Md. Code Regs. 10.38.10.05

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

Section 10.38.10.05 - Mitigating and Aggravating Factors to be Considered in the Assessment of the Sanction and Penalty

A. Depending on the facts and circumstances of each case, and to the extent that the facts and circumstances apply, the Board may consider, but not be limited to, the mitigating and aggravating factors outlined in §§B and C of this regulation in determining whether the sanction in a particular case should fall outside the range of sanctions established by the guidelines.

B. Mitigating Factors. The Board may consider the following mitigating factors:

(1) The licensee's lack of a prior disciplinary record;

(2) The licensee self-reported the violation to the Board;

(3) The licensee's full and voluntary admission of misconduct to the Board and cooperation during Board proceedings;

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

(5) The licensee made timely good-faith effort to make restitution or to rectify the consequences of the misconduct;

(6) Evidence of rehabilitation or rehabilitative potential;

(7) Absence of premeditation to commit the misconduct;

(8) Absence of potential harm to the public or adverse impact; and

(9) The licensee's conduct was an isolated incident and not likely to recur.

C. Aggravating Factors. The Board may consider the following aggravating factors:

(1) The licensee has a previous criminal or administrative disciplinary history;

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

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

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

(5) The licensee was motivated to perform the violation for financial gain;

(6) The vulnerability of the patient or patients;

(7) The licensee attempted to hide error or misconduct from patients or others;

(8) Previous attempts at rehabilitation of the licensee were unsuccessful; and

(9) The licensee committed the violation under the guise of treatment.

D. The existence of one or more of these factors does not impose on the Board or an Administrative Law Judge any requirement to articulate its reasoning for not exercising its discretion to impose a sanction outside of the range of sanctions set forth in this chapter.

E. Nothing in this regulation requires the Board or an Administrative Law Judge to make findings of fact with respect to any of these factors.

Md. Code Regs. 10.38.10.05

Regulations .05 under chapter, Monetary Penalties repealed and new Regulations .05 under chapter Disciplinary Sanctions, Monetary Penalties, and Civil Fines adopted effective January 23, 2012 (39:1 Md. R. 18)