234 CMR, § 9.04 - Board Actions on Formal, Docketed Complaints
(1)
Dismissal.
(a) The Board may direct or authorize the
dismissal of a docketed complaint for the following reasons:
1. The Board lacks jurisdiction;
2. There is insufficient evidence to support
a finding that the licensee engaged in acts or omissions constituting grounds
for Board action; or
3. There may
be sufficient evidence to support a finding that the licensee engaged in acts
or omissions constituting grounds for Board action; however the Board
concludes, even if the allegations are true, the alleged acts or omissions in
the specific circumstances presented, do not warrant action against the
license.
(b) The Board
may direct or authorize the reopening of any dismissed complaint upon receipt
of new or previously unavailable evidence except when the dismissal follows a
formal adjudicatory hearing conducted in accordance with
801 CMR 1.01:
Formal Rules.
(c)
When dismissing a complaint, the Board may direct or authorize the Executive
Director to send, on the Board's behalf, an advisory letter in accordance with
234
CMR 9.06(l)(a) to the
licensee.
(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. Both the
issuance of an Order to Show Cause and the subsequent adjudicatory proceedings
shall be conducted in accordance with M.G.L. c. 30A and
801 CMR 1.01:
Formal Rules. The Board may designate an administrative
hearings counsel as the Presiding Officer to conduct the adjudicatory
proceeding. The Board may authorize prosecuting counsel to file and amend
pleadings on the Board's behalf to promote the efficient and expeditious
resolution of the adjudicatory proceeding.
(b)
Final Orders. If
after an adjudicatory hearing conducted in accordance with M.G.L. c. 30A and
801 CMR 1.01:
Formal Rules, the Board makes or adopts findings that one or
more of the grounds for Board action specified in
234 CMR
9.03 exist, the Board may direct the
Executive Director to issue an order on the Board's behalf taking one or more
of the following actions:
1.
Stayed Probation. The Board may place a license on
stayed probation, which does not constitute discipline and allows the licensee
to engage in practice subject to temporary conditions set by the Board and
specified in the order;
2.
Reprimand. The Board may reprimand the license. A
reprimand is a formal, public rebuke that constitutes discipline but does not
prohibit practice or subject practice to conditions;
3.
Probation. The
Board may place a license on probation, which constitutes discipline and allows
the licensee to engage in practice subject to temporary conditions set by the
Board and specified in the order;
4.
Suspension. The
Board may suspend a license, which constitutes discipline and prohibits the
licensee from engaging in practice for a specific period, or until specific
conditions have been met, or both;
5.
Revocation. The
Board may revoke a license, which constitutes discipline and prohibits the
licensee from engaging in practice;
(c)
Further Action.
1. The Board order may set conditions or
requirements that must be met before the Board will consider a petition to
modify or remove any conditions on the license or a petition for reinstatement
of the license;
2. The Board order
may authorize the Executive Director to take additional actions against a
license as a consequence of failing to comply with the terms of the
order.
(3)
Permanent Surrender. The Board may accept the
permanent surrender of a license by a licensee who is the subject of a
complaint. A licensee may offer to permanently surrender their license by
submitting to the Board a signed, written statement asserting his or her intent
to permanently relinquish the right to hold or renew the license. The Board's
acceptance of a licensee's permanent surrender constitutes discipline and
resolution with the Board of the complaint. The Board may deem the complaint
allegations true and grounds for discipline.
(4)
Consent
Agreements. The Board may enter into a Consent Agreement with a
licensee for the purpose of resolving the complaint with the Board. In a
Consent Agreement, the Board and the licensee may agree the Board will take one
or more of the Board actions specified in 234 CMR 9.04, or may agree the
licensee shall refrain from engaging in practice. Consent Agreements may also
include other terms as permitted by law.
(5) Except as the Board may otherwise specify
in an Order or a Consent Agreement, any action taken against a license shall
apply to the right to renew such license.
(6) Except as otherwise provided by law, all
Orders and Consent Agreements, whether disciplinary or non-disciplinary in
nature, constitute a public record.
(7) Nothing in 234 CMR 9.04 shall limit the
Board's ability to resolve a pending complaint by any other action, including
but not limited to the imposition of a fine, permitted by law.
(8) Nothing in 234 CMR 9.04 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.
Notes
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