Tenn. Comp. R. & Regs. 1200-30-01-.15 - DISCIPLINARY ACTIONS AND CIVIL PENALTIES

(1) Complaints against licensed Alcohol and Drug Abuse Counselors shall be investigated by the Department. Upon a finding by the Department that a licensed Alcohol and Drug Abuse Counselor may have violated any provision of these rules a notice of charges may be issued. The Board, upon a finding of violation of these rules, may impose any of the following actions separately or in any combination deemed appropriate to the offense:
(a) Private censure. A written action issued to the licensed Alcohol and Drug Abuse Counselor for minor infractions. Such action is informal and advisory in nature and does not constitute a formal disciplinary action.
(b) Public censure or reprimand. A written action issued to a licensed Alcohol and Drug Abuse Counselor for single incident and less severe violations. It is a formal disciplinary action and a copy will be provided to persons making an inquiry.
(c) Probation. A formal disciplinary action which places a licensed Alcohol and Drug Abuse Counselor on close scrutiny for a fixed period of time. This action may be combined with conditions which must be met before probation will be lifted and/or which restrict the individual's activities during the probationary period.
(d) Suspension. A formal disciplinary action which suspends an individual's right to represent himself as a licensed Alcohol and Drug Abuse Counselor for a fixed period of time. It contemplates the reentry of the individual into the practice under the license 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 license previously issued. No petition for reinstatement and no new application for licensure from a person whose license has been revoked shall be considered prior to the expiration of at least one (1) year, unless otherwise stated in the Board's revocation order.
(f) Conditions. Any action deemed appropriate by the Board to be required of a disciplined licensee during any period of probation or suspension or as a prerequisite to the lifting of probation or suspension.
(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 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 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 Alcohol and Drug Abuse Counselors

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(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 Alcohol and Drug Abuse Counselors

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(5) Civil penalties.
(a) Purpose. The purpose of this paragraph 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 the person who is licensed, permitted, or authorized by the Board is guilty of a willful and knowing violation of statutes regarding the licensing of alcohol and drug abuse counselors, T.C.A. 68-24-601, et seq. or rules 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.
2. A "Type B" civil penalty may be imposed whenever the Board finds the person who is licensed, permitted, or authorized by the Board is guilty of a violation of statutes regarding the licensing of alcohol and drug abuse counselors, T.C.A. §§ 68-24-601, et seq. or rules 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 who is licensed, permitted, or authorized by the Board is guilty of a violation of statutes regarding the licensing of alcohol and drug abuse counselors, T.C.A. §§ 68-24-601, et seq., or rules promulgated pursuant thereto, which are neither directly detrimental to the patients or the 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 five hundred dollars ($500) nor more than one thousand dollars ($1000).
2. "Type B" civil penalties may be assessed in the amount of not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
3. "Type C" civil penalties may be assessed in the amount of not less than fifty dollars ($50) nor more than one hundred dollars ($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 of Health Related Boards may incorporate the Memorandum of Assessment of Civil Penalty with a Notice of Charges.
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 of Health Related Boards.
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 Administrative Procedures Act, T.C.A. §§ 4-5-301, et seq.
(6) Grounds for refusal to issue or renew or to suspend or revoke licenses or other disciplinary action - The Board may either refuse to issue or renew any license or may suspend or revoke or otherwise discipline any licensee for one (1) or more of the following reasons:
(a) Making false statements or representations or being guilty of fraud or deceit in obtaining licensure, or being guilty of fraud or deceit in the practice of alcohol or other drugs of abuse counseling.
(b) The inability to perform or the consistent unsatisfactory performance of the expected functions of a licensed Alcohol and Drug Abuse Counselor.
(c) Knowingly assisting another in the procurement of licensure or renewal of a license through false statements or misrepresentation.
(d) Misrepresentation of professional qualifications, certification, accreditation, affiliations or employment experiences.
(e) Violations of the provisions of these rules or any lawful order of the Board.
(f) Engaging in malpractice, negligence, incompetence or conduct not authorized in the course and scope of practice.
(g) Violation of standards of patient confidentiality, as prescribed by state and federal law.
(h) Conviction of a felony or conviction of any crime involving moral turpitude.
(i) Habitual intoxication or personal misuse of any drugs or the use of intoxicating liquors, narcotics, controlled substances or other drugs or stimulants in such a manner as to adversely affect the person's ability to practice.
(j) Any other breach of the NAADAC Code of Ethics or these rules.
(k) When an applicant has had licensure disciplinary action taken or is under investigation by another state or territory of the United States or by any other entity assigned to the Division of Health Related Boards as provided in Rule 1200-10-1-.01(3) for any acts or omissions which would constitute grounds for discipline of a license issued by this Board. A certified copy of the initial or final order or other equivalent document memorializing the disciplinary action or investigation from the disciplining state, territory, or licensing authority shall constitute prima facie evidence of violation of this section and be sufficient grounds upon which to deny, restrict or condition licensure or renewal and/or discipline a license issued by this Board.
(l) When any applicant's application indicates a problem in the areas of mental, physical, moral or educational criteria for licensure or renewal which the Board determines may create a potential threat to the public health, safety or welfare.
(7) The Board has the authority to:
(a) Take appropriate disciplinary actions as the result of complaints received or investigations conducted.
(8) Reconsiderations and Stays. The Board authorizes the member who chaired the Board for a contested case to be the agency member to make the decisions authorized pursuant to rule 1360-4-1-.18 regarding petitions for reconsiderations and stays in that case.
(9) All proceedings for disciplinary action against a licensee under this chapter shall be conducted in accordance with the Tennessee Uniform Administrative Procedures Act, compiled in Title 4, Chapter 5 of the Tennessee Code Annotated and the rules and regulations promulgated pursuant thereto.

Notes

Tenn. Comp. R. & Regs. 1200-30-01-.15
Original rule filed May 25, 1994; effective August 9, 1994. Repeal and new rule filed January 30, 1997; effective May 30, 1997. Repeal and new rule filed December 28, 1999; effective March 12, 2000. Amendment filed December 29, 1999; effective March 13, 2000. Amendment filed July 31, 2000; effective October 14, 2000. Amendment filed December 13, 2000; effective February 26, 2001. Amendment filed August 19, 2002; November 2, 2002. Amendment filed August 23, 2004; effective November 6, 2004. Amendment filed May 18, 2007; effective August 1, 2007. Amendment filed July 3, 2007; effective September 16, 2007.

Authority: T.C.A. §§ 4-5-202, 4-5-204, 4-5-217, 4-5-223, 63-1-122, 68-24-605, 68-24-606, and 68-25-606.

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