Section 4.03 - Disposition of Complaints(1)Initiation. Any person, organization, or member of the Committee may make a complaint to the Committee which charges a licensee with misconduct. A complaint may be filed in any form. The Committee, in its discretion, may investigate anonymous complaints.(2)Complaint Subcommittee. The Committee may establish a subcommittee known as the Complaint Subcommittee to review complaints charging a licensee with misconduct. If the Subcommittee or a Board or Committee Investigator determines that a communication does not relate to any of the matters set forth in 243 CMR 4.03(5), the Subcommittee or the investigator may refer the communication to the proper authority or regulatory agency.(3)Investigation.(a) A Board or Committee Investigator shall conduct such preliminary investigation, including a request for an answer from the licensee, as is necessary to allow the Complaint Subcommittee to determine whether a complaint is frivolous or lacking in either legal 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 legal merit or factual basis, the anonymous complaint shall not be docketed, shall be filed in a general correspondence file, and shall remain confidential.(b) After receipt and review of a complaint, if the Complaint Subcommittee determines that the complaint is frivolous or lacking in either legal merit or factual basis, it may close the complaint. The Subcommittee shall notify the person who made the communication of its determination and the reasons for it. As to other complaints, the Subcommittee 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 Committee or the Complaint Subcommittee may request any person to attend a conference at any time prior to the commencement of an adjudicatory proceeding. The Committee or Subcommittee 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 Acupuncturists. A complaint against an acupuncturist must allege that a licensee is practicing acupuncture in violation of law, regulations, or good and accepted acupuncture practice, and may be founded on any of the following: 1. Fraudulent procurement of his/her license or its renewal;2. Violation of any provision of the laws of the Commonwealth relating to the practice of medicine or acupuncture, or any rule or regulation adopted thereunder;3. Conduct which places into question the acupuncturist's competence to practice acupuncture including, but not limited to, gross misconduct in the practice of acupuncture, or practicing acupuncture 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 acupuncture while the ability to practice is impaired by alcohol, drugs, chemicals, or any other type of substance, or by reason of illness, or as a result of any physical or mental condition;5. Engaging in the abuse or illegal use of alcohol, prescription drugs, or controlled substances;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/her license is lapsed, suspended, or revoked;9. Practicing acupuncture in a manner which is professionally unethical according to the ethical standards of the profession.10. Violation of any rule or regulation of the Board or Committee;11. 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, § 158 or 243 CMR 4.03(5);12. Cheating on or attempting to compromise the integrity of any acupuncture licensing examination;13. Failure to report to the Committee, as required 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 acupuncture 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 4.03;14. Failure to respond to a subpoena or to furnish the Committee, its investigators or representatives, documents, information or testimony to which the Committee is legally entitled;15. Malpractice within the meaning of M.G.L. c. 112, § 61;16. Misconduct in the practice of acupuncture.(b)Other Grounds for Complaints Against Acupuncturists. Nothing in 243 CMR 4.03(5) shall limit the Committee's adoption of policies and grounds for discipline through adjudication as well as through rule-making.(6)Docket. The Committee 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 Complaint Subcommittee may order that the licensee complained of answering the complaint within 30 days. The Subcommittee 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/her attorney, in compliance with 243 CMR 4.02(6). An answer must address the substantive allegations set forth in the complaint or order.(8)Complaint Subcommittee. Upon receipt of a licensee's answer or at any point during the course of investigation or inquiry into a complaint, the Subcommittee 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 Committee. In such event, the Subcommittee shall close the complaint. The Subcommittee shall retain a file of all complaints. The Complaint Subcommittee may resolve matters with non-disciplinary action by closing complaints under the terms and conditions it deems appropriate and by approving a Letter of Agreement.(9)Committee Action Required. If a licensee fails to answer within the 30-day period or if the Complaint Subcommittee 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 Committee, the Subcommittee may recommend to the Committee that it issue a Statement of Allegations.(10)Disposition by the Committee. The Committee shall review each recommendation which the Subcommittee 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 4.03(5) or M.G.L. c. 112, § 158. The Committee may take such informal action as it deems a complaint warrants. If the Committee requires an adjudicatory hearing, it may refer the matter to an administrative magistrate.(11)Suspension Prior to Hearing. The Committee 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 Committee determines that a licensee is an immediate and serious threat to the public health, safety or welfare, the Committee may suspend or refuse to renew a license, pending a final hearing on the merits of the Statement of Allegations. The Committee 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 Committee determines that a licensee may be a serious threat to the public health, safety or welfare, the Committee may order the licensee to file opposing affidavits or other evidence within three business days. Based upon the evidence before it, the Committee may then suspend or refuse to renew the license, pending a final hearing on the merits of the Statement of Allegations. The Committee must provide a hearing on the necessity for the summary action within seven days after the suspension.(12)Assurance of Discontinuance. (a)243 CMR 4.03(12) shall apply to minor violations of 243 CMR 4.03(5), and, unless there is an allegation of patient harm, or allegations of drug or alcohol impairment, as determined within the discretion of the Complaint Subcommittee and the Committee.(b) At the time that the Complaint Subcommittee determines that a recommendation for a Statement of Allegations is warranted, it may either forward such recommendation to the Committee or refer the matter to a conference including a Hearing Officer, a representative of the Enforcement Unit, and the Respondent. At the conference, the representative of the Enforcement 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 acupuncture practice referenced in the Assurance of Discontinuance.(c) If the Hearing Officer approves the Assurance of Discontinuance, it shall be forwarded to the Committee for final approval.(d) If the Hearing Officer and the Committee 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 Subcommittee, the Complaint Subcommittee shall forward its recommendation regarding issuance of the Statement of Allegations to the Committee.(e) The Respondent may request that the Committee not process hie/her case pursuant to 243 CMR 4.03, in which event the Complaint Subcommittee shall forward its recommendation regarding issuance of a Statement of Allegations to the Committee.(13)Letter of Agreement. A Letter of Agreement is a non-disciplinary monitoring agreement between the complaint subcommittee and an acupuncturist. Letters of Agreement are limited to licensees who meet the following criteria: (a) The licensee has disclosed a medical condition that could interfere with the practice of acupuncture; and(b) There has been no patient harm or imminent risk of patient harm as a result of the condition; and(c) The complaint subcommittee determines that disciplinary proceedings against the licensee are not warranted.