(1) Upon a finding
by the board that a chiropractic therapy assistant has violated any provision
of the T.C.A. §
63-4-123 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 chiropractic therapy assistant 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 chiropractic
therapy assistant for one time and less severe violations. It is a formal
disciplinary action.
(c) Probation
- This is a formal disciplinary action which places a chiropractic therapy
assistant 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 restricts the individual's activities during the probationary
period.
(d) Certification
Suspension - This is a formal disciplinary action which suspends an
individual's right to work under certification for a fixed period of time. It
contemplates the reentry of the individual into the certification previously
issued.
(e) Certification
Revocation - This is the most severe form of disciplinary action which removes
an individual from working under certification by terminating the certification
previously issued. If revoked, it relegates the violator to the status he
possessed prior to application for certification. However, the board may in its
discretion allow the reinstatement of a revoked certificate upon conditions and
after a period of time which it deems appropriate. No petition for
reinstatement and no new application for certification from a person whose
certification was revoked shall be considered prior to the expiration of at
least one (1) year from of the date of certificate revocation unless otherwise
stated in the board's revocation order.
(f) Conditions - Any action deemed
appropriate by the Board to be required of a disciplined certificate holder in
any of the following circumstances:
1. During
any period of probation, suspension; or
2. During any period of revocation after
which the certificate holder may petition for an order of compliance to
reinstate the revoked certificate; or
3. As a prerequisite to the lifting of
probation or suspension or as a prerequisite to the reinstatement of a revoked
certificate; 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 (4) of this rule.
(h) 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 certificate
holder petitions, pursuant to paragraph (2) 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.
(2) 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 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 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
1200-10-1-.11.
(c) Form Petition
Petition for Order of Compliance
Board of Chiropractic Examiners
Petitioner's Name: _________________________
Petitioner's Mailing Address: _________________
Petitioner's E-Mail Address: __________________
Telephone Number: ________________________
Attorney for Petitioner: ______________________
Attorney's Mailing Address: __________________
Attorney's E-Mail Address: ___________________
Telephone Number: ________________________
The petitioner respectfully represents, as substantiated by the
attached documentation, that all provisions of the attached disciplinary order
have been complied with and I am respectfully requesting: (circle one)
1. An order issued reflecting that
compliance; or
2. An order issued
reflecting that compliance and lifting a previously ordered suspension or
probation; or
3. An order issued
reflecting that compliance and reinstating a certificate previously
revoked.
Note - You must enclose all documents necessary to prove your
request including a copy of the original order. If any of the proof you are
relying upon to show compliance is the testimony of any individual, including
yourself, you must enclose signed statements from every individual you intend
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, this petition.
Respectfully submitted this the ___ day of ______, 20
_____.
_________________________
Petitioner's Signature
(3) Order Modifications - This procedure is
not intended to allow anyone under a previously issued disciplinary order,
including an 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
1200-10-1-.11.
(c) Form Petition
Petition for Order Modification
Board of Chiropractic Examiners
Petitioner's Name: _______________________________
Petitioner's Mailing Address: ________________________
Petitioner's E-Mail Address: _________________________
Telephone Number: _______________________________
Attorney for Petitioner: _____________________________
Attorney's Mailing Address: _________________________
Attorney's E-Mail Address: __________________________
Telephone Number: _______________________________
The petitioner respectfully represents that for the following
reasons, as substantiated by the attached documentation, the identified
provisions of the attached disciplinary order are impossible for me to comply
with:
________________________________________________
________________________________________________
________________________________________________
________________________________________________
________________________________________________
________________________________________________
________________________________________________
Note - You must enclose all documents necessary to prove your
request including a copy of the original order. If any of the proof you are
relying upon to show impossibility is the testimony of any individual,
including yourself, you must enclose signed and notarized statements from every
individual you intend 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, this petition.
Respectfully submitted this the ___ day of _____________, 20
____.
_______________________________
Petitioner's Signature
(4) 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 certified by the
board is guilty of a willful and knowing violation of the Chiropractic
Examiners Practice 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 the
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 chiropractic
therapy assistant without the required certification from the board.
2. A Type B civil penalty may be imposed
whenever the board finds the person required to be certified by the board is
guilty of a violation of the Chiropractic Examiners Practice Act or regulations
promulgated pursuant thereto in such a 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 certified by the board is guilty of a violation of the Chiropractic
Examiners Practice 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.
(c) 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.
(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 benefit 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
Tenn. Comp. R. & Regs. 0260-05-.14
Original rule filed February 9, 2000; 60-day stay filed February
24, 2000; effective June 23, 2000. Repeal and new rule filed November 15, 2000;
effective January 30, 2001. Amendment filed August 2, 2004; effective October
16, 2004. Amendment filed October 29, 2008; effective January 12, 2009.
Amendments filed April 12, 2023; effective
7/11/2023.
Authority: T.C.A. §§
63-1-122,
63-1-132,
63-1-134, 63-4-106, 63-4-114,
63-4-115, and 63-4-123.
