Md. Code Regs. 10.33.01.22

Current through Register Vol. 51, No. 18, September 6, 2024

Section 10.33.01.22 - Sanctioning Guidelines

A. General Application of Sanctioning Guidelines.

(1) After concluding that a licensee has violated a ground for discipline under Health Occupations Article, §9-314(b), Annotated Code of Maryland, or under COMAR 10.33.01.15A, the Board shall determine the applicable sanction range according to the range of sanctions set forth in §B of this regulation. The Board shall then consider the applicable aggravating and mitigating factors, set forth in §C of this regulation, to determine whether the sanction should fall outside the indicated range of sanctions. After considering the applicable aggravating and mitigating factors, the Board shall impose the appropriate sanction.

(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) In the event that a licensee's violation of the Board's statutes or regulation does not fall within a 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.

(4) The Board shall state its reasons if it deviates from the sanctioning guidelines.

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

(6) Notwithstanding this regulation, in order to resolve a disciplinary proceeding, 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 and the licensee.

(7) 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.

(8) If probation is imposed, the Board may impose appropriate terms and conditions of probation. If a licensee violates the terms or conditions of probation, the Board may take further disciplinary action against the licensee.

(9) Pursuant to Health Occupations Article, §9-314.1, Annotated Code of Maryland, if a civil fine is imposed, the fine may not exceed $1,000 for a first violation or $5,000 for any subsequent violation of the same provision.

B. Range of Sanctions.

(1) Patient Safety.
Severity	Tier	Conduct	Sanction Range
			Minimum	Maximum
Least to Greatest	1	(a) Committed a violation which resulted in no or little potential harm to a resident; or (b) Made an immediate and significant effort to remedy the violation.	Reprimand	Probation for 2 years
	2	(a) Committed a violation which resulted in moderate potential for resident harm; (b) Had been given prior warning of facility errors; (c) Made no significant or immediate attempt to remedy the facility errors; or (d) Failed to oversee a quality improvement process.	$500 fine and probation for 1 year	Maximum fine allowable under §A (9) of this regulation, suspension for 2 years, and probation for 3 years
	3	(a) Committed a violation resulting in actual or potentially serious harm to a resident; (b) Had been given repeated warnings of facility errors; (c) Committed a violation affecting two or more residents; or (d) Was under the influence of alcohol or drugs at the time the licensee committed the violation.	Suspension for 1 year	Revocation
	4	A licensee is not competent to practice as a nursing home administrator.	Suspension until Board determines competent	Revocation

(2) Fraud, Deceit, or Misrepresentation.
Severity	Tier	Conduct	Sanction Range
			Minimum	Maximum
Least to Greatest	1	(a) Committed a singular fraudulent or deceptive act, limited in nature; and (b) Neither achieved nor attempted to achieve personal financial or material gain from the violation.	Reprimand	Maximum fine allowable under §A(9) of his regulation and probation for 3 years
	2	(a) Achieved or attempted to achieve a material or financial gain as a result of the fraud, deceit, or misrepresentation. (b) Targeted or harmed residents of the facility administered; (c) Committed multiple acts of fraud or deceit or perpetrated an elaborate scheme involving fraud, deceit, or misrepresentation; (d) Used false impersonation or identification in furtherance of the violation; or (e) Committed a violation in order to obtain a license for the licensee or another.	$500 fine, suspension for 2 years, and probation for 3 years	Revocation

(3) General Misconduct.
Severity	Tier	Conduct	Sanction Range
			Minimum	Maximum
Least to Greatest	1	(a) Made a singular inappropriate sexual comment during the licensee's practice as a nursing home administrator; or (b) Committed a violation resulting in no harm or having potentially minimal harm.	Reprimand	Maximum fine allowable under §A(9) of this regulation and probation for 2 years
	2	(a) Has made multiple inappropriate sexual comments not rising to the level of harassment; (b) Was under the influence of alcohol or drugs at the time the licensee committed the violation; or (c) Committed a violation act resulting in a moderate potential for harm.	$500 fine, and probation for 1 year	Maximum fine allowable under §A(9) of this regulation, suspension for 2 years, and probation for 3 years
	3	(a) Diverted or stole drugs from a facility or a resident; (b) Committed an act of sexual misconduct involving touching, inappropriate contact, observation, recording, or harassment; (c) Committed or threatened to commit an act of violence; (d) Committed an act resulting in actual harm or the serious potential for harm; (e) Discriminated against a person; or (f) Recorded a resident or residents, without authorization from the resident or residents, using, but not limited to, a camera, phone, or video recorder.	$500 fine, suspension for 1 year, and probation for 3 years	Revocation

(4) Records Violation Without Fraudulent or Deceitful Intent
Severity	Tier	Conduct	Sanction Range
			Minimum	Maximum
Least to Greatest	1	Licensee made limited errors in completing or maintaining a resident's or the facility's record, resulting in no harm to a resident.	Reprimand	Reprimand
	2	(a) Produced a significant pattern of inaccurate records; (b) Improperly disclosed or authorized the disclosure of confidential medical records without intent to violate the governing confidentiality laws or regulations; or (c) Committed an act of false advertising.	$500 fine, and probation for 1 year	Maximum fine allowable under §A(9) of this regulation, suspension for 1 year, and probation for 3 years
	3	Willfully releasing or willfully authorizing the release of confidential medical records to unauthorized recipients.	$500 fine, suspension for 1 year, and probation for 3 years	Revocation

(5) Administrator-In-Training Violations by Nursing Home Administrator.
Severity	Tier	Conduct	Sanction Range
			Minimum	Maximum
Least to Greatest	1	Licensee failed to fulfill requirements related to the supervising of an administrator-in-training, but was in general compliance.	Reprimand	Maximum fine allowable under §A(9) of this regulation and probation for 3 years
	2	(a) Committed an act involving deliberate falsification or deceit; (b) Failed to achieve significant compliance with regulatory requirements of the administrator-in-training program.	$500 fine, suspension for 1 year, and probation for 3 years	Revocation

C. Aggravating and Mitigating Factors.

(1) Mitigating Factors. In determining whether the sanction falls outside the indicated range of sanctions listed in §B of this regulation, the Board may consider the following mitigating factors:

(a) Absence of a prior disciplinary record;

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

(c) The licensee:

(i) Voluntarily admitted violation;

(ii) Provided full disclosure to the Board; and

(iii) Cooperated during Board proceedings;

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

(e) The licensee 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; or

(j) If the licensee had worked at the nursing facility for a limited period and violation was present before beginning work at the facility.

(2) Aggravating Factors. In determining whether the sanction of the licensee falls outside the indicated range of sanctions listed in §B of this regulation, the Board may consider the following 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 resident harm;

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

(e) The licensee pursued the licensee's financial gain over a resident's welfare;

(f) The resident was especially vulnerable;

(g) The licensee attempted to:

(i) Conceal the violation;

(ii) Falsify or destroy evidence; or

(iii) Present false testimony or evidence;

(h) The licensee failed to cooperate with the Board's investigation; or

(i) Previous attempts at rehabilitation were unsuccessful.

Md. Code Regs. 10.33.01.22

Regulations .22 repealed effective December 15, 1986 (13:25 Md. R. 2260)
Regulations .22 adopted effective December 15, 1986 (13:25 Md. R. 2660)