Sec. 10.26.04.10. Sanctioning Guidelines

A. General Application.

(1) This regulation shall be used by the Board as a guide for sanctioning licensees pursuant to its authority under Health Occupations Article, §§1A-205 and 1A-309, Annotated Code of Maryland, for violations of the Acupuncture Act and the Board's regulations.

(2) The Board is not required to make findings of fact with respect to any of the factors for determining the sanction indicated by the sanctioning guidelines.

(3) A departure from the sanctioning guidelines alone is not a ground for any hearing or appeal of a Board action.

(4) Notwithstanding these sanctioning guidelines, in order to resolve a disciplinary matter, the Board and the licensee or registered detoxification specialist may agree to surrender a license or registration or to a Consent Order with terms, conditions, and sanctions agreed upon.

(5) In a case where there are multiple and distinct violations, the Board may impose a sanction greater than the maximum indicated by the sanctioning guidelines for each individual violation.

(6) If probation is imposed, the Board may impose appropriate terms and conditions of probation, and, if a licensee or registration holder violates the terms or conditions of probation, the Board may take further disciplinary action against the individual.

(7) In the event a violation does not fall within the sanction range, the Board shall so indicate and use its best judgment to determine the appropriate sanction and shall consider, to the extent possible, the factors in the sanctioning guidelines.

B. Range of Sanctions.

VIOLATON	MINIMUM SANCTION	MAXIMUM SANCTION	MINIMUM PENALTY	MAXIMUM PENALTY
(1) Fraudulently or deceptively obtains or attempts to obtain a license for the applicant or licensee or for another;	Reprimand	Revocation/denial of license	$0	$5,000
(2) Fraudulently or deceptively: (a) Uses a license; or (b) Solicits or advertises;	Reprimand	Revocation	$0	$5,000
(3) Is guilty of immoral or unprofessional conduct in the practice of acupuncture;	Reprimand	Revocation	$0	$5,000
(4) Incompetent. (a) Is professionally incompetent; or (b) Is physically, or mentally incompetent;	Probation 6 months Reprimand	Revocation Revocation	$0 $0	$5,000 $5,000
(5) Provides professional services while under the influence of alcohol or any narcotic or controlled; dangerous substance;	Probation 6 months with education	Revocation	$0	$5,000
(6) Is convicted of or pleads guilty or nolo contendere to a felony or to a crime involving moral turpitude;	Probation 3 months or denial of license	Revocation/denial of license	$0	$5,000
(7) Practices acupuncture with an unauthorized person or assists an unauthorized person in the practice of acupuncture;	Reprimand	Revocation	$0	$5,000
(8) Willfully makes or files a false report or record in the practice of acupuncture;	Reprimand	Revocation	$0	$5,000
(9) Willfully fails to file or record any report as required by law, willfully impedes or obstructs the filing or recording of the report, or induces another to fail to file or record the report;	Reprimand	Revocation	$0	$5,000
(10) Submits a false statement to collect a fee;	Reprimand	Revocation/denial of license	$100	$5,000
(11) Refuses, withholds from, denies, or discriminates against an individual with regard to the provision of professional services for which the person is licensed and qualified to render because the individual is HIV positive;	Reprimand	Suspension 2 years	$0	$5,000
(12) Fails to cooperate with a lawful investigation conducted by the Board;	Suspension 1 month	Revocation	$100	$5,000
(13) Commits any act of gross negligence, incompetence, or misconduct in the practice of acupuncture;	Reprimand	Revocation	$0	$5,000
(14) Engages in a course of conduct that is inconsistent with generally accepted professional standards in the practice of acupuncture; or	Reprimand	Revocation	$0	$5,000
(15) Fails to comply with any Board order.	Suspension 1 year	Revocation	$0	$5,000

C. Mitigating and Aggravating Factors. Depending on the facts and circumstances of each case, and to the extent that they apply, the Board may consider the following mitigating and aggravating factors in determining whether the sanction in a particular case should fall outside of the range of sanctions established by the guidelines. These factors may include, but are not limited to the following:

(1) Mitigating Factors:

(a) Absence of a prior disciplinary record;

(b) The licensee reported the violation to the Board;

(c) The licensee voluntarily admitted violation, provided full disclosure to the Board, and cooperated during Board proceedings;

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

(e) The licensee made a timely good-faith effort to make restitution or otherwise rectify the consequences of the violation;

(f) Evidence of rehabilitation or potential for rehabilitation;

(g) Absence of premeditation to commit the violation;

(h) Absence of potential harm to or adverse impact on the public;

(i) Isolated incident and not likely to recur; and

(j) The licensee’s prior community service and present value to the community.

(2) Aggravating Factors:

(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 harm;

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

(e) The licensee was motivated to perform the violation by his or her financial gain;

(f) The vulnerability of the patient;

(g) The licensee attempted to conceal the violation, falsified or destroyed evidence, or presented false testimony or evidence;

(h) The licensee failed to cooperate with the Board’s investigation; and

(i) Previous attempts at rehabilitation were unsuccessful.