Could Maryland's old Board of Medical Examiners refuse to renew a doctor's license just because it thought the doctor had violated a disciplinary rule?

Plain-English summary

In 1987, the Secretary of Maryland's Board of Medical Examiners asked the Attorney General whether the Board could deny a physician's application to renew or reinstate a medical license based on the Board's own finding that the physician had violated one of the 28 disciplinary grounds listed in HO §14-504, the statute governing physician discipline.

The Attorney General concluded that the Board could not do this. The Maryland Medical Practice Act drew a line between an initial license application, where the Board could deny a license for any HO §14-504 ground, and a renewal or reinstatement application, where the Board's authority was limited to confirming the licensee still met the more modest renewal requirements in HO §14-314. Authority to decide whether a physician had actually committed a disciplinary violation belonged exclusively to a separate body, the Commission on Medical Discipline, which the General Assembly created in 1968 specifically to take disciplinary fact-finding out of the Board's hands. If the Board suspected a renewal or reinstatement applicant had violated HO §14-504, the opinion said its only proper move was to hold the application and report the matter to the Commission, which alone had the power to reprimand, place on probation, suspend, or revoke a license after its own hearing process.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

As the opinion's own editor's note records, the Board of Medical Examiners and the Commission on Medical Discipline were both abolished in 1988 and replaced by the State Board of Physician Quality Assurance, so the specific institutional split this opinion analyzed no longer exists in that form.

Common questions

Could Maryland's old Board of Medical Examiners refuse to renew a doctor's license over a suspected rule violation?
According to this 1987 opinion, no. The Board's renewal and reinstatement authority under HO §14-314 and §14-315 was limited to confirming the licensee met the renewal requirements; it could not independently decide the licensee had committed a disciplinary violation under HO §14-504.

Who decided whether a Maryland physician actually violated a disciplinary rule under this framework?
The opinion concluded that power belonged exclusively to the Commission on Medical Discipline, created in 1968 to take disciplinary fact-finding away from the Board, and that the Board's only role when it suspected a violation was to report the matter to the Commission under HO §14-205(b)(1)(iv).

What was the Board of Medical Examiners supposed to do if it believed a renewal applicant had committed a disciplinary violation?
Per the opinion, the Board had to defer action on the renewal or reinstatement application and refer the facts to the Commission on Medical Discipline, rather than deny the application itself.

Background and statutory framework

The Maryland Medical Practice Act split responsibility between two bodies: the Board of Medical Examiners, which licensed physicians under HO §14-305 and handled renewals under HO §14-314 and reinstatements under HO §14-315, and the Commission on Medical Discipline, which alone had authority under HO §14-504 to reprimand, place on probation, suspend, or revoke a license after finding one of 28 enumerated disciplinary violations. The opinion traced this split to Chapter 469 of the Laws of Maryland 1968, which the Medical and Chirurgical Faculty of Maryland had recommended specifically to move disciplinary fact-finding out of the Board's hands and into a newly created Commission.

The opinion read the statute's terminology carefully: an initial license seeker was an "applicant" subject to the Board's full HO §14-305 screening, including the Board's express power under HO §14-205(a)(1)(iii) to deny a license for any HO §14-504 ground, while someone seeking renewal was a "licensee" subject only to the narrower requirements of HO §14-314(c), such as paying the renewal fee and submitting evidence of continuing education. The opinion found no statutory language extending the Board's HO §14-504 denial power to renewals or reinstatements, and read HO §14-314(c)(1)'s requirement that a renewal applicant be "otherwise entitled to be licensed" as reaching only continued compliance with licensure conditions like moral character, not as a backdoor way for the Board to adjudicate HO §14-504 violations itself. The opinion also pointed to the Board's specific duty under HO §14-205(b)(1)(iv) to report suspected violations to the Commission, and to procedural protections found only in the Commission's governing sections (HO §§14-505, 14-506, 14-508, 14-510), as further evidence that the General Assembly meant disciplinary fact-finding to stay with the Commission alone. A footnote to the opinion also flagged that a licensee denied renewal or reinstatement on this basis would be entitled to a pre-denial hearing under the Due Process Clause, citing Keney v. Derbyshire and Herz v. Degnan.

Citations

Statutes:

• HO §14-205(a)(1)(iii) (Board's authority to deny an initial license for any HO §14-504 ground)
• HO §14-205(b)(1)(iv) (Board's duty to report suspected disciplinary violations to the Commission)
• HO §14-206(a)(1) (statutory distinction between issuance and renewal of a license)
• HO §14-305, §14-305(b), §14-305(d) (initial licensing requirements, including good moral character and education)
• HO §14-314, §14-314(c), §14-314(c)(1) (license renewal requirements and procedure)
• HO §14-315 (reinstatement of a lapsed license)
• HO §14-504, §14-504(6) (28 grounds for physician discipline, including conviction of a crime involving moral turpitude)
• HO §14-505, §14-506, §14-508, §14-509, §14-510, §14-510.1 (Commission on Medical Discipline hearing, findings, review, and confidentiality procedures)
• State Government Article §10-210(c)(2) (definition of a "contested case" under the Administrative Procedure Act)
• State Government Article §10-404 (licensee's right to practice under an old license pending Commission investigation)
• Chapter 469, Laws of Maryland 1968 (created the Commission on Medical Discipline)
• Chapter 109 (Senate Bill 508), Laws of Maryland 1988 (abolished the Board of Medical Examiners and Commission on Medical Discipline, created the State Board of Physician Quality Assurance)

Cases:

• Keney v. Derbyshire, 718 F.2d 352, 354-55 (10th Cir. 1983)
• Herz v. Degnan, 648 F.2d 201, 208 (3d Cir. 1981)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Health Occupations—Physicians—Licensing—Discipline—Board of Medical Examiners Lacks Authority to Deny License Renewal or Reinstatement Based on Board's Determination that Physician has Committed Disciplinary Violation.

March 31, 1987

Arthur T. Keefe, Jr., M.D.
Secretary, Board of Medical Examiners

You have requested our opinion concerning the authority of the Board of Medical Examiners, under the Maryland Medical Practice Act, to deny an application for renewal or reinstatement of a physician's license. Specifically, you ask whether the Board may deny a licensee's application for renewal or reinstatement on the basis of its determination that the licensee has violated §14-504 of the Health Occupations Article ("HO" Article), which specifies the grounds for discipline of a licensee.

For the reasons given below, we conclude that the Board may not base its denial of a licensee's application for renewal or reinstatement on its finding that the licensee has violated HO §14-504. If the Board has reason to believe that the licensee violated HO §14-504, it should take no action on the licensee's renewal application and instead should refer the matter to the Commission on Medical Discipline.

I
Physician Licensing

The Board of Medical Examiners is responsible for the licensing of physicians in this State. An unlicensed person, termed "an applicant," must meet the requirements set out in HO §14-305.1 The Board, in addition to determining whether an applicant meets the qualifications in HO §14-305, may also "deny a license to an applicant for any of the reasons that are grounds for action under §14-504 of this title." HO §14-205(a)(1)(iii).

A renewal of a physician's license is treated in a separate section, HO §14-314, which specifies the maximum term of a license and the procedures to be followed by the licensee and the Board. In particular, HO §14-314(c) provides:

"Before the license expires, the licensee periodically may renew it for an additional term, if the licensee:
(1) Otherwise is entitled to be licensed;
(2) Pays to the Board a renewal fee equivalent to an annual fee of $25; and
(3) Submits to the Board:
(i) A renewal application on the form that the Board requires; and
(ii) Satisfactory evidence of compliance with any continuing education requirements set under this section for license renewal."

HO §14-314(e) provides, "The Board shall renew the license of each licensee who meets the requirements of this section."

HO §14-315 provides for the reinstatement of lapsed licenses:

"The Board shall reinstate the license of a physician who has failed to renew the license for any reason if the physician:
(1) Meets the renewal requirements of §14-314 of this subtitle;
(2) Pays to the Board a reinstatement fee set by the Board; and
(3) Submits to the Board satisfactory evidence of compliance with the qualifications and requirements established under this title for license reinstatements."

II
Physician Discipline

The Commission on Medical Discipline is responsible for the disciplining of licensed physicians. The Commission has various powers and duties associated with the investigation and determination of allegations against physicians. See generally HO Subtitle 5, Title 14.

HO §14-504 specifies 28 separate grounds for discipline.2 The section also provides that, subject to the hearing procedures of the Administrative Procedure Act, "the Commission, on the affirmative vote of a majority of its full authorized membership, may reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the licensee" commits one of the specified acts.

III
Analysis

Both the particular language used in the Maryland Medical Practice Act and the overall design of the Act lead us to believe that the General Assembly has precluded the Board from denying an application for renewal or reinstatement based on its determination that the licensee has engaged in a practice prohibited by HO §14-504.

The wording of the Act distinguishes between the issuance of an original license and the periodic renewal of that license. One who seeks an initial license is "an applicant" and must meet the education and examination requirements in HO §14-305. A person seeking a renewal of a license is termed "a licensee" and need only meet the abbreviated requirements for renewal in HO §14-314.3 The Board's authority under HO §14-205(a)(1)(iii) to "deny a license to an applicant for any of the reasons that are grounds for action under §14-504 of this title" by its terms speaks only to the denial of an initial application for licensing, not to a licensee's application for renewal.

To be sure, the Board may deny a licensee's application for renewal if the licensee is not "otherwise . . . entitled to be licensed." HO §14-314(c)(1). But this language cannot reasonably be viewed as an indirect way of authorizing the Board to inquire into a licensee's compliance with HO §14-504. The requirement that a renewal applicant "otherwise [be] entitled to be licensed" is merely standard language that enables the Board to deny a renewal if it learns that a condition for licensure, for instance, attainment of the education and training specified in HO §14-305(d), in fact was not met.4

As we read it, HO §14-314(c)(1) authorizes the Board to deny a renewal application if the licensee is not "of good moral character," one of the requirements for initial licensure in HO §14-305. And, a circumstance identified in HO §14-504 might properly be viewed by the Board as evidence that a licensee is not of good moral character, in particular, the fact that a licensee has been convicted of "a crime involving moral turpitude." HO §14-504(6). In this situation, the Board would be acting under its grant of authority in HO §14-314(c)(1); it would not be applying HO §14-504 as such.5 However, there is no indication whatever in the language of the statute that the Board is generally empowered to take HO §14-504 directly into account when it considers a renewal or reinstatement application.6

The statutory language that restricts the Board's consideration of HO §14-504 to initial licensing only furthers an important goal of the Act as a whole, namely, to invest in the Commission on Medical Discipline exclusive responsibility for determining whether a licensee has committed an act prohibited by HO §14-504 and, if so, for imposing an appropriate sanction. The very existence of the Commission reflects a legislative judgment that questions of physician discipline should be resolved by a separate body, the Commission, instead of the licensing body that had previously dealt with disciplinary matters as well. See Chapter 469, Laws of Maryland 1968.7

In furtherance of this purpose, HO §14-504 begins with a grant of authority to the Commission alone: "Subject to the hearing provisions of §14-505 of this subtitle, the Commission, on the affirmative vote of a majority of its full authorized membership, may reprimand a licensee, place any licensee on probation, or suspend or revoke any license if the licensee" is guilty of any of the enumerated acts. In several other sections of the subtitle, the General Assembly has specified procedural requirements and protections for an accused physician that expand upon the general requirements of the Administrative Procedure Act and that have no analogue in the subtitle governing the Board. See HO §§14-505 (hearings), 14-506 (findings and orders), 14-508 (review of decision), and 14-510 (Commission documents).8 We regard these procedural provisions as further evidence of the General Assembly's intention to invest in the Commission sole responsibility for determining whether a licensee has committed an act for which one of the various forms of discipline may be imposed.9

Finally, the Board has a specific and unqualified duty to "[r]eport to the Commission any conduct of a licensed physician that may be cause for disciplinary action under [HO] §14-504. . . ." HO §14-205(b)(1)(iv). This provision, too, suggests that the Board has no authority to act independently on HO §14-504 allegations against a physician, whether in the context of license renewal or otherwise.

In short, the refusal by the Board to renew or reinstate a license because of its conclusion that the physician has committed an act prohibited by HO §14-504 is no different in effect than a suspension or revocation of that license. For the reasons stated above, the Board lacks authority to take that disciplinary action.

We appreciate and support the Board's desire to contribute to the improvement of medical care in Maryland. However, as is true of all State agencies, the Board must carry out its activities within the confines laid down by the General Assembly. If the Board believes that a physician who has applied for renewal or reinstatement of a license has committed an act prohibited by HO §14-504, the Board should defer action on the application and report promptly to the Commission the facts underlying its belief. See HO §14-205(b)(1)(iv).10

IV
Conclusion

In summary, it is our opinion that the Board of Medical Examiners may not deny a physician's application for license renewal or reinstatement based on its determination that the physician violated HO §14-504.

J. Joseph Curran, Jr., Attorney General
Judson P. Garrett, Jr., Deputy Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: In Chapter 109 (Senate Bill 508) of the Laws of Maryland 1988, the General Assembly created the State Board of Physician Quality Assurance in lieu of the now-abolished Board of Medical Examiners and Commission on Medical Discipline.

1 In addition to satisfying requirements concerning age, education, successful completion of an examination, and English language competency, an applicant "shall be of good moral character." HO §14-305(b). See note 5 below and accompanying text.

2 The most recently enacted ground for discipline, "[f]ail[ing] to educate a patient being treated for breast cancer of alternative methods for treatment as required by §20-113 of the Health-General Article," will be effective on July 1, 1987.

3 The Act's terminology elsewhere reflects the difference between initial "issuance" of a license and subsequent "renewal" of it. See HO §14-206(a)(1).

4 The Revisor's Note describes HO §14-314(c)(1) as "standard language added for clarity." See Health Occupations Article at 381 (1981). The same phrase appears throughout the Health Occupations Article. See, e.g., HO §§4-309(c)(1)(ii) (dentists), 5-309(c)(1) (electrologists), 15-308(c)(1) (podiatrists), and 21-308(c)(1) (well drillers).

5 In our view, the Board's denial of an application for renewal or reinstatement of a license because of the licensee's asserted noncompliance with HO §14-314(c)(1) is a "contested case," within the meaning of §10-210(c)(2) of the State Government Article, and therefore must be undertaken in compliance with the notice and hearing requirements of the Administrative Procedure Act. This definition includes "the . . . renewal . . . of a license that is required by law to be determined only after an opportunity for an agency hearing." In our view, the Due Process Clause of the Fourteenth Amendment is "law" that requires the Board to afford the opportunity for a pre-denial hearing. See, e.g., Keney v. Derbyshire, 718 F.2d 352, 354-55 (10th Cir. 1983); Herz v. Degnan, 648 F.2d 201, 208 (3d Cir. 1981).

6 Indeed, when the Health Occupations Article was enacted, a Revisor's Note described HO §14-315, concerning reinstatement of expired licenses, as intended in part "to clarify the distinction between non-renewal of a license under §14-314 of this subtitle and suspension of a license under §14-504 of this title." Health Occupations Article at 382 (1981).

7 Chapter 469, recommended by the Medical and Chirurgical Faculty of Maryland, was intended to "completely revise the present laws concerning disciplinary action against physicians. The present law authorizes the Board of Medical Examiners to revoke a license which has been issued and lists a number of possible causes for revocation. The proposal is to establish a Commission on Medical Discipline. . . . This group would have the duty and obligation of considering charges against physicians for a list of possible offenses, after which there would be power to reprimand, place on probation, revoke or suspend a license, or dismiss the charges." Legislative Council of Maryland, Report to the General Assembly of 1968 at 187.

8 See also HO §14-510.1, manifesting the General Assembly's intention to provide special protection for a physician's privacy when disciplinary allegations are investigated by the Commission. There is no comparable provision regarding records of the Board.

9 The differing roles of the Board and the Commission are also made clear in HO §14-509, which provides that "the Board may reinstate the license of an individual whose license has been suspended or revoked . . . only in accordance with" the Commission's order.

10 Under §10-404 of the State Government Article, a licensee whose renewal application is held pending investigation by the Commission on Medical Discipline would be entitled to practice under the old license until the matter is resolved.