(1) Upon a finding
by the Board that a licensee has violated any provision of T.C.A. §§
63-6-801,
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)
Reprimand - This is a written action issued for one time and less severe
violations. It is a formal disciplinary action.
(b) Probation - This is a formal disciplinary
action which places a genetic counselor 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.
(c)
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.
(d) 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 which 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license was revoked for cause shall be considered prior to the expiration of at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.
(e) 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.
(f) Civil penalty - A monetary disciplinary
action assessed by the 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
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
individuals), 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 Medical
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 license 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
(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
1200-10-1-.11.
(c) Form
Petition
Petition for Order Modification Board of Medical
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
(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 a person who is required to be licensed, certified,
permitted, or authorized by the Board, guilty of a willful and knowing
violation of the Genetic Counselors' Licensing 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
patient or the public. For purposes of this section, willfully and knowingly
practicing as a genetic counselor without a permit, license, certificate, or
other authorization from the Board is one of the violations of the Genetic
Counselors' Licensing Act for which a "Type A" Civil Penalty is
assessable.
2. A "Type B" Civil
Penalty may be imposed whenever the Board finds the person required to be
licensed, certified, permitted, or authorized by the Board is guilty of a
violation of the Genetic Counselors' Licensing Act 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 Board finds the person required to be
licensed, certified, permitted, or authorized by the Board is guilty of a
violation of the Genetic Counselors' Licensing Act or regulations promulgated
pursuant thereto, which are neither directly detrimental to the patients or
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 and not 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 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.
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 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 Tennessee Code Annotated, Title 4, Chapter 5.
