(1) Purpose -
Whenever any person is affected by any statute governing the Division or any
agency listed in T.C.A. §68-1-101(8) or any statute in which authority is
granted to the Division or any of those agencies to take any action, or any
rule promulgated or order issued by the Division or any of those agencies, he
or she may petition for a declaratory order to determine the validity or
applicability of the statute, rule or order. This rule governs the procedures
for submission, consideration and disposition of petitions for declaratory
orders for the Division of Health Related Boards and each of the agencies
listed in T.C.A. §68-1-101(8).
(a) It is the intent of this rule that
petitions filed pursuant to this rule shall be addressed by the agency whose
statute, rule or order is the subject of the petition. The Division shall
address only those petitions which involve provisions of T.C.A. Title 63,
Chapter 1 or any rule promulgated or any order issued pursuant
(b) It is the intention of
this rule that all informal attempts to resolve any questions of validity or
applicability of any statute, rule or order be made prior to the filing of any
petition for a declaratory order. Legal representation is not required but
persons are encouraged to first contact an attorney to see if their questions
can be resolved. If their attorney cannot definitively answer the questions
after review of all pertinent law, rules, or opinions and pursuant to all other
means provided by law, then a petition for a declaratory order may be
Definitions - For purposes of this rule the following terms shall have the
meanings ascribed to them:
(a) Affected Person
- As these words are used in T.C.A. §4-5-223 mean a person upon whom a
statute, rule or order produces a specific and direct effect or
(b) Agency - Any of the
Boards, Committees, or Councils listed in T.C.A. §68-1-101(8).
(c) Division - The Department of Health's
Division of Health Related Boards and which, for purposes of this rule, is also
a separate agency.
(d) Notice of
Hearing - The formal document issued by the Department of Health which notifies
a petitioner that the Division or an agency has agreed to convene a contested
case and issue a declaratory order.
(e) Notice Promulgated - As those words are
used in T.C.A. §4-5-224(c) to specify a date against which the forty-five
(45) day notice period runs, mean the first (1st) day of the month in which the
published notice of hearing appears in the Tennessee Administrative
(f) Petitioner - The
person who has filed a petition for a declaratory order, and who has the burden
of going forward with the petition, and as to whom any declaratory order issued
shall be binding.
Receipt - As
that term is used in T.C.A. §4-5-223(c) shall mean:
1. For petitions addressable by the Division,
the date of receipt of the petition in its offices.
2. For all agencies listed in T.C.A.
§68-1-101(8), the first date after receipt of the petition by the
administrative staff that the agency meets and can lawfully conduct
(h) Set - As
that term is used in T.C.A. §§4-5-223(c) and 4-5-224(c) in relation
to contested case hearings involved in declaratory order proceedings, means to
establish a future date on which the contested case could be heard.
(4) Contents Of The Petition - Any
person wishing to file a declaratory order petition must do so by completing
the Petition for Declaratory Order form which can be obtained from the Division
or any agencies' administrative office. Failure to provide all requested
information in sections 1, 3, 4, 5, 6 and 7 of the form will invalidate the
petition. A copy of the form is reproduced in paragraph (10) of this
(5) Filing - All declaratory
order petitions must be filed in writing on the approved form by sending them
to the appropriate agency's administrative office.
Consideration Of The Petition - In
considering the petition the agency may do the following:
Either grant the petition (agreeing to
convene on some future date a contested case hearing after which a declaratory
order will be issued), or deny the petition, or take no action.
A petition must be denied if:
(i) The only issue raised is the facial
constitutionality of a statute; or
(ii) The Petitioner is not an affected
(iii) The statute, rule
or order which is the subject of the petition is not within the agency's
primary jurisdiction. The petition must be addressed towards a statute, or rule
in the agency's practice act or a statute which authorizes it to take action,
or an order issued by the agency; or
(iv) The petition itself is deficient for
failure to include all necessary information.
A petition may be granted at the
discretion of the agency only if the petition is addressing:
A statute and the petition concerns any
one of the following:
(I) The application of
the statute; or
(II) The validity
of the statute; or
constitutionality of the agency's application of the statute.
A rule and the petition
concerns any one of the following:
application of the rule; or
The validity of the rule; or
The constitutionality of the agency's application of the rule; or
(IV) The facial constitutionality of the rule
unless the rule is substantially repetitive of the statute on which it is
and the petition concerns any one of the following:
(I) The application of the order;
(II) The validity of the order;
(III) The constitutionality of
the agency's application of the Order.
(b) If the petition is denied, the
petitioner shall be notified of that action in writing.
(c) If the petition is granted, the matter
will be referred to the attorneys for the Department of Health for filing of a
Notice of Hearing. Granting of the petition does not mean that the Petitioner's
requested relief is granted. It merely means that the agency grants a hearing
on the request for the declaratory order.
Notice Of Hearing - After the agency
grants a petition, a Notice of Hearing shall be issued to the petitioner which
contains all of the following information:
(a) All information required by the
declaratory order petition form (incorporation by reference and attachment of
the petition is allowed); and
The date, time and location of the contested case hearing to be held on the
petition. No contested case hearing on the petition may be scheduled prior to
the expiration of forty five (45) days from the first (1st) day of the month in
which the published notice of hearing appears in the Tennessee Administrative
Publication And Distribution - The Notice of Hearing will be filed with the
Secretary of State's Administrative Procedures Division office for assignment
of an administrative judge and its Publications Division for publication of the
notice in the Tennessee Administrative Register. Copies of the Notice of
Hearing and Petition shall be sent to all professional organizations and
associations and other agencies whom the agency reasonably considers are likely
to have an interest in the petition.
(9) Disposition - When the petition is the
subject of a contested case hearing, the Petitioner has the burden of proof in
persuading the agency of the correctness of his/her position on all issues.
After a full hearing on the matter, the agency shall issue an order which
complies with the requirements of the "Administrative Procedures Act", (T.C.A.
§§4-5-101, et seq., 4-5-201 et seq., and 4-5-301 et seq).
Copy Of Declaratory Order Form:
Petition For Declaratory Order