(1) Grounds and
authority for disciplinary actions. The Board shall have the power to deny an
application for a license or certificate to any applicant. The Board shall have
the authority to suspend or revoke a license or certificate, reprimand or
otherwise discipline by a monetary fine any licensee or certificate holder.
Formal disciplinary proceedings before the Board shall comply with the
Administrative Procedures Act, T.C.A. §§ 4-5-301,
et.
seq. The grounds upon which the Board shall exercise such power
include, but are not limited to, the following:
(a) Unprofessional, dishonorable, or
unethical conduct;
(b) Violation or
attempted violation, directly or indirectly, or assisting in or abetting the
violation of, or conspiring to violate, any provision of the Psychology Act or
any lawful order of the Board issued pursuant thereto, or any criminal statute
of the state of Tennessee;
(c)
Making false statements or representations, being guilty of fraud or deceit in
obtaining admission to practice, or being guilty of fraud or deceit in the
practice as a licensee;
(d) Gross
malpractice, or a pattern of continued or repeated malpractice, ignorance,
negligence or incompetence in the course of practice as a licensee or
certificate holder;
(e) Habitual
intoxication or personal misuse of any drugs or the use of intoxicating
liquors, narcotics, controlled substances, or other drugs or stimulants in such
manner as to adversely affect the person's ability to practice as a licensee or
certificate holder;
(f) Willfully
betraying a professional secret;
(g) The advertising of Psychologist, Senior
Psychological Examiner, Psychological Examiner, or Certified Psychological
Assistant practice in which untrue or misleading statements are made, or
causing the publication or circulation of fraudulent advertising relative to
any disease, human ailment, or condition;
(h) Willful violation of the rules
promulgated by the Board to regulate advertising by practitioners who are under
the jurisdiction of such Board;
(i)
Conviction of a felony, conviction of any offense under state or federal drug
laws, or conviction of any offense involving moral turpitude;
(j) Making or signing in one's professional
capacity any certificate that is known to be false at the time one makes or
signs such certificate;
(k)
Offering, undertaking, or agreeing to cure or treat a disease, injury, ailment
or infirmity by a secret means, method, device or instrumentality;
(l) Giving, receiving, or aiding or abetting
the giving or receiving of rebates, either directly or indirectly, for
referrals of business or patients;
(m) Engaging in practice as a licensee or
certificate holder under a false or assumed name, or the impersonation of
another practitioner of a like, similar or different name;
(n) Engaging in practice as a licensee or
certificate holder when mentally or physically unable to safely do
so;
(o) Violation of the continuing
education provisions of these rules;
(p) Violation of the scope of practice
statutes T.C.A. §§ 63-11-201 through 63-11-206; or
(q) Disciplinary action against a person
licensed, certified, registered, or permitted to practice psychology by another
state or territory of the United States for any acts or omissions which would
constitute grounds for discipline of a person licensed in this state. A
certified copy of the initial or final order or other equivalent document
memorializing the disciplinary action from the disciplining state or territory
shall constitute prima facie evidence of violation of this subparagraph and be
sufficient grounds upon which to deny, restrict or condition licensure or
renewal and/or discipline a person licensed or certified in this
state.
(2) Upon a
finding by the Board that a Psychologist, Senior Psychological Examiner,
Psychological Examiner, or Certified Psychological Assistant has violated any
provision of the Tennessee Psychology Act (T.C.A. §§ 63-11-201,
et seq.) or the rules promulgated pursuant thereto,
the Board may take any of the following actions separately or in any
combination which is deemed appropriate to the offense:
(a) Advisory censure. This is a written
action issued for minor or near infractions. It is informal and advisory in
nature and does not constitute a formal disciplinary action.
(b) Formal censure or reprimand. This is a
written action issued for single occurrence and less severe violations. It is a
formal disciplinary action.
(c)
Probation. This is a formal disciplinary action which places a Psychologist,
Senior Psychological Examiner, Psychological Examiner, or Certified
Psychological Assistant on close scrutiny for a fixed period of time. This
action may be combined with conditions which must be met be-
fore probation will be lifted and/or which restrict the
individual's activities during the probationary period.
(d) License or certificate suspension. This
is a formal disciplinary action which suspends the right to practice for a
fixed period of time. It contemplates re-entry into practice under the license
or certificate previously issued.
(e) Revocation for cause. This is the most
severe form of disciplinary action which removes an individual from the
practice of the profession and terminates the license or certificate previously
issued. The Board, in its discretion, may allow reinstatement of a revoked
license or certificate upon conditions and after a period of time which it
deems appropriate. No petition for reinstatement and no new application for
licensure or certification from a person whose license or certificate was
revoked shall be considered prior to the expiration of at least one (1) year
from the date of entry of the order unless otherwise stated in the Board's
revocation order.
(3)
Once ordered, probation, suspension, revocation, assessment of a civil penalty,
or any other condition of any type of disciplinary action may not be lifted
unless and until the licensee or certificate holder petitions, pursuant to
paragraph (4) of this rule, and appears before the Board after the period of
initial probation, suspension, revocation, or other conditioning has run and
all conditions placed on the probation, suspension, revocation, have been met,
and after any civil penalties assessed have been paid.
(4) 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 or uncertified
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 three (3) 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; or
3. When the petitioner can prove compliance
with all the terms of the previously issued order and is seeking to have an
order issued reinstating a license or certificate previously revoked.
(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
1200-10-1-.11.
(c) Form
Petition
Petition for Order of Compliance Board of Examiners in
Psychology
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Click to view
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(5) Order Modifications - This procedure is
not intended to allow anyone under a previously issued disciplinary order,
including an unlicensed or uncertified 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
1200-10-1-.11.
(c) Form
Petition
Petition for Order Modification Board of Examiners in
Psychology
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Click to view
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(6) Civil penalties.
(a) Purpose. The purpose of this paragraph 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.
(b) Schedule of civil penalties.
1. A "Type A" civil penalty may be imposed
whenever the Board finds the person required to be licensed, permitted, or
authorized by the Board is guilty of a willful and knowing violation of the
Psychology Act or rules 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
paragraph, willfully and knowingly practicing as a Psychologist, Senior
Psychological Examiner, Psychological Examiner, or Certified Psychological
Assistant without a permit, license, certificate or other authorization from
the Board is one of the violations of the Psychology 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 Psychology Act or rules promulgated pursuant
thereto in such a 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 Psychology Act or rules promulgated pursuant thereto, which are neither
directly detrimental to the patients or the public, nor directly impact their
care, but have only an indirect relationship to patient care or the
public.
(c) Amount of
civil penalties.
1. "Type A" civil penalties
shall be assessed in the amount of not less than five hundred dollars ($500)
nor more than one thousand dollars ($1000).
2. "Type B" civil penalties may be assessed
in the amount of not less than one hundred dollars ($100) nor more than five
hundred dollars ($500).
3. "Type C"
civil penalties may be assessed in the amount of not less than fifty dollars
($50) nor more than one hundred dollars ($100).
(d) Procedures for assessing civil penalties.
1. The Division may initiate a civil penalty
assessment by filing a Memorandum of Assessment of Civil Penalty. The Division
shall state in the memorandum the 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.
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 Administrative
Procedures Act, T.C.A. §§ 4-5-301, et
seq.
(7) Settlements. Any member of the Board or
the Consultant is authorized to enter into settlement agreements under which a
complaint against a licensee or certificate holder may be closed, subject to
ratification by the Board. Such agreements may include any terms deemed
appropriate including, but not limited to:
(a)
Mandatory education program or course attendance;
(b) Submission of reports, records or other
appropriate documentation; or
(c)
Conditioning of the Psychologist's, Senior Psychological Examiner's,
Psychological Examiner's, or Certified Psychological Assistant's activities in
any manner which affects his or her practice in Tennessee.
(8) Screening Panels - Any screening panel(s)
established pursuant to T.C.A. § 63-1-138:
(a) Shall have concurrent authority with the
Board members and any individual Psychologist designated by the Board pursuant
to paragraph (5) of Rule 1180-1-.14, to do the acts enumerated in paragraph (5)
of Rule 1180-1-.14 subject to the conditions contained therein.
1. A screening panel(s) comprised of two (2)
or more persons shall elect a chairperson prior to convening to conduct
business.
2. A screening panel(s)
comprised of two (2) or more persons is required to conduct the informal
hearings authorized in subparagraph (b) immediately below.
(b) After completion of an investigation by
the Division, may upon request of either the state, or the licensee or
certificate holder who is the subject of an investigation with the agreement of
the state, or upon agreement of both the licensee or certificate holder and the
state, conduct a non-binding informal hearing and make recommendations as a
result thereof as to what, if any, terms of settlement of any potential
disciplinary action are appropriate.
1.
Neither the Rules of Civil Procedure, the Rules of Alternative Dispute
Resolution, the Rules of Evidence or Contested Case Procedural Rules under the
Administrative Procedures Act shall apply in informal hearings before the
screening panel(s).
(i) Evidence may be
presented or received in any manner and in whatever order agreed upon by the
parties.
(ii) Prior to convening
the panel and in the absence of an agreement of the parties, the screening
panel chairperson shall determine the manner and order of presentation of
evidence.
2. Informal
hearings may be conducted without the participation of the licensee or
certificate holder who is the subject of the investigation.
3. A licensee or certificate holder who is
the subject of an investigation being considered by a screening panel cannot be
compelled to participate in any informal hearing.
4. Proposed settlements reached as a result
of any informal hearing will not become binding and final unless they are:
(i) Approved by a majority of the members of
the screening panel which issued them; and
(ii) Agreed to by both the Department of
Health, by and through its attorney(s), and the licensee or certificate holder;
and
(iii) Subsequently presented to
and ratified by the Board or a duly constituted panel of the Board.