Tenn. Comp. R. & Regs. 1730-02-.15 - DISCIPLINARY ACTIONS, CIVIL PENALTIES, ASSESSMENT OF COSTS, AND SCREENING PANELS

(1) Purpose - The purpose of this rule is to set out a schedule designating the minimum and maximum civil penalties which may be assessed.

(2) Upon a finding by the Board that a veterinarian and/or premises owner has violated any provision of the Tennessee Veterinary Medical Practice Act (T.C.A. §§63-12-101 et seq.) or the rules promulgated thereto, the Board may impose any of the following actions separately or in any combination, deemed appropriate to the offense:

(a) Advisory Censure - This is a written action issued to the veterinarian and/or premises owner 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 to a veterinarian and/or premises owner for one time and less severe violations. It is a formal disciplinary action.

(c) Probation - This is a formal disciplinary action which places a veterinarian and/or premises owner on close scrutiny for a fixed period of time. This action may be combined with any other formal disciplinary action and include conditions which must be met before probation will be lifted and/or which restrict or condition the licensee's activities during the probationary period.

(d) Suspension - This is a formal disciplinary action which suspends a licensee's right to practice and/or premises owner to operate for a fixed period of time. It contemplates the reentry of the licensee into the practice and/or operation under the premises permit 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 certification or licensure previously issued. The Board, in its discretion, may allow reinstatement of a revoked certificate, license or premises permit upon conditions and after a period of time it deems appropriate. No petition for reinstatement and no new application for certification, licensure, or premises permit from a person whose license or permit was revoked shall be considered prior to the expiration of at least one year unless otherwise stated in the Board's revocation order.

(f) Conditions - Any action deemed appropriate by the Board to be required of a premises permit holder in any of the following circumstances:

1. During any period of probation, suspension; or

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

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

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

(g) Civil penalty - A monetary disciplinary action assessed by the Board pursuant to paragraph (5) of this rule.

(h) When the Board suspends a license and/or premises permit, the person may not practice veterinary medicine during the period of suspension and is also prohibited from doing the following:

1. Direct assistance to another veterinarian in the veterinary treatment of any animal.

2. Appear before animal owners in a laboratory coat, clinic smock or other garment which is customarily worn by practitioners when treating animals.

3. Consultation with another practitioner concerning the treatment of the person's animal(s) in the presence of or within hearing of, any animal owner; provided, however, that he may discuss with a subsequent treating practitioner, out of the presence or hearing of any animal owner, prior diagnosis or pre-existing treatment plan and such subsequent treating practitioner's proposed treatment plan. However, the fact or substance of such discussion shall not be communicated or conveyed to an animal owner personally, or by another treating practitioner who presents it to the owner, as that person's judgment, diagnosis, treatment plan, or other professional determination.

4. Personal acceptance of payment for veterinary services directly from an animal owner in the reception area of the office, clinic, or animal hospital.

(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 and/or premises owner 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 a veterinary facility civil penalty order regarding operation without a permit, 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 premises permit 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

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(4) Order Modifications - This procedure is not intended to allow anyone under a previously issued disciplinary order, including a veterinary facility civil penalty order regarding operation without a permit, 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

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(5) Civil Penalties:

(a) Purpose - The purpose of this rule is to set out a schedule designating the minimum and maximum civil penalties which may be assessed pursuant to Public Chapter 389, Acts of 1989.

(b) 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 or certified by the Board is guilty of a willful and knowing violation of the Practice Act, or regulations 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, a type A penalty shall include, but not be limited to, a person who willfully and knowingly is or was practicing as an veterinarian or operating a premises without a license or permit 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 Veterinary Practice Act or regulations 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 and/or premises required to be licensed, permitted, or authorized by the Board is guilty of a violation of the Veterinary Practice Act or regulations promulgated thereto, which are neither directly detrimental to 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 $500 nor 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.

(d) 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 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.

(6) Informal Settlements - The Board consultant is authorized to enter into informal settlement agreements pursuant to Rule 1045-02-19 under which a complaint against an individual may be closed without any disciplinary action. Any matter proposed for informal settlement must be subsequently ratified by the full board before it will become effective. Such agreement may include any terms deemed appropriate by the Board consultant including, but not limited to:

(a) Mandatory education program or course attendance;

(b) Submission of reports, records or other appropriate documentation;

(c) Conditioning of the individual's activities in any manner which affects his practice in Tennessee.

(7) It is an offense to knowingly operate a veterinary facility in this state without a premises permit. A violation of this section is a Class B misdemeanor and each violation constitutes a separate offense.

(8) It is unlawful for any licensed veterinarian to practice veterinary medicine as an employee of any person other than a veterinarian duly licensed in this state or a veterinary facility operated at all times under the direct medical supervision of a veterinarian duly licensed in this state:

(a) No person, corporation or other similar organization, public or private, for-profit or not-for-profit, other than a veterinarian duly licensed in this state, shall own or operate a veterinary facility within this state, except as follows:

1. Any person, corporation or other similar organization, public or private, for-profit or not-for-profit, shall apply for and receive a premises permit before the commencement of operations at the veterinary facility; and

2. The owner of the veterinary facility shall not restrict or interfere with medically appropriate veterinary diagnostic or treatment decisions by the licensed veterinarians employed at the veterinary facility.

(b) The following are exempt from this section:

1. A veterinarian employed by a person, corporation or other similar organization, public or private, for-profit or not-for-profit, to treat such employer's animal(s);

2. A veterinarian employed by an official agency of the federal or state government, or any subdivision thereof; and

3. A veterinarian employed by any licensed research facility.

(9) Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A. §§ 63-1-144 and 63-12-143.

(10) Screening Panels - Any screening panel(s) established pursuant to T.C.A. § 63-1-138:

(a) Shall have concurrent authority with the Board and any individual appointed by the Board pursuant to Rule 1730-1-.19, to do the acts enumerated in Rule 1730-01-.19(1)(b) 1. and 2. 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 and/or premises owner who is the subject of an investigation with the agreement of the state, or upon request of both the licensee and/or premises owner, 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 Mediation and Arbitration, the Rules of Evidence, or Contested Case Procedural Rules under the Administrative Procedures Act shall apply in informal hearings before the screening panel(s). However, Rule 31 of the Rules of the Tennessee Supreme Court may serve as general guidance as to the principles of mediation and alternative dispute resolution.

(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. Neither the state nor a licensee and or premises owner who is the subject of an investigation being considered by a screening panel can be compelled to participate in any informal hearing.

3. 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 and/or premises owner; and

(iii) Subsequently presented to and ratified by the Board.

(11) 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. 1730-02-.15

Original rule filed April 28, 1995; effective July 12, 1995. Amendment filed June 15, 1999; effective August 29, 1999. Amendment filed August 24, 2000; effective November 7, 2000. Amendment filed June 25, 2003; effective September 8, 2003. Amendment filed September 23, 2004; effective December 7, 2004. Amendment filed July 18, 2007; effective October 1, 2007. Amendment filed September 10, 2009; effective December 9, 2009.

Authority: T.C.A. §§ 4-5-202, 4-5-204, 63-12-105, 63-12-106, 63-12-124, 63-12-128, and 63-12-139.