Tenn. Comp. R. & Regs. 1200-10-01-.11 - DECLARATORY ORDERS

(1) Purpose - Whenever any person is affected by any statute governing the Division or any agency listed in T.C.A. §68-1-101(8) or any statute in which authority is granted to the Division or any of those agencies to take any action, or any rule promulgated or order issued by the Division or any of those agencies, he or she may petition for a declaratory order to determine the validity or applicability of the statute, rule or order. This rule governs the procedures for submission, consideration and disposition of petitions for declaratory orders for the Division of Health Related Boards and each of the agencies listed in T.C.A. §68-1-101(8).

(2) Intent

(a) It is the intent of this rule that petitions filed pursuant to this rule shall be addressed by the agency whose statute, rule or order is the subject of the petition. The Division shall address only those petitions which involve provisions of T.C.A. Title 63, Chapter 1 or any rule promulgated or any order issued pursuant thereto.

(b) It is the intention of this rule that all informal attempts to resolve any questions of validity or applicability of any statute, rule or order be made prior to the filing of any petition for a declaratory order. Legal representation is not required but persons are encouraged to first contact an attorney to see if their questions can be resolved. If their attorney cannot definitively answer the questions after review of all pertinent law, rules, or opinions and pursuant to all other means provided by law, then a petition for a declaratory order may be appropriate.

(3) Definitions - For purposes of this rule the following terms shall have the meanings ascribed to them:

(a) Affected Person - As these words are used in T.C.A. §4-5-223 mean a person upon whom a statute, rule or order produces a specific and direct effect or result.

(b) Agency - Any of the Boards, Committees, or Councils listed in T.C.A. §68-1-101(8).

(c) Division - The Department of Health's Division of Health Related Boards and which, for purposes of this rule, is also a separate agency.

(d) Notice of Hearing - The formal document issued by the Department of Health which notifies a petitioner that the Division or an agency has agreed to convene a contested case and issue a declaratory order.

(e) Notice Promulgated - As those words are used in T.C.A. §4-5-224(c) to specify a date against which the forty-five (45) day notice period runs, mean the first (1st) day of the month in which the published notice of hearing appears in the Tennessee Administrative Register.

(f) Petitioner - The person who has filed a petition for a declaratory order, and who has the burden of going forward with the petition, and as to whom any declaratory order issued shall be binding.

(g) Receipt - As that term is used in T.C.A. §4-5-223(c) shall mean:

1. For petitions addressable by the Division, the date of receipt of the petition in its offices.

2. For all agencies listed in T.C.A. §68-1-101(8), the first date after receipt of the petition by the administrative staff that the agency meets and can lawfully conduct business.

(h) Set - As that term is used in T.C.A. §§4-5-223(c) and 4-5-224(c) in relation to contested case hearings involved in declaratory order proceedings, means to establish a future date on which the contested case could be heard.

(4) Contents Of The Petition - Any person wishing to file a declaratory order petition must do so by completing the Petition for Declaratory Order form which can be obtained from the Division or any agencies' administrative office. Failure to provide all requested information in sections 1, 3, 4, 5, 6 and 7 of the form will invalidate the petition. A copy of the form is reproduced in paragraph (10) of this rule.

(5) Filing - All declaratory order petitions must be filed in writing on the approved form by sending them to the appropriate agency's administrative office.

(6) Consideration Of The Petition - In considering the petition the agency may do the following:

(a) Either grant the petition (agreeing to convene on some future date a contested case hearing after which a declaratory order will be issued), or deny the petition, or take no action.

1. A petition must be denied if:

(i) The only issue raised is the facial constitutionality of a statute; or

(ii) The Petitioner is not an affected person; or

(iii) The statute, rule or order which is the subject of the petition is not within the agency's primary jurisdiction. The petition must be addressed towards a statute, or rule in the agency's practice act or a statute which authorizes it to take action, or an order issued by the agency; or

(iv) The petition itself is deficient for failure to include all necessary information.

2. A petition may be granted at the discretion of the agency only if the petition is addressing:

(i) A statute and the petition concerns any one of the following:

(I) The application of the statute; or

(II) The validity of the statute; or

(III) The constitutionality of the agency's application of the statute.

(ii) A rule and the petition concerns any one of the following:

(I) The application of the rule; or

(II) The validity of the rule; or

(III) The constitutionality of the agency's application of the rule; or

(IV) The facial constitutionality of the rule unless the rule is substantially repetitive of the statute on which it is based.

(iii) An order and the petition concerns any one of the following:

(I) The application of the order; or

(II) The validity of the order; or

(III) The constitutionality of the agency's application of the Order.

(b) If the petition is denied, the petitioner shall be notified of that action in writing.

(c) If the petition is granted, the matter will be referred to the attorneys for the Department of Health for filing of a Notice of Hearing. Granting of the petition does not mean that the Petitioner's requested relief is granted. It merely means that the agency grants a hearing on the request for the declaratory order.

(7) Notice Of Hearing - After the agency grants a petition, a Notice of Hearing shall be issued to the petitioner which contains all of the following information:

(a) All information required by the declaratory order petition form (incorporation by reference and attachment of the petition is allowed); and

(b) The date, time and location of the contested case hearing to be held on the petition. No contested case hearing on the petition may be scheduled prior to the expiration of forty five (45) days from the first (1st) day of the month in which the published notice of hearing appears in the Tennessee Administrative Register.

(8) Publication And Distribution - The Notice of Hearing will be filed with the Secretary of State's Administrative Procedures Division office for assignment of an administrative judge and its Publications Division for publication of the notice in the Tennessee Administrative Register. Copies of the Notice of Hearing and Petition shall be sent to all professional organizations and associations and other agencies whom the agency reasonably considers are likely to have an interest in the petition.

(9) Disposition - When the petition is the subject of a contested case hearing, the Petitioner has the burden of proof in persuading the agency of the correctness of his/her position on all issues. After a full hearing on the matter, the agency shall issue an order which complies with the requirements of the "Administrative Procedures Act", (T.C.A. §§4-5-101, et seq., 4-5-201 et seq., and 4-5-301 et seq).

(10) Copy Of Declaratory Order Form:

Petition For Declaratory Order

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Notes

Tenn. Comp. R. & Regs. 1200-10-01-.11

Original rule filed December 17, 1998; effective April, 30 1999.

Authority: T.C.A. §§ 4-5-202, 4-5-202, 4-5-223, 4-5-224, and 63-1-132.