Sec. 10.32.02.03. 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, 14-5E-16(b), 14-5F-18(b) 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), 14-5E-16(c), or 14-5F-18(c) or 15-314(b), Annotated Code of Maryland.

C. Investigation of Complaints.

(1) Designated staff shall undertake a preliminary investigation regarding an allegation of grounds for disciplinary or other action brought to the Board’s attention before the allegation is assigned to a disciplinary panel.

(2) A complaint concerning alleged grounds for discipline of a Board licensee shall be assigned to a disciplinary panel which:

(a) Shall review a complaint in light of the preliminary investigation; and

(b) May direct further investigation, referral for peer review, closure without charges, or closure with an advisory letter.

(3) Participation in the complaint review process is not ordinarily a basis for recusal of a disciplinary panel 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 a disciplinary panel 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) After being assigned a complaint, a disciplinary panel shall have the matter reviewed by peer reviewers if the complaint concerns an allegation that a physician failed to:

(a) Meet the standards of quality medical care; or

(b) Keep adequate medical records.

(2) The disciplinary panel shall obtain reports from at least two different peer reviewers in each case for each allegation referred for peer review.

(3) If one or both peer reviewers conclude that a violation of the standard of care has occurred, the disciplinary panel shall make the final peer review report, consisting of the reports of each individual peer reviewer, available to the respondent for review before the disciplinary panel considers whether to issue charges. The disciplinary panel 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 disciplinary panel 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, a disciplinary panel may not bring charges against a licensee based solely on events contained in a complaint the disciplinary panel 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, a disciplinary panel shall make its determination to:

(a) Close a complaint investigation without charges;

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

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

(d) Except as provided in §E(1) of this regulation, vote to charge a respondent with a violation of a ground under Health Occupations Article, §14-404, Annotated Code of Maryland, or COMAR 10.32.07, or another statute which gives the Board or disciplinary panel authority;

(e) Vote to deny administrative reinstatement; or

(f) Accept a surrender on terms acceptable to the disciplinary panel.

(4) Summary Suspension.

(a) In addition to charging, the disciplinary panel assigned to the complaint may vote to summarily suspend or 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 disciplinary panel charges the respondent.

(5) After a vote to take formal action under §E(3)(d) or (e) and (4) of this regulation, the disciplinary panel 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 disciplinary panel for further consideration.

(7) If the disciplinary panel issues charges, the disciplinary panel shall serve it upon the respondent by regular mail or hand delivery at the address the respondent maintains for purposes of licensure notice. The disciplinary panel may delegate the issuance and service of the charges to the administrative prosecutor.

(8) The disciplinary panel, in the notice of 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 respondent and the complainant shall be offered a meeting with the disciplinary panel that was originally assigned the complaint and which sits as a DCCR. The meeting is a voluntary, informal settlement, proceeding to explore the possibility of a consent order or other resolution of the matter. The proceedings concerning a summary suspension are governed by Regulation .08 of this chapter and do not entail a meeting before a DCCR.

(b) If the respondent and the administrative prosecutor each do not agree with the proposed settlement offered by the DCCR, the matter proceeds to a hearing before the Office of Administrative Hearings.

(c) Except for the DCCR’s consideration of a proposed resolution of a case achieved through the conference with the DCCR, the disciplinary panel, the parties, and the complainant may not 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 and respondent may attend and participate as authorized by statute. The complainant may be accompanied by Board staff but not by any other person.

F. Representation; Parties.

(1) The respondent may appear in proper person or be represented by counsel in any matter before the a disciplinary panel 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 a disciplinary panel 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 a disciplinary panel’s final decision is issued.

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

G. The Chair, or the Chair’s designee, of a disciplinary panel assigned the complaint may issue orders necessary to regulate the proceedings under this regulation.