Section 1.03 - Disposition of Complaints and Statutory Reports(1)Initiation. Any person, organization, or member of the Board may make a complaint to the Board which charges a licensee with misconduct. A complaint may be filed in any form. The Board, in its discretion, may investigate anonymous complaints.(2)Complaint Committee. The Board may establish a committee known as the Complaint Committee to review complaints charging a licensee with misconduct. If the Committee or a Board Investigator determines that a communication does not relate to any of the matters set forth in 243 CMR 1.03(5), the committee or the investigator may refer the communication to the proper authority or regulatory agency.(3)(a)Preliminary Investigation. A Board Investigator shall conduct such preliminary investigation, including a request for an answer from the licensee, as is necessary to allow the Complaint Committee to determine whether a complaint is frivolous or lacking in either merit or factual basis. If, after a preliminary investigation of an anonymous complaint, the investigator determines that the anonymous complaint is frivolous or lacking in either merit or factual basis, the anonymous complaint shall not be docketed, shall be filed in a general correspondence file, and shall remain confidential.(b)Subsequent Inquiry, Investigation. After receipt and review of a complaint, if the Complaint Committee determines that the complaint is frivolous or lacking in either legal merit or factual basis, it may close the complaint. The Committee shall notify the person who made the communication of its determination and the reasons for it. As to other complaints, the Committee shall conduct, or cause to be conducted, any reasonable inquiry or investigation it deems necessary to determine the truth and validity of the allegations set forth in the complaint.(4)Conference. To facilitate disposition, the Board or the Complaint Committee may request any person to attend a conference at any time prior to the commencement of an adjudicatory proceeding. The Board or Committee shall give timely notice of the conference, and this notice must include either a reference to the complaint or a statement of the nature of the issues to be discussed.(5)Grounds for Complaint.(a)Specific Grounds for Complaints Against Physicians. A complaint against a physician must allege that a licensee is practicing medicine in violation of law, regulations, or good and accepted medical practice and may be founded on any of the following: 1. Fraudulent procurement of his or her certificate of registration or its renewal;2. Commitment of an offense against any provision of the laws of the Commonwealth relating to the practice of medicine, or any rule or regulation adopted thereunder;3. Conduct which places into question the physician's competence to practice medicine, including but not limited to gross misconduct in the practice of medicine, or practicing medicine fraudulently, or beyond its authorized scope, or with gross incompetence, or with gross negligence on a particular occasion or negligence on repeated occasions;4. Practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability or mental instability;5. Being habitually drunk or being or having been addicted to, dependent on, or a habitual user of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs having similar effects;6. Knowingly permitting, aiding or abetting an unlicensed person to perform activities requiring a license.7. Conviction of any crime;8. Continuing to practice while his or her registration is lapsed, suspended, or revoked;10. Practicing medicine deceitfully, or engaging in conduct which has the capacity to deceive or defraud.11. Violation of any rule or regulation of the Board;12. Having been disciplined in another jurisdiction in any way by the proper licensing authority for reasons substantially the same as those set forth in M.G.L. c. 112, § 5 or 243 CMR 1.03(5);13. Violation of 243 CMR 2.07(15): Medicare Payments;14. Cheating on or attempting to compromise the integrity of any medical licensing examination;15. Failure to report to the Board, within the time period provided by law or regulation, any disciplinary action taken against the licensee by another licensing jurisdiction (United States or foreign), by any health care institution, by any professional or medical society or association, by any governmental agency, by any law enforcement agency, or by any court for acts or conduct substantially the same as acts or conduct which would constitute grounds for complaint as defined in 243 CMR 1.03(5);16. Failure to respond to a subpoena or to furnish the Board, its investigators or representatives, documents, information or testimony to which the Board is legally entitled;17. Malpractice within the meaning of M.G.L. c. 112, § 61;18. Misconduct in the practice of medicine.(b)Other Grounds for Complaints Against Physicians. Nothing in 243 CMR 1.00 shall limit the Board's adoption of policies and grounds for discipline through adjudication as well as through rule-making.(6)Docket. The Board shall assign a docket number to all complaints and shall mark the complaint with this number and the date filed. All subsequent papers relating to the particular complaint shall be marked with the same docket number and shall be placed in a file (the docket) with all other papers bearing the same number.(7)Order for Answering and Answer. The Committee may order that the licensee complained of answer the complaint within ten days. The Committee shall attach a copy of the complaint to the order for answering or shall describe the acts alleged in the complaint. A licensee shall respond to an order for answering either personally or through his or her attorney, in compliance with 243 CMR 1.02(6). An answer must address the substantive allegations set forth in the complaint or order.(8)Dismissal by Complaint Committee. Upon receipt of a licensee's answer or at any point during the course of investigation or inquiry into a complaint, the Committee may determine that there is not and will not be sufficient evidence to warrant further proceedings or that the complaint fails to allege misconduct for which a licensee may be sanctioned by the Board. In such event, the Committee shall close the complaint. The Committee shall retain a file of all complaints.(9)Board Action Required. If a licensee fails to answer within the ten-day period or if the Committee determines that there is reason to believe that the acts alleged occurred and constitute a violation for which a licensee may be sanctioned by the Board, the Committee may recommend to the Board that it issue a Statement of Allegations.(10)Disposition by the Board. The Board shall review each recommendation which the Committee forwards to it within a reasonable time and shall require an adjudicatory hearing if it determines that there is reason to believe that the acts alleged occurred and constitute a violation of any provision of 243 CMR 1.03(5) or M.G.L. c. 112, § 5. The Board may take such informal action as it deems a complaint warrants. If the Board requires an adjudicatory hearing, it may refer the matter to a hearing officer.(11)Suspension Prior to Hearing. The Board may suspend or refuse to renew a license pending a hearing on the question of revocation if the health, safety or welfare of the public necessitates such summary action. The procedure for summary suspension is as follows: (a)Immediate and Serious Threat. If, based upon affidavits or other documentary evidence, the Board determines that a licensee is an immediate and serious threat to the public health, safety, or welfare, the Board may suspend or refuse to renew a license, pending a final hearing on the merits of the Statement of Allegations. The Board must provide a hearing on the necessity for the summary action within seven days after the suspension.(b)Serious Threat. If, based upon affidavits or other documentary evidence, the Board determines that a licensee may be a serious threat to the public health, safety or welfare, the Board may order the licensee to file opposing affidavits or other evidence within three business days. Based upon the evidence before it, the Board may then suspend or refuse to renew the license, pending a final hearing on the merits of the Statement of Allegations. The Board must provide a hearing on the necessity for the summary action within seven days after the suspension.(12)Classification of Complaints. (Reserved).(13)Assurance of Discontinuance. (a)243 CMR 1.03(13) shall apply to minor violations of 243 CMR 1.03(5), and, unless there is an allegation of patient harm, allegations of drug or alcohol impairment, as determined within the discretion of the Complaint Committee and the Board.(b) At the time that the Complaint Committee determines that a recommendation for a Statement of Allegations is warranted, it may either forward such recommendation to the Board or refer the matter to a conference including a Hearing Officer, a representative of the Disciplinary Unit, and the Respondent. At the conference, the representative of the Disciplinary Unit and the Respondent may submit to the Hearing Officer a proposed Assurance of Discontinuance, which shall include: 1. Recitation of Circumstances giving rise to the Assurance of Discontinuance,2. The Respondent's assurance of discontinuance,3. A sanction and/or the Respondent's agreement to pay the Commonwealth's costs of the investigation, and4. The Respondent's agreement that violation of the Assurance of Discontinuance shall be prima facie evidence of violation of the applicable law, regulations or standards of good and accepted medical practice referenced in the Assurance of Discontinuance.(c) If the Hearing Officer approves the Assurance of Discontinuance, it shall be forwarded to the Board for final approval.(d) If the Hearing Officer and the Board do not approve an Assurance of Discontinuance within 60 days of referral of the matter to the Hearing Officer for conference, or if the Hearing Officer refers the matter back to the Complaint Committee, the Complaint Committee shall forward its recommendation regarding issuance of the Statement of Allegations to the Board.(e) Pursuant to M.G.L. c. 112, § 2, the Board must report an Assurance of Discontinuance to any national data reporting system which provides information on individual physicians.(f) The Respondent may request that the Board not process his or her case pursuant to 243 CMR 1.03, in which event the Complaint Committee shall forward its recommendation regarding issuance of a Statement of Allegations to the Board.(14)Statutory Reports. The Complaint Committee, an investigator, and any of the Board's units may also review and investigate any report filed pursuant to M.G.L. c. 111, § 53B, M.G.L. c. 112, §§ 5A through 5I, or 243 CMR 2.00: Licensing and the Practice of Medicine and 3.00: The Establishment of and Participation in Qualified Patient Care Assessment Programs, Pursuant to M.G.L. c. 112, § 5, and M.G.L. c. 111, § 203. If the Board does not issue a Statement of Allegations based upon the statutory report, the statutory report and the records directly related to its review and investigation shall remain confidential. However, if such report and records are relevant to a resignation pursuant to 243 CMR 1.05(5), then they shall be treated like closed complaint files, under 243 CMR 1.02(8)(c)1.; provided, however, that confidentiality of peer review documents is maintained in accordance with 243 CMR 1.02(8)(c)4. and that confidentiality of documents filed under M.G.L. c. 111, § 53B is maintained to the extent required by law.(15)Discipline When License Has Been Revoked by Operation of Law. For purposes of administrative economy and convenience, the Board may, in its discretion, defer commencement of formal disciplinary proceedings against a physician whose license has been revoked by operation of law under the provisions of M.G.L. c. 112, § 2 or through application of 243 CMR 2.06(2): Requirements for Renewing a Full, Administrative or Volunteer License. Such deferral may be until such time as the physician takes action to complete the renewal process. The Board shall notify the physician of its intent to defer action under 243 CMR 1.03(15); if the physician files a written objection within 60 days by certified, return-receipt mail, the Board shall not defer commencement of said proceeding. Nothing in 243 CMR 1.03(15) shall be construed to bar the Board from commencing disciplinary proceedings at any time, including any proceedings which may or may not have previously been deferred.(16)Stale Matters. Except where the Complaint Committee or the Board determines otherwise for good cause, the Board shall not entertain any complaint arising out of acts or omissions occurring more than six years prior to the date the complaint is filed with the Board.