Sec. 10.32.06.12. Penalties

A. An individual who violates any provision of Heath Occupations Article, Title 14, Subtitle 5C, Annotated Code of Maryland, is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year, or both.

B. An individual who violates any provision of Health Occupations Article, Title 14, Subtitle 5C, Annotated Code of Maryland, or any regulation in this chapter, is subject to a civil fine of not more than $5,000 to be levied by the Board.

C. The Board shall pay any penalty collected under §A or B of this regulation into the Board of Physicians Fund.

D. Employment of Unlicensed Polysomnography Practitioner.

(1) A person who violates Health Occupations Article, §14-5C-22.1, Annotated Code of Maryland, is subject to a civil fine of not more than $5,000.

(2) The Board shall pay any fine collected under §D of this regulation into the State’s General Fund.

E. Failure to Make a Required Report.

(1) The Board may impose a fine up to $1,000 for a hospital, related institution, alternative health system, or employer who fails to make a report to the Board required by Regulation .11 of this chapter.

(2) The Board shall deposit any funds collected under §E(1) of this regulation into the State’s General Fund.

F. General Application of Sanctioning Guidelines.

(1) Sections F and G of this regulation and Regulation .16A and B of this chapter do not apply to offenses for which a mandatory sanction is set by statute or regulation.

(2) Except as provided in §G of this regulation, for violations of the sections of the Maryland Polysomnography Act listed in the sanctioning guidelines, the Board shall impose a sanction not less severe than the minimum listed in the sanctioning guidelines nor more severe than the maximum listed in the sanctioning guidelines for each offense.

(3) Ranking of Sanctions.

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

(i) Reprimand;

(ii) Probation;

(iii) Suspension; and

(iv) Revocation.

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

(c) A stayed suspension not meeting the criteria for §F(3)(b) of this regulation is ranked as a reprimand.

(4) 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 in the chart.

(5) 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.

(6) If a licensee has violated more than one ground for discipline as set out in the sanctioning guidelines:

(a) The sanction with the highest severity ranking shall be used to determine which ground will be used in developing a sanction; and

(b) The Board may impose concurrent sanctions based on other grounds violated.

(7) Notwithstanding the sanctioning guidelines set forth in Regulation .13 of this chapter, in order to resolve a pending disciplinary action, the Board and the licensee may agree to a surrender of license or a consent order with terms and sanction agreed to by the Board, the administrative prosecutor, and the licensee.

(8) Depending on the facts and circumstances of each case, and to the extent that the facts and circumstances apply, the Board may consider the aggravating and mitigating factors set out in §G(4) and (5) of this regulation and may in its discretion determine, based on those factors, that an exception should be made and that the sanction in a particular case should fall outside the range of sanctions listed in the sanctioning guidelines.

(9) If the Board imposes a sanction that departs from the sanctioning guidelines as set forth in Regulation .13 of this chapter, the Board shall state its reasons for doing so in its final decision and order.

G. 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 the aggravating and mitigating factors set out in §H(4) and (5) of this regulation and may in its discretion determine, based on those factors, that an exception should be made and that the sanction in a particular case should fall outside the range of sanctions listed in the sanctioning 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) 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 out in the sanctioning guidelines.

(4) Mitigating factors may include, but are not limited to, the following:

(a) The absence of a prior disciplinary record;

(b) The offender self-reported the incident;

(c) The offender voluntarily admitted the misconduct, made full disclosure to the Board, and was cooperative during the Board proceedings;

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

(e) The offender made 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 misconduct was not premeditated;

(h) There was no potential harm to patients or the public or other adverse impact; or

(i) The incident was isolated 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 offense was committed deliberately or with gross negligence or recklessness;

(c) The offense had the potential for or actually did cause patient harm;

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

(e) The offender committed a combination of factually discrete offenses adjudicated in a single action;

(f) The offender pursued his or her financial gain over the patient’s welfare;

(g) The patient was especially vulnerable;

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

(i) The offender concealed, falsified, or destroyed evidence or presented false testimony or evidence;

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

(k) Previous attempts to rehabilitate the offender were unsuccessful.

(6) A departure from the sanctioning guidelines set forth in Regulation .13 of this chapter is not a ground for any hearing or appeal of a Board action.

H. Offenses Related to Continuing Medical Education Credits.

(1) If a licensee has submitted an application claiming the completion of continuing medical education credits and the licensee fails to document the completion of such continuing medical education credits when audited by the Board, the licensee may be charged under one or more of the following, as appropriate:

(a) Health Occupations Article, §14-5C-17(a)(3), Annotated Code of Maryland;

(b) Health Occupations Article, §14-5C-17(a)(10), Annotated Code of Maryland; and

(c) Health Occupations Article, §14-5C-17(a)(11), Annotated Code of Maryland.

(2) Upon a finding of a violation, the Board may impose any discipline authorized under Health Occupations Article, §14-5C-17, Annotated Code of Maryland, and the sanctioning guidelines.

I. Payment of Fines.

(1) An individual shall pay to the Board any fine imposed under this regulation within 15 calendar days of the date of the order, unless the order specifies otherwise.

(2) Filing an appeal under State Government Article, §10-222, Annotated Code of Maryland, does not stay payment of a fine imposed by the Board pursuant to this regulation.

(3) If an individual fails to pay, in whole or in part, a fine imposed by the Board pursuant to this regulation, the Board may not restore, reinstate, or renew a license until the fine 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.