. The Committee may order that the licensee
complained of answer the complaint within ten days. The Committee shall attach
a copy of the complaint to the order for answering or shall describe the acts
alleged in the complaint. A licensee shall respond to an order for answering
either personally or through his or her attorney, in compliance with
243 CMR
1.02(6). An answer must
address the substantive allegations set forth in the complaint or
order.
(8)
Dismissal by
Complaint Committee. Upon receipt of a licensee's answer or at any
point during the course of investigation or inquiry into a complaint, the
Committee may determine that there is not and will not be sufficient evidence
to warrant further proceedings or that the complaint fails to allege misconduct
for which a licensee may be sanctioned by the Board. In such event, the
Committee shall close the complaint. The Committee shall retain a file of all
complaints.
(9)
Board
Action Required. If a licensee fails to answer within the ten-day
period or if the Committee determines that there is reason to believe that the
acts alleged occurred and constitute a violation for which a licensee may be
sanctioned by the Board, the Committee may recommend to the Board that it issue
a Statement of Allegations.
(10)
Disposition by the Board. The Board shall review each
recommendation which the Committee forwards to it within a reasonable time and
shall require an adjudicatory hearing if it determines that there is reason to
believe that the acts alleged occurred and constitute a violation of any
provision of 243 CMR 1.03(5) or M.G.L. c. 112, § 5. The Board may take
such informal action as it deems a complaint warrants. If the Board requires an
adjudicatory hearing, it may refer the matter to a hearing officer.
(11)
Suspension Prior to
Hearing. The Board may suspend or refuse to renew a license
pending a hearing on the question of revocation if the health, safety or
welfare of the public necessitates such summary action. The procedure for
summary suspension is as follows:
(a)
Immediate and Serious Threat. If, based upon
affidavits or other documentary evidence, the Board determines that a licensee
is an immediate and serious threat to the public health, safety, or welfare,
the Board may suspend or refuse to renew a license, pending a final hearing on
the merits of the Statement of Allegations. The Board must provide a hearing on
the necessity for the summary action within seven days after the
suspension.
(b)
Serious
Threat. If, based upon affidavits or other documentary evidence,
the Board determines that a licensee may be a serious threat to the public
health, safety or welfare, the Board may order the licensee to file opposing
affidavits or other evidence within three business days. Based upon the
evidence before it, the Board may then suspend or refuse to renew the license,
pending a final hearing on the merits of the Statement of Allegations. The
Board must provide a hearing on the necessity for the summary action within
seven days after the suspension.
(12)
Classification of
Complaints. (Reserved).
(13)
Assurance of
Discontinuance.
(a)243 CMR
1.03(13) shall apply to minor violations of 243 CMR 1.03(5), and, unless there
is an allegation of patient harm, allegations of drug or alcohol impairment, as
determined within the discretion of the Complaint Committee and the
Board.
(b) At the time that the
Complaint Committee determines that a recommendation for a Statement of
Allegations is warranted, it may either forward such recommendation to the
Board or refer the matter to a conference including a Hearing Officer, a
representative of the Disciplinary Unit, and the Respondent. At the conference,
the representative of the Disciplinary Unit and the Respondent may submit to
the Hearing Officer a proposed Assurance of Discontinuance, which shall
include:
1. Recitation of Circumstances
giving rise to the Assurance of Discontinuance,
2. The Respondent's assurance of
discontinuance,
3. A sanction
and/or the Respondent's agreement to pay the Commonwealth's costs of the
investigation, and
4. The
Respondent's agreement that violation of the Assurance of Discontinuance shall
be prima facie evidence of violation of the applicable law,
regulations or standards of good and accepted medical practice referenced in
the Assurance of Discontinuance.
(c) If the Hearing Officer approves the
Assurance of Discontinuance, it shall be forwarded to the Board for final
approval.
(d) If the Hearing
Officer and the Board do not approve an Assurance of Discontinuance within 60
days of referral of the matter to the Hearing Officer for conference, or if the
Hearing Officer refers the matter back to the Complaint Committee, the
Complaint Committee shall forward its recommendation regarding issuance of the
Statement of Allegations to the Board.
(e) Pursuant to M.G.L. c. 112, § 2, the
Board must report an Assurance of Discontinuance to any national data reporting
system which provides information on individual physicians.
(f) The Respondent may request that the Board
not process his or her case pursuant to 243 CMR 1.03, in which event the
Complaint Committee shall forward its recommendation regarding issuance of a
Statement of Allegations to the Board.
(14)
Statutory
Reports. The Complaint Committee, an investigator, and any of the
Board's units may also review and investigate any report filed pursuant to
M.G.L. c. 111, § 53B, M.G.L. c. 112, §§ 5A through 5I, or
243 CMR 2.00:
Licensing and the Practice of Medicine and 3.00: The
Establishment of and Participation in Qualified Patient Care Assessment
Programs, Pursuant to M.G.L. c. 112, § 5, and M.G.L. c. 111, §
203. If the Board does not issue a Statement of Allegations based upon
the statutory report, the statutory report and the records directly related to
its review and investigation shall remain confidential. However, if such report
and records are relevant to a resignation pursuant to
243 CMR
1.05(5), then they shall be
treated like closed complaint files, under
243 CMR
1.02(8)(c)1.; provided,
however, that confidentiality of peer review documents is maintained in
accordance with
243 CMR
1.02(8)(c)4. and that
confidentiality of documents filed under M.G.L. c. 111, § 53B is
maintained to the extent required by law.
(15)
Discipline When License Has
Been Revoked by Operation of Law. For purposes of administrative
economy and convenience, the Board may, in its discretion, defer commencement
of formal disciplinary proceedings against a physician whose license has been
revoked by operation of law under the provisions of M.G.L. c. 112, § 2 or
through application of
243 CMR
2.06(2):
Requirements for Renewing a Full, Administrative or Volunteer
License. Such deferral may be until such time as the physician takes
action to complete the renewal process. The Board shall notify the physician of
its intent to defer action under 243 CMR 1.03(15); if the physician files a
written objection within 60 days by certified, return-receipt mail, the Board
shall not defer commencement of said proceeding. Nothing in 243 CMR 1.03(15)
shall be construed to bar the Board from commencing disciplinary proceedings at
any time, including any proceedings which may or may not have previously been
deferred.
(16)
Stale
Matters. Except where the Complaint Committee or the Board
determines otherwise for good cause, the Board shall not entertain any
complaint arising out of acts or omissions occurring more than six years prior
to the date the complaint is filed with the Board.
