Section 4.05 - Summary Suspension(1)Purpose. 261 CMR 4.05 establishes parameters for the summary suspension of a license, in advance of a hearing, by either the full Board or 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 licensee's practice. 261 CMR 4.05 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 an Order of Summary Suspension to the Board or, if the next scheduled meeting of the Board will not be held for more than 48 hours, 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.(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 the licensee's continued practice presents an immediate and serious threat to the public health, safety or welfare, and 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 license of a licensee.(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 the licensee's continued practice presents a serious threat to the public health, safety or welfare, and 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 licensee to file opposing affidavits or other evidence within three business days. If upon review of all the evidence submitted to the Board, the Board or Board Chair again determines the licensee's continued practice presents a serious threat to the public health, safety or welfare, and 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 license of a licensee.(3)Order of Summary Suspension: Content, Notice and Enclosures.(a) An Order of Summary Suspension shall notify the licensee that his or her license has been suspended and he or she is prohibited from engaging in practice until further notice by the Board, effective upon the licensee'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 licensee 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 licensee's continued practice presents an immediate and serious threat to the public health, safety or welfare, and 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 1.01: Formal Rules. 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 licensee 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 licensee and prosecuting counsel. The summary suspension shall remain in effect during the time the post-suspension hearing is continued at the licensee'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 licensee; and3. relevant evidence presented by prosecuting counsel that was unknown or unavailable at the time the Order of Summary Suspension issued, provided that prosecuting counsel disclosed such evidence to the licensee 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 Suspension, which shall include findings of fact regarding the allegations the licensee's practice presents an immediate and serious threat to the public health, safety or welfare, and summary suspension is necessary to prevent that threat.(b)Default. If the licensee fails to appear and defend at the hearing, the administrative hearings counsel shall issue a notice of default to the licensee, 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 licensee'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 license 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 licensee's practice presents an immediate and serious threat to the public health, safety and welfare, and 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.Amended by Mass Register Issue 1365, eff. 5/18/2018.