Tenn. Comp. R. & Regs. 1240-07-10-.16 - LICENSING VIOLATIONS/DUE PROCESS

(1) Licensing Procedures: Administrative and Judicial Actions Involving the License.

The procedures for licensing, administrative and judicial actions, probation, civil penalties, suspension, denial and revocation and procedures for appeal are contained in this Chapter, T.C.A. §§ 71-2-401 et seq., and the Uniform Administrative Procedures Act, T.C.A. §§ 4-5-301 et seq.

(2) Notice of Violation of Standards and Corrective Action.

(a) If the Department finds the adult day services center to be in violation of a state law or regulation, the Department shall give notice to the adult day services center of the law or regulation which has allegedly been violated as well as the factual basis underlying the alleged violation.

(b) Upon receipt of such a notice, the adult day services center shall submit a Plan of Corrective Action within ten (10) business days in the form and manner directed by the Department, detailing the methods and timeframes for obtaining and maintaining compliance with all laws and regulations.

(c) If the Department determines, as a result of its inspections or investigations or those of other local, state or federal agencies or officials, or through any other means, that a plan is necessary to insure the safety of the participants in the care of the facility the Department may require the facility to implement a safety plan.

(3) Probation and Appeal.

(a) If the Department finds that an adult day services center has violated a state law or regulation, the Department may, in its discretion, place the center on probation for thirty (30) to sixty (60) days.

(b) Prior to placing the center on probation, the Department shall provide written notice of the probation which includes the information required by subsection (2)(a) above, and which additionally details the steps for appealing the probation as set forth in subparagraph (c) below.

(c) The center may request an informal review of the probation action either verbally or in writing to the Department's licensing staff that imposed the probation within two (2) business days of receipt of the notice. The center may submit any written or oral statements as argument to the departmental staff person within five (5) business days of the imposition of the probation. The Departmental staff person shall render a decision in writing upholding, modifying, or uplifting the probationary status within ten (10) business days of the imposition of the probation.

If the Departmental staff person does not lift the probation, the center may also appeal such action in writing to the Commissioner within five (5) business days of the receipt of the Departmental staff person's decision. If timely appealed, the Department shall conduct an administrative hearing in accordance with the Uniform Administrative Procedures Act within fifteen (15) business days of receipt of the appeal and will render a decision within seven (7) business days following the conclusion of the hearing.

(d) If a center is placed on probation by the Department, the center shall post a copy of this notice in a conspicuous place, in the form and manner directed by the Department. The center shall notify in writing each participant or his/her responsible party regarding the center's status and the basis for the probation.

(e) The decision to place a center on probation shall be discretionary with the Department and shall not be a prerequisite to any other licensing action to summarily suspend, to revoke, or to deny a license.

(f) Failure to correct a violation which caused the imposition of probation by the Department may lead to suspension, denial or revocation of the center's license.

(4) License Denial/Revocation and Appeal.

(a) The Department may deny an application for a temporary license, initial annual license or for renewal of an existing license for failure to comply with governing laws or regulations. The Department shall provide written notice of the denial which shall include the factual and legal basis for the denial.

(b) The Department may revoke a license during its term based upon a determination that the center has failed to correct a noted violation of a governing law or regulation pursuant to paragraph (1) above. The Department shall immediately notify the licensee in writing of the Department's intent to revoke the license within sixty (60) days and of the legal and factual basis for the revocation.

(c) Appeal Procedure.

1. A denial of a license application can be appealed by submitting a written request for a hearing to the Commissioner of the Department within ten (10) days of the mailing date of the notice. If the appeal is requested timely, a hearing shall be scheduled by the Department within sixty (60) days of receipt of the request. The hearing on the appeal shall be conducted pursuant to the provisions of the Uniform Administrative Procedures Act, T.C.A. §§ 4-5-301 et seq. During the pendency of the appeal, any existing license shall continue in effect, unless suspended/revoked, until the resolution of the administrative appeal.

2. Revocation of a license can be appealed by submitting a written request for a hearing to the Commissioner of the Department within ten (10) days of the mailing date of the notice. If the appeal is requested timely, a hearing shall be scheduled by the Department within sixty (60) days of receipt of the request. The hearing on the appeal shall be conducted pursuant to the provisions of the Uniform Administrative Procedures Act, T.C.A. §§ 4-5-301 et seq. During the pendency of the appeal, any existing license shall continue in effect, until the resolution of the administrative appeal.

(d) The Department shall continue to have the right of inspection of the adult day services center during the pendency of the revocation proceedings and may add additional violations to be considered by the hearing official by amendment of its original notice which shall be filed with the hearing official and sent to the licensee by certified mail, return receipt requested.

(5) Summary Suspension and Appeal.

(a) A license may be summarily suspended by the Department pursuant to the provisions of T.C.A. § 4-5-320 if the Commissioner, or the Commissioner's designee, by issuing an order which finds that the public health, safety or welfare imperatively requires emergency action. The order shall be effective upon receipt by the licensee or the person having responsibility or reasonably believed to have responsibility over the operations of the adult day services center, and the center shall cease operations immediately or as otherwise directed by the order. The summary suspension order may be personally delivered immediately by a duly authorized representative of the Department.

(b) The order shall notify the licensee of the legal and factual basis for the summary suspension; shall state what action(s) must be taken by the licensee to immediately effect compliance with the licensing standards; the time, date and place of the hearing provided for in subparagraph (c) to contest the summary suspension order; and of the right to be represented by legal counsel at the licensee's expense.

(c) The order shall be reviewed within five (5) business days of the date of the suspension order, excluding Saturdays, Sundays and legal holidays, by a hearing officer appointed by the Commissioner. The hearing shall be conducted and the order entered as follows:

1. The hearing shall be informal and shall not be conducted pursuant to the Uniform Administrative Procedures Act, T.C.A. §§ 4-5-301 et seq. The hearing shall be conducted by a hearing officer from the Department's Appeals and Hearings Division, and the sole issue before the hearing officer shall be whether the public safety, health or welfare imperatively require emergency action by the Department due to the failure of the center to comply with any law or regulation governing the center's operations.

2. The Department shall be required to present evidence to the hearing officer in support of the summary suspension order. The licensee shall then have an opportunity for response.

3. The hearing officer shall make a written determination of whether probable cause exists for continuance of the suspension order based upon the standard set forth in subparagraph (5)(a).

4. The order containing the hearing officer's findings and ruling shall be issued within five (5) business days of the date of the hearing and shall be served upon the licensee and upon legal counsel for the licensee by certified mail, return receipt requested or by personal delivery.

(d) A suspension order shall be lifted by the Department or written notice by the Department of intent to revoke or deny the license, shall be served upon the licensee, within thirty (30) days of entry of the suspension order.

Notes

Tenn. Comp. R. & Regs. 1240-07-10-.16

Original rule filed February 23, 2018; effective 5/24/2018.

Authority: T.C.A. §§ 4-5-201, et seq.; 4-5-301, et seq.; 4-5-320; and 71-2-401, et seq.