Md. Code Regs. 10.28.04.05

Current through Register Vol. 51, No. 22, November 1, 2024

Section 10.28.04.05 - Proceedings under Health Occupations Article, Section11-313, Annotated Code of Maryland

A. Investigation of Complaints.

(1) The Board may:

(a) Make a preliminary review of each complaint; and

(b) Recommend that cases involving complaints over which the Board has no jurisdiction be closed.

(2) The Board may send a copy of the complaint, either in its entirety or redacted, to the licensee who is the subject of the complaint to obtain a response to the allegations made in the complaint.

(3) Board subpoenas may be issued by the Board over the signature of the administrator.

B. Prosecution of Complaint.

(1) For each complaint, after reviewing any completed investigative information or reports, the Board shall:

(a) Dismiss the complaint;

(b) Close the case with informal action;

(c) Issue a cease and desist order;

(d) Refer the matter for further investigation;

(e) Refer the matter to an administrative prosecutor; or

(f) Vote to:

(i) Charge a licensee with a violation of Health Occupations Article, §11-313, Annotated Code of Maryland;

(ii) Consider the matter as a basis for summary suspension pursuant to State Government Article, §10-226(c)(2), Annotated Code of Maryland;

(iii) Initially deny licensure or reinstatement of a license; or

(iv) Accept the surrender of a license subject to conditions acceptable to the Board.

(2) The Board may refer a complaint or other disciplinary matter to the administrative prosecutor at any time, whether or not it has voted to charge a licensee with violations of the Maryland Optometry Act.

C. Charges and Notice of Initial Denial.

(1) If the Board issues charges or a notice of initial denial, the document shall be:

(a) Served upon the respondent by certified mail at the address the respondent is required to maintain with the Board; or

(b) Hand delivered in person.

(2) Charges or a notice of initial denial shall:

(a) Inform the respondent of the statutory basis for the charges or denial of licensure;

(b) Allege sufficient facts which the Board believes constitute either a basis for:

(i) Violation of the Maryland Optometry Act; or

(ii) Denial of licensure;

(c) Notify the respondent of any proceedings scheduled before the Board or of an opportunity to request a hearing within a certain period of time and the consequences of failing to appear for those proceedings or to request a hearing; and

(d) Be accompanied by a letter of procedure notifying respondent of the applicability of the Administrative Procedure Act to the Board's proceedings.

(3) If the Board is unable to serve the charges or notice of initial denial upon the respondent as described in §C(1) of this regulation or attempt any other reasonable means to effect service, the Board may nevertheless proceed in prosecuting the case.

(4) If the Board issues a notice of initial denial to an applicant for a license, the applicant may not withdraw the application without approval of the Board.

D. Discovery.

(1) Discovery on Request. By written request served on the other party and filed with the Board or the Office of Administrative Hearings, as appropriate, a party may require another party to produce, within 15 days, the following:

(a) A list of the witnesses to be called;

(b) Copies of all documents intended to be produced at the hearing; or

(c) Both §D(1)(a) and (b) of this regulation.

(2) Mandatory Discovery.

(a) Each party shall provide to the other party not later than 15 days before the prehearing conference, if scheduled, or 45 days before the scheduled hearing date, whichever is earlier:

(i) The name and curriculum vitae of any expert witness who will testify at the hearing; and

(ii) A detailed written report summarizing the expert's testimony, which includes the opinion offered and the factual basis and reasons underlying the opinion.

(b) If the Board, or the Office of Administrative Hearings, as appropriate, finds that the report is not sufficiently specific, or otherwise fails to comply with the requirements of this section, the Board or the Office of Administrative Hearings, as appropriate, shall exclude from the hearing the testimony of the expert and any report of the expert.

(c) The Board, or the Office of Administrative Hearings, as appropriate, shall consider and decide arguments regarding the sufficiency of the report:

(i) At the prehearing conference, if scheduled; or

(ii) Immediately before the scheduled hearing.

(d) If an expert adopts a sufficiently specific charging document as the expert's report, that adoption satisfies the requirements set forth in this section.

(3) Parties are not entitled to discovery of items other than those listed in §D(1) and (2) of this regulation.

(4) Both parties have a continuing duty to supplement their disclosures of witnesses and documents.

(5) Absent unforeseen circumstances which would otherwise impose an extraordinary hardship on a party, witnesses or documents may not be added to the list:

(a) After the prehearing conference, if scheduled; or

(b) Later than 15 days before the hearing, if no prehearing conference is scheduled.

(6) The prohibition against adding witnesses does not apply to witnesses or documents to be used for impeachment or rebuttal purposes.

(7) Construction.

(a) In hearings conducted by an administrative law judge of the Office of Administrative Hearings, this regulation shall be construed, whenever possible, as supplementing and in harmony with COMAR 28.02.01.

(b) In the event of a conflict between this regulation and COMAR 28.02.01, this regulation applies.

E. Case Resolution Conference.

(1) After service of charges or notice of initial denial, the Board shall offer a respondent the opportunity for a case resolution conference.

(2) At any other time during disciplinary proceedings, the Board may offer or the respondent may request a case resolution conference to discuss a disciplinary matter.

(3) The Board may deny a respondent's request for a case resolution conference except as provided in §E(1) of this regulation.

(4) Matters admitted, revealed, negotiated, or otherwise discussed at a case resolution conference are without prejudice and may not be used by the respondent, administrative prosecutor, or the Board in any subsequent proceedings, unless the information is otherwise discovered or available through another source.

(5) The Board is not bound by the recommendations of the case resolution conference committee and may:

(a) Modify a proposed settlement;

(b) Require additional conditions; or

(c) Reject the recommendation and require the respondent to proceed to a hearing.

(6) If the respondent and the administrative prosecutor are unable to reach an agreement for settlement that is recommended by the case resolution conference committee and ratified by the Board, the matter shall proceed to a hearing on the charges or on a notice of initial denial.

(7) If the respondent disagrees with the recommendation of the case resolution conference committee, the respondent may elect to proceed to a hearing in the matter, regardless of whether or not the Board has ratified the recommendation of the case resolution conference committee.

(8) Participation in a case resolution conference is not ordinarily a basis for recusal of a Board member, Board counsel, or Board prosecutor from further proceedings in a case.

Md. Code Regs. 10.28.04.05

Regulations .05 adopted effective September 3, 2001 (28:17 Md. R. 1556)