(1) Upon a finding
by the board that a marital and family therapist has violated any provision of
the T.C.A. §§ 63-22-101, et
seq., or the rules promulgated thereto, the board may
impose any of the following actions separately or in any combination deemed
appropriate to the offense:
(a) Advisory
Censure - This is a written action issued to the marital and family therapist
for minor or near infractions. It is informal and advisory in nature and does
not constitute a formal disciplinary action.
(b) Formal censure or Reprimand - This is a
written action issued to a marital and family therapist for one time and less
severe violations. It is a formal disciplinary action.
(c) Probation - This is a formal disciplinary
action which places a marital and family therapist 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) Certification or Licensure Suspension -
This is a formal disciplinary action which suspends an individual's right to
practice for a fixed period of time. It contemplates the reentry of the
individual into the practice under the certification/licensure previously
issued.
(e) Certification or
Licensure Revocation - This is the most severe form of disciplinary action
which removes an individual from the practice of the profession and terminates
the certification or licensure previously issued. If revoked, it relegates the
violator to the status he possessed prior to application for
certification/licensure. However, the Board may in its discretion allow the
reinstatement of a revoked certificate or license upon conditions and after a
period of time it deems appropriate. No petition for reinstatement and no new
application for certification or licensure from a person whose
certificate/license was revoked shall be considered prior to the expiration of
at least one 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 in any
of the following circumstances:
1. During any
period of probation, suspension; or
2. During any period of revocation after
which the licensee may petition for an order of compliance to reinstate the
revoked license; or
3. As a
prerequisite to the lifting of probation or suspension or as a prerequisite to
the reinstatement of a revoked license; or
4. As a stand-alone requirement(s) in any
disciplinary order.
(g)
Civil Penalty - A monetary disciplinary action assessed by the Board pursuant
to paragraph (4) of this rule.
(h)
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 or certificate holder petitions, pursuant to
paragraph (2) 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.
(2) 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 or uncertified
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 or certificate 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.
(3) Order Modifications - This procedure is
not intended to allow anyone under a previously issued disciplinary order,
including an unlicensed or uncertified 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 for Professional Counselors, Marital and Family
Therapists,
and Clinical Pastoral Therapists
Petitioner's Name: _
Petitioner's Mailing Address: _
Petitioner's E-Mail Address: _
Telephone Number: _
Attorney for Petitioner: _ Attorney's Mailing Address: _
Attorney's E-Mail Address: _
Telephone Number: _
The petitioner respectfully represents that for the following
reasons, as substantiated by the attached documentation, the identified
provisions of the attached disciplinary order are impossible for me to comply
with:
Note - You must enclose all documents necessary to prove your
request including a copy of the original order. If any of the proof you are
relying upon to show impossibility is the testimony of any individual,
including yourself, you must enclose signed and notarized statements from every
individual you intend 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, this petition.
Respectfully submitted this the_day of_, 20_.
__________________________________
Petitioner's Signature
(4) 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 Public Chapter 389, Acts of 1989.
(b) Schedule of Civil Penalties
1. A Type A civil penalty may be imposed
whenever the board finds the person who is required to be licensed or certified
by the board is guilty of a willful and knowing violation of the Practice Act,
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. For purposes of this section, a type A penalty
shall include, but not be limited to, a person who willfully and knowingly is
or was practicing as a marital and family therapist without a license or
certificate from the board.
2. A
Type B civil penalty may be imposed whenever the board finds the person
required to be licensed/certified by the board is guilty of a violation of the
Professional Counselors and Marital and Family Therapists Practice Act 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 board finds the person required to
be licensed, permitted, or authorized by the board is guilty of a violation of
the Professional Counselors and Martial and Family Therapists Practice Act 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 nor more than $1,000.
2. Type B civil penalties may be assessed in
the amount of not less than $100 and not more than $500.
3. Type C civil penalties may be assessed in
the amount of not less than $50 and not more than $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 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 T.C.A. Title 4, Chapter 5.
(5) Informal Settlements - The board
consultant is authorized to enter into informal settlement agreements pursuant
to rule 0450-02-.19(7) under which a complaint against an individual may be
closed without any disciplinary action. Such agreement may include any terms
deemed appropriate by the board consultant including, but not limited to:
(a) Mandatory education program or course
attendance;
(b) Submission of
reports, records or other appropriate documentation;
(c) Conditioning of the individual's
activities in any manner which affects his practice in Tennessee.
(6) 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.
