Tenn. Comp. R. & Regs. 1000-02-.04 - DISCIPLINE OF LICENSEES, UNAUTHORIZED PRACTICE OF PRACTICAL NURSING, CIVIL PENALTIES, SCREENING PANELS, SUBPOENAS, ADVISORY RULINGS, DECLARATORY ORDERS, AND ASSESSMENT OF COSTS
(1) Violations - A
misdemeanor - penalties. See Nursing Acts 1967, T.C.A.
§63-7-120.
(2)
Exemptions. See Nursing Acts 1967, T.C.A. §63-7-102.
(a) Domestic administration of family
remedies.
(b) Furnishing of
assistance in the case of an emergency.
(c) Persons employed in institutions,
agencies, or in the office of a licensed physician or dentist, assisting in the
nursing care of patients where adequate medical or nursing supervision or both
is provided. Assisting is defined to mean helping, aiding, or cooperating.
Adequate supervision is defined to mean overseeing or inspecting with
authority. The basic responsibility of the individual nurse who is required to
supervise others is to determine which of the nursing needs can be delegated
safely to others, and to determine whether the individual to whom the duties
are entrusted must be supervised personally. The following are tasks commonly
performed by such persons:
1. Answers
patient's signals, provides necessary assistance in conforming with delegated
tasks, and notifies the appropriate nurse when the situation so
indicates.
2. Assists with
admission, transfer, and discharge of patients.
3. Assists with the dressing and undressing
of patients.
4. Assists with the
patients' baths.
5. Assists with
the measuring of fluid intake and output of patients and the recording on
appropriate forms.
6. Assists with
the collection of urine, stool, and sputum specimens.
7. Assists with the feeding of
patients.
8. Assists with the
weighing of patients.
9. Assists
with the making of patients' beds.
10. Assists with the application and removal
of such protective devices as side rails, footboards, and bed
cradles.
11. When a licensed
practical nurse undertakes to supervise other nursing tasks requiring greater
skill and knowledge by such persons, the following requirements shall apply:
(i) Such persons shall assist with and
undertake only those nursing tasks which they are qualified to
perform.
(ii) The licensed
practical nurse shall supervise such persons.
(iii) The licensed practical nurse shall
retain professional accountability for nursing care when such persons are
performing these activities.
(iv)
The licensed practical nurse shall not require assistance with or supervise
nursing care activities or responsibilities by such persons contrary to the
nurse practice act or rules and regulations to the detriment of patient
care.
(v) Such persons shall have
had proper instruction and supervised practice and shall have demonstrated
competency in the procedure or activity.
(vi) There is documentation of continued
competency by such persons in the performance of the procedure or
activity.
(vii) There are written
policies and procedures regarding the conditions under which the procedure or
activity shall be performed by such persons.
(d) The practice of nursing incidental to a
program of study by students enrolled in nursing education programs approved by
the Board is exempt from a licensure; however, a student of a school of nursing
shall not be employed in a capacity requiring a licensed person.
(e) Persons belonging to a recognized church
or religious denominations having religious teachings and beliefs in regard to
the care of the sick by prayer.
(f)
Care of persons in their homes by domestic servants or aides if not initially
employed in a nursing capacity.
(g)
Employees of the U.S. Government, provided they are lawfully qualified to
practice nursing in another state.
(h) The practice of any currently licensed
nurse of another state who is presenting educational programs or consultative
services within this state for a period not to exceed fourteen (14) days in a
calendar year.
(i) The practice of
any currently licensed nurse of another state whose responsibility include
transporting patients into, out of, or through this state. Such exemption shall
be limited to a period not to exceed forty-eight (48) hours for each
transport.
(j) The practice of
nursing by students who are enrolled in Board approved refresher programs or
comprehensive orientation programs.
(3) Responsibility.
(a) Each individual is responsible for
personal acts of negligence under the law. Licensed practical nurses are liable
if they perform delegated functions they are not prepared to handle by
education and experience and for which supervision is not provided. In any
patient care situation, the licensed practical nurse should perform only those
acts for which each has been prepared and has demonstrated ability to perform,
bearing in mind the individual's personal responsibility under the
law.
(b) The Board acknowledges
that licensed practical nurses have knowledge and preparation in nursing, but
not to the extent required of registered nurses. The Board recognizes that
licensed practical nurses engage in activities which require greater skill and
knowledge than that obtained in the basic licensed practical nurse curriculum.
It is the intent and purpose of these rules that licensed practical nurses only
perform additional activities to the extent that the activity is related to the
underlying scientific principles in the basic practical nurse
curriculum.
(c) Before performing
activities requiring greater skill and knowledge, the following criteria must
be met.
1. The education or in service shall
be related to the underlying scientific principles contained in the basic
practical nurse curriculum;
2. The
individual shall have appropriate continuing education in the procedure or
activity; and
3. The individual
must demonstrate competency in the practice.
(4) Discipline.
(a) The Board has the power to deny, revoke,
or suspend any certificate or license to practice nursing as provided in the
Nursing Acts 1967, T.C.A. §63-7-115.
(b) The procedure for revocation, suspension
or reissuance of a license is described in the Nursing Acts 1967, T.C.A.
§63-7-115.
(c) Any member of
the Board may grant or deny a petition for reconsideration of a final order, as
provided in rule 1360-04-01-.18(1) (b).
(d) Any member of the Board may, if adequate
public notice is given, schedule a hearing on a petition for a stay, as
provided in rule 1360-04-01-.18(2).
(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:
1. when the petitioner can persuade and
demonstrate to the Board that compliance with any one (1) or more of the
conditions or terms of the discipline previously ordered should not be required
due to circumstances deemed compelling by the Board; or
2. when the petitioner can prove that
compliance with any one (1) 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 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 compliance with the order as issued cannot or
should not be achieved; and
(iii) A
copy of all documents that are relevant to meeting the provisions of
subparagraph (a). If proof of the need for order modification 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 or should not be required. 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
Executive Director, or any Board member, or any Board consultant, or any
Board-appointed designee to make an initial determination on the petition and
take one of the following actions:
(i)
Confirm the petitioner's legitimate difficulties with achieving 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 the petitioner's difficulties with achieving compliance
are not proven to be legitimate, and notify the petitioner of what 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 the Board's Executive Director, or any Board
member, or any Board consultant, or any Board-appointed designee or after
presentation to the Board and the petitioner believes documentation supporting
a legitimate inability to achieve 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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(6) Civil Penalties.
(a) 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 Nursing Practice Act, or regulations pursuant thereto, to such
an extent that there is, or likely to be, an imminent, substantial threat to
the health, safety and welfare of an individual patient or the public. For
purpose of this section, willfully and knowingly practicing professional
nursing without a permit, license, certification, or other authorization from
the Board is one of the violations of the Nursing Practice Act for which a Type
A Civil Penalty is assessable.
2. A
Type B Civil Penalty may be imposed whenever the Board finds a person to be
licensed, certified, permitted, or authorized by the Board, guilty of a
violation of the Nursing Practice Act or regulations pursuant thereto in such
manner as to impact directly on the care of patients of the public.
3. A Type C Civil Penalty may be imposed
whenever the Board finds the person required to be certified, permitted or
authorized by the Board, guilty of a violation of the Nursing Practice Act or
regulations 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.
(b) Amount of Civil Penalties
1. Type A Civil Penalties shall be assessed
in the amount of not less than $500 or more than $1,000.
2. Type B Civil Penalties may be assessed in
the amount of not less than $100 nor more than $750.
3. Type C Civil Penalties may be assessed in
the amount of not less than $50 nor more than $500.
(c) 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 replies 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 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 Title 4, Chapter 5, T.C.A.
(7) Screening Panels - Any screening panel(s)
established pursuant to T.C.A. §§ 63-7-115 and 63-7-207:
(a) Shall have concurrent authority with the
Board members and any individual nurse designated by the Board to do the acts
enumerated therein and subject to the conditions contained therein.
1. A Screening panel(s) comprised of three
(3) or more persons shall elect a chairperson prior to convening to conduct
business. The screening panel(s) shall include at least one (1) but no more
than three (3) licensed nurses who may be members of the board or may serve
voluntarily or through employment by or under contract with the
board.
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 review of a complaint by the
Board's consultant, or after completion of an investigation by the Division, a
screening panel may upon request of either the state, or the licensee who is
the subject of an investigation, or upon agreement 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 Evidence or Contested Case
Procedural Rules under the Administrative Procedures Act shall apply in
informal hearings before the screening panels(s).
(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. Informal hearings may be
conducted without the participation of the licensee who is the subject of the
investigation.
3. A licensee who is
the subject of an investigation being considered by a screening panel cannot be
compelled to participate in any informal hearing.
4. It is not required that prior or
subsequent notice of any informal hearing be given to any licensee who is the
subject of an investigation being considered by a screening panel.
5. 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 or a duly constituted panel of the Board.
(8) Subpoenas
(a) Purpose - Although this rule applies to
persons and entities other than nurses, it is the Board's intent as to nurses
that they be free to comprehensively treat and document treatment of their
patients without fear that the treatment or its documentation will be unduly
subjected to scrutiny outside the profession. Consequently, balancing that
intent against the interest of the public and patients to be protected against
substandard care and activities requires that persons seeking to subpoena such
information and/or materials must comply with the substance and procedures of
these rules.
It is the intent of the Board that the subpoena power outlined herein shall be strictly proscribed. Such power shall not be used by the division or board investigators to seek other incriminating evidence against nurses when the division or board does not have a complaint or basis to pursue such an investigation. Thus, unless the division or its investigators have previously considered, discovered, or otherwise received a complaint from either the public or a governmental entity, then no subpoena as contemplated herein shall issue.
(b)
Definitions - As used in this chapter of rules the following words shall have
the meanings ascribed to them:
1. Probable
Cause
(i) For Investigative Subpoenas - shall
mean that probable cause, as defined by case law at the time of request for
subpoena issuance is made, exists that a violation of the Nursing Practice Act
or rules promulgated pursuant thereto has occurred or is occurring and that it
is more probable than not that the person(s), or items to be subpoenaed possess
or contain evidence which is more probable than not relevant to the conduct
constituting the violation.
(ii)
The utilization of the probable cause evidentiary burden in proceedings
pursuant to this rule shall not in any way, nor should it be construed in any
way to establish a more restrictive burden of proof than the existing
preponderance of the evidence in any civil disciplinary action which may
involve the person(s) or items that are the subject of the subpoena.
2. Presiding Officer - For
investigative subpoenas shall mean any elected officer of the board, or any
duly appointed or elected chairperson of any panel of the board, or any
screening panel, and any hearing officer, arbitrator or mediator, or the
Board's advisory attorney.
(c) Procedures
1. Investigative Subpoenas
(i) Investigative Subpoenas are available
only for issuance to the authorized representatives of the Tennessee Department
of Health, its investigators and its legal staff.
(ii) An applicant for such a subpoena must
either orally or in writing notify the Board Director of the intention to seek
issuance of a subpoena. That notification must include the following:
(I) The time frame in which issuance is
required so the matter can be timely scheduled; and
(II) A particular description of the material
or documents sought, which must relate directly to an ongoing investigation or
contested case, and shall, in the instance of documentary materials, be limited
to the records of the patient or patients whose complaint, complaints, or
records are being considered by the division or board.
I. In no event shall such subpoena be broadly
drafted to provide investigative access to medical records of other patients
who are not referenced in a complaint received from an individual or
governmental entity, or who have not otherwise sought relief, review, or board
consideration of a nurse's conduct, act, or omission.
II. If the subpoena relates to the
prescribing practices of a licensee, then it shall be directed solely to the
records of the patient(s) who received the pharmaceutical agents and whom the
board of pharmacy or issuing pharmacy(ies) has so identified as recipients;
and
(III) Whether the
proceedings for the issuance is to be conducted by physical appearance or
electronic means; and
(IV) The name
and address of the person for whom the subpoena is being sought or who has
possession of the items being subpoenaed.
(iii) The Board Director shall cause to have
the following done:
(I) In as timely a manner
as possible arrange for either an elected officer of the board, or any duly
appointed or elected chairperson of any panel of the board, or any screening
panel, or any hearing officer, arbitrator or mediator to preside and determine
if the subpoena should be issued; and
(II) Establish a date, time and place for the
proceedings to be conducted and notify the presiding officer, the applicant and
the court reporter; and
(III)
Maintain a complete record of the proceedings including an audio tape in such a
manner as to:
I. Preserve a verbatim record
of the proceeding; and
II. Prevent
the person presiding over the proceedings and/or signing the subpoena from
being allowed to participate in any manner in any disciplinary action of any
kind formal or informal which may result which involves either the person or
the documents or records for which the subpoena was issued.
(iv) The Proceedings
(I) The applicant shall do the following:
I. Provide for the attendance of all persons
whose testimony is to be relied upon to establish probable cause; and
II. Produce and make part of the record
copies of all documents to be utilized to establish probable cause;
and
III. Obtain, complete and
provide to the presiding officer a subpoena which specifies the following:
A. The name and address of the person for
whom the subpoena is being sought or who has possession of the, items being
subpoenaed; and
B. The location of
the materials, documents or reports for which production pursuant to the
subpoena is sought if that location is known; and
C. A brief, particular description of any
materials, documents or items to be produced pursuant to the subpoena;
and
D. The date, time and place for
compliance with the subpoena.
IV. Provide the presiding officer testimony
and/or documentary evidence which in good faith the applicant believes is
sufficient to establish that probable cause exists for issuance of the subpoena
as well as sufficient proof that all other reasonably available alternative
means of securing the materials, documents or items have been
unsuccessful.
(II) The
Presiding Officer shall do the following:
I.
Have been selected only after assuring the Board Director that he or she has no
prior knowledge of or any direct or indirect interest in or relationship with
the person(s) being subpoenaed and/or the licensee who is the subject of the
investigation; and
II. Commence the
proceedings and swear all necessary witnesses; and
III. Hear and maintain the confidentiality,
if any, of the evidence presented at the proceedings; and
IV. Control the manner and extent of inquiry
during the proceedings and be allowed to question any witness who testifies;
and
V. Determine based solely on
the evidence presented in the proceedings whether probable cause exists and if
so, issue the subpoena for the person(s) or items specifically found to be
relevant to the inquiry; and
VI.
Sign the subpoena as ordered to be issued; and
VII. Not participate in any way in any other
proceeding whether formal or informal which involves the matters, items or
person(s) which are the subject of the subpoena. This does not preclude the
presiding officer from presiding at further proceedings for issuance of
subpoenas in the matter.
2. Post-Notice of Charges Subpoenas - If the
subpoena is sought for a contested case being heard with an Administrative Law
Judge from the Secretary of State's office presiding, this definition shall not
apply and all such post-notice of charges subpoenas should be obtained from the
office of the Administrative Procedures Division of the Office of the Secretary
of State pursuant to the Uniform Administrative Procedures Act and rules
promulgated pursuant thereto.
(d) Subpoena Forms
1. All subpoena shall be issued on forms
approved by the Board.
2. The
subpoena forms may be obtained by contacting the Board's Administrative
Office.
(e) Subpoena
Service - Any method of service of subpoenas authorized by the Tennessee Rules
of Civil Procedure or the rules of the Tennessee Department of State,
Administrative Procedures Division may be utilized to serve subpoenas pursuant
to this rule.
(9)
Advisory Rulings - Any person who is affected by any matter within the
jurisdiction of the Board and who holds a license issued pursuant to Chapter 7
of Title 63 of the Tennessee Code Annotated, may submit a written request for
an advisory ruling. The procedures for obtaining and issuance of advisory
rulings are as follows:
(a) The licensee
shall submit the request to the Board Administrative Office on the form
contained in subparagraph (e) providing all the necessary information;
and
(b) The request, upon receipt,
shall be referred to the Board's administrative staff for research, review and
submission of a proposed ruling to the Board for its consideration at the next
meeting after the draft ruling has been approved by the Board's Executive
Director and advisory attorney; and
(c) The board shall review the proposed
ruling and either make whatever revisions or substitutions it deem necessary
for issuance or refer it back to the administrative staff for further research
and drafting recommended by the Board; and
(d) Upon adoption by the Board the ruling
shall be transmitted to the requesting licensee.
(e) Any request for an advisory ruling shall
be made on the following form, a copy of which may be obtained from the Board's
Administrative Office:
Board of Nursing Request for Advisory Ruling
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Mail or Deliver to: Executive Director,
Tennessee Board of Nursing
227 French Landing, Suite 300
Heritage Place, MetroCenter
Nashville, TN 37243
(10) Declaratory Orders - The Board adopts,
as if fully set out herein, rule 1200-10-01-.11, of the Division of Health
Related Boards and as it may from time to time be amended, as its rule
governing the declaratory order process. All declaratory order petitions
involving statutes, rules or orders within the jurisdiction of the Board shall
be addressed by the Board pursuant to that rule and not by the Division.
Declaratory Order Petition forms can be obtained from the Board's
administrative office.
(11)
Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A.
§§ 63-1-144 and 63-7-115.
Notes
Authority: T.C.A. §§ 4-5-202, 4-5-204, 4-5-217, 4-5-223, 4-5-312, 4-5-316, 4-5-317, 63-1-122, 63-1-144, 63-7-115, 63-7-116, and 63-7-207.
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