Enforcement Procedures

(A) Notice of Violation. Whenever the Department finds upon inspection, investigation of a complaint or through information in its possession that an applicant or licensee is not in compliance with provisions of M.G.L. c. 111, § 5L or 105 CMR 125.000, the Department shall notify the applicant or licensee of such violation or deficiency. The notice shall include a statement of the violations or deficiencies found, the provision of the law relied upon, and a reasonable period of time for correction. A violation or deficiency may result in denial, suspension, revocation or refusal to renew a license; a modification or limitation of a license; a cease and desist order; and/or the imposition of a civil or criminal penalties. After issuing a Notice of Violation, the Department may require a written plan of correction, as specified in 105 CMR 125.022(B), or proceed to issue a Notice of Intent To Issue an Order, as specified in 105 CMR 125.022(C). (B) Plan of Correction. (1) The applicant or licensee shall, within ten days of receipt of a Notice of Violation, submit to the Department a written plan of correction. The plan shall clearly identify the licensee, state the date, reference the violation or deficiency cited, state specific corrective action(s) and timetable(s) and date(s) for completion for each deficiency cited, and shall be signed by either the applicant or licensee or their designee. (2) The Department will determine whether the written plan of correction sufficiently addresses violations or deficiencies. If upon review of the plan of correction, the Department finds that the applicant or licensee is in compliance with 105 CMR 125.000 and/or that the applicant or licensee has submitted an acceptable plan of correction, the Department shall notify the applicant or licensee of its findings of compliance and/or its acceptance or modification of the plan of correction. (3) If upon review of the plan of correction, the Department finds the plan of correction is unacceptable, the Department may request that the applicant or licensee amend and resubmit the plan of correction within five days of the date of notice or such other time as the Department may specify for resubmission. (4) If upon review of the plan of correction, the Department determines that an applicant or licensee remains non-compliant with applicable laws and regulations regarding licensure or determines that further enforcement action is warranted, the Department may initiate enforcement procedures as set forth in 105 CMR 125.022. (C) Notice of Department's Intent to Issue an Order. (1) Prior to the Department issuing an order to modify, limit, deny, suspend, revoke or refuse to renew a license, and/or to require a person to cease and desist any activity, and/or to impose civil penalties, and/or issue a reprimand, the applicant or licensee shall be notified in writing of the grounds for the Department's action, the provision(s) of law relied upon, the amount of any civil penalty, and his/her right to request an adjudicatory proceeding and/or judicial review. (2) If a license is to be modified, limited, denied, revoked, suspended, or refused renewal or if an activity is to be ceased or a civil penalty imposed by the Department, then the aggrieved applicant or licensee may request an adjudicatory hearing within 21 days of receipt of notification of the Department's Intent to Issue an Order. Said request shall be filed in accordance with Standard Adjudicatory Rules of Practice and Procedures, 801 CMR 1.01: Formal Rules. (D) Denial, Revocation or Refusal to Renew Based on Lack of Minimum Qualifications. (1) If the Department determines that the applicant or licensee fails to meet the age, educational, Department-approved training requirements or other requirements for licensure specified by M.G.L. c. 111, § 5L, the Department shall notify the applicant or licensee in writing that their license is being denied, revoked or refused renewal. Said notice shall include the factual basis for the Department's determination. (2) The Department shall afford the applicant or licensee 21 days from receipt of the written notification to submit certified records to show that they meet the age, educational, Department-approved training requirements and other requirements for licensure. (3) The Department shall deny, revoke or refuse to renew the license of that applicant or licensee without further hearing unless the applicant submits the documentation required in 105 CMR 125.022(D)(2). (E) Denial, Modification, Limitation, Revocation, or Refusal to Renew a License Based on Failure to File Reports or Pay Fees or Maintain Insurance. In accordance with M.G.L c. 30A, § 13, no hearing shall be afforded where denial, modification, limitation, revocation, suspension or refusal to renew is based solely upon failure of the licensee to file timely reports, schedules or applications, or to pay lawfully prescribed fees, or to maintain insurance coverage as required by any law or regulation. (F) Administrative Procedures: Denial, Modification, Limitation, Suspension, Revocation or Refusal to Renew a License; Orders to Cease an Activity; Civil Penalties. (1) All adjudicatory proceedings shall be conducted in accordance with M.G.L. c. 30A and 801 CMR 1.01: Formal Rules. (2) Except for circumstances specified in 105 CMR 125.022(D), if the Department determines that a license should be denied, modified, limited, suspended, revoked, or refused renewal, and/or that an applicant or licensee should cease an activity, and/or that a civil penalty should be imposed, and if the Department notifies the applicant or licensee of its intended action, upon receipt of a Notice of Claim for an Adjudicatory Proceeding, the Department shall initiate a hearing pursuant to 801 CMR 1.01: Formal Rules. (3) The Hearing Officer shall determine whether the Department has proved by a preponderance of the evidence that the license should be denied, modified, limited, suspended, revoked or refused renewal; that an activity should cease; and/or that a civil penalty be imposed based on relevant facts as they existed at or prior to the time the Department initiated the hearing procedure. (4) If the Hearing Officer finds any single ground for denial, modification, limitation, suspension, revocation, or refusal to renew a license; for a cessation of an activity; and/or for imposition of a civil penalty, then the Hearing Officer shall render a recommended decision. (G) Final Agency Decision and Judicial Review. (1) The recommended decision of a Hearing Officer in any adjudicatory proceeding conducted under 105 CMR 125.000 shall be reviewed by the Commissioner. The Com- missioner's decision upon this review shall constitute a final agency decision in an adjudicatory proceeding subject to judicial review pursuant to M.G.L. c. 30A, § 14. (2) Any applicant or licensee that fails to exercise its right to an adjudicatory proceeding under 105 CMR 125.000 waives both its right to administrative review by the Commissioner and its right to judicial review pursuant to M.G.L. c. 30A, § 14. (H) Civil Penalties. (1) If the Department determines that an applicant or licensee has not complied with an order issued pursuant to M.G.L. c. 111, § 5L or with any provision of M.G.L. c. 111, § 5L or with any applicable rule, regulation, license or registration adopted or issued thereunder, the Department, in lieu of, or in addition to suspending, denying, modifying, limiting, revoking, or refusing renewal of a license, may assess civil penalties in an amount not exceeding $100,000 per violation, subject to the right to a hearing specified in 105 CMR 125.022(C). Such civil penalty may be assessed whether or not the violation was willful. (2) Factors In Determining Amount of Penalty. In determining the amount of the civil penalty, the Department shall consider the following: (a) The willfulness of violation; (b) The actual and potential danger to the public health or the environment; (c) The actual or potential cost of such danger to the public health or the environment; (d) The actual or potential damage or injury to the public health or environment; (e) The actual and potential cost of such damage or injury; (f) The actual or potential cost to the Commonwealth of enforcing provisions of 105 CMR 125.000; (g) Whether the person being assessed the civil penalty did everything reasonable to prevent failure to comply from occurring, to come into compliance promptly, and to remedy and mitigate whatever harm might have been done as a result of the failure to comply; (h) Whether the person being assessed the civil penalty has previously failed to comply with any order issued pursuant to M.G.L. c. 111, § 5L or any other rule or regulation adopted hereunder; (i) Whether imposition of a civil penalty is likely to deter future noncompliance; (j) The financial condition of the person being assessed the civil penalty; and (k) The public interest. (3) Civil Penalty for Operation without a License. Practicing as a Radiologic Technologist without a license constitutes a violation of law punishable by a civil penalty of up to $100,000. Each day during which a Radiologic Technologist operates without a license shall constitute a separate offense. (4) Payment of the Civil Penalty. If after hearing, or waiver thereof, the Department imposes a civil penalty, then the civil penalty shall be due and payable to the Commonwealth of Massachusetts within 30 days after the date of the final agency action. (5) Non-exclusivity of Civil Penalties. By imposing a civil penalty, the Department does not waive its right to invoke other enforcement procedures, such as modification, limitation, suspension, revocation or refusal to renew a license or registration. (I) Criminal Enforcement. The Department may elect to enforce any section 105 CMR 125.000 or provision of M.G.L. c. 111, § 5L by seeking to have criminal sanctions imposed. Any person who violates M.G.L. c. 111, § 5L or any rule, regulation, license, registration, or order adopted or issued under M.G.L. c. 111, § 5N or 5O shall be fined not less than $100 nor more than $2,000, or be imprisoned for a period of not more than two years, or both. Any person who continues to violate the provisions of the aforementioned laws after due notice by the Department shall be fined not less than $1,000 nor more than $20,000 or be imprisoned for a period of not more than 20 years, or both. After due notice has been issued by the Department, each day of such violation shall constitute a separate offense. (J) Judicial Enforcement. The Department may apply directly to the Supreme Judicial Court or Superior Court to enforce any provision of M.G.L. c. 111, § 5L and/or any rule or regulation, license, registration, or order adopted and issued there under by the Department. When a person is engaged in or about to engage in any act or practice which constitutes or will constitute a violation of such provision, rule, regulation, license, registration, or order, the Department may seek to restrain such act or practice or the use or occupation of premises or parts thereof or such other equitable relief as public health and safety requires. (K) Nonexclusivity of Enforcement Procedures. None of the enforcement procedures contained in 105 CMR 125.000 is mutually exclusive. Any enforcement procedures may be invoked simultaneously if the situation so requires.