267 CMR 5.00:INVESTIGATIONS, COMPLAINTS AND BOARD ACTIONSCOMPLAINT PROCEDURES AND DISCIPLINARY ACTION
Section
5.01:PurposeInvestigation of Complaints
5.02:Investigations, Formal Docketed Complaints and Licensee’s Responsibility to RespondPriortotheIssuanceofanOrderto Show Cause Grounds for DisciplinaryAction
5.03:Grounds for Board ActionSuspension Prior to Hearing
5.04:Board Actions on Complaints
5.05:Summary Suspension
5.06:Additional provisions applicable to Investigations, Complaints andBoardActions
5.01:PurposeInvestigation of Complaints
267 CMR 5.00 authorizes Board staff to conductinvestigations and initiate formaldocketedcomplaintsonbehalfoftheBoard.It also establishes the grounds for discipline andtheactionsthat may betakeninresolutionof such complaints, by the Board and on behalf ofthe Board, in accordance with M.G.L. c. 30AandStandard Adjudicatory RulesofPracticeand Procedure at 801 CMR 1.01 et seq.Italsoestablishesthe standards and procedures forsummary suspensions.
(1) The Board shall investigate any and all complaints which allege that a perfusionist who holds either a full license or provisional license issued by the Board has violated any provision of M.G.L. c. 112, §§ 211 through 220, or 267 CMR et seq.; or has otherwise engaged in improper or unethical professional conduct.
(2) All complaints, reports, records, documents or other information received or kept by the Board in connection with any investigation conducted by the Board pursuant to 267 CMR 5.01(1) shall remain confidential until such time as the Board has disposed of the matter by dismissing the complaint, issuing an Order to Show Cause, or taking other final action on said complaint. Notwithstanding the foregoing:
(a) Certain records or information received or kept by the Board in connection with any investigation conducted pursuant to 267 CMR 5.00 shall remain confidential even after final action on the complaint has been taken by the Board, to the extent that disclosure of such information is restricted by other applicable state or federal law; and
(b) The requirement that investigative records or information shall be kept confidential shall not apply to requests for such information received from the person under investigation or the complainant.
(3) The Board will review written requests for investigative records or other confidential information from, and may furnish such information in accordance with the Fair Information Practices Act (M.G.L. c. 66A) to, particular federal, state and local regulatory and law enforcement agencies, including but not limited to:
(a) The Massachusetts Executive Office of Consumer Affairs;
(b) The Massachusetts Department of the Attorney General;
(c) The Office of the District Attorney for any county in Massachusetts;
(d) The MassachusettsState Police;
(e) Any local or municipal police department in Massachusetts;
(f) The Massachusetts Department of Public Health;
(g) The Massachusetts Division of Medical Assistance;
(h) The Office of the United States Attorney;
(i) The United States Department of Justice;
(j) The Federal Bureau of Investigation;
(k) The United States Drug Enforcement Administration;
(l) The Office of the Inspector General of the United States Department of Health and
Human Services; and
(m) An agency in any other state which is responsible for the registration, certification or licensure of perfusionists.
All recipients of such confidential information designated pursuant to 267 CMR 5.00 shall preserve the confidentiality of such data and make it available to the data subject to the extent required by M.G.L. c. 66A.
5.02:Investigations, Formal Docketed Complaints and Licensee’s Responsibility to RespondPriortotheIssuanceofanOrderto Show Cause Grounds for DisciplinaryAction
(1)InvestigationsGenerally.Anypersonororganization may submit information,inanyform, alleging misconduct by a licensee to the offices of the Board.The Board may direct orauthorize one or more of following actions to betakenonitsbehalf:
(a)Reviewall information received allegingorindicatingactsor omissionsby a licensee and identify whether such acts or omissions, iftrue constitute grounds forBoard action pursuantto 267 CMR 5.03;
(b)Requestthelicensee,whoisallegedtohave engaged in the alleged acts or omissions,submit a written response totheallegationsandany documents or otherevidenceinthelicensee’s possessionand controlthat may berelevanttotheallegations;
(c)Gather additional information as necessary todetermine if the alleged acts oromissions aresupportedbyevidence;and
(d)Initiate a formal, docketed complaint against alicenseebasedonevidencethatthelicenseehasengagedinspecific acts or omissions constitutinggroundsforBoard action.
(2)Licensee’sResponse. Except as otherwiseprovided by law, a licensee who is asked to submit awritten response to a pending investigation ordocketed complaint pursuant to 267 CMR 5.02(1)shall provide such response within21 daysofthelicensee’sreceiptoftherequest.The licensee’s written response shall besignedbythelicensee.A licensee who claims to be exempt by law fromeither responding to the Board or fromproducing requesteddocuments orevidencetotheBoardshall provide a written statement setting forth thelegalauthorityonwhichheorsherelies.
(3)Closure of Investigation. If a formal, docketed complaint has notbeen initiated, theBoard may direct or authorize oneor more ofthefollowingactionsbetakenonitsbehalf:
(a)Closetheinvestigationforanyof the reasons set forthin267 CMR 5.04(1)(a)1.- 3.;
(b)Sendanadvisoryletterinaccordance with 267 CMR 5.06(1)to the licensee whois the subject of an investigation.
(c)Reopenaclosedinvestigationonthereceipt of new or previously unavailable evidence.
The Board may, by majority vote after a hearing conducted in accordance with M.G.L. c. 30A and 801 CMR 1.00 et. seq., take disciplinary action against any perfusionist who holds either a full license or a provisional license to practice perfusion issued pursuant to M.G.L. c. 112, §§ 211 through 220 and 267 CMR 3.00. Grounds for such disciplinary action shall include, but shall not be limited to:
(a) Engaging in, authorizing, or aiding or abetting fraud, deceit, misrepresentation of material facts, the provision of false or forged evidence, or bribery in connection with any application for a full or provisional license;
(b) Violating any provision of any state or federal law or regulation relating to the authorized practice of perfusionists or the performance of perfusion functions or services;
(c) Engaging in willful and/or gross misconduct in the practice of his or her profession as a perfusionist;
(d) Engaging in practice which is fraudulent or beyond the authorized scope of practice for the level of license held by the licensee;
(e) Practicing with gross incompetence or gross negligence on a particular occasion, or with negligence on repeated occasions;
(f) Practicing while his or her ability to practice is impaired by physical disability, or while he or she has been adjudged mentally ill or mentally incompetent by a court of competent jurisdiction;
(g) Engaging in the current, unlawful use of, alcohol, narcotics, barbiturates, amphetamines, hallucinogens or other drugs having similar effects to an extent which impairs his or her ability to practice;
(h) Knowingly permitting, or aiding or abetting, an unlicensed person to perform activities which require a license for purposes of fraud, deception or personal gain, excluding activities which are permissible under any provision of the laws of the Commonwealth relating to the training of perfusionists in authorized health care institutions and facilities;
(i) Having been convicted of any criminal offense which involves moral turpitude or which reasonably calls into question his or her fitness or ability to practice as a perfusionist;
(j) Having been denied or refused issuance of any license to practice perfusion by the applicable governmental licensing authority of another state, territory or political subdivision of the United States (including but not limited to the District of Columbia or the Commonwealth of Puerto Rico);
(k) Having any license to practice perfusion issued by the applicable governmental licensing authority of another state, territory or political subdivision of the United States (including but not limited to the District of Columbia or the Commonwealth of Puerto Rico) suspended, revoked, placed on probation, or otherwise subjected to disciplinary action, as defined elsewhere in 267 CMR 5.00;
(l) Violating any provision of M.G.L. c. 112, §§ 211 through 220 or any chapter of 267 CMR.
For purposes of 267 CMR 5.02, the term "disciplinary action" shall include, but shall not be limited to: denial, revocation or suspension of a full license or provisional license; refusal to renew a full license or provisional license; issuance of a letter of censure; issuance of a written reprimand; or placement of a licensee on probation.
5.03:Grounds for Board ActionSuspension Prior to Hearing
(1)The Boardmaytakeactionagainstthelicenseofalicenseebased on one or more of the following grounds:
(a)ThelicenseefailstocomplywithanyprovisionofM.G.L.c.112,§§211-220;
(b)Thelicenseefailstocomplywithanyprovisionof267 CMR ,oranyrule,advisoryrulingorpolicyadoptedbytheBoard;
(c)The licensee fails to comply with anyorder oftheBoard;
(d)ThelicenseefailstocomplywiththetermsofanyConsentAgreemententeredintowith the Board;
(e)ThelicenseefailstocomplywithanyoftheStandardsofConductsetforthat267 CMR 4.04;
(f)ThelicenseefailstocomplywithanOrderoftheCommissioneroftheDepartment ofPublicHealthpursuanttoaDeclarationofEmergencyDetrimentaltoPublicHealth madeinaccordancewithM.G.L.c.17,§2Aorpursuanttosuchotherauthorityasmay bevestedinthe Commissioner;
(g)Thelicenseeengagesinconductoutsidethelicensee’sscopeofpractice,exceptasmay beotherwiseauthorizedbylaworlicensingauthority;
(h)Thelicenseeengagesinconductthatviolates recognized standards of care.
(i)Thelicenseecontinuestopracticeaftertheexpiration,revocation,suspension,surrenderorretirementofhisorherlicense,orafterthelicenseehasenteredintoaconsentagreementinwhichheorsheagreedtorefrainfromengagingin practice;
(j)Thelicenseeknowinglypermits,aidsorabetsanunlicensedpersontoperformactivities that requires alicenseissuedbytheBoard;
(k)The licensee fraudulently procures a license, or its renewal;
(l)In connection with any examination relatedtolicensure,thelicensee
1.impersonates oractsasproxyforanotherindividual;
2.discloses the contents of any examination;
3.compromises the integrity of any such examination; or
4.cheats,orassistsanotherperson tocheat,onanysuch examination;
(m)ThelicenseeknowinglyprovidesfalseinformationtotheBoard,eitherdirectlyorthroughanotherpersonactingonthelicensee’sbehalf;
(n)Thelicenseefails,withoutcause,toappearbeforetheBoardwhensorequestedaspartoftheBoard’sreviewofamatterconcerningthelicensee,includingbutnotlimitedto an investigation, complaint or application;
(o)Thelicenseefails,withoutcause,toprovideawrittenresponsetoapendinginvestigationorcomplaintortoprovidedocumentsorotherevidenceinthelicensee’spossessionorcontrolthatmayberelevanttotheallegations,inaccordancewith267 CMR 5.02(2)and 5.06(2);
(p)Anothergovernmentlicensingorauthorizingagency,withinoroutsidetheCommonwealth,imposesdisciplineagainstanyprofessionalcertificate,registration,licenseorauthorizationheldbythelicenseeforreasonssubstantiallythesameasgroundsforBoardactioninthis267 CMR;
(q)Thelicenseefalsifies,altersorwillfullymakesincorrectentriesorfailedtomakeessentialentriesin patient records;
(r)The licensee hasbeen convicted ofa crime;
(s)Thelicenseeengages inconductthat demonstrates a lack of good moral character;
(t)Thelicenseeengagesinpracticewhilehisorherabilitytopracticeisimpairedbyalcohol, drugs, physical disability or mental instability;
(u)The licensee obtains orusesany drug in an unlawfulmanner;
(v)Thelicenseeengagesinbehaviorthatislikelytohaveanadverseeffectuponthe health,safetyorwelfareofthepublic;or
(w)Thelicenseeengagesinconductthatunderminespublicconfidenceintheintegrityof the profession.
(2)NothinginthissectionshalllimittheBoard’sadoptionofadditionalgroundsfordisciplinethroughadjudicationand rulemaking.
If, based upon affidavits or other documentary evidence, the Board determines that a licensee is an immediate or serious threat to the public health, safety, or welfare, the Board may suspend or refuse to renew a license pending a final hearing on the merits of the allegations regarding the licensee. A hearing limited to the determination of the necessity of the summary action shall be afforded the licensee within seven days of the Board’s action.
Above inserted effective 3/24/06
5.04: BoardActionson Formal, Docketed Complaints
(1)Dismissal
(a)TheBoard may directorauthorizethe dismissal ofa docketed complaintfor the followingreasons:
- The Board lacks jurisdiction;
- Thereis insufficient evidenceto support afindingthatthelicenseeengagedinacts or omissionsthatconstitutegroundsfor Board action; or
- There may besufficientevidencetosupport a finding that the licensee engaged inacts or omissionsconstitutinggroundsfor Board action; however the Boardconcludesevenif the allegations are true, theallegedactsor omissions in the specific circumstancespresented, do not warrant action against the license.
(b)TheBoard may direct orauthorizethe reopening of any dismissedcomplaint uponreceipt of new or previouslyunavailableevidence except when the dismissalfollows aformaladjudicatory hearing conducted in accordance with Standard Adjudicatory RulesofPracticeandProcedureat801CMR1.01,et seq.
(c)When dismissing a complaint, the Board may directorauthorizetheExecutiveDirector tosend,ontheBoard’s behalf, an advisoryletterin accordance with267 CMR5.06(1)tothelicensee.
(2)Orders
(a)Order to Show Cause. The Board may authorize prosecuting counsel to initiate and prosecute formal disciplinary proceedings by issuing, on the Board’s behalf, an order for the licensee to appear and show cause why the Board should not take action against his or her license. An Order to Show Cause specifies the allegations against the licensee and the specific grounds for Board action. The disciplinary proceedings will be conducted in accordance with M.G.L. c. 30A and Standard Adjudicatory Rules of Practice and Procedure at 801 CMR 1.01, et seq. The Board may refer the conduct of the hearing to an administrative hearings counsel .
(b)Final Orders. If after a hearing conducted in accordance with M.G.L. c. 30A and Standard Adjudicatory Rules of Practice and Procedure at 801 CMR 1.01, et seq., the Board makesoradoptsfindingsthat one or more of the grounds forBoard action specified in 267 CMR 5.03 exist,the Boardmay direct the Executive DirectortoissueanorderontheBoard’sbehalf taking one or more of the following actions:
- Stayed Probation.TheBoard may placea license on stayed probation, which does not constitutediscipline and allows the licenseetoengageinpracticesubjecttotemporaryconditionssetbytheBoardandspecified in the order;
- Reprimand. The Board mayreprimand the license. A reprimand is a formal, public rebuke thatconstitutesdisciplinebutdoesnotprohibit practice or subjectpracticetoconditions;
- Probation. The Board may place a license onprobation, which constitutes discipline and allows thelicenseetoengageinpracticesubjecttotemporaryconditionssetbytheBoardandspecifiedinthe order;
- Suspension.TheBoard may suspendalicensewhich constitutes discipline and prohibits thelicensee fromengaging in practice for aspecific period, or until specificconditionshavebeenmet, or both.
- Revocation.TheBoard may revokealicensewhich constitutes discipline and prohibits thelicensee fromengaging in practice.
(c)FurtherAction.
1.TheBoardorder may setconditionsor requirements that must be met before theBoardwillconsidera petition to modify or remove anyconditionsonthelicense or a petition forreinstatement of the license.
2.The Board order may authorize the Executive Directorto takeadditional actionsagainst a licenseasaconsequenceoffailingtocomply with the terms of the order.
(3)PermanentSurrender.The Board may acceptthe permanent surrender of a license by alicenseewhoisthesubjectof a complaint.A licenseemayoffer a voluntary permanent surrenderof his or her license by submitting tothe Board asigned,writtenstatementassertinghis or her intent to permanently relinquishtherighttoholdorrenewthe license.TheBoard’sacceptanceofalicensee’s permanentsurrenderconstitutesdiscipline and resolution with the Board of thecomplaint.The Board mayreport thecomplaintallegations as the groundsfordiscipline.
(4)Consent Agreements.TheBoard may enterintoaConsent Agreement withalicenseeforthepurposeofresolvingthe complaint with the Board.Ina Consent Agreement, theBoardandthelicenseemay agree that the Board will take one or more of the Board actions specified in this section,or may agree thatthelicenseeshallrefrain fromengaging in practice.Consent Agreementsmay also include other terms as permitted by law.
(5)Exceptas the Board may otherwise specifyinanorderora Consent Agreement, anyactiontakenagainstalicenseshallapplytotherighttorenew such license.
(6)Except as otherwise provided by law, all orders and Consent Agreements, whetherdisciplinaryornon-disciplinaryin nature, constituteapublicrecord.
(7)Nothing in this sectionshalllimit theBoard’s abilityto resolve apending complaint byanyotheraction, including butnot limited tothe imposition ofafine, permitted bylaw.
(8)Nothing in this section shall limit the authority of other governmental agencies to exercise their enforcement authority against a licensee, nor limit the rights of third parties to bring an action against a licensee, for alleged unlawful conduct.
5.05:Summary Suspension
(1)Purpose.267 CMR5.05establishes parameters for the summary suspension of a license,inadvanceofahearing,byeitherthefull Board or the Board Chair acting on the Board’sbehalf, in order to prevent animmediate andseriousthreatto thepublichealth,safetyorwelfare presented byalicensee’spractice.This section alsoestablishes requirements for a post-suspensionhearingwithinsevenbusinessdays.
(2)Authorization for Order of Summary Suspension.
(a)Request.TheExecutiveDirectormay presenta request for an Order of Summary SuspensiontotheBoardor,ifthenext scheduled meeting oftheBoardwill not be held for morethan48hours,totheBoardChair.TheBoardChair may either defer tothefullBoardoractontheBoard’sbehalf.All members oftheBoardshallreceiveacopyoftherequestforanOrder of Summary Suspension presented totheBoardChair. The requestforan Order of Summary Suspension must be supported by affidavits, or documentaryevidence.
(b)Immediate and Serious Threat.If,uponreviewofthe information presentedintherequest for anOrder of Summary Suspension, the Board, orBoard Chair, determinesthelicensee’scontinuedpracticepresentsan immediate and seriousthreattothepublichealth,safetyorwelfare,and summary suspensionis necessary to prevent that threat,theBoard, or theBoardChair, acting ontheBoard’s behalf, may authorize the ExecutiveDirectortoissueanorder summarily suspending the license of a licensee.
(c)Serious Threat. If, upon review of the information presented in the request for anOrder of Summary Suspension, the Board, orBoard Chair, determines the licensee’scontinued practice presents a serious threat tothe public health, safety orwelfare,andsummarysuspension is necessary to prevent thatthreat,theBoard,ortheBoardChairactingontheBoard’sbehalf, may authorize the ExecutiveDirector to issue an ordercommandingthelicenseetofileopposing affidavits orotherevidencewithinthreebusiness days. If upon review of all the evidence submitted totheBoard, the Board orBoard Chair again determines that licensee’s continuedpracticepresentsaseriousthreattothepublichealth,safety or welfare, and summary suspensionis necessary topreventthatthreat,the Board, or the Board ChairactingontheBoard’sbehalf, mayauthorize the Executive Director toissueanorder summarily suspending the license of a licensee.
(3)Order of Summary Suspension: Content, Notice and Enclosures.
(a)An Order of Summary Suspension shall notify thelicenseethathis or her licensehasbeensuspendedandheorsheisprohibitedfrom engaginginpracticeuntil further notice by the Board,effective upon the licensee’s receipt of the order.
(b)TheOrderofSummarySuspensionshall includenoticeofthe date, time andlocation of the post-suspension hearing.
(c)TheOrder of SummarySuspensionshall bemailed tothe licensee byUnitedStates Postal Service, first class mail andbyeitherUnitedStatesPostalServiceoracomparable private mail servicethatdeliverswithin24hours.
(d)The Order of Summary Suspension shall be accompanied by a copy of theExecutive Director’s request for an Order of Summary Suspension and its supportingaffidavits and documentary evidence.
(4)Post-SuspensionHearing.
(a)The Board shall hold a post-suspensionhearinginorderto determine whethertocontinueorrescindtheOrderof Summary Suspensionbasedonfindingswithrespecttowhether the licensee’s continued practice presents an immediate andseriousthreattothepublichealth,safetyorwelfare,andsummarysuspension is necessary to prevent thatthreat.The post-suspension hearing willbe conducted in accordance withM.G.L.c.30Aand Standard Adjudicatory Rules of PracticeandProcedureat801CMR1.01.The Board may designate an administrativehearings counsel as the Presiding Officer toconductthe post-suspension hearing.
(b)The post-suspension hearing shall take place within seven business days of theissuance of the Order of Summary Suspension. The licensee maysubmit a writtenrequestforacontinuancetothe administrative hearings counsel assignedwithnoticetotheprosecutingcounselassignedtothe summary suspensionhearing.The administrativehearingscounsel may continuethepost-suspensionhearingtoadateand time mutuallyagreeable tothelicenseeand prosecuting counsel. Thesummary suspension shall remainineffectduringthe time the post-suspension hearingiscontinued at the licensee’srequest.
(c)Administrative hearingscounsel mayadmit into evidence:
1.theExecutiveDirector’srequestforanOrderof Summary Suspensionanditssupportingaffidavitsand documentary evidence;
2.relevant evidence presentedbythelicensee;and
3.relevant evidence presented by prosecuting counselthatwasunknownorunavailable atthe time theOrderof Summary Suspensionissued, providedthatprosecutingcounseldisclosedsuch evidence tothelicensee priortothehearing.
(d)Administrative hearings counselshall,within30daysoftheconclusionofthepost-suspensionhearing,either issue atentativedecisionor provide astatusreporttotheBoard.
(5)FinalDecisionandOrderofSummary Suspension.
(a)Final Decision. Upon review of the tentative decision and any objections andresponsestoobjectionsthat may befiled,the Board shall issue a Final Decision and Orderof Summary Suspension, which shall include findingsoffactregardingtheallegationsthelicensee’s practice presents animmediate andseriousthreatto thepublichealth,safetyorwelfare, andsummarysuspension is necessary to prevent thatthreat.
(b)Default.Ifthelicensee fails toappearand defend at the hearing, theadministrative hearingscounselshallissuea notice of default tothelicensee,theprosecutingcounselandtheBoard.TheBoardshalladopt the facts as alleged in theRequest for Summary Suspension as its findings.
(c)Rescission of Order of Summary Suspension. If the Board’s final decisionconcludeseitherthatthe licensee’s practice doesnotpresentan immediate andseriousthreattothepublichealth,safetyorwelfare,orthat summary suspensionisnotnecessaryto prevent that threat, theBoardshall rescind theOrderofSummarySuspensionandrestore the licensetothestatusthatwasineffectimmediately beforetheOrder of Summary Suspension issued.
(d)Continuation of Order of Summary Suspension.IftheBoard’sfindingsincludeboth that the licensee’s practice presents an immediate andseriousthreattothepublichealth,safetyandwelfare,and summary suspensionisnecessarytopreventthatthreat,the Board shallorderthe continuation of the Order of Summary Suspension. AnOrder of Summary Suspension that has beencontinued shall remain in effect untilresolution ofthe underlying complaint.
5.06:Additional provisions applicable to Investigations, Complaints andBoardActions
(1)Advisory letters.Anadvisoryletterisnota formal Boardaction against a license and makes no determination orfindingonwhetherthelicenseeengagedinallegedactsor omissions.It constitutes a public record ofnoticetothelicnesee:
(a)identifying the reasonforclosureofaninvestigation or dismissal of a complaint;
(b)identifying any applicable statute(s), regulation(s),rules, advisories or policies thatarerelevanttotheallegedactsor omissions thatformthesubject matter ofaninvestigation or complaint; and
(c)including a reminder of the generalrequirement tocomply with the identifiedprovisions.
(2)Receipt by a licensee. The Board may deema licensee to have received a request, notice,order or other correspondence on the date that such itemhasbeendeliveredtotheaddressofrecord provided bythelicensee.Intheeventthatdeliveryisnotpossibleatsuchaddressbecausethe licensee hasmovedandleftno forwarding address or becausetheaddressisotherwise invalid, theBoard may deemreceipt by the licensee to have occurred on the datethat deliverywas attempted but failed.