Tenn. Comp. R. & Regs. 1050-02-.10 - LICENSURE DISCIPLINE AND CIVIL PENALTIES

(1) Upon a finding by the Board that a licensee has violated any provision of the Tennessee Osteopathic Medical Practice Act (T.C.A. § 63-9-101, et seq.) or the rules promulgated pursuant thereto, the Board may impose any of the following actions separately or in any combination which is deemed appropriate to the offense.

(a) Private Censure - This is a written action issued to the licensee for minor or near infractions. It is informal and advisory in nature and does not constitute a formal disciplinary action.

(b) Public censure or reprimand - This is a written action issued to a licensee for one time and less severe violations. It is a formal disciplinary action.

(c) Probation - This is a formal disciplinary action which places a licensee on close scrutiny for a period of time.

1. This action may be combined with any other formal disciplinary action and include conditions which must be met before probation can be lifted and/or which restrict or condition the licensee's activities during the probationary period.

2. Once ordered, probation may not be lifted unless and until the licensee petitions and appears, pursuant to paragraph (2) of this rule, before the Board after the period of initial probation has run and all conditions placed on the probation have been met and the Board is satisfied that a further probationary period is not warranted.

(d) Licensure Suspension - This is a formal disciplinary action which suspends a licensee's right to practice osteopathic medicine for a fixed period of time. It contemplates the reentry of the licensee into practice under the license previously issued.

1. Once ordered, a suspension may not be lifted unless and until the licensee petitions and appears, pursuant to paragraph (2) of this rule, before the Board after the period of initial suspension has run and:

(i) All conditions placed on the suspension have been met; and

(ii) The Board is satisfied that the licensee is competent to return to practice and that no further period of suspension is warranted.

2. It is the Board's intent that the licensee not practice osteopathic medicine at all during the period of suspension. If a licensee practices osteopathic medicine in another state during the period of any ordered suspension, the length of time of practice in another state shall not be counted toward fulfilling the suspension ordered by the Board.

3. It is the Board's intent that during the period of any suspension, a licensee may not practice any health related profession or in any health related field unless permission is sought and granted by the Board.

(e) Revocation with Leave To Apply - This is a formal disciplinary action which removes a licensee from the practice of osteopathic medicine in Tennessee and terminates the license previously issued. It relegates the licensee to the status possessed prior to initial application for licensure.

1. A revocation of this nature anticipates that if conditions contained in the revocation order are met that person may apply for a new license to practice osteopathic medicine. This does not guarantee that a new license will be issued unless or until the Board is satisfied that the person is competent to re-enter practice and is not a threat to the public health, safety or welfare.

2. Petitions for reinstatement of licensure will not be accepted or entertained.

3. Unless a shorter or longer period of time is included in the revocation order, application for a new license will not be accepted or entertained prior to the expiration of at least one (1) year from the effective date of the revocation. Under no circumstances will a new license be issued until the Board is satisfied that the applicant is competent to re-enter the practice of osteopathic medicine and has met all the then existing licensure requirements. Former disciplinary actions against a licensee can and will be considered in any decision on such licensure applications.

(f) Permanent Licensure Revocation - This is the most severe form of disciplinary action which permanently removes a licensee from the practice of osteopathic medicine in Tennessee and terminates the license previously issued. It is the Board's intent that any licensee whose license is permanently revoked may never practice medicine in Tennessee again. Petitions for reinstatement or new applications for licensure will not be accepted or entertained.

(g) Conditions - Any action deemed appropriate by the Board to be required of a disciplined licensee in any of the following circumstances:

1. During any period of probation, suspension; or

2. During any period of revocation after which the licensee may petition for an order of compliance to reinstate the revoked license; or

3. As a prerequisite to the lifting of probation or suspension or as a prerequisite to the reinstatement of a revoked license; or

4. As a stand-alone requirement(s) in any disciplinary order.

(h) Civil penalty - A monetary disciplinary action assessed by the Board pursuant to paragraph (4) of this rule.

(i) Summary Suspension - This is a formal preliminary disciplinary action which immediately suspends a licensee's right to practice osteopathic medicine until a final disposition of the matter is had after a promptly instituted, full hearing before the Board. This type of suspension is ordered ex parte, pursuant to the notice procedures contained in T.C.A. § 4-5-320 and then only upon a finding by the Board that the public health, safety or welfare imperatively requires emergency action.

(j) Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A. §§ 63-1144 and 63-9-111.

(2) Order of Compliance - This procedure is a necessary adjunct to previously issued disciplinary orders and is available only when a petitioner has completely complied with the provisions of a previously issued disciplinary order, including an unlicensed practice civil penalty order, and wishes or is required to obtain an order reflecting that compliance.

(a) The Board will entertain petitions for an Order of Compliance as a supplement to a previously issued order upon strict compliance with the procedures set forth in subparagraph (b) in only the following two (2) circumstances:

1. When the petitioner can prove compliance with all the terms of the previously issued order and is seeking to have an order issued reflecting that compliance; or

2. When the petitioner can prove compliance with all the terms of the previously issued order and is seeking to have an order issued lifting a previously ordered suspension or probation.

(b) Procedures

1. The petitioner shall submit a Petition for Order of Compliance, as contained in subparagraph (c), to the Board's Administrative Office that shall contain all of the following:

(i) A copy of the previously issued order; and

(ii) A statement of which provision of subparagraph (a) the petitioner is relying upon as a basis for the requested order; and

(iii) A copy of all documents that prove compliance with all the terms or conditions of the previously issued order. If proof of compliance requires testimony of an individual(s), including that of the petitioner, the petitioner must submit signed statements from every individual the petitioner intends to rely upon attesting, under oath, to the compliance. The Board's consultant and administrative staff, in their discretion, may require such signed statements to be notarized. 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 Board authorizes its consultant and administrative staff to make an initial determination on the petition and take one of the following actions:

(i) Certify compliance and have the matter scheduled for presentation to the Board as an uncontested matter; or

(ii) Deny the petition, after consultation with legal staff, if compliance with all of the provisions of the previous order is not proven and notify the petitioner of what provisions remain to be fulfilled and/or what proof of compliance was either not sufficient or not submitted.

3. If the petition is presented to the Board the petitioner may not submit any additional documentation or testimony other than that contained in the petition as originally submitted.

4. If the Board finds that the petitioner has complied with all the terms of the previous order an Order of Compliance shall be issued.

5. If the petition is denied either initially by staff or after presentation to the Board and the petitioner believes compliance with the order has been sufficiently proven the petitioner may, as authorized by law, file a petition for a declaratory order pursuant to the provisions of T.C.A. § 4-5-223 and rule 1200-10-01-.11.

(c) Form Petition

Petition for Order of Compliance

Board of Osteopathic Examination

Petitioner's Name: ___________________

Petitioner's Mailing Address:___________________

___________________

___________________

Petitioner's E-Mail Address: ___________________

Telephone Number: ___________________

Attorney for Petitioner: ___________________

Attorney's Mailing Address:___________________

___________________

___________________

Attorney's E-Mail Address:___________________

Telephone Number:___________________

The petitioner respectfully represents, as substantiated by the attached documentation, that all provisions of the attached disciplinary order have been complied with and I am respectfully requesting: (circle one)

1. An order issued reflecting that compliance; or

2. An order issued reflecting that compliance and lifting a previously ordered suspension or probation.

Note - You must enclose all documents necessary to prove your request including a copy of the original order. If any of the proof you are relying upon to show compliance is the testimony of any individual, including yourself, you must enclose signed statements from every individual you intend to rely upon attesting, under oath, to the compliance. The Board's consultant and administrative staff, in their discretion, may require such signed statements to be notarized. No documentation or testimony other than that submitted will be considered in making an initial determination on, or a final order in response to, this petition.

Respectfully submitted this the_________day of___________, 20____________.

___________________

Petitioner's Signature

(3) Order Modifications - This procedure is not intended to allow anyone under a previously issued disciplinary order, including an unlicensed practice civil penalty order, to modify any findings of fact, conclusions of law, or the reasons for the decision contained in the order. It is also not intended to allow a petition for a lesser disciplinary action, or civil penalty other than the one(s) previously ordered. All such provisions of Board orders were subject to reconsideration and appeal under the provisions of the Uniform Administrative Procedures Act (T.C.A. §§ 4-5-301, et seq.). This procedure is not available as a substitute for reconsideration and/or appeal and is only available after all reconsideration and appeal rights have been either exhausted or not timely pursued. It is also not available for those who have accepted and been issued a reprimand.

(a) The Board 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 on the form contained in subparagraph (c) to the Board's Administrative 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 Board authorizes its consultant and 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 Board as an uncontested matter; or

(ii) Deny the petition, after consultation with legal staff, 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 presented to the Board the petitioner may not submit any additional documentation or testimony other than that contained in the petition as originally submitted.

4. If the petition is granted a new order shall be issued reflecting the modifications authorized by the Board that it deemed appropriate and necessary in relation to the violations found in the previous order.

5. If the petition is denied either initially by staff or after presentation to the Board and the petitioner believes impossibility of compliance with the order has been sufficiently proven the petitioner may, as authorized by law, file a petition for a declaratory order pursuant to the provisions of T.C.A. § 4-5-223 and rule 1200-10-01-.11.

(c) Form Petition

Petition for Order Modification

Board of Osteopathic Examination

Petitioner's Name: ______________________

Petitioner's Mailing Address: ___________________

___________________

___________________

Petitioner's E-Mail Address: _____________________

Telephone Number: ____________________________

___________________

Attorney for Petitioner: _________________________

Attorney's Mailing Address: _____________________

___________________

___________________

Attorney's E-Mail Address: ______________________

Telephone Number: ___________________________

___________________

The petitioner respectfully represents that for the following reasons, as substantiated by the attached documentation, the identified provisions of the attached disciplinary order are impossible for me to comply with:

___________________________________

___________________________________

___________________________________

___________________________________

___________________________________

___________________________________

___________________________________

___________________________________

Note - You must enclose all documents necessary to prove your request including a copy of the original order. If any of the proof you are relying upon to show impossibility is the testimony of any individual, including yourself, you must enclose signed and notarized statements from every individual you intend 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, this petition.

Respectfully submitted this the____day of_____, 20_____.

___________________________________

Petitioner's Signature

(4) Civil Penalties

(a) Schedule of Civil Penalties

1. A "Type A" Civil Penalty may be imposed whenever the Board finds a person who is required to be licensed, certified, permitted, or authorized by the Board, guilty of a willful and knowing violation of the Osteopathic Practice Act, 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 patient or the public. For purposes of this section, willfully and knowingly practicing osteopathic medicine without a permit, license, certification, or other authorization from the Board is one of the violations of the Osteopathic Practice Act for which a "Type A" Civil Penalty is assessable.

2. A "Type B" Civil Penalty may be imposed whenever the Board finds the person required to be licensed, certified, permitted, or authorized by the Board is guilty of a violation of the Osteopathic Practice Act or regulations promulgated pursuant thereto in such manner as to impact directly on the care of patients or the public.

3. A "Type C" Civil Penalty may be imposed whenever the Board finds the person required to be licensed, certified, permitted, or authorized by the Board is guilty of a violation of the Osteopathic Practice Act or regulations promulgated pursuant thereto, which are neither directly detrimental to the patients or public, nor directly impact their care, but have only an indirect relationship to patient care or the public.

(b) Amount of Civil Penalties

1. "Type A" Civil Penalties shall be assessed in the amount of not less than $500 nor more than $1000.

2. "Type B" Civil Penalties shall be assessed in the amount of not less than $100 nor more than $500

3. "Type C" Civil Penalties shall be assessed in the amount of not less than $50 nor more than $100.

(c) Procedures for Assessing Civil Penalties

1. The Division of Health Related Boards may initiate a civil penalty assessment by filing a Memorandum of Assessment of Civil Penalty. The Division shall state in a memorandum of facts and law upon which it relies in alleging a violation, the proposed amount of the civil penalty and the basis for such penalty. The Division may incorporate the Memorandum of Assessment of Civil Penalty with a Notice of Charges which may be issued attendant thereto.

2. Civil Penalties may also be initiated and assessed by the Board during consideration of any Notice of Charges. In addition, the Board may, upon good cause shown, assess a type and amount of civil penalty which was not recommended by the Division.

3. In assessing the civil penalties pursuant to these rules the Board 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 non-compliance; and,

(v) The interest of the public.

4. All proceedings for the assessment of civil penalties shall be governed by the contested case provisions of Title 4, Chapter 5, Tennessee Code Annotated.

Notes

Tenn. Comp. R. & Regs. 1050-02-.10

Original rule filed April 10, 2000; effective June 24, 2000. Amendment filed July 27, 2000; effective October 10, 2000. Amendment filed October 2, 2002; effective December 16, 2002. Amendment filed August 27, 2004; effective November 10, 2004. Amendment filed October 21, 2008; effective January 4, 2009.

Authority: T.C.A. §§ 4-5-202, 4-5-204, 4-5-217, 4-5-223, 63-1-122, 63-1-144, 63-9-101, 63-9-110 and 63-9-111.