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1.00: DISCIPLINARY PROCEEDINGS FOR
PHYSICIANS
Section
1.01: Scope and Construction of
Rules
1.02: General
Provisions
1.03: Dispositions of Complaints
and Statutory Reports
1.04: Adjudicatory
Hearing
1.05: Final Decision and Order and
Miscellaneous Provisions
1.01: Scope and Construction of
Rules
(1) Procedure Governed. 243 CMR 1.00 governs the disposition of
matters relating to the practice of medicine by any person holding or having
held a certificate of registration issued by the Board of Registration in
Medicine under M.G.L. c. 112, §§ 2 through 9B, and the conduct of adjudicatory
hearings by the Board. 243 CMR 1.00
is based on the principle of fundamental fairness to physicians and patients and
shall be construed to secure a speedy and just disposition. From time to time, the Board may issue
standing orders consistent with these rules and the Standard Adjudicatory Rules,
801 CMR 1.00.
(2) Definitions.
Adjudicatory
hearing: a formal administrative hearing
conducted pursuant to M.G.L. c. 30A.
Board: the Board of Registration in Medicine,
including, but not limited to, its Data Repository/Data Management Unit,
Disciplinary Unit, Patient Care Assessment Unit, Legal Unit, Licensing and
Examining Unit, and its agents and employees.
Complaint: a communication filed with the Board
which charges a licensee with misconduct.
A "Statutory Report" is not a "complaint"; see 243 CMR
1.03(14).
Informal: not subject to strict procedural or
evidentiary rules.
Licensee: a person holding or having held any type of license issued pursuant to M.G.L. c. 112, §§ 2 through 9B.
Party: a respondent, associate prosecutor
representing the disciplinary unit, or intervenor in an adjudicatory proceeding
pursuant to 801 CMR 1.01(9).
Respondent: the licensee named in a Statement of
Allegations.
Statement of
Allegations: a paper served by the Board upon a
licensee ordering the licensee to appear before the Board for an adjudicatory
proceeding and show cause why the licensee should not be disciplined; a
"Statement of Allegations" is an "Order to Show Cause" within the meaning of 801
CMR 1.01(6)(d).
1.02: General
Provisions
(1) Communications. All written correspondence should be
addressed to and filed with the Board of Registration in Medicine, 10 West
Street, Third Floor, Boston, Massachusetts 02111.*
(2) (a) Service. The Board shall provide notice of its
actions in accordance with the Standard Adjudicatory Rules, 801 CMR 1.01(4)(b)
and (5)(f), or otherwise with reasonable attempts at in-hand service, unless the
Respondent otherwise has actual notice of the Board's action. Where 243 CMR 1.00 provides that the
Board must notify parties, service may be made by first class mail. A notice of appearance on behalf of a
Respondent shall be deemed an agreement to accept service of any document on
behalf of the Respondent, including a Final Decision and Order of the
Board. When a Hearing Officer has
jurisdiction over an adjudicatory proceeding, proper service by the Respondent
includes filing copies of all papers and exhibits with:
1.
The Board, care of its General Counsel;
2.
The Hearing Officer assigned to the adjudicatory proceeding;
and
3.
The Associate Prosecutor assigned to the adjudicators proceeding. All
papers served must be accompanied by a certificate of
service.
(b)
Notice to Board Members. A Respondent (or her representative) and other persons
shall not engage in ex parte communications with individual Board members
regarding a disciplinary proceeding. Communications to Board members regarding
disciplinary proceedings shall be in writing and directed to Board members as
follows: Eight copies to the Executive Director, one copy to the General
Counsel, and one copy to the Chief of the Disciplinary
Unit.
(3) Date of Receipt.
Communications are deemed received on the date of actual receipt by the
Board.
(4) Computation of
Time. The Board shall compute time in accordance with 801 CMR
1.01(4)(c).
(5) Extension of Time.
The Board in its discretion may extend any time limit prescribed or allowed by
243 CMR 1.00.
(6) Identification and
Signature: Paper Size. All papers filed with the Board in the course of a
disciplinary proceeding must contain the name, address, and telephone number of
the party making the filing and must be signed by either the party or an
authorized representative. Paper size shall be 8 ½” by
11".
(7) Decisions by the
Board: Quorum. Unless 243 CMR 1.00 provides otherwise, a majority of members
present and voting at a Board meeting shall make all decisions and the Board
shall record its decisions in the minutes of its meetings. A quorum is a
majority of the Board, excluding vacancies.
(8) Availability of
Board Records to the Public.
(a) The availability of the Board's
records to the public is governed by the provisions of the Public Records Law,
M.G.L. c. 66, § 10, and M.G.L. c. 4, § 7, clause 26, as limited by the
confidentiality provisions of M.G.L. c. 112, §§ 5 through 5I and 243 CMR. A file
or some portion of it is not a public record if the Board determines that
disclosure may constitute an unwarranted invasion of personal privacy, prejudice
the effectiveness of law enforcement efforts (if the records were necessarily
compiled out of public view), violate any provision of state or federal law, or
if the records are otherwise legally exempt from
disclosure.
(b)
Before the Board issues a Statement of Allegations, dismisses a complaint, or
takes other final action, the Board's records concerning a disciplinary matter
are confidential.
(c) The
Board's records of disciplinary matters, as limited by 243 CMR 1.02(8)(a) and
(b), include the following:
1. Closed complaint files, which contain the complaint and other
information in matters which have been dismissed or otherwise resolved without
adjudication, are public records. The name or a complainant or patient and
relevant medical records shall be disclosed to the Respondent, but this
information is otherwise confidential. The names of reviewers and the contents
of complaint reviews shall be confidential.
2. Disciplinary Unit files, which contain portions of complaint files
(and related confidential files) as well as papers related to adjudicatory
proceedings and attorney work product, are not public records and are
confidential.
3. The Board's files, which contain each paper filed with the Board in
connection with an adjudicatory proceeding, are public records, unless otherwise
impounded or placed under seal by the Hearing Officer or the
Board.
4. Peer review information and records shall remain confidential, to the
extent allowable under M.G.L. c.
111, § 204 and 243 CMR 3.04, unless introduced into evidence in an
adjudicatory proceeding.
5. Records of any Board unit's review and investigation of statutory
reports, consistent with 243 CMR 1.03(14); are not public records and are
confidential.
6. Closed anonymous complaints, which are determined to be frivolous or
lacking in either legal merit or factual basis, consistent with 243 CMR
1.03(3)(a); are not public records and are confidential.
(d)
Communications or complaints reviewed by the Complaint Committee prior to August
21, 1987 and not docketed for reasons other than the criteria set forth in 243
CMR 1.03(3)(a), shall be made available to the public as if they were closed
complaint files under 243 CMR 1.02(8)(c)1., whether or not such documents were
previously considered to be confidential Board records, unless release is
otherwise limited by law or regulations.
(9)
Public Nature of Board Meetings Under 243 CMR 1.00.
(a)
All meetings of the Board are open to the public to the extent required by
M.G.L. c. 30A, §11A.
(b)
As provided by M.G.L. c. 30A, § 11A, a Board meeting held for the purpose of
making a decision required in an adjudicatory proceeding is not open to the
public. Evidentiary hearings before
individual hearing officers are generally open to the public, but the Board may
carry out its functions under 243 CMR 1.00 in closed session if these functions
effect an individual licensee or patient, the licensee or patient requests that
the Board function in closed session, and the Board or hearing officer
determines that functioning in closed session would be consistent with law and
in the public interest.
(10) Conditional
Privilege of Communications with the Board.
All communications
with the Board charging misconduct, or reporting or providing information to the
Board pursuant to M.G.L. c. 112, §§ 5 through 5I,
or assisting the Board in any manner in discharging its duties and functions,
are privileged, and a person making a communication is privileged from liability
based upon the communication unless the person makes the communication in bad
faith or for a malicious reason. This limitation on liability is established by
M.G.L. c. 112, §§ 5 and
5G(b).
(11) State or Federal
Agencies, Boards or Institutions Designated to Receive Investigative Records or
Confidential Information. Pursuant to M.G.L. c. 112, § 5, the Board will review
written requests for investigative records or other confidential information
from the following agencies which are hereby designated to receive, upon Board
approval, such information consistent with the Fair Information Practices Act
("FIPA"), M.G.L. c. 66A:
(a)
Massachusetts Department of the Attorney General;
(b)
Offices of the Massachusetts District Attorneys;
(c)
Massachusetts Municipal Police Departments;
(d)
Massachusetts State Police;
(e)
Federal Trade Commission;
(f)
Office of the United States Attorney;
(g)
U.S. Postal Inspector,
(h)
U.S. Department of Justice, Drug Enforcement Administration, and Federal Bureau
of Investigation;
(i)
Division of Registration;
(j)
All other state Medical Boards;
(k)
The Federation of State Medical Boards of the United States,
Inc.;
(l)
Division of Insurance and the Insurance Rating Bureau;
(m)
Massachusetts Health Data Consortium, Inc.;
(n)
Department of Public Health;
(o)
Massachusetts Department of Revenue;
(p)
U.S. Internal Revenue Service;
(q)
Office of Chief Medical Examiner;
(r)
Capitol Police;
(s) U.S. Department of
Health & Human Services, Office of the Inspector
General;
(t)
Insurance Fraud Bureau of Massachusetts.
(u)
Department of Industrial Accidents.
(v)
Division of Medical Assistance, Executive Office of Health and Human
Services.
All recipients
of confidential information designated by 240 CMR 1.00 shall preserve the
confidentiality of such data and make it available to the data subject, to the
extent such access is required by FIPA.
(12) Membership of
Committees. The Board may establish committees of its members to assist in
accomplishing its responsibilities. The Board may designate former members for
assignment to these committees; however, at least one member of each committee
shall be a current member of the Board.
1.03: Disposition of Complaints and
Statutory Reports.
(1) Initiation.
Any person, organization, or member of the Board may make a complaint to the
Board which charges a licensee with misconduct. A complaint may be filed in any
form. The Board, in its discretion, may investigate anonymous
complaints.
(2) Complaint
Committee. The Board may establish a committee known as the Complaint Committee
to review complaints charging a licensee with misconduct. If the Committee or a
Board Investigator determines that a communication does not relate to any of the
matters set forth in 243 CMR 1.03(5), the committee or the investigator may
refer the communication to the proper authority or regulatory
agency.
(3)(a)
Preliminary Investigation. A Board Investigator shall conduct such preliminary
investigation, including a request for answer from the licensee, as is necessary
to allow the Complaint Committee to determine whether a complaint is frivolous
or lacking in either merit or factual basis. If, after a preliminary
investigation of an anonymous complaint, the investigator determines that the
anonymous complaint is frivolous or lacking in either merit or factual basis,
the anonymous complaint shall not be docketed, shall be filed in a general
correspondence file, and shall remain confidential.
(b)
Subsequent Inquiry, Investigation. After receipt and review of a complaint, if
the Complaint Committee determines that the complaint is frivolous or lacking in
either legal merit or factual basis, it may close the complaint. The Committee
shall notify the person who made the communication of its determination and the
reasons for it. As to other
complaints, the Committee shall conduct, or cause to be conducted, any
reasonable inquiry or investigation it deems necessary to determine the truth
and validity of the allegations set forth in the
complaint.
(4)
Conference. To facilitate disposition, the Board or the Complaint Committee may
request any person to attend a conference at any time prior to the commencement
of an adjudicatory proceeding. The Board or Committee shall give timely notice
of the conference, and this notice must include either a reference to the
complaint or a statement of the nature of the issues to be
discussed.
(5) Grounds for
Complaint
(a)
Specific Grounds for Complaints Against Physicians. A complaint against a
physician must allege that a licensee is practicing medicine in violation of
law, regulations, or good and accepted medical practice and may be founded on
any of the following:
1. Fraudulent procurement of his/her certificate of registration or its
renewal;
2. Commitment of an offense against any provision of the laws of the
Commonwealth relating to the practice of medicine, or any rule or regulation
adopted thereunder;
3. Conduct which places into question the physician's competence to
practice medicine, including but not limited to gross misconduct in the practice
of medicine, or practicing medicine fraudulently, or beyond its authorized
scope, or with gross incompetence, or with gross negligence on a particular
occasion or negligence on repeated occasions;
4. Practicing medicine while the ability to practice is impaired by
alcohol, drugs, physical disability or mental instability;
5. Being habitually drunk or being or having been addicted to, dependent
on, or a habitual user of narcotics, barbiturates, amphetamines, hallucinogens,
or other drugs having similar effects;
6. Knowingly permitting, aiding or abetting an unlicensed person to
perform activities requiring a license.
7. Conviction of any crime;
8. Continuing to practice while his/her registration is lapsed,
suspended, or revoked;
9. Being insane;
10. Practicing medicine deceitfully, or engaging in conduct, which has
the capacity to deceive or defraud.
11. Violation of any rule or regulation of the
Board;
12. Having been
disciplined in another jurisdiction in any way by the proper licensing authority
for reasons substantially the same as those set forth in M.G.L. c. 112, § 5 or 243 CMR
1.03(5);
13. Violation of 243
CMR 2.07(15);
14. Cheating on or
attempting to compromise the integrity of any medical licensing
examination;
15. Failure to report
to the Board, within the time period provided by law or regulation, any
disciplinary action taken against the licensee by another licensing jurisdiction
(United States or foreign), by any health care institution, by any professional
or medical society or association, by any governmental agency, by any law
enforcement agency, or by any court for acts or conduct substantially the same
as acts or conduct which would constitute grounds for complaint as defined in
this section;
16. Failure to respond
to a subpoena or to furnish the Board, its investigators or representatives,
documents, information or testimony to which the Board is legally
entitled;
17. Malpractice within
the meaning of M.G.L. c. 112, § 61;
18. Misconduct in the
practice of medicine.
(b) Other Grounds for Complaints Against
Physicians.
Nothing herein
shall limit the Board's adoption of policies and grounds for discipline through
adjudication as well as through rule-making.
(6) Docket. The Board shall assign a docket number
to all complaints and shall mark the complaint with this number and the date
filed. All subsequent papers
relating to the particular complaint shall be marked with the same docket number
and shall be placed in a file (hereinafter called "the docket") with all other
papers bearing the same number.
(7) Order for Answering and
Answer. The Committee may order
that the licensee complained of answer the complaint within ten days. The Committee shall attach a copy of the
complaint to the order for answering or shall describe the acts alleged in the
complaint. A licensee shall respond
to an order for answering either personally or through his attorney, in
compliance with 243 CMR 1.02(6). An
answer must address the substantive allegations set forth in the complaint or
order.
(8) Dismissal by
Complaint Committee. Upon receipt
of a licensee's answer or at any point during the course of investigation or
inquiry into a complaint, the Committee may determine that there is not and will
not be sufficient evidence to warrant further proceedings or that the complaint
fails to allege misconduct for which a licensee may be sanctioned by the
Board. In such event, the Committee
shall close the complaint. The
Committee shall retain a file of all complaints.
(9) Board Action
Required. If a licensee fails to
answer within the ten-day period or if the Committee determines that there is
reason to believe that the acts alleged occurred and constitute a violation for
which a licensee may be sanctioned by the Board, the Committee may recommend to
the Board that it issue a Statement of Allegations.
(10) Disposition by the Board. The Board shall review each
recommendation which the Committee forwards to it within a reasonable time and
shall require an adjudicatory hearing if it determines that there is reason to
believe that the acts alleged occurred and constitute a violation of any
provision of 243 CMR 1.03(5) or M.G.L.
c. 112, §
5. The Board may take such informal
action as it deems a complaint warrants.
If the Board requires an adjudicatory hearing, it may refer the matter to
a hearing officer.
(11) Suspension Prior
to Hearing. The Board may suspend
or refuse to renew a license pending a hearing on the question of revocation if
the health, safety or welfare of the public necessitates such summary
action. The procedure for summary
suspension is as follows:
(a) Immediate and Serious Threat. If, based upon affidavits or other
documentary evidence, the Board determines that a licensee is an immediate and
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
Statement of Allegations. The Board
must provide a hearing on the necessity for the summary action within seven days
after the suspension.
(b) Serious
Threat. If, based upon affidavits
or other documentary evidence, the Board determines that a licensee may be a
serious threat to the public health, safety or welfare, the Board may order the
licensee to file opposing affidavits or other evidence within three business
days. Based upon the evidence
before it, the Board may then suspend or refuse to renew the license, pending a
final hearing on the merits of the Statement of Allegations. The Board must provide a hearing on the
necessity for the summary action within seven days after the
suspension.
((12) Reserved)
(13) Assurance of
Discontinuance.
(a) 243 CMR 1.03(13)
shall apply to minor violations of 243 CMR 1.03(5), and, unless there is an
allegation of patient harm, allegations of drug or alcohol impairment, as
determined within the discretion of the Complaint Committee and the
Board.
(b) At the time that
the Complaint Committee determines that a recommendation for a Statement of
Allegations is warranted, it may either forward such recommendation to the Board
or refer the matter to a conference including a Hearing Officer, a
representative of the Disciplinary Unit, and the Respondent. At the conference, the representative of
the Disciplinary Unit and the Respondent may submit to the Hearing Officer a
proposed Assurance of Discontinuance, which shall include:
1. Recitation of
Circumstances giving rise to the Assurance of
Discontinuance,
2. The Respondent's
assurance of discontinuance,
3. A sanction and/or
the Respondent's agreement to pay the Commonwealth's costs of the investigation,
and
4. The Respondent's
agreement that violation of the Assurance of Discontinuance shall be prima facie
evidence of violation of the applicable law, regulations or standards of good
and accepted medical practice referenced in the Assurance of
Discontinuance.
(c) If the Hearing
Officer approves the Assurance of Discontinuance, it shall be forwarded to the
Board for final approval.
(d) If the Hearing
Officer and the Board do not approve an Assurance of Discontinuance within 60
days of referral of the matter to the Hearing Officer for conference, or if the
Hearing Officer refers the matter back to the Complaint Committee, the Complaint
Committee shall forward its recommendation regarding issuance of the Statement
of Allegations to the Board.
(e) Pursuant to M.G.L.
c. 112, § 2, the Board must report an Assurance of Discontinuance to any
national data reporting system which provides information on individual
physicians.
(f) The Respondent may
request that the Board not process her case pursuant to 243 CMR 1.03, in which
event the Complaint Committee shall forward its recommendation regarding
issuance of a Statement of Allegations to the Board.
(14) Statutory Reports. The Complaint Committee, an
investigator, and any of the Board's units may also review and investigate any
report filed pursuant to M.G.L. c. 111, § 53B, M.G.L. c. 112, §§ 5A through 5I,
or 243 CMR 2.00 and 3.00. If the
Board does not issue a Statement of Allegations based upon the statutory report,
the statutory report and the records directly related to its review and
investigation shall remain confidential.
However, if such report and records are relevant to a resignation
pursuant to 243 CMR 1.05(5), then they shall be treated like closed complaint
files, under 243 CMR 1.02(8)(c)1.; provided, however, that confidentiality of
peer review documents is maintained in accordance with 243 CMR 1.02(8)(c)4. and
that confidentiality of documents filed under M.G.L. c. 111, § 53B is maintained
to the extent required by law.
(15) Discipline When License Has Been
Revoked by Operation of Law. For
purposes of administrative economy and convenience, the Board may, in its
discretion, defer commencement of formal disciplinary proceedings against a
physician whose license has been revoked by operation of Law under the
provisions of M.G.L. c. 112, § 2 or through application of 243 CMR 2.06(2). Such deferral may be until such time as
the physician takes action to complete the renewal process. The Board shall notify the physician of
its intent to defer action under 243 CMR 1.03(15); if the physician files a
written objection within 60 days by certified, return-receipt mail, the Board
shall not defer commencement of said proceeding. Nothing herein shall be construed to bar
the Board from commencing disciplinary proceedings at any time, including any
proceedings which may or may not have previously been
deferred.
(16) Stale Matters. Except where the Complaint Committee or
the Board determines otherwise for good cause, the Board shall not entertain any
complaint arising out of acts or omissions occurring more than six years prior
to the date the complaint is filed with the Board.
1.04: Adjudicatory
Hearing.
After the
Board issues a Statement of Allegations, the Board shall conduct all hearings in
accordance with 801 CMR 1.00:
Standard Adjudicatory Rules of Practice and
Procedure.
1.05: Final Decision and Order and
Miscellaneous Provisions.
(1) In General. Every Final Decision and Order of the
Board requires the concurrence of at least four members, or of a majority of the
Board if it has more than one vacancy.
If the Hearing Officer is a member of the Board, her vote counts in the
event the Board is not otherwise able to reach a final
decision.
(2) Sanctions. In disposition of disciplinary charges
brought by the Board, the Board may revoke, suspend, or cancel the certificate
of registration, or reprimand, censure, impose a fine not to exceed $10,000 for
each classification of violation, require the performance of up to 100 hours of
public service, in a manner and at a time and place to be determined by the
Board, require a course of education or training or otherwise discipline or
limit the practice of the physician.
A reprimand is a severe censure.
(3) Nature and Effect, Generally. Any order of the Board which imposes a
sanction as a result of a disciplinary action is effective immediately, unless
the Board orders otherwise.
(a) Suspension. A licensee whose certificate is
suspended for a period of time is automatically reinstated upon expiration of
the suspension period.
(b) Revocation. The cancellation or revocation of a
certificate of registration is effective for at least five years, unless the
Board orders otherwise.
Reinstatement thereafter may be granted or denied in the Board's
discretion. A cancellation or
revocation is lifted only through a petition for
reinstatement.
(4) Reinstatement. A person previously registered by the
Board may apply for reinstatement of his/her application no sooner than five
years after revocation, unless the Board orders otherwise. An application for reinstatement is
addressed to the Board's discretion, must be made in the form the Board
prescribes, must be filed in original with ten copies, and will be granted only
if the Board determines that doing so would advance the public interest. If the Board denies a petition for
reinstatement, the Respondent shall not re-petition for reinstatement until at
least two years after the date of denial, unless the Board orders
otherwise.
(5)
Resignation.
(a)
A licensee who is named in a complaint or who is subject to an investigation by
the Board or who is the respondent in a disciplinary action may submit his/her
resignation by delivering to the Board a writing stating that: he/she desires to
resign; his/her resignation is tendered voluntarily; he/she realizes that
resignation is a final act which deprives a person of all privileges of
registration and is not subject to reconsideration or judicial review; and that
the licensee is not currently licensed to practice in any other state or
jurisdiction, will make no attempt to gain licensure elsewhere, or will resign
any other licenses contemporaneously with his/her resignation in the
Commonwealth.
(b)
If a complaint, investigation, or Statement of Allegations arises solely out of
a disciplinary action in another jurisdiction, within the meaning of 243 CMR
1.03(5)(a)12., then the registrant may submit a resignation pursuant to 243 CMR
1.05(5)(a), but need not make any representation regarding licensure status in
other jurisdictions, is permitted to gain licensure elsewhere, and need not
resign any other licenses contemporaneously with the
resignation.
(c)
The Board is not obligated to accept a resignation tendered pursuant to 243 CMR
1.05. The acceptance of such a resignation is within the discretion of the
Board, and is a Final Decision and Order subject to a vote of the
Board.
(6) Unauthorized
Medical Practice. The Board shall refer to the appropriate District Attorney or
other appropriate law enforcement agency any incidents of unauthorized medical
practice which comes to its attention, as required by M.G.L. c. 112, § 5.
(7) Imposition of
Restrictions. Consistent with 243 CMR 1.00 and M.G.L. c. 30A or otherwise by
agreement with the licensee, the Board may impose restrictions to prohibit a
licensee from performing certain medical procedures, or from performing certain
medical procedures except under certain conditions, if the Board determines
that:
(a)
the licensee has engaged in a pattern or practice which calls into question her
competence to perform such medical procedures, or
(b)
the restrictions are otherwise warranted by the public health, safety and
welfare.
REGULATORY
AUTHORITY
243 CMR 1.00: M.G.L. c. 13, § 10; c. 112,
§§ 2 through
9B.
2.00: THE PRACTICE OF
MEDICINE
Section
2.01:
Introduction Provisions
2.02:
Licensure Provisions
2.03:
Licensure of Graduates of Foreign Medical Schools and
Graduates of Fifth Pathway Programs
2.04:
Application Provisions
2.05:
Fees
2.06: Renewal
Provisions
2.07: General
Provisions Governing the Practice of Medicine
2.08:
Physician Assistants
2.09:
Administrative Duties of the Board
2.10:
Supervision of Nurses Engaged in Prescriptive Practice
2.11:
Ownership Interest in Facilities Providing Physical
Therapy
Services
2.01: Introductory
Provisions
(1) Purpose. 243 CMR 2.00 are the
Board of Registration in Medicine's judgments concerning the practice of
medicine. Their purpose is to
prescribe substantive standards governing the practice of medicine which will
promote the public health, welfare, and safety and inform physicians of the
Board's expectations and requirements. The Board presumes that every physician
in the Commonwealth has notice of 243 CMR 2.00 and expects that she will
practice medicine in accordance with them.
(2) Authority. The
Board adopts these regulations under the authority of M.G.L. c. 13,
§§ 9B, 10 and 11,
c. 112, §§ 2 through 8,
9A through 12R, §§ 61 through 65,
§ 88, c. 30A, § 2, and St. 1977, c. 252.
(3) Citation. The name
of these regulations is "Massachusetts Regulations Governing the Practice of
Medicine," and persons citing them may use the following form: Mass. Regs.
Governing Practice of Medicine, 243 CMR 2.00.
(4) Definitions. For
the purposes of 243 CMR 2.00, the terms listed below have the following
meanings:
A.C.G.M.E.
means the Accreditation Council for Graduate Medical Education. Graduates of
Foreign Medical Schools means graduates of medical schools legally chartered in
a sovereign state other than the United States, the Commonwealth of Puerto Rico
or Canada.
A.M.A. means
the American Medical Association.
A.O.A. means the
American Osteopathic Association.
Accredited Canadian
post-graduate medical training means training which has been accredited by
the Royal College of Physicians and Surgeons of Canada, the College of Family
Physicians of Canada, or the Federation of Medical Licensing Authorities of
Canada.
Adjudicatory
hearing means a hearing conducted in accordance with M.G.L. c. 30A and with
the "Procedure for Complaints, Investigations and Adjudicatory Proceedings" 243
CMR 1.00.
Board means the
Board of Registration in Medicine established by M.G.L. c. 13,
§10.
E.C.F.M.G.
means Educational Commission for Foreign Medical
Graduates.
Fifth
pathway means a
program of medical education which meets the following
requirements:
(a)
Completion of two years of pre-medical education in a college or university of
the United States.
(b)
Completion of all the formal requirements for the degree corresponding to doctor
of medicine except internship and social service in a medical school outside the
United States which is recognized by the World Health
Organization.
(c) Completion of one academic year of supervised clinical training sponsored by an approved medical school in the United States or Canada.
(d)
Completion of one year of graduate medical education in a program approved by
the Liaison Committee on Graduate Medical Education of the American Medical
Association.
FLEX means the
Federation Licensing Examination.
Foreign medical
school means a legally chartered medical school in a sovereign state other
than the United States, the Commonwealth of Puerto Rico, or
Canada.
Health care
facility means a hospital or other institution of the commonwealth, or of a
county or of a municipality within it; a hospital or clinic duly licensed or
approved by the Department of Public Health; and an out-patient clinic operated
by the Department of Mental Health.
License means a
certificate of registration which the Board issues to a person pursuant to the
requirements of M.G.L. c. 112, §§
2, 9, and 9B
and which authorizes the person to engage in the practice of medicine. There are
four categories of licenses: full, limited, temporary, and restricted. A full
license entitles a licensee to practice medicine as an independent practitioner
free from specific limitations on her practice. Any other category of license
limits a licensee's practice according to the provisions of 243 CMR
2.00.
M.C.C.O.E. means the Medical
Council of Canada Qualifying Examination.
Majority vote (of
the Board) means a vote of a majority of the members of the Board present
and voting at a Board meeting. For
a definition of "majority vote of the Board" in the context of a disciplinary
proceeding before the Board, see the "Procedure for Complaints, Investigations
and Adjudicatory Proceedings" 243 CMR 1.00.
Medical school
means a legally chartered medical school in any
jurisdiction.
Medical student
means a person who has credibly completed not less than two years of study in a
legally chartered medical school.
N.B.M.E. means
the National Board of Medical Examiners.
Person means an
individual and does not mean an association of individuals or a legal
entity.
Physician
assistant means a person who is a graduate of a program approved by the
Board of Approval and Certification of Physician Assistant Programs within the
Department of Public Health established by M.G.L. c. 112, §
9F.
The Practice of
Medicine: the following conduct, the purpose or reasonably foreseeable
effect of which is to encourage the reliance of another person upon an
individual's knowledge or skill in the maintenance of human health by the
prevention, alleviation, cure of disease and involving or reasonably thought to
involve an assumption of responsibility for the other person's physical or
mental well being: diagnosis, treatment, use of instruments or other devices, or
the prescription or administration of drugs for the relief of diseases or
adverse physical or mental conditions. A person who holds himself out to the
public as a "physician" or "surgeon," or with the initials "M.D." or "D.O." in
connection with his name, and who also assumes responsibility for another
person's physical or mental well being, is engaged in the practice of medicine.
The practice of medicine does not mean conduct of the type described above
lawfully engaged in by persons licensed by other boards of registration with
authority to regulate such conduct; nor does it mean assistance rendered in
emergency situations by persons other than licensees.
Specialty board
means a specialty board recognized by the American Medical Association or the
American Osteopathic Association.
U.S.M.L.E.
means the United States Medical Licensing Examination.
(5) Number. Words in
243 CMR 2.00 importing the singular include the plural, and words in these
regulations importing the plural include the singular.
(6) Gender of
Pronouns. Pronouns indicating gender are used indiscriminately in these
regulations to refer to a person whose sex is immaterial.
(7) Submission of
Papers. The Board's official mailing address is 10 West St. Boston,
Massachusetts 02111. Persons wishing to file papers with the Board shall do so
by delivering them in hand or through the mail to this address, unless the Board
orders otherwise.
(8) Availability of
Forms. The Board will make available upon request any forms prepared in
accordance with 243 CMR 2.00.
(9) Computation of
Time. Any period of time specified in 243 CMR 2.00 includes every calendar day,
whether or not the office of the Board is open on that day, except that, when
the last day of the period falls on a day when the Board's office is closed, the
period ends instead on the next day on which the office is
open.
(10) Submission of
Original Documents. If an individual submits both an original document and a
photocopy of it to the Board, the Board will return the original document. The
Board will accept an affidavit in lieu of original documents only in
extraordinary circumstances and only in the Board's discretion. A person who
wishes to submit an original document or photocopy written in a foreign language
must also submit a notarized translation into English of the documents or copy
prepared by a translation service approved by the Board.
(11) Conduct Prior to
and During an Examination. Applicants who engage in the conduct described below
shall have their test materials confiscated, shall be denied permission to
complete the examination and shall be required to leave the examination
room.
(a)
Removing test materials from the examination room; reproducing in any manner or
aiding in the reproduction of test materials; selling, distributing, buying or
having unauthorized possession of test materials;
(b)
Communicating with any other examine during the exam; copying answers or
permitting answers to be copied; having in one's possession, during the
examination, any material other than the examination materials; failure to obey
instructions to stop working and/or starting an examination prior to being
authorized to do so;
(c)
Falsifying or misrepresenting educational credentials or other information
required for admission to the exam; having another person take the exam on one's
behalf.
(12) Public Records
and Personal Data. Documentary information obtained by the Board concerning a
licensee is either a public record, as defined by M.G.L. c. 4, § 7, clause 26,
or personal data, as defined by M.G.L. c. 66A. The Board may not disclose
personal data unless disclosure is authorized by statute or otherwise in
accordance with Mass. Gen. Laws Ann.
c. 66A, § 2(c).
(a)
Documentary information which is a public record includes the
following:
1. A licensee's name, business address, and license
number.
2. A licensee's educational and professional training and
experience.
(b)
Documentary information which is personal data includes the
following:
1. A licensee's age, marital
status, and race.
2. A licensee's home address
3. Other similar personal details.
2.02: Licensure
Provisions
(1) Procedure
for Obtaining a Full License for Graduates of Medical Schools in the United
States, Canada and Puerto Rico. In
order to qualify for a full medical license, an applicant shall meet the
following requirements in addition to other requirements for licensure as set
forth in the Board's regulations and M.G.L. c. 112.
(a)
Pre-medical Education. An applicant shall have completed a minimum of two or
more academic years at a legally chartered college or university. Such
pre-medical training shall include courses in biology, inorganic chemistry,
organic chemistry and physics, or their equivalent as determined by the
Board.
(b)
Medical Education. An applicant shall have completed and attended for four
academic years of instruction, of not less than 32 weeks in each academic year,
or courses which in the opinion of the Board are equivalent thereto, in one or
more legally chartered medical schools, and have received the degree of doctor
of medicine, or its equivalent.
(c)
Additional Requirements. In addition to the requirements set forth in 243 CMR
2.02(1)(a) and (b), an applicant for full licensure shall:
1. submit to the Board satisfactory proof of good moral character, as
determined by the Board; and
2. fulfill the examination requirements for licensure as set forth in 243
CMR 2.02(2); and
3. complete one
year of A.C.G.M.E. approved or accredited Canadian post-graduate medical
training; and
4. submit to the Board a completed application form, any additional
information which the Board requests and a fee to be determined annually by the
commissioner of administration under M.G.L. c. 7, § 3B.
(d)
If the Board determines that an applicant is qualified, such applicant will be
registered as a licensed physician and entitled to a certificate in testimony
thereof signed by the chairman and secretary.
(2) Examination
Requirements. An applicant may fulfill the examination requirements for
licensure by submitting evidence of having achieved a score acceptable to the
Board on the licensing examinations listed at 243 CMR 2.02(2)(a). An applicant
must also meet all of the requirements for licensure as set forth in the Board's
regulations and M.G.L. c. 112.
(a)
Licensing Examinations.
1. Both Component 1 and Component 2 of the FLEX; or
2. Part I, Part II and Part m of the examination of
the
3. All parts of the examination of the National Board
of
Examiners for Osteopathic Physicians and Surgeons of
the
A.O.A.;
or
4. All parts of the M.C.C.Q.E.; or
5. Individual state examinations given prior to June 19, 1970, which are
satisfactory to the Board; or
6. Step 1,
Step 2 and Step 3 of the U.S.M.L.E.; or 7. Part I of the examination of the
N.B.M.E. or Step 1 of the U.S.M.L.E., and Part II of the examination of the
N.B.M.E. or Step 2 of the U.S.M.L.E., and Part m of the examination of the
N.B.M.E. or Step 3 of the U.S.M.L.E.; or 8. Component 1 of the FLEX and Step 3
of the U.S.M.L.E.; or 9. Component 2 of the FLEX and:
a. Part I and Part II of the examination of the
N.B.M.E.; or
b. Step 1 and Step 2 of the U.S.M.L.E.; or
c. Part I of the examination of the N.B.M.E. and Step 2 of the
U.S.M.L.E.; or
d. Step 1 of the U.S.M.L.E. and Part u of
the examination of the N.B.M.E.
(b)
The examination combinations listed at 243 CMR 2.02(2)(a)7., 243 CMR
2.02(2)(a)8. and 243 CMR 2.02(2)(a)9.
will be accepted for purposes of fulfilling the examination requirements
for licensure only if completed prior to January 1, 2000.
(c)
Diplomates of the N.B.M.E. and the National Board of Osteopathic Medical
Examiners who arc applying for licensure based on diplomate status must submit
proof of certification.
(d)
An applicant for licensure in Massachusetts who is licensed in another state or
states must fulfill the examination requirements for licensure listed at 243 CMR
2.02(2). Such an applicant must also meet all of the requirements for licensure
as set forth in the Board's regulations and M.G.L. c. 112.
(e)
The Board may issue a full license to a diplomate of a specialty board
recognized by the American Medical Association or the American Osteopathic
Association who is unable to submit evidence of having achieved scores
acceptable to the Board on one of the examinations listed in 243 CMR 2.02(a). If
the Board determines that such an applicant's qualifications and professional
training indicate that the Board should restrict his practice, the Board may
issue a full license restricted pursuant to 243 CMR
2.02(6).
(3) FLEX Requirements.
The application procedure for the FLEX examination in Massachusetts is the
following:
(a)
In order to apply to take both components or either component of the FLEX, an
applicant must submit a completed application to the Board no later than 90 d
ays prior to the date of examination. The Board shall then make a determination
regarding an applicant's qualifications to take both components or either
component of the FLEX pursuant to the following schedule:
1. An applicant may take Component 1 of the FLEX if she has graduated
from medical school by the application deadline and is otherwise qualified.
Applicants who are in their last year in a legally chartered medical school in
the United States, the Commonwealth of Puerto Rico, or Canada may take Component
1 if they have graduated from medical school by the date of the
exam.
2. An applicant may take Component 2 of the FLEX if the applicant has
passed Component 1, or the applicant may take both components of the FLEX in one
sitting. Under both circumstances, the applicant must have graduated from
medical school, successfully completed one year of A.C.G.M.E. accredited
post-graduate training, and must be otherwise qualified. Applicants may take
Component 2 during the first year of A.C.G.M.E. accredited post-graduate
training if their training is successfully completed by August 1st of the year
in which the exam is given. In the case of sub-specialty clinical fellowship
programs, the Board may accept post-graduate training in a hospital that has an
A.C.G.M.E.-approved program in the parent specialty. The Board may accept
accredited Canadian post-graduate medical training.
3. In lieu of post-graduate training, the Board may accept teaching
experience consisting of a faculty appointment at or above the assistant
professor level at a medical school accredited by the Liaison Committee on
Medical Education if the majority of the teaching experience documented is
clinical teaching with supporting evidence of special honors or awards which the
applicant has achieved, and articles which the applicant has published in
reputable medical journals or medical textbooks.
(b)
The passing score for each component is 75.
(c)
Within 21 days after the Board has received notification of the FLEX results,
the Board shall notify the applicants in writing of their scores. Prior verbal
notification of a FLEX score will not be given.
(d)
Beginning with the June 1985 examination, an applicant who has received the
passing score of 75 of higher on Component 1 and 2 has passed the licensure
examination. Prior to the June 1985
examination, an applicant who has completed the FLEX in one sitting and has
received a passing grade of a FLEX weighted average of 75% or higher has passed
the licensure examination.
(e)
An applicant may be examined by FLEX in another jurisdiction and apply for
licensure in Massachusetts. An applicant who applies on the basis of an
examination taken in June 1985 or later must have received a passing score of 75
or higher on each of the two components and be otherwise qualified. An applicant
who applies on the basis of an examination taken prior to June 1985 must have
taken the FLEX in one sitting, must have received a grade of a FLEX weighted
average of 75% or higher and be otherwise qualified.
(f)
As a condition of licensure, the Board may require any applicant who has failed
the FLEX on three or more occasions to present evidence of further education,
training, or other indications which, in the opinion of the Board, addresses the
areas of deficiency.
(4) U.S.M.L.E. Step 3
Requirements. The U.S.M.L.E. consists of Step 1, 2 and 3. The application
procedure for U.S.M.L.E. Step 3 in Massachusetts is the
following:
(a)
In order to apply to take Step 3, an applicant must submit a completed
application to the Board no later than 90 days prior to the date of examination.
The Board shall then make a determination regarding an applicant's
qualifications to take Step 3 pursuant to the following
schedule:
1. An applicant may take Step 3 of the U.S.M.L.E. if she has graduated
from medical school by the application deadline, passed Step 1 and Step 2,
successfully completed one year of A.C.G.M.E. accredited post-graduate training
in the United States, and is otherwise qualified. Applicant may take Step 3
during the first year of A.C.G.M.E. accredited post-graduate training if such
training is successfully completed by August 1st of the year in which Step 3 is
given. In the case of sub-specialty clinical fellowship programs, the Board may
accept post-graduate training in a hospital that has an A.C.G.M.E.-approved
program in the parent specialty. The Board may accept accredited Canadian
post-graduate medical training. In
lieu of post-graduate training, the Board may accept teaching experience
consisting of a faculty appointment at or above the assistant professor level l
at a medical school accredited by the Liaison Committee on Medical Education if
the majority of the teaching experience documented is clinical teaching with
supporting evidence of special honors or awards which the applicant has
achieved, and articles which the applicant has published in reputable medical
journals or medical textbooks.
(b)
The passing score for Step 3 is 75.
(c)
Within 21 days after the Board has received notification of the Step 3 results,
the Board shall notify the applicants in writing of their scores. Prior verbal
notification of a Step 3 score will not be given.
(d)
As a condition of licensure, the Board may require any applicant who has failed
Step 3 more than six times to present evidence of further education, training or
other indicia which, in the opinion of the Board, addresses the areas of
deficiency.
(5) Completion of
U.S.M.L.E. examination sequence. An applicant must achieve scores acceptable to
the Board on Step 1, Step 2 and Step 3 of the U.S.M.E. within a seven year
period in order to fulfill the examination requirements for licensure. This
seven year period begins when an applicant receives notice of passing her first
Step, either Step I or Step 2. The Board will not consider evidence of having
achieved scores acceptable to the Board on Part I, Part II and Part III of the
examination of the N.B.M.E. or on Component 1 and Component 2 for purposes of
243 CMR 2.02(5).
(6) Restricted
Licensure. If the Board determines that an applicant's qualifications and
professional training indicate that the Board should restrict his practice, the
Board may, after opportunity for a hearing, issue a full license restricted to
any of the following:
(a)
A specialty.
(b)
Specified procedures within the specialty in which the applicant is a
diplomate.
(c)
A specified health care facility in which the applicant will practice under the
supervision of a fully licensed physician.
(d)
In any other manner deemed appropriate by the Board based on the Board's
assessment of the applicant's qualifications and professional
training.
(7) (Specialty
Licensure. RESERVED)
(8) Limited Licensure.
A limited license enables a person to complete her medical training. The Board
issues a limited license to a person who has received an appointment as an
intern, fellow, or medical officer at health care facility or in a training
program approved by the Board.
(9) Procedure for
Issuing a Limited License. The procedure for issuing a limited license is the
following:
(a)
An applicant submits to the Board a completed application form and any
additional information which the Board requests.
(b)
If the Board determines that the applicant is qualified, it shall issue a
limited license to the applicant.
(10) General
Provisions Governing Limited licensure. The following provisions govern a
limited license:
(a)
A limited license authorizes a limited licensee to practice medicine only in the
training program or at the health care facility designated on the limited
license or at the facility's approved affiliates. A limited licensee may
practice medicine only under the supervision of a full
licensee.
(b)
A limited licensee may practice outside the health care facility designated on
the license, but only for the treatment of persons accepted by the design ated
health care facility as patients and only under the supervision of one of the
designated health care facility's medial officers who is a full
licensee.
(c)
The Board will not issue more than one limited license to a person at a time. In
the event that a limited licensee terminates his appointment at a health care
facility or his participation in a training program prior to the limited
license's expiration date, the limited licensee shall submit to the Board a
written notice of termination which sets forth the reasons for the termination
and is signed by the superintendent or the administrator of the health care
facility or training program.
(11) Duration of a
Limited license.
(a)
A limited license expires at the end of each academic year, unless the licensee
opts, at least 30 days prior to the expiration date, for annual issuance of a
new conditional limited license and the new conditional limited license is
deemed issued in accordance with 243 CMR 2.02(11)(b). The new conditional
license will be issued in accordance with 243 CMR 2.02(11)(b) for up to five
years or for the duration of a specific and single hospital (including its
approved affiliations) training program, whichever ends first. Based upon
educational qualification or other factors deemed relevant by the Board, the
Board may, in its discretion, grant a limited license for a time period shorter
than one year. The Board may issue limited licenses to a person for a maximum
period of five years. The Board may
issued a limited license for one year after the five year period to permit a
limited licensee to engage in extended training, subject to review by the Board,
or to take an examination for licensure. However, a limited license may be
issued after a six year period only under extraordinary circumstances and only
by a vote of a majority of the Board.
(b)
A conditional limited license automatically terminates at the end of each
academic year of training, unless the Board receives, prior to 30 days before
such annual termination date, notification from the licensee and health care
facility that they opt for issuance of a new conditional limited license. Such
notification shall take the following form:
1. Written confirmation from the applicant, under the pains and penalties
of perjury, that the applicant, since the time that the applicant last filled
the later of a limited license application or previous confirmation under 243
CMR 2.02(11) with the Board, has not:
a. had any
medical malpractice claims filed;
b. been a defendant in a criminal proceeding, other than minor traffic
offenses;
c. been the subject of any past or pending
disciplinary action, as defined by 243 CMR 3.02.
d. had any change in the right to
possess, dispense or prescribe controlled
substances;
e. withdrawn
an application for medical licensure or been denied a medical
license for any
reason;
f. had any
medical or organic illness impairing the ability to practice medicine
or
g. been impaired by or dependent upon alcohol or
drugs.
2. Written
confirmation from the superintendent or administrator of the health care
facility or graduate training that the licensee is in good standing and in the
same training program for the next year as that listed on the original limited
licensure application.
3. Confirmation, under
the pains and penalties of perjury from the applicant, that the licensee has
provided such further information as the Board, as a condition of limited
licensure, may require of any new limited license
applicant.
4. Payment of the
required licensure or application fee on an annual basis or such other basis
specified by the Board.
(c) The license
applicant or licensee is under a continuing duty to assure that the information
provided is updated and accurate during the time when the Board is considering
such information. Notwithstanding 243 CMR 2.07(6), an applicant or licensee must
provide the Board with updated and accurate information immediately upon the
applicant's or licensee's knowledge of same.
(d) The Board may, in
its discretion, upon review of the confirmations and information provided under
243 CMR 2.02(11)(b), issue a new conditional limited license, under the same
limited license number, for another academic year.
(e) The Board's
issuance of any limited license is conditioned upon adherence to the above and
all other statutory and regulatory requirements, and it is the responsibility of
the individual licensee to assure such compliance. Nothing herein shall limit the Board's
authority to revoke a limited registration "at any time" in accordance with
M.G.L. c. 112, § 9 and M.G.L. c. 30A.
Nothing herein shall limit the Board, in its discretion, from determining
that a new limited license may issue with an appropriate restriction on the
scope of practice or subject to probationary conditions. A summary suspension of a currently
valid limited license shall be issued in accordance with 243 CMR 1.03(11);
automatic termination of a conditional limited license, if the licensee fails to
or is unable to provide notification, confirmations and information required
under 243 CMR 2.02(11)(b), is not a refusal to renew a license under 243 CMR
1.03(11) and therefore not subject to 243 CMR 1.03(11).