Md. Code Regs. 10.29.01.10

Current through Register Vol. 51, No. 12, June 14, 2024

Section 10.29.01.10 - Sanctioning Guidelines

A. General Application.

(1) This regulation shall be used by the Board as a guide for sanctioning pursuant to the Board's authority under Health Occupations Article, §§ 7-205, 7-316, and 7-604, Annotated Code of Maryland, for violations of the Morticians and Funeral Directors Act and the Board's regulations.

(2) The Board is not required to make findings of fact with respect to any of the factors for determining the sanction indicated by the sanctioning guidelines.

(3) A departure from the sanctioning guidelines alone is not a ground for any hearing or appeal of a Board action.

(4) Notwithstanding these sanctioning guidelines, in order to resolve a disciplinary matter, the Board and the offending person may agree to surrender a license, courtesy card, permit, or certificate, or agree to a consent order with terms, conditions, and sanctions agreed upon.

(5) In a case where there are multiple and distinct violations, the Board may impose a sanction greater than the maximum indicated by the sanctioning guidelines for each individual violation.

(6) If probation is imposed, the Board may impose appropriate terms and conditions of probation. Violations of the terms or conditions may cause the Board to take further disciplinary action.

(7) In the event a violation does not fall within the sanction range, the Board shall so indicate and use its best judgment to determine the appropriate sanction and consider, to the extent possible, the factors in the sanctioning guidelines.

B. Range of Sanctions.

VIOLATION	MINIMUM SANCTION	MAXIMUM SANCTION	MINIMUM PENALTY	MAXIMUM PENALTY
(1) Fraudulently or deceptively obtains or attempts to obtain a license, permit, or registration for the applicant or licensee, permit holder, or registration holder or for another	Reprimand	Revocation/denial	$0	$5,000
(2) Fraudulently or deceptively uses a license, permit, or registration	Active suspension for 1 year	Revocation	$0	$5,000
(3) Commits fraud or misrepresentation: (a) In the practice of mortuary science; or (b) While removing or transporting human remains	Active suspension for 1 year	Revocation	$0	$5,000
(4) Is convicted of or pleads guilty or nolo contendere to a felony or to a crime involving moral turpitude	Probation for 1 year	Revocation/denial	$0	$5,000
(5) Aids or abets an unauthorized person in the practice of mortuary science specifically: (a) In embalming without a license; (b) In making arrangements; (c) In the cremation of human remains; or (d) In the transporting or removal of human remains	Active suspension for 90 days	Revocation	$0	$5,000
(6) Advertises falsely or in a misleading manner	Reprimand	Active suspension for 60 days	$0	$500
(7) Solicits mortuary science business: (a) Either personally or by an agent, from a dying individual; or (b) To remove or transport human remains	Active suspension for 30 days	Active suspension for 1 year	$0	$1,500
(8) Directly or indirectly pays or offers to pay to obtain: (a) Mortuary science business; or (b) Business to remove or transport human remains	Active suspension for 30 days	Active suspension for 1 year	$0	$1,500
(9) Solicits or accepts any payment or rebate for recommending any crematory, mausoleum, or cemetery or causing a dead human body to be disposed of there	Reprimand	Active suspension for 30 days	$0	$500
(10) Refuses to surrender custody of a human remains on the demand of a person who is entitled to its custody	Active suspension for 30 days	Revocation	$2,500	$5,000
(11) Sells or offers to sell any share, certificate, or interest, with a promise to offer to perform services to the buyer at a cost less than that offered to the general public, in: (a) A mortuary science business; or (b) A mortuary transport service	Reprimand	Revocation	$0	$2,500
(12) Fails, after proper demand, to refund promptly any payments received under a pre-need contract with interest	Active suspension for 30 days	Revocation	$1,000	$5,000
(13) At the time funeral arrangements are made, fails to give the contract required by Health Occupations Article, § 7-404, Annotated Code of Maryland	Reprimand	Active suspension 15 days	$0	$250
(14) Violates any State, municipal, or county law, rule, or regulation on the handling, custody, care, or transportation of human remains or the disposal of instruments, materials, and wastes relevant to preparation of human remains for final disposition	Reprimand	Active suspension for 1 year	$0	$5,000
(15) Does one of the following: (a) Practices mortuary science under a name other than the name that appears on the license of that person or the name of a partnership in accordance with Health Occupations Article, § 7-401, Annotated Code of Maryland; or	Reprimand	Probation	$0	$500
(b) Removes and transports human remains under a name other than the name that appears on the permit or registration of that person
(16) Violates any provision of this title, of the laws relating to cremation, or any other law relating to removing and transporting of human remains	Reprimand	Revocation	$0	$5,000
(17) Is disciplined by a licensing or disciplinary authority of any other state or country for an act that would be grounds for disciplinary action under the Board's disciplinary statutes	Reprimand	Revocation	$0	$5,000
(18) Willfully makes or files a false report or record: (a) In the practice of mortuary science; or (b) For a mortuary transport service	Reprimand	Revocation	$0	$5,000
(19) Willfully fails to file or record any report as required by law, willfully impedes or obstructs the filing or recording of the report, or induces another to fail to file or record the report	Reprimand	Revocation	$0	$5,000
(20) Submits a false statement to collect a fee	Reprimand	Revocation	$0	$5,000
(21) Provides professional services while under the influence of alcohol or using any narcotic or controlled dangerous substance, or other drug that is in excess of therapeutic amounts or without valid medical indication	Probation	Revocation	$250	$5,000
(22) Violates any rule, or regulation adopted by the Board	Reprimand	Revocation	$0	$5,000
(23) Is professionally, physically, or mentally incompetent	Active suspension for 30 days	Revocation	$0	$5,000
(24) Commits an act of unprofessional conduct: (a) In the practice of mortuary science; or (b) While removing and transporting human remains	Probation	Revocation	$0	$5,000
(25) Refuses, withholds from, denies, or discriminates against an individual with regard to the provision of professional services for which the person is licensed, permitted, or registered and qualified to render because the individual is HIV positive;	Probation	Active suspension for 30 days	$0	$5,000
(26) Except in an emergency life-threatening situation where is its not feasible or practicable, fails to comply with CDC guidelines on universal precautions	Reprimand	Active suspension for 30 days	$0	$5,000
(27) Fails to allow an inspection under Health Occupations Article, § 7-205, Annotated Code of Maryland	Probation	Active suspension for 30 days	$0	$2,500
(28) Fails to comply with inspection requirements in the time specified by the Board	Reprimand	Probation	$0	$500
(29) Fails to comply with laws or regulations relating to Health-General Article, §5-513, Annotated Code of Maryland	Probation	Active suspension for 30 days	$250	$5,000
(30) Removes human remains from a death scene, mortuary transport services, funeral establishment, or crematory, without the authorization of the entity in custody of the human remains	Reprimand	Revocation	$250	$5,000

C. Mitigating and Aggravating Factors. Depending on the facts and circumstances of each case, and to the extent that they apply, the Board may consider the following mitigating and aggravating factors in determining whether the sanction in a particular case should fall outside of the range of sanctions established by the guidelines. These factors may include, but are not limited to the following:

(1) Mitigating Factors:

(a) Absence of a prior disciplinary record;

(b) The respondent reported the violation to the Board;

(c) The respondent voluntarily admitted violation, provided full disclosure to the Board, and cooperated during Board proceedings;

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

(e) The respondent made a timely good-faith effort to make restitution or otherwise rectify the consequences of the violation;

(f) Evidence of rehabilitation or potential for rehabilitation;

(g) Absence of premeditation to commit the violation;

(h) Absence of potential harm to or adverse impact on the public or adverse impact on the public;

(i) Isolated incident and not likely to recur; and

(j) The respondent's prior community service and present value to the community.

(2) Aggravating Factors:

(a) Previous criminal or administrative disciplinary history;

(b) The violation was committed deliberately or with gross negligence or recklessness;

(c) The violation had the potential for, or caused, serious harm;

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

(e) The respondent was motivated to perform the violation by the respondent's financial gain;

(f) The vulnerability of the bereaved;

(g) The respondent attempted to conceal the violation, falsified or destroyed evidence, or presented false testimony or evidence;

(h) The respondent failed to cooperate with the Board's investigation; and

(i) Previous attempts at rehabilitation were unsuccessful.

Md. Code Regs. 10.29.01.10

Regulation .10 adopted effective 43:21 Md. R. 1166, eff. 10/24/2016