(1) Upon a finding
by the
Committee and
Board that a certificate holder has violated any provision
of T.C.A. §§
63-6-1001, et
seq., or the rules promulgated pursuant thereto, the
Committee and Board may take any of the following actions
separately or in any combination which is deemed appropriate to the
offense;
(a) Warning Letter - 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 a certificate holder 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) Certificate 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 certificate
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 certificate
previously issued. The Committee and/or Board, in their discretion, may allow
reinstatement of a revoked certificate upon conditions and after a period of
time which they deem appropriate. No petition for reinstatement and no new
application for certification from a person whose certificate was revoked for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 Committee and/or Board to be required of a disciplined
certificate holder during any period of probation or suspension or as a
pre-requisite to the lifting of probation or suspension or the reinstatement of
a revoked certificate.
(g) Civil
penalty - A monetary disciplinary action assessed by the Committee and Board
pursuant to paragraph (5) of this rule.
(2) 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 (3) of this rule, and appears before
the Committee 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 uncertified practice civil penalty order, and wishes or is
required to obtain an order reflecting that compliance.
(a) The
Committee and
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
Committee'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 Committee'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
Committee 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
Committee and 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 Committee and Board the petitioner may not submit
any additional documentation or testimony other than that contained in the
petition as originally submitted.
4. If the Committee and 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
Committee or 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
(c) Form Petition
Petition for Order of Compliance
Board of Medical Examiners
Advisory Committee for Acupuncture
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 Committee'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
(4) 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
Committee and
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
Committee and 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
Committee'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
Committee 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 Committee and 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 Committee and 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 Committee and
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
Committee or 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 Medical Examiners
Advisory Committee for Acupuncture
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
(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 Committee and Board find a person who is required to be licensed,
certified, permitted, or authorized by the Committee and Board, guilty of a
willful and knowing violation of T.C.A. §§
63-6-1001,
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 patient or the public. For purposes of this section, willfully and
knowingly practicing as an acupuncturist or as an ADS without a permit,
license, certificate, or other authorization from the Committee and Board is
one of the violations for which a "Type A" Civil Penalty is
assessable.
2. A "Type B" Civil
Penalty may be imposed whenever the Committee and Board find the person
required to be licensed, certified, permitted, or authorized by the Committee
and Board is guilty of a violation of T.C.A. §§
63-6-1001, et
seq., or regulations promulgated 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 Committee and Board find the person required to be
licensed, certified, permitted, or authorized by the Committee and Board is
guilty of a violation of T.C.A. §§
63-6-1001, et
seq., or regulations promulgated pursuant thereto,
which is neither directly detrimental to the patients or public, nor directly
impacts their care, but has 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
$1000.
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 Committee and Board during consideration of any Notice of
Charges. In addition, the Committee and Board may, upon good cause shown,
assess a type and amount of civil penalty which was not recommended by the
Division.
3. In assessing the civil
penalties pursuant to these rules the
Committee and
Board may consider the
following factors:
(i) Whether the amount
imposed will be 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 noncompliance; 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 Title 4, Chapter 5, T.C.A.
