Tenn. Comp. R. & Regs. 1330-01-.15 - DISCIPLINARY GROUNDS, ACTIONS, AND CIVIL PENALTIES
(1) The
Board may take any disciplinary action described in paragraph (2) when a
licensee has been found guilty of committing any act or offense provided in
T.C.A. § 63-27-112 (a), or has violated any of the provisions of Tennessee
Code Annotated, Title 63, Chapter 1 or Chapter 27 or the rules promulgated
pursuant thereto.
(2) Actions -
Upon a finding by the Board that a respiratory care practitioner has violated
any provision of the Respiratory Care Practitioner Act or the rules promulgated
pursuant thereto, the Board may impose any of the following actions separately
or in any combination deemed appropriate to the offense.
(a) Denial of an application for
licensure
(b) Advisory Censure -
This is a written action issued to the respiratory care practitioner for minor
or near infractions. It is informal and advisory in nature and does not
constitute a formal disciplinary action.
(c) Formal reprimand - This is a written
action issued to a respiratory care practitioner for one time and less severe
violation(s). It is a formal disciplinary action.
(d) Probation - This is a formal disciplinary
action which places a respiratory care practitioner on close scrutiny for a
fixed period of time. This action may be combined with conditions which must be
met before probation will be lifted and/or which restrict the individual's
activities during the probationary period.
(e) 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.
(f) Licensure 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 previously issued.
The Board, in its discretion, may allow reinstatement of a revoked license upon
conditions and after a period of time which it deems appropriate. 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license was revoked shall be considered prior to the expiration of at least one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 Board's revocation order.
(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 (5) of this rule.
(i) 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 (3) 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.
(3) 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
1200-10-01-.11.
(c) Form
Petition
Petition for Order of Compliance
Board of Respiratory Care
Click to view Image
Click to view Image
(4) 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
1200-10-01-.11.
(c) Form
Petition
Petition for Order Modification
Board of Respiratory Care
Click to view Image
Click to view Image
(5) 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 of Civil Penalties
1. A Type A civil penalty may be imposed
whenever the Board finds the person who is required to be licensed by the Board
is guilty of a willful and knowing violation of the Respiratory Care
Practitioner 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 client or the public. For purposes
of this section, a type A penalty shall include, but not be limited to, a
person who willfully and knowingly is or was practicing as a respiratory care
practitioner without a license from the Board.
2. A Type B civil penalty may be imposed
whenever the Board finds the person required to be licensed by the Board is
guilty of a violation of the Respiratory Care Practitioner Act or regulations
promulgated pursuant thereto in such manner as to impact directly on the care
of clients or the public.
3. A Type
C 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 violation of
the Respiratory Care Practitioner Act or regulations promulgated pursuant
thereto, which are neither directly detrimental to the clients or public, nor
directly impact their care, but have only an indirect relationship to client
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 and not more
than $1,000.
2. Type B civil
penalties may be assessed in the amount of not less than $100 and not more than
$500.
3. Type C civil penalties may
be assessed in the amount of not less than $50 and not more than
$100.
(c) 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 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 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 T.C.A. Title 4, Chapter 5.
Notes
Authority: T.C.A. §§ 4-5-105, 4-5-202, 4-5-204, 4-5-217, 4-5-223, 63-1-122, 63-1-134, 63-27-104, 63-27-111, and 63-27-112.
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