(1) The Board,
shall elect annually from its members the following officers:
(a) Chairman - who shall preside at all Board
meetings, and appoint committees.
(b) Secretary - who in the absence of the
chairperson shall preside at Board meetings and who, along with the Board's
Unit Director, shall be responsible for correspondence from the Board and
execution of all official documents requiring the seal of the Board to be
affixed.
(2) The Board
shall select consultants who, along with each individual member of the Board,
may serve as consultants to the Division and who are vested with the authority
to do the following acts:
(a) Review
complaints and recommend whether and what type disciplinary actions should be
instituted as the result of complaints received or investigations conducted by
the Division.
(b) Recommend whether
and what terms a complaint, case or disciplinary action might be settled. Any
matter proposed for settlement must be subsequently reviewed, evaluated and
ratified by the full Board before it becomes effective.
(c) Review and approve all types of
applications for issuance of a temporary authorization pursuant T.C.A. §
63-27-116(d),
subject to subsequent ratification by the Board before full licensure, renewal
or reinstatement can issue.
(d)
Undertake any other matter authorized by a majority vote of the
Board.
(3) Records and
Complaints
(a) All requests, applications,
notices, other communications and correspondence shall be directed to the Board
office. Any requests or inquiries requiring a Board decision or official Board
action, except documents relating to disciplinary actions or hearing requests,
must be received fourteen (14) days prior to a scheduled Board meeting.
Requests or inquiries not timely received will be retained in the Board office
and presented at the next Board meeting.
(b) All records of the Board, except those
made confidential by law, are open for inspection and examination, under the
supervision of an employee of the Division at the Board office during normal
business hours.
(c) Copies of
public records shall be provided to any person upon payment of a fee.
(d) All complaints should be directed to the
Division's Investigations Section.
(4) Declaratory Orders - The Board adopts, as
if fully set out herein, rule
1200-10-01-.11, of the Division
of Health Related Boards and as it may from time to time be amended, as its
rule governing the declaratory order process. All declaratory order petitions
involving statutes, rules or orders within the jurisdiction of the Board shall
be addressed by the Board pursuant to that rule and not by the Division.
Declaratory Order Petition forms can be obtained from the Board's
administrative office.
(5) Advisory
Rulings - Any person who is affected by any matter within the jurisdiction of
the Board and who holds a license issued pursuant to Chapter 27 of Title 63 of
the Tennessee Code Annotated, may submit a written request for an advisory
ruling subject to the limitations imposed by T.C.A. §
63-27-104(b). The
procedures for obtaining and issuance of advisory rulings are as follows:
(a) The licensee shall submit the request to
the Board Administrative Office on the form contained in subparagraph (5)(e)
providing all the necessary information; and
(b) The request, upon receipt, shall be
referred to the Board's administrative staff for research, review and
submission of a proposed ruling to the Board for its consideration at the next
meeting after the draft ruling has been approved by the Board's consultant and
advisory attorney; and
(c) The
Board shall review the proposed ruling and either make whatever revisions or
substitutions it deems necessary for issuance or refer it back to the
administrative staff for further research and drafting recommended by the
Board; and
(d) Upon adoption by the
Board the ruling shall be transmitted to the requesting licensee. The ruling
shall have only such affect as is set forth in T.C.A. §
63-27-104(b).
(e) Any request for an advisory ruling shall
be made on the following form, a copy of which may be obtained from the Board's
Administrative Office:
Board of Respiratory Care
Request for Advisory Ruling
Date: ________________________________________
Licensee's Name:
________________________________________
Licensee's Address:
________________________________________
________________________________________
________________________________________
License Number: ________________________________________
1. The specific question or issue for which
the ruling is requested:
______________________________________________________________
______________________________________________________________
______________________________________________________________
2. The facts that gave rise to the
specific question or issue:
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
3. The specific statutes and/or
rules which are applicable to the question or issue:
______________________________________________________________
______________________________________________________________
Licensee's Signature
______________________________________________
(6) Subpoenas
(a) Purpose - Although this rule applies to
persons and entities other than respiratory care practitioners, it is the
Board's intent as to respiratory care practitioners that they be free to
comprehensively treat and document treatment of their patients without fear
that the treatment or its documentation will be unduly subjected to scrutiny
outside the profession. Consequently, balancing that intent against the
interest of the public and patients to be protected against substandard care
and activities requires that persons seeking to subpoena such information
and/or materials must comply with the substance and procedures of these rules.
It is the intent of the Board that the subpoena power outlined
herein shall be strictly construed. Such power shall not be used by the
Division or Board investigators to seek other incriminating evidence against
respiratory care practitioners when the Division or Board does not have a
complaint or basis to pursue such an investigation. Thus, unless the Division
or its investigators have previously considered, discovered, or otherwise
received a complaint from either the public or a governmental entity, no
subpoena as contemplated herein shall issue.
(b) Definitions - As used in this chapter of
rules the following words shall have the meanings ascribed to them:
1. Probable Cause
(i) For Investigative Subpoenas - Shall mean
that probable cause, as defined by case law at the time of request for subpoena
issuance is made, exists that a violation of the Respiratory Care Practitioner
Act or rules promulgated pursuant thereto has occurred or is occurring and that
it is more probable than not that the person(s), or item(s) to be subpoenaed
possess or contain evidence which is more probable than not relevant to the
conduct constituting the violation.
(ii) The utilization of the probable cause
evidentiary burden in proceedings pursuant to this rule shall not in any way,
nor should it be construed in any way to establish a more restrictive burden of
proof than the existing preponderance of the evidence in any civil disciplinary
action which may involve the person(s) or items that are the subject of the
subpoena.
2. Presiding
Officer - For investigative subpoenas shall mean the Board chair.
(c) Procedures
1. Investigative Subpoenas
(i) Investigative Subpoenas are available
only for issuance to the authorized representatives of the Tennessee Department
of Health, its investigators and its legal staff.
(ii) An applicant for such a subpoena must
either orally or in writing notify the Board's Unit Director of the intention
to seek issuance of a subpoena. That notification must include the following:
(I) The time frame in which issuance is
required so the matter can be timely scheduled; and
(II) A particular description of the material
or documents sought, which must relate directly to an ongoing investigation or
contested case, and shall, in the instance of documentary materials, be limited
to the records of the patient or patients whose complaint, complaints, or
records are being considered by the Division or Board, although in no event
shall such subpoena be broadly drafted to provide investigative access to
medical records of other patients who are not referenced in a complaint
received from an individual or governmental entity, or who have not otherwise
sought relief, review, or Board consideration of a respiratory care
practitioner's conduct, act, or omission; and
(III) Whether the proceedings for the
issuance is to be conducted by physical appearance or electronic means;
and
(IV) The name and address of
the person for whom the subpoena is being sought or who has possession of the
item(s) being subpoenaed.
(iii) The Board's Unit Director shall cause
to have the following done:
(I) In as timely a
manner as possible arrange for the Board chair to preside and determine if the
subpoena should be issued; and
(II)
Establish a date, time and place for the proceedings to be conducted and notify
the applicant and the court reporter; and
(III) Maintain a complete record of the
proceedings including an audio tape in such a manner as to:
I. Preserve a verbatim record of the
proceeding; and
II. Prevent the
presiding officer from being allowed to participate in any manner in any
disciplinary action of any kind, formal or informal, which may result which
involves either the person or the documents or records for which the subpoena
was issued.
(iv) The Proceedings
(I) The applicant shall do the following:
I. Provide for the attendance of all persons
whose testimony is to be relied upon to establish probable cause; and
II. Produce and make part of the record
copies of all documents to be utilized to establish probable cause;
and
III. Obtain, complete and
provide to the presiding officer a subpoena which specifies the following:
A. The name and address of the person for
whom the subpoena is being sought or who has possession of the item(s) being
subpoenaed; and
B. The location of
the materials, documents or reports for which production pursuant to the
subpoena is sought, if that location is known; and
C. A brief, particular description of any
materials, documents or items to be produced pursuant to the subpoena;
and
D. The date, time and place for
compliance with the subpoena.
IV. Provide the presiding officer testimony
and/or documentary evidence which in good faith the applicant believes is
sufficient to establish that probable cause exists for issuance of the subpoena
as well as sufficient proof that all other reasonably available alternative
means of securing the materials, documents or items have been
unsuccessful.
(II) The
presiding officer shall do the following:
I.
Commence the proceedings and swear all necessary witnesses; and
II. Hear and maintain the confidentiality of
the evidence, if any, presented at the proceedings; and
III. Control the manner and extent of inquiry
during the proceedings and be allowed to question any witness who testifies;
and
IV. Determine, based solely on
the evidence presented in the proceedings, whether probable cause exists and,
if so, issue the subpoena for the person(s) or items specifically found to be
relevant to the inquiry; and
V.
Sign the subpoena as ordered to be issued; and
VI. Not participate in any way in any other
proceeding whether formal or informal which involves the matters, items or
person(s) which are the subject of the subpoena. This does not preclude the
presiding officer from presiding at further proceedings for issuance of
subpoenas in the matter.
2. Post-Notice of Charges Subpoenas - If the
subpoena is sought for a contested case being heard with an Administrative Law
Judge from the Secretary of State's office presiding, the procedure in part
1330-01-.19(6)(c)
1. shall not apply and all such post-notice of charges subpoenas should be
obtained from the office of the Administrative Procedures Division of the
Office of the Secretary of State pursuant to the Uniform Administrative
Procedures Act and rules promulgated pursuant thereto.
(d) Subpoena Forms
1. All subpoena shall be issued on forms
approved by the Board chair.
2. The
subpoena forms may be obtained by contacting the Board's Administrative
Office.
(e) Subpoena
Service - Any method of service of subpoenas authorized by the Tennessee Rules
of Civil Procedure or the rules of the Tennessee Department of State,
Administrative Procedures Division may be utilized to serve subpoenas pursuant
to this rule.
(7)
Screening Panels - The Board adopts, as if fully set out herein, rule
1200-10-01-.13, of the Division
of Health Related Boards and as it may from time to time be amended, as its
rule governing the screening panel process.
(8) Reconsiderations and Stays - The Board
authorizes the member who chaired the Board for a contested case to be the
agency member to make the decisions authorized pursuant to rule
1360-04-01-.18 regarding
petitions for reconsiderations and stays in that case.
Notes
Tenn. Comp. R. & Regs.
1330-01-.19
Original rule
filed January 31, 2000; effective April 15, 2000. Amendment filed March 20,
2001; effective June 3, 2001. Amendment filed June 16, 2006; effective August
30, 2006. Amendment filed March 16, 2007; effective May 30, 2007. Amendment
filed February 22, 2010; effective May 23, 2010. Amendment filed August 28,
2015; effective 11/26/2015.
Authority: T.C.A. §§
4-5-202,
4-5-204,
63-1-115, 63-1-132, 63-1-142,
63-1-145, 63-1-146, 63-27-102, 63-27-103, 63-27-104, and 63-27-112.