Summary Suspension

(1) Purpose. 272 CMR 9.05 establishes parameters for the summary suspension of a license, in advance of a hearing, by either the full Board or by the Board Chair acting on the Board’s behalf, in order to prevent an immediate and serious threat to the public health, safety or welfare presented by a certificate holder’s practice. It also establishes requirements for a post-suspension hearing within seven business days. (2) Authorization for Order of Summary Suspension. (a) Request. The Executive Director may present a request for Order of Summary Suspension to the Board or, if the next scheduled meeting of the Board is more than 48 hours into the future, to the Board Chair. The Board Chair may either defer to the full Board or act on the Board’s behalf. All members of the Board shall receive a copy of the request for an Order of Summary Suspension presented to the Board Chair. The request for an Order of Summary Suspension must be supported by affidavits, or documentary evidence, or both. (b) Immediate and Serious Threat. If, upon review of the information presented in the request for an Order of Summary Suspension, the Board, or Board Chair, determines that certificate holder’s continued practice presents an immediate and serious threat to the public health, safety or welfare, and that summary suspension is necessary to prevent that threat, the Board, or the Board Chair, acting on the Board’s behalf, may authorize the Executive Director to issue an order summarily suspending the certificate of a certificate holder. (c) Serious Threat. If, upon review of the information presented in the request for an Order of Summary Suspension, the Board, or Board Chair, determines that certificate holder’s continued practice presents a serious threat to the public health, safety or welfare, and that summary suspension is necessary to prevent that threat, the Board, or the Board Chair acting on the Board’s behalf, may authorize the Executive Director to issue an order commanding the certificate holder to file opposing affidavits or other evidence within three business days. If, upon review of the information presented in both the request for an Order of Summary Suspension and the evidence submitted by the certificate holder, the Board, or Board Chair, again determines that certificate holder’s continued practice presents a serious threat to the public health, safety or welfare, and that summary suspension is necessary to prevent that threat, the Board, or the Board Chair acting on the Board’s behalf, may authorize the Executive Director to issue an order summarily suspending the certificate of a certificate holder. (3) Order of Summary Suspension: Content, Notice and Enclosures. (a) An Order of Summary Suspension shall notify the certificate holder that his or her certificate has been suspended and that he or she is prohibited from engaging in practice until further notice by the Board, effective upon the certificate holder’s receipt of the order. (b) The Order of Summary Suspension shall include notice of the date, time and location of the post-suspension hearing. (c) The Order of Summary Suspension shall be mailed to the certificate holder by United States Postal Service, first class mail and by either United States Postal Service or a comparable private mail service that delivers within 24 hours. (d) The Order of Summary Suspension shall be accompanied by a copy of the Executive Director’s request for an order of Summary Suspension and its supporting affidavits and documentary evidence. (4) Post-suspension Hearing. (a) The Board shall hold a post-suspension hearing in order to determine whether to continue or rescind the Order of Summary Suspension based on findings with respect to whether the certificate holder’s continued practice presents an immediate and serious threat to the public health, safety or welfare, and that summary suspension is necessary to prevent that threat. The post-suspension hearing will be conducted in accordance with M.G.L. c. 30A and 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure. The Board may designate an administrative hearings counsel as the Presiding Officer to conduct the post-suspension hearing. (b) The post-suspension hearing shall take place within seven business days of the issuance of the Order of Summary Suspension. The certificate holder may submit a written request for a continuance to the administrative hearing counsel assigned with notice to the prosecuting counsel assigned to the summary suspension hearing. The administrative hearings counsel may continue the post-suspension hearing to a date and time mutually agreeable to the certificate holder and prosecuting counsel. The summary suspension shall remain in effect during the time that the post-suspension hearing is continued at the certificate holder’s request. (c) Administrative hearings counsel may admit into evidence: 1. the Executive Director’s request for an Order of Summary Suspension and its supporting affidavits and documentary evidence; 2. relevant evidence presented by the certificate holder; and 3. relevant evidence presented by prosecuting counsel that was unknown, or unavailable, or both, at the time the Order of Summary Suspension issued, provided that prosecuting counsel disclosed such evidence to the certificate holder prior to the hearing. (d) Administrative hearings counsel shall, within 30 days of the conclusion of the post- suspension hearing, either issue a tentative decision or provide a status report to the Board. (5) Final Decision and Order of Summary Suspension. (a) Final Decision. Upon review of the tentative decision and any objections and responses to objections that may be filed, the Board shall issue a final decision and order of summary decision, which shall include findings of fact on the allegations that the certificate holder’s practice presents an immediate and serious threat to the public health, safety or welfare, and that summary suspension is necessary to prevent that threat. (b) Default. If the certificate holder fails to appear and defend at the hearing, the administrative hearings counsel shall issue a notice of default to the certificate holder, the prosecuting counsel and the Board. The Board shall adopt the facts as alleged in the Request for Summary Suspension as its findings. (c) Rescission of Order of Summary Suspension. If the Board’s final decision concludes either that the certificate holder’s practice does not present an immediate and serious threat to the public health, safety or welfare, or that summary suspension is not necessary to prevent that threat, the Board shall rescind the Order of Summary Suspension and restore the certificate to the status that was in effect immediately before the Order of Summary Suspension issued. (d) Continuation of Order of Summary Suspension. If the Board’s findings include both that the certificate holder’s practice presents an immediate and serious threat to the public health, safety and welfare, and that summary suspension is necessary to prevent that threat, the Board shall order the continuation of the Order of Summary Suspension. An Order of Summary Suspension that has been continued shall remain in effect until resolution of the underlying complaint. 9.06 Additional Provisions Applicable to Investigations, Complaints and Board Actions (1) Advisory Letters. An advisory letter is not a formal Board action against a certificate holder and makes no determination or finding on whether the recipient engaged in alleged acts or omissions. It constitutes a public record of notice to the recipient that: (a) identifies the reason for closure of an investigation or dismissal of a complaint; (b) identifies any applicable statute(s), regulation(s), rules, advisories or policies that are relevant to the alleged acts or omissions that form the subject matter of an investigation or complaint; and (c) includes a reminder of the general requirement to comply with the identified provisions. (2) Receipt by a Certificate Holder. The Board may deem a certificate holder to have received a request, notice, order or other correspondence on the date that such item has been delivered to the address of record provided by the certificate holder. In the event that delivery is not possible at such address because the certificate holder has moved and left no forwarding address or because the address is otherwise invalid, the Board may deem receipt by the certificate holder to have occurred on the date that delivery was attempted but failed. (3) Authority. (a) The Board may direct or authorize the Board Chair, the Executive Director, investigators, board staff, board counsel, prosecuting counsel, or any combination of the same, to act on the Board’s behalf by a Board vote specific to a particular certificate holder, or a general policy that sets parameters for action on the Board’s behalf, or a combination of both. (b) In the event that the Board Chair has a conflict of interest, an appearance of a conflict of interest, or that the Board Chair is incapacitated or inaccessible for a period of time that exceeds the reasonable time frame in which the Board Chair would be expected to act pursuant to 272 CMR 9.06 or as otherwise authorized by the board, the authority conferred upon the Board Chair may be exercised by the next most senior member of the Board, in the Board Chair’s stead. (c) In the event that the Executive Director has a conflict of interest, an appearance of a conflict of interest, or that the Executive Director is incapacitated or inaccessible for a period of time that exceeds the reasonable time frame in which the Executive Director would be expected to act pursuant to this section or as otherwise authorized bythe board, the next most senior member of Board staff, shall be authorized to act in the Executive Director’s stead.