10.32.02.08

.08 Proceedings under Health Occupations Article, §§14-404(b), 14-5A-17(c), 14-5B-14(c), 14-5C-17(c), 14-5D-14(b), and 15-314(b), Annotated Code of Maryland.

A. In this regulation, “health care provider” means an individual who is a:

(1) Licensed physician;

(2) Licensed respiratory care practitioner;

(3) Licensed radiographer;

(4) Licensed nuclear medical technologist;

(5) Licensed radiation therapist;

(6) Licensed radiologist assistant;

(7) Licensed polysomnographic technologist;

(8) Licensed athletic trainer; or

(9) Licensed physician assistant.

B. Health Occupations Article, §§14-404(b), 14-5A-17(c), 14-5B-14(c), 14-5C-17(c), 14-5D-14(b), and 15-314(b), Annotated Code of Maryland, govern mandatory actions of the suspension or revocation of a license on the filing of certified docket entries, if the health care provider is convicted of or pleads guilty, including by an Alford plea, or a plea of nolo contendere to a crime involving moral turpitude.

C. Procedures.

(1) The Office of the Attorney General through Board counsel shall provide to the Board certified docket entries of the criminal court proceeding and the following documents from the court record:

(a) For a conviction, at least:

(i) The indictment, information, or other formal statement of the charges; and

(ii) Documentation of the verdict and sentencing; and

(b) For a plea of guilty, including an Alford plea, or a plea of nolo contendere, at least one of the following:

(i) Stipulated statement of facts or statement of facts on the record;

(ii) Plea agreement containing agreed facts;

(iii) Transcript of plea agreement proceedings; or

(iv) Written or transcribed opinion or statement of the judge accepting the plea.

(2) When the Board determines that documents provided to it indicate that the respondent comes within the language and intent of 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, and the Board has a basis for finding preliminarily that it applies to the respondent, the Board shall vote to issue an order requiring the respondent to show cause why the Board should not take action under this section.

(3) After the vote to issue the show cause order, the Board shall refer the matter to the administrative prosecutor for prosecutorial action.

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

D. Service.

(1) The Board shall serve the respondent by regular mail or hand delivery at the address the respondent maintains for purposes of licensure notice.

(2) The Board may choose to serve the respondent personally.

E. Opportunity to be Heard.

(1) The respondent, after service of the show cause order, has 30 days in which to respond.

(2) The respondent may show cause in writing on the following issues:

(a) Lack of conviction or plea;

(b) Whether the crime is one involving moral turpitude;

(c) Misidentity of the respondent with the defendant in the criminal matter; and

(d) Other relevant issues, if any, other than mitigation.

(3) The respondent may also, within 30 days of service of the show cause order, request an opportunity to address the Board by a limited evidentiary hearing on the same issues. However, this argument may not be as of right, but is discretionary based on the existence of genuine issues of material fact or law as determined by the Board.

(4) The presiding Board member, usually the Board chair, shall determine all procedural issues that are governed by this section, and may impose reasonable time limitations. The presiding Board member shall make any rulings reasonably necessary to facilitate the effective and efficient operation of the hearing. Ordinarily, the respondent and the administrative prosecutor shall limit their oral presentation to 20 minutes each. The respondent shall proceed first.

(5) The presiding Board member shall allow for consideration of documents the presiding Board member determines relevant and material. The presiding Board member may not admit oral testimony or witnesses.

(6) Board members may ask questions of any party appearing before the Board.

F. Representation.

(1) The respondent may appear in proper person or be represented by counsel.

(2) The administrative prosecutor shall present argument in support of the proposed sanction.

G. Burdens of Production and Persuasion.

(1) The respondent may argue issues as set out in §E(2) of this regulation and has the burden of producing argument or evidence in response to the show cause order.

(2) The administrative prosecutor bears the burden of persuasion by a preponderance of the evidence that the respondent was convicted of or pled guilty or nolo contendere to a crime of moral turpitude.

H. Board Action.

(1) After consideration of the respondent's answer, either in writing or at a hearing, the Board shall deliberate and determine whether the crime is a crime involving moral turpitude, and then shall issue an appropriate order.

(2) A pending appeal of the conviction or plea does not operate as a bar to the Board’s acting under Health Occupations Article, §14-404(b)(1), 14-5A-17(c)(1), 14-5B-14(c)(1), 14-5C-17(c), 14-5D-14(b)(1), or 15-314(b), Annotated Code of Maryland.

(3) A respondent suspended pursuant to Health Occupations Article, §14-404(b), 14-5A-17(c), 14-5B-14(c), 14-5C-17(c), 14-5D-14(b)(1), or 15-314(b), Annotated Code of Maryland, shall be reinstated immediately upon the filing of a certified docket entry that the conviction has been reversed. The reinstatement does not terminate any other disciplinary action or investigation pending against the respondent.