10.32.02.03

.03 Prehearing Proceedings.

A. This regulation applies to:

(1) Proceedings under Health Occupations Article, §1-307, 14-405, 14-5A-17(b), 14-5B-14(b), 14-5C-17(b), 14-5D-15, or 15-315, Annotated Code of Maryland; and

(2) To the extent specifically provided in this regulation, cease and desist orders.

B. This regulation does not apply to procedures pursuant to Health Occupations Article, §14-404(b), 14-5A-17(c), 14-5B-14(c), 14-5C-17(c), 14-5D-14(b), or 15-314(b), Annotated Code of Maryland.

C. Investigation of Complaints.

(1) Designated staff shall undertake a preliminary investigation of each complaint as appropriate to the nature of the complaint.

(2) The Board’s Investigative Review Panel (IRP) shall review a complaint in light of the preliminary investigation and may direct further investigation, referral for peer review, dismissal, or dismissal with an advisory letter.

(3) Participation in the IRP is not ordinarily a basis for recusal of a Board member from further proceedings in the case.

(4) Investigative Subpoenas.

(a) Except as provided in §C(4)(b) of this regulation, upon the receipt of a timely written request from a psychiatrist who is the subject of a complaint concerning the quality of the psychiatric care provided by that psychiatrist, a quorum of the Board shall review a subpoena for mental health records made or held by that psychiatrist before the subpoena is enforced.

(b) Section C(4)(a) of this regulation does not apply to:

(i) Any subpoena other than an investigative subpoena;

(ii) A subpoena issued in response to an investigation opened based upon a patient complaint;

(iii) A subpoena issued as a result of a complaint or action by a law enforcement agency;

(iv) A subpoena issued as a result of a complaint from a health care professional;

(v) A subpoena for records if the executive director or the deputy director determines that there is a reasonable possibility that the records will be destroyed, secreted, lost, or altered if the subpoena is not promptly enforced; or

(vi) A subpoena if the executive director or deputy director determines that there is a reasonable possibility of imminent harm to the public health, safety, or welfare, including the health, safety, or welfare of an individual patient.

(c) Section C(4)(b) of this regulation does not affect any rights which an individual may have under Health-General Article, Annotated Code of Maryland, to contest a subpoena in court.

D. Review by the Peer Reviewers.

(1) The Board shall contract for peer review services if a question of standards of quality care in the practice of medicine arises.

(2) The Board shall obtain reports from at least two different peer reviewers in each case.

(3) If one or both peer reviewers conclude that a violation of the standard of care has occurred, the Board shall make the final peer review report, consisting of the reports of each individual peer reviewer, available to the respondent for review before the Board considers whether to issue charges. The Board shall redact the names of the peer reviewers before making the report available under this section.

(4) The respondent may provide a written response to the peer review report within 10 business days after the report was sent to the respondent by electronic mail or 13 business days if the report was sent via U.S. postal service.

(5) The Board shall:

(a) Consider both the final peer review report and any written response submitted within the time period specified in §D(4) of this regulation; and

(b) Determine whether there is reasonable cause to charge a respondent with failure to meet appropriate standards of quality care.

E. Prosecution of Complaint.

(1) Except as provided in §E(2) of this regulation, the Board may not bring charges against a licensee based solely on events contained in a complaint the Board received more than 6 years after:

(a) The day the complainant actually discovered the facts that form the basis of the complaint; or

(b) The day when a reasonable person exercising due diligence should have discovered the facts that form the basis of the complaint.

(2) The prohibition in §E(1) of this regulation does not apply to complaints that are based on any of the following:

(a) Criminal convictions;

(b) Sexual misconduct;

(c) Other boundary violations;

(d) Reciprocal actions under Health Occupations Article, §14-404(a)(21), Annotated Code of Maryland;

(e) Ongoing substance abuse;

(f) Fraudulent concealment of material information; or

(g) Acts that occurred while a patient was a minor.

(3) After reviewing the completed investigative information and reports, the Board shall make its determination to:

(a) Dismiss the complaint;

(b) Take informal action by issuing a nonpublic advisory letter;

(c) Request the respondent to enter into a disposition agreement with the Board if the respondent suffers from substance abuse or a physical, mental, or emotional condition which may otherwise jeopardize medical care;

(d) Issue an initial cease and desist order, subject to:

(i) Section E(4) and (5) of this regulation; and

(ii) The procedures set out in Regulation .13 of this chapter;

(e) Except as provided in §E(1) of this regulation, vote to charge a respondent with a violation of the Medical Practice Act or COMAR 10.32.07, or another statute which gives the Board disciplinary authority;

(f) Vote to deny initial licensure or administrative reinstatement; or

(g) Accept a surrender on terms acceptable to the Board.

(4) Summary Suspension.

(a) In addition to charging, the Board may vote an intent to summarily suspend the license of the respondent pursuant to State Government Article, §10-226(c), Annotated Code of Maryland.

(b) A vote to summarily suspend the license of the respondent may be taken before the Board charges the respondent.

(5) After a vote to take formal action under §E(3)(d), (e), or (f) of this regulation, the Board shall refer the matter to the administrative prosecutor for prosecutorial action.

(6) Based upon a review of the case, the prosecutor may refer the matter back to the Board for further consideration.

(7) If the Board issues charges or a notice of an intent to deny an application for initial licensure or for administrative reinstatement, the Board shall serve it upon the respondent by regular mail or hand delivery at the address the respondent maintains for purposes of licensure notice. The Board may delegate the issuance and service of the charges to the administrative prosecutor.

(8) The Board, in the notice of intent to deny an application for initial licensure or administrative reinstatement, shall provide the respondent with an opportunity to request a hearing within 30 days from receipt of service.

(9) Disciplinary Committee for Case Resolution (DCCR).

(a) After service of the charging document, the Board shall offer the respondent a meeting with the DCCR. This is a voluntary, informal settlement proceeding to explore the possibility of a consent order or other resolution of the matter.

(b) If there is no agreement between the respondent and the administrative prosecutor, the matter proceeds to a hearing.

(c) Except for the Board’s consideration of a proposed resolution of a case achieved through the conference with the DCCR, neither the Board, the parties, nor the complainant may make use of any commentary, admissions, facts revealed, or positions taken, including any disposition recommended by the DCCR, in the subsequent stages of the disciplinary proceedings unless the subject matter is available from other sources or is otherwise discovered. The respondent, administrative prosecutor, and complainant are prohibited from revealing this material.

(d) The complainant may attend and participate as authorized by statute. The complainant may be accompanied by Board staff but not by any other person.

(e) Participation in a DCCR is not ordinarily a basis for recusal of a Board member from further proceedings in the case.

F. Representation; Parties.

(1) The respondent may appear in proper person or be represented by counsel in any matter before the Board and during any stage of the disciplinary proceedings. The respondent may be represented only by an attorney admitted to the Maryland Bar or specially admitted to practice law in Maryland under Rule 14 of the Maryland Rules Governing Admissions to the Bar found in the Maryland Rules.

(2) The administrative prosecutor shall present evidence and argument at an evidentiary hearing on the charges and arguments before the Board in the exceptions process as specified in Regulation .05 of this chapter.

(3) The administrative prosecutor is a party to the administrative proceedings:

(a) As soon as formal charges are issued; and

(b) Until the Board’s final decision is issued.

(4) The Board is not a party to the proceedings before an administrative law judge.