Question: I have heard conflicting information about the Board’s Declaratory Rulings. I understand that the Board no longer does them but how can I see the old ones?
Response: Thank you for contacting the Maryland Board of Nursing for clarification on Declaratory Rulings (DR). It is correct that since 2008, the routine practice of asking for and receiving DRs from the Board ceased. The reason the Board withdrew all of its previously-issued declaratory ruling is because the regulations (see below) were not complied with in issuing the now-withdrawn declaratory rulings. Note that declaratory rulings can be appealed to circuit court (see .04C below- last line of regulation). Continuing to post these withdrawn DRs implied that they were still valid representations of the Board’s decision. As is true with almost all state agency documents, DRs are available upon a proper written request (email is acceptable) to the Custodian of the Records. Upon release, they are accompanied by a disclaimer stating that they are no longer valid positions of the Board and are not be used as a short cut to evidence-based decision-making. As has been presented in other responses to FAQs, the professional nurse needs to draw on multiple sources of evidence for sound decision-making. Professional organizations, Code of Federal Regulations, agency policy, accrediting bodies such as the Joint Commission, etc. are all sound sources of evidence and should be sought out and fully investigated before considering asking for a declaratory ruling from the Board. If after exhausting these other sources, the petitioner still desires a DR, the following regulations, cited in full, need to be consulted and complied with before a DR will be given.
COMAR 10.27.08 -Petition for Declaratory Ruling
A. The following terms have the meanings indicated.
B. Terms Defined.
(1) "Board" means the Board of Nursing.
(2) "Person" means an individual, an agency, an association, a corporation, or any other entity.
A. An interested person may file with the Board a petition for a declaratory ruling with respect to the manner in which the Board would apply:
(1) A statute;
(2) A regulation; or
(3) An order which the Board enforces to a particular case based on the facts presented in the petition.
B. The Board may delegate responsibility for consideration of the petition.
C. Petition for Declaratory Ruling.
(1) The petition for a declaratory ruling shall be filed in writing.
(2) The petition shall contain a statement describing in detail: interest of the petitioner in making:
(a) The interest of the petitioner in making the request;
(b) The issue involved;
(c) A statement of the facts; and
(d) A list of relevant documents or statements, or both, to be considered.
(3) The Board may require an affidavit from the petitioner that the facts contained in the petition are true to the best of the person's knowledge and belief.
D. Granting of Petition.
(1) Not later than 60 days from receipt of the petition the Board shall inform the petitioner whether the petition will be considered.
(2) If the Board decides not to consider the petition, the Board shall inform the petitioner in writing of the reasons for denial.
.03 Consideration and Disposition.
A. In rendering its ruling the Board or its designee:
(1) Shall consider all materials submitted with the petition;
(2) May consider any document, data, or other relevant material;
(3) May consult individuals;3) May consult individuals;
(4) May consider comments from the staff; or
(5) May require argument of the question or permit the introduction of evidence.
(1) A declaratory ruling issued shall be in writing, stating the:
(c) Description of factors considered; and
(d) Sources relied upon.
(2) A declaratory ruling issued by the Board shall plainly state that it is a declaratory ruling pursuant to these regulations.
(3) A written answer from the Board or any employee of the Board to an inquiry may not be construed as a declaratory ruling unless made in conformity with these regulations.
C. Publication and Inspection.
(1) The Board shall keep a record of each declaratory ruling issued.
(2) The Board may publish declaratory rulings of general interest subject to the mandates of the Public Information Act, State Government Article, §10-601 et seq., Annotated Code of Maryland, and allow inspection of the declaratory rulings subject to the Public Information Act.
D. The Board may refuse to consider a petition if the:
(1) Request contains incomplete information upon which to base an informed declaratory ruling;
(2) Board or its designee concludes that a declaratory ruling cannot reasonably be given on the matter;
(3) Matter is adequately covered by a prior:
(b) Declaratory ruling,
(d) Legal opinion; or
(4) The Board or its designee concludes that a ruling would not be in the public interest.
.04 Effect, Revision, and Appeal.
A. Effect. A declaratory ruling shall be binding upon the Board and the petitioner on the statement of facts covered in the declaratory ruling and set forth in the petition.
(1) The petitioner's application for revision of the declaratory ruling shall:
(a) Be filed within 10 days after the issuance of the declaratory ruling; and
(b) State the grounds for the revision;
(2) Upon receipt of the application, the Board may:
(a) Open the declaratory ruling to receive additional information;
(b) Amend its ruling or its statement or reasons for the ruling;
(c) Set forth additional findings or reasons;
(d) Enter new findings, new reasons, or a new ruling.
(3) The Board shall grant or deny the application within 90 days of its submission.
(4) The Board may exercise revisory power and control over the declaratory ruling in the case of fraud, mistake, or irregularity.
C. Appeal. A declaratory ruling is subject to review as provided in State Government Article, §10-305, Annotated Code of Maryland.