Md. Code Regs. 10.58.16.19

Current through Register Vol. 51, No. 22, November 1, 2024

Section 10.58.16.19 - Sanctioning Guidelines

A. If, after a hearing or an opportunity for a hearing under Health Occupations Article, §17511, Annotated Code of Maryland, the Board finds that there are grounds for discipline under Health Occupations Article, §176A 19, Annotated Code of Maryland, the Board may place any licensee or certificate holder on probation, reprimand any licensee or certificate holder, or suspend or revoke a license or certificate.

B. In addition to placing the licensee or certificate holder on probation, reprimanding the licensee or certificate holder, or suspending or revoking the license or certificate, the Board may impose a penalty as set forth in this regulation.

C. General Application of Sanctioning Guidelines. Except as provided in §J of this regulation, for violations of the Maryland Behavior Analysts Act listed in the sanctioning guidelines, the Board shall impose a sanction not less severe than the minimum listed in the sanctioning guidelines or more severe than the maximum listed in the guidelines for each offense.

D. Ranking of Sanctions.

(1) For the purposes of this regulation, the severity of sanctions is ranked as follows, from the least severe to the most severe:

(a) Reprimand;

(b) Probation;

(c) Suspension; and

(d) Revocation.

(2) A stayed suspension in which the stay is conditioned on the completion of certain requirements is ranked as probation.

(3) A stayed suspension not meeting the criteria of §D(2) of this regulation is ranked as a reprimand.

(4) A penalty listed in the sanctioning guidelines may be imposed in addition to but not as a substitute for a sanction.

(5) The addition of a penalty does not change the ranking of the severity of the sanction.

E. 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.

F. 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.

G. If a licensee is found in violation of more than one ground for discipline as enumerated in this regulation, the sanction with the highest severity ranking shall be used to determine which ground will be used in developing a sanction and the Board may impose concurrent sanctions based on other grounds violated.

H. Notwithstanding the guidelines set forth in this regulation, in order to resolve a pending disciplinary action, the Board and licensee may agree to a surrender of license or to a consent order with terms, sanction, and penalty agreed to by the Board and the licensee.

I. If the Board imposes a sanction that departs from the sanctioning guidelines set forth in this regulation, the Board shall state its reasons for doing so in its final decision and order.

J. 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 mitigating and aggravating factors in determining whether the sanction in a particular case should fall outside the range of sanctions established by the 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) A departure from the guidelines set forth in this chapter is not a ground for any hearing or appeal of a Board action.

(4) 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 forth in this chapter:

(a) The absence of a prior disciplinary record;

(b) The offender self-reported the violation to the Board;

(c) The offender's full and voluntary admissions of misconduct to the Board and cooperation during Board proceedings;

(d) The offender implemented remedial measures to correct or mitigate the harm arising from the misconduct;

(e) The offender made timely 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 absence of premeditation to commit the misconduct;

(h) The absence of potential harm to patients or the public or other adverse impact; or

(i) The offender's conduct was an isolated incident 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 violation was committed deliberately or with gross negligence or recklessness;

(c) The violation had the potential for, or caused, serious patient or public harm;

(d) The violation was part of a pattern of detrimental conduct;

(e) The offender was motivated to perform the violation for financial gain;

(f) The vulnerability of the clients;

(g) The offender lacked insight into the wrongfulness of the conduct;

(h) The offender committed the violation under the guise of treatment;

(i) The offender attempted to hide the error or misconduct from patients or others;

(j) The offender did not cooperate with the investigation; or

(k) Previous attempts at rehabilitation of the offender were unsuccessful.

K. Payment of a Penalty.

(1) A licensee shall pay to the Board a penalty imposed under this chapter as of the date the Board's order is issued, unless the Board's order specifies otherwise.

(2) Filing an appeal under State Government Article, §10-222, Annotated Code of Maryland, or Health Occupations Article, §17-512, Annotated Code of Maryland, does not automatically stay payment of a penalty imposed by the Board under this regulation.

(3) If a licensee fails to pay, in whole or in part, a penalty imposed by the Board under this regulation, the Board may not restore, reinstate, or renew a license until the penalty 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.

(5) The Board shall pay all monies collected under this regulation into the State's General Fund.

Md. Code Regs. 10.58.16.19

Regulation .19 recodified from .18 effective 50:18 Md. R. 798, eff. 9/18/2023