Tenn. Comp. R. & Regs. 1730-03-.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 an
veterinary medical technician 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 veterinary medical technician 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 veterinary
medical technician for one time and less severe violations. It is a formal
disciplinary action.
(c) Probation
- This is a formal disciplinary action which places a veterinary medical
technician 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.
(d) 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 reentry of the
individual into the practice under the licensure 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 or license upon conditions and after a period of time it
deems appropriate. No petition for reinstatement and no new application for
certification or licensure from a person whose license was revoked shall be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 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.
(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, the
person may not practice as a veterinary medical technician during the period of
suspension and is also prohibited from doing the following:
1. Direct assistance to another veterinary
medical technician 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 animal.
3. 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
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 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 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
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 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
Click to view Image
Click to view Image
(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 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 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 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 veterinary medical technician 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 Veterinary Practice Act or
regulations 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 Veterinary Practice Act or regulations promulgated thereto, which are
neither directly detrimental to clients or the public, nor directly impact
their care, but have only an indirect relationship to client 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 1730-03-.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 1730-03-.19,
to do the acts enumerated in Rule 1730-03-.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 who is the
subject of an investigation with the agreement of the state, or upon request of
both the licensee 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 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
(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
Authority: T.C.A. §§ 4-5-202, 4-5-204, 63-12-105, 63-12-106, 63-12-124, 63-12-128, and 63-12-135.
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.