Tenn. Comp. R. & Regs. 1200-10-02-.07 - REGISTRATION DISCIPLINE, ADVISORY RULINGS, AND SCREENING PANELS

(1) Upon a finding by the Division that a registered certified reflexologist has violated any provision of the Tennessee Code Annotated § 63-30-101, et seq., or the rules promulgated pursuant thereto, the Division may impose any of the following actions separately or in any combination deemed appropriate to the offense.
(a) Registration Suspension - This is a formal disciplinary action which suspends a registered certified reflexologist's right to practice for a fixed period of time. It contemplates the re-entry of the registered certified reflexologist into practice under the registration previously issued.
(b) Registration Revocation - This is the most severe form of disciplinary action which removes a registered certified reflexologist from the practice of reflexology and terminates the registration previously issued. If revoked, it relegates the violator to the status he/she possessed prior to application for registration. However, the Division may in its discretion allow the reinstatement of a revoked registration upon conditions and after a period of time it deems appropriate. No petition for reinstatement and no new application for registration from a person whose registration was revoked shall be considered prior to the expiration of at least one (1) year, unless otherwise stated in the Division's revocation order.
(c) Civil penalty - A monetary disciplinary action assessed by the Division pursuant to paragraph (5) of this rule.
(2) Once ordered, suspension, revocation, or assessment of a civil penalty may not be lifted unless and until the registered certified reflexologist petitions, pursuant to paragraph (3) of this rule, and appears before the Division after the period of initial suspension or revocation has run 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 unregistered practice civil penalty order, and wishes or is required to obtain an order reflecting that compliance.
(a) The Division 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
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 registration previously revoked.
(b) Procedures
1. The petitioner shall submit a Petition for Order of Compliance, as contained in subparagraph (c), to the Division'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 Division's 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 Division authorizes its 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 Division 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 Division the petitioner may not submit any additional documentation or testimony other than that contained in the petition as originally submitted.
4. If the Division 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 Division 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

Division of Health Related Boards

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(4) Order Modifications - This procedure is not intended to allow anyone under a previously issued disciplinary order, including an unregistered 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 Division orders were subject to reconsideration and appeal under the provisions of the Uniform Administrative Procedures Act (T.C.A. §§ 45-301, 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.
(a) The Division 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 Division'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 Division authorizes its 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 Division 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 Division 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 Division 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 Division 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

Division of Health Related Boards

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(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 Division finds a person who is required to be registered by the Division, guilty of a willful and knowing violation of the Reflexology Practitioners Registration Act of 2001 or regulations 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.
2. A Type B Civil Penalty may be imposed whenever the Division finds the person required to be registered by the Division is guilty of a violation of the Reflexology Practitioners Registration Act of 2001 or regulations pursuant thereto in such manner as to impact directly on the care of clients or the public.
3. A Type C Civil Penalty may be imposed whenever the Division finds the person required to be registered, or authorized by the Division is guilty of a violation of the Reflexology Practitioners Registration Act of 2001 or regulations promulgated 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 $500.00 nor more than $1,000.00.
2. Type B Civil Penalties may be assessed in the amount of not less than $100.00 and not more than $500.00.
3. Type C Civil Penalties may be assessed in the amount of not less than $50.00 and not more than $ 100.00.
(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. In assessing the civil penalties pursuant to these rules the Division 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.
3. All proceedings for the assessment of civil penalties shall be governed by the contested case provisions of Title 4, Chapter 5, Tennessee Code Annotated.
(6) Advisory Rulings - Any person who is affected by any matter within the jurisdiction of the Division and who is a registered certified reflexologist, may submit a written request for an advisory ruling.
(a) The procedures for obtaining and issuance of advisory rulings are as follows:
1. The registrant shall submit the request to the Administrative Office on the form contained in subparagraph (b), providing all the necessary information; and
2. The Division shall review and research the request and subsequently make a ruling; and
3. The ruling shall be transmitted to the requesting registrant. The ruling shall have effect only upon the registrant requesting the ruling, and shall have no precedential value for any other inquiry or future contested case.
(b) Any request for an advisory ruling shall be made on the following form, a copy of which may be obtained from the Administrative Office:

Division of Health Related Boards

Request for Advisory Ruling

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(7) Screening Panels - The screening panel process shall be governed by Rule 1200-10-1-.13, of the Division of Health Related Boards and as it may from time to time be amended

Notes

Tenn. Comp. R. & Regs. 1200-10-02-.07
Original rule filed April 26, 2002; effective August 28, 2002. Amendment filed June 10, 2004; effective October 28, 2004. Amendment filed June 1, 2006; effective October 27, 2006.

Authority: T.C.A. §§ 4-5-202, 63-1-138, 63-30-111, and 63-30-112.

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