Tenn. Comp. R. & Regs. 0150-01-.15 - DISCIPLINARY GROUNDS, ACTIONS, AND CIVIL PENALTIES

(1) Grounds and Authority for Disciplinary Actions - The Board shall have the power to deny, limit, restrict or condition an application for a license to any applicant who applies for the same. The Board shall have the authority to suspend or revoke, reprimand or otherwise discipline any person holding a license to practice as an athletic trainer. The grounds upon which the Board shall exercise such power includes, but are not limited to, the following:

(a) Unprofessional, dishonorable, or unethical conduct;

(b) Violation or attempted violation, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision of T.C.A. §§ 63-24-101, et seq., or any lawful order of the Board issued pursuant thereto, or any criminal statute of the state of Tennessee;

(c) Making false statements or representations, being guilty of fraud or deceit in obtaining admission to practice, or being guilty of fraud or deceit in the practice as an athletic trainer;

(d) Gross malpractice, or a pattern of continued or repeated malpractice, ignorance, negligence or incompetence in the course of practice as an athletic trainer;

(e) Habitual intoxication or personal misuse of any drugs or the use of intoxicating liquors, narcotics, controlled substances, or other drugs or stimulants in such manner as to adversely affect the person's ability to practice as an athletic trainer;

(f) Willfully betraying a professional secret;

(g) The advertising of an athletic trainer business in which untrue or misleading statements are made, or causing the publication or circulation of fraudulent advertising relative to any disease, human ailment, or conditions;

(h) Willful violation of the rules and regulations promulgated by the Board to regulate advertising by practitioners who are under the jurisdiction of such board;

(i) Conviction of a felony, conviction of any offense under state or federal drug laws;

(j) Making or signing in one's professional capacity any certificate that is known to be false at the time one makes or signs such certificate;

(k) Offering, undertaking, or agreeing to cure or treat a disease, injury, ailment or infirmity by a secret means, method, device or instrumentality;

(l) Giving or receiving, or aiding or abetting the giving or receiving of rebates, either directly or indirectly for referrals of business or patients;

(m) Engaging in the practice of an athletic trainer under a false or assumed name, or the impersonation of another practitioner, or a like, similar or different name;

(n) Engaging in the practice of an athletic trainer when mentally or physically unable to safely do so;

(o) Violation of the continuing education provisions of Rule 0150-01-.12;

(p) Violation of the scope of practice statutes T.C.A. § 63-24-101;

(q) Violation of the ethic code established in Rule 0150-01-.13;

(r) Knowingly employing, contracting for or otherwise utilizing unlicensed persons in the practice of athletic training, with or without compensation;

(s) Failing to report violations committed by other licensees of Tennessee Code Annotated, Title 63, Chapter 24 and Official Compilation, Rules and Regulations, Chapter 0150-01;

(t) Disciplinary action against a person licensed, certified, registered, or permitted to practice as an athletic trainer by another state or territory of the United States for any acts or omissions which would constitute grounds for discipline of a person licensed in this state. A certified copy of the initial or final order or other equivalent document memorializing the disciplinary action from the disciplining state or territory shall constitute prima facie evidence of violation of this section and be sufficient grounds upon which to deny, restrict or condition licensure or renewal and/or discipline a person licensed in this state.

(2) Upon a finding by the Board that an athletic trainer has violated any provision of the T.C.A. §§ 63-24-101, et seq., or the rules promulgated pursuant thereto, the Board may take any of the following actions separately or in any combination which is deemed appropriate to the offense;

(a) Advisory Censure - This is a written action issued for minor or near infractions. It is informal and advisory in nature and does not constitute a formal disciplinary action.

(b) Reprimand - This is a written action issued for one time and less severe violations. It is a formal disciplinary action.

(c) Probation - This is a formal disciplinary action which places an athletic trainer on close scrutiny for a fixed period of time. This action may be combined with conditions that must be met before probation will be lifted and/or which restrict the individual's activities during the probationary period.

(d) License Suspension - This is a formal disciplinary action that suspends the right to practice for a fixed period of time. It contemplates the re-entry into practice under the license previously issued.

(e) License Revocation - This is the most severe form of disciplinary action which removes an individual from the practice of the profession and terminates the licensure previously issued. The Board, in its discretion, may allow reinstatement of a revoked license upon conditions and after a period of time that it deems appropriate. No petition for reinstatement and no new application for licensure from a person whose license was revoked for cause shall be considered prior to the expiration of at least six (6) months from the effective date of the 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 Penalties

1. Purpose - The purpose of this 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.

2. Schedule of Civil Penalties

(i) A Type A civil penalty may be imposed whenever the Board finds the person who is required to be licensed or certified, permitted or authorized by the Board guilty of a willful and knowing violation of T.C.A. §§ 63-24-101, et seq., 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, willfully and knowingly practicing as an athletic trainer without a license, certification or other authorization from the Board is one of the violations of T.C.A. §§ 63-24-101, et seq., for which a Type A civil penalty is assessable.

(ii) A Type B civil penalty may be imposed whenever the Board finds the person who is required to be licensed or certified, permitted or authorized by the Board is guilty of a violation of T.C.A. §§ 63-24-101, et seq., or regulations promulgated pursuant thereto, in such a manner as to impact directly on the care of patients or the public.

(iii) A Type C civil penalty may be imposed whenever the Board finds the person who is required to be licensed by the Board or certified, permitted or authorized by the Board is guilty of a violation of T.C.A. §§ 63-24-101, et seq., or regulations promulgated pursuant thereto, which are neither directly detrimental to the patients or public, nor directly impact their care, but have only indirect relationship to patient care or the public.

3. Amount of Civil Penalties

(i) Type A Civil Penalties shall be assessed in the amount of not less than $500 or more than $1,000.

(ii) Type B Civil Penalties may be assessed in the amount of not less than $100 and not more than $500.

(iii) Type C Civil Penalties may be assessed in the amount of not less than $50 and not more than $100.

4. Procedures for Assessing Civil Penalties

(i) 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.

(ii) 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 a type and amount of civil penalty which was not recommended by the Division.

(iii) 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.

(iv) All proceedings for the assessment of civil penalties shall be governed by the contested case provisions of Title 4, Chapter 5, Tennessee Code Annotated.

(h) Assessment of Costs - Shall be as set forth in T.C.A. § 63-1-144.

(i) Summary Action - This is a formal preliminary disciplinary action which immediately suspends a licensee's right to practice as an athletic trainer until a final disposition of the matter is had after a promptly instituted, full hearing before the Board. This type of action is ordered ex parte, pursuant to the notice procedures contained in T.C.A. § 4-5-320 and then only upon a finding by the Board that the public health, safety or welfare imperatively requires emergency action.

(3) 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 (4) 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.

(4) 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

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(5) 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

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Notes

Tenn. Comp. R. & Regs. 0150-01-.15

Original rule filed March 14, 2001; effective May 28, 2001. Amendment filed September 5, 2002; effective November 19, 2002. Amendment filed June 30, 2004; effective September 13, 2004. The Secretary of State transferred chapter 0880-04 to 0150-01, effective April 30, 2007. Amendment filed November 26, 2008; effective February 9, 2009. Amendments filed September 25, 2023; effective 12/24/2023.

Authority: T.C.A. §§ 63-1-122, 63-1-134, 63-1-144, 63-6-101, 63-6-213, 63-6-214, 63-6-216, 63-24-101, 63-24-102, 63-24-107, 63-24-108, 63-24-110, and 63-24-111.