Tenn. Comp. R. & Regs. 0880-14-.07 - DISCIPLINARY GROUNDS, ACTIONS, AND CIVIL PENALTIES
(1)
Actions - Upon a finding by the Committee that any provision of the
Polysomnography Act or the rules promulgated pursuant thereto has been
violated, the Committee may impose any of the following actions separately or
in any combination deemed appropriate to the offense.
(a) "Letter of warning" This is a written
action. It is informal and advisory in nature and does not constitute a formal
disciplinary action.
(b) "Formal
reprimand" This is a written action. It is a formal disciplinary
action.
(c) "Probation" This is a
formal disciplinary action for a fixed period of time.
(d) "Licensure suspension" This is a formal
disciplinary action which suspends an individual's right to practice for a
fixed period of time. It contemplates the re-entry of the individual into the
practice under the licensure previously issued.
(e) "Licensure revocation" This is a formal
disciplinary action which removes an individual from the practice of the
profession and terminates the license previously issued. No petition for
reinstatement and no new application for licensure from a person whose license
was revoked shall be considered prior to the expiration of at least one (1)
year unless otherwise stated in the Committee's revocation order.
(f) Conditions - Any action deemed
appropriate by the Committee to be required of a disciplined licensee in any of
the following circumstances:
1. During any
period of probation, suspension;
2.
As a prerequisite to the lifting of probation or suspension; or
3. As a stand-alone requirement or
requirements in any disciplinary action.
(g) Civil penalty - A monetary disciplinary
action assessed by the Committee pursuant to paragraph three (3) of this
rule.
(h) Once ordered, probation,
suspension, assessment of a civil penalty, or any other condition of any type
of disciplinary action may not be lifted unless and until the licensee appears
before the Committee after the period of initial probation, suspension , or
other conditioning has run and all conditions placed on the probation,
suspension, have been met, and after any civil penalties assessed have been
paid.
(2) Order
Modifications - A licensee can petition the Committee to modify a previously
issued disciplinary order if the licensee cannot fulfill the conditions of the
imposed discipline. This procedure is only available after all reconsideration
and appeal rights have been either exhausted or not timely pursued. This
procedure cannot be used to modify any findings of fact, conclusions of law, or
the reasons for the decision contained in the order.
(a) The Committee will entertain petitions
for modification of the disciplinary portion of previously issued orders upon
strict compliance with the procedures set forth in subparagraph (b) only when
the petitioner can prove that compliance with any one or more of the conditions
or terms of the discipline previously ordered is impossible. For purposes of
this rule the term "impossible" does not mean that compliance is inconvenient
or impractical for personal, financial, scheduling or other reasons.
(b) Procedures
1. The petitioner shall submit a written and
signed Petition for Order Modification to the Committee's Office that shall
contain all of the following:
(i) A copy of
the previously issued order; and
(ii) A statement of why the petitioner
believes it is impossible to comply with the order as issued; and
(iii) A copy of all documents that proves
that compliance is impossible. If proof of impossibility of compliance requires
testimony of an individual(s), including that of the petitioner, the petitioner
must submit signed and notarized statements from every individual the
petitioner intends to rely upon attesting, under oath, to the reasons why
compliance is impossible. No documentation or testimony other than that
submitted will be considered in making an initial determination on, or a final
order in response to, the petition.
2. The Committee authorizes administrative
staff to make an initial determination on the petition and take one of the
following actions:
(i) Certify impossibility
of compliance and forward the petition to the Office of General Counsel for
presentation to the Committee as an uncontested matter; or
(ii) Deny the petition, after consultation
with the Office of General Counsel, if impossibility of compliance with the
provisions of the previous order is not proven and notify the petitioner of
what proof of impossibility of compliance was either not sufficient or not
submitted.
3. If the
petition is granted, a new order shall be issued reflecting the modifications
authorized by the Committee that it deemed appropriate and necessary in
relation to the violations found in the previous order.
4. If the petition is denied either initially
by staff or after presentation to the Committee and the petitioner believes
impossibility of compliance with the order has been sufficiently proven, the
petitioner may request, in writing, to appear before the Committee not less
than thirty (30) days before the next regularly scheduled meeting of the
Committee.
(3) Civil Penalties - The purpose of this
rule is to set out a schedule designating the minimum and maximum civil
penalties which may be assessed pursuant to T.C.A. §
63-1-134.
(a) Schedule and Amount of Civil Penalties
1. A Type A civil penalty may be imposed
whenever the Committee finds the person who is required to be licensed,
permitted, or authorized by the Committee is guilty of a willful and knowing
violation of T.C.A. §
63-31-101, et seq. or regulations
promulgated pursuant thereto, to such an extent that there is, or is likely to
be an imminent substantial threat to the health, safety and welfare of an
individual client or the public. For purposes of this section, a type A penalty
may be imposed in instances including but not limited to, those in which a
person willfully and knowingly is or was practicing Polysomnography without a
license from the Committee. Type A civil penalties shall be assessed in the
amount of not less than $500 and not more than $1,000.
2. A Type B civil penalty may be imposed
whenever the Committee finds the person required to be licensed, permitted, or
authorized by the Committee is guilty of a violation of T.C.A. §
63-31-101, et seq. or regulations
promulgated pursuant thereto in such manner as to impact directly on the care
of clients or the public. Type B civil penalties may be assessed in the amount
of not less than $100 and not more than $500.
3. A Type C civil penalty may be imposed
whenever the Committee finds the person required to be licensed, permitted, or
authorized by the Committee is guilty of a violation of T.C.A. §
63-31-101, et seq. or regulations
promulgated pursuant thereto, which is neither directly detrimental to the
clients or public, nor directly impacts their care, but only has an indirect
relationship to client care or the public. Type C civil penalties may be
assessed in the amount of not less than $50 and not more than $100.
(b) Procedures for Assessing Civil
Penalties
1. During a contested case
proceeding the Committee may assess civil penalties in a type and amount which
was not recommended by the Office of General Counsel.
2. In assessing the civil penalties pursuant
to these rules the Committee may consider the following factors:
(i) Whether the amount imposed will be a
substantial economic deterrent to the violator;
(ii) The circumstances leading to the
violation;
(iii) The severity of
the violation and the risk of harm to the public;
(iv) The economic benefits gained by the
violator as a result of noncompliance; and
(v) The interest of the public.
3. All proceedings for the
assessment of civil penalties shall be governed by the contested case
provisions of T.C.A. Title 4, Chapter 5.
Notes
Authority: T.C.A. §§ 63-1-122, 63-1-134, 63-31-104, 63-31-109, and 63-31-110.
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