Rules & Regulations of the State of Tennessee
Title 0460 - Dentistry
Chapter 0460-01 - General Rules
Section 0460-01-.06 - DISCIPLINARY ACTIONS, CIVIL PENALTIES, PROCEDURES, ASSESSMENT OF COSTS, AND SUBPOENAS
Universal Citation: TN Comp Rules and Regs 0460-01-.06
Current through September 24, 2024
(1) Upon a finding by the Board that a licensee or registrant has violated any provision of the Tennessee Dental Practice (T.C.A. §63-5-101 et seq.) or the rules promulgated pursuant thereto, the Board may impose any of the following actions separately or in any combination which is deemed appropriate to the offense:
(a) Private Censure - This is a written
action issued for minor or near infractions. It is informal and advisory in
nature and does not constitute a formal disciplinary action.
(b) Public Censure or Reprimand - This is a
written action issued for one time and less severe violations. It is a formal
disciplinary action.
(c) Probation
- This is a formal disciplinary action which places a licensee or registrant 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 activities during the probationary period.
(d) Suspension - This is a formal
disciplinary action which suspends a licensee's or registrant's right to
practice for a fixed period of time. It contemplates the reentry into practice
under the license or registration 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 registration or licensure
previously issued. The Board, in its discretion, may allow reinstatement of a
revoked registration or license upon conditions and after a period of time it
deems appropriate. No petition for reinstatement and no new application for
registration or licensure from a person whose license or registration was
revoked shall be considered prior to the expiration of at least one year unless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 and/or 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 and/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)
When the Board suspends a license or registration, the person may not practice
dentistry, dental hygiene or as a dental assistant during the period of
suspension and is also prohibited from doing the following:
1. Direct chairside assistance to another
dentist or dental hygienist in the dental treatment of any patient;
2. Appear before dental patients in a
laboratory coat, clinic smock or other garment which is customarily worn by
practitioners when treating patients;
3. Consultation with another practitioner
concerning the treatment of the person's patients in the presence of, or within
hearing of, any patient or patients; provided, however, that he or she may
discuss with a subsequent treating practitioner, out of the presence or hearing
of any patient, the patient's prior diagnosis or preexisting treatment plan and
such subsequent treating practitioner's proposed treatment plan. However, the
fact or substance of such discussion shall not be communicated or conveyed to a
patient or patients personally, or by another treating practitioner who
presents it to the patient, as that person's judgment, such diagnosis,
treatment plan or other professional determination;
4. Personal acceptance of payment for dental
services directly from a patient in the reception area of the office.
(i) 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 registrant 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 unregistered 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 registration previously
revoked.
(b) Procedures
1. The petitioner shall submit a Petition for
Order of Compliance, as contained in subparagraph (c) or as contained in a
Board-approved petition form, 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
The petitioner respectfully represents, as s ubstantiated by the a ttached documentation, that all provisions of the attached disci plinary order have been complied with and I am respectfully requesting: (circle one)
1. An order issued reflecting
that compliance; or
2. An order
issued reflecting that co mpliance and lifting a previously ordered suspension
or probation; or
3. An order issued
reflecting that compliance and reinstating a license or registration previously
revoked.
Note - You must enclose all documents nec essary to prove your request including a copy of the original order. If any of the proof you are relying upon to show compliance is the testimony of any individual, in cluding yourself, you must enclose signed statements from every individual you intend to rely upon attesting, under oath, to the compliance. The Board's consultant and admin istrative staff, in their discretion, may require such signed statements to be notarized. No documentation or testimony other than that submitted will be considered in ma king an initial determination on, or a final order in response to, this petition.
Respectfully submitted this the_____ day of______________________, 20
______________________________
Petitioner's Signature
(3) Order Modifications - This procedure is not intended to allow anyone under a previously issued disciplinary order, including an unlicensed or 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 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) or on a Board-approved petition form 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
1200-10-01-.11.
(c) Form
Petition
Petition for Order Modification
(4) Civil Penalties
(a) Purpose
The purpose of this rule is to set out schedule designating the minimum and maximum civil penalties which may be assessed pursuant to T.C.A. §63-1-134. The Board may assess these civil penalties in lieu of, the civil penalties authorized by T.C.A. §63-5-124(a) and T.C.A. §63-5-116.
(b)
Schedule of Civil Penalties
1. A Type A Civil
Penalty may be imposed whenever the Board finds a person who is required to be
licensed, certified, permitted, or registered by the Board, guilty of a willful
and knowing violation of the Dental Practice Act, or regulations 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. For purposes of this section, willfully and knowingly
practicing dentistry, as a dental hygienist or as a dental assistant without a
permit, license, certification or registration from the Board is one of the
violations of the Dental Practice Act for which a Type A Civil Penalty is
assessable.
2. A Type B Civil
Penalty may be imposed whenever the Board finds the person required to be
licensed, certified, permitted, or registered by the Board is guilty of a
violation of the Dental Practice Act or regulations promulgated pursuant
thereto in such manner as to impact directly on the care of patients or the
public.
3. A Type C Civil Penalty
maybe imposed whenever the Board finds the person required to be licensed,
certified, permitted, or registered by the Board is guilty of a violation of
the Dental Practice Act or regulations promulgated pursuant thereto, which are
neither directly detrimental to the patients or 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 $500 and not more than
$1000.
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 provision
of Title 4, Chapter 5, T.C.A.
(5) All contested case hearings before the Board shall be conducted pursuant to the Uniform Rules of Procedures for Contested Case Hearings Before State Administrative Agencies, Rules 1360-04-01-.01 through 1360-04-01-.20.
(6) Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A. §§ 63-1-144 and 63-5-124.
(7) Subpoenas
(a) Purpose - Although this rule applies to
persons and entities other than dentists, it is the Board's intent as to
dentists that they be free to comprehensively treat and document treatment of
their patients without fear that the treatment or its documentation will be
unduly subjected to scrutiny outside the profession. Consequently, balancing
that intent against the interest of the public and patients to be protected
against substandard care and activities requires that persons seeking to
subpoena such information and/or materials must comply with the substance and
procedures of these rules.
It is the intent of the Board that the subpoena power outlined herein shall be strictly construed. Such power shall not be used by the Division or Board investigators to seek other incriminating evidence against dentists when the Division or Board does not have a complaint or basis to pursue such an investigation. Thus, unless the Division or its investigators have previously considered, discovered, or otherwise received a complaint from either the public or a governmental entity, no subpoena as contemplated herein shall issue.
(b)
Definitions - As used in this chapter of rules the following words shall have
the meanings ascribed to them:
1. Probable
Cause
(i) For Investigative Subpoenas - Shall
mean that probable cause, as defined by case law at the time of request for
subpoena issuance is made, exists that a violation of T.C.A.
§§63-5-101, et seq., or rules promulgated
pursuant thereto has occurred or is occurring and that it is more probable than
not that the person(s), or item(s) to be subpoenaed possess or contain evidence
which is more probable than not relevant to the conduct constituting the
violation.
(ii) The utilization of
the probable cause evidentiary burden in proceedings pursuant to this rule
shall not in any way, nor should it be construed in any way, to establish a
more restrictive burden of proof than the existing preponderance of the
evidence in any civil disciplinary action which may involve the person(s) or
item(s) that are the subject of the subpoena.
2. Presiding Officer - For investigative
subpoenas shall mean any elected officer of the Board.
(c) Procedures
1. Investigative Subpoenas
(i) Investigative Subpoenas are available
only for issuance to the authorized representatives of the Tennessee Department
of Health, its investigators and its legal staff.
(ii) An applicant for such a subpoena must
either orally or in writing notify the Board's Unit Director of the intention
to seek issuance of a subpoena. That notification must include the following:
(I) The time frame in which issuance is
required so the matter can be timely scheduled; and
(II) A particular description of the material
or documents sought, which must relate directly to an ongoing investigation or
contested case, and shall, in the instance of documentary materials, be limited
to the records of the patient or patients whose complaint, complaints, or
records are being considered by the Division or Board.
I. In no event shall such subpoena be broadly
drafted to provide investigative access to dental records of other patients who
are not referenced in a complaint received from an individual or governmental
entity, or who have not otherwise sought relief, review, or Board consideration
of a dentist's conduct, act, or omission.
II. If the subpoena relates to the
prescribing practices of a licensee, then it shall be directed solely to the
records of the patient(s) who received the pharmaceutical agents and whom the
Board of Pharmacy or issuing pharmacy(ies) has so identified as recipients;
and
(III) Whether the
proceedings for the issuance are to be conducted by physical appearance or
electronic means; and
(IV) The name
and address of the person for whom the subpoena is being sought or who has
possession of the items being subpoenaed.
(iii) The Board's Unit Director shall cause
to have the following done:
(I) In as timely a
manner as possible, arrange for an elected officer of the Board to preside and
determine if issuing the subpoena should be recommended to the full Board;
and
(II) Establish a date, time and
place for the proceedings to be conducted and notify the Presiding Officer, the
applicant and the court reporter; and
(III) Maintain a complete record of the
proceedings including an audio tape in such a manner as to:
I. Preserve a verbatim record of the
proceeding; and
II. Prevent the
person presiding over the proceedings from being allowed to participate in any
manner in any disciplinary action of any kind, formal or informal, which may
result which involves either the person or the documents or records for which
the subpoena was issued.
(iv) The Proceedings
(I) The applicant shall do the following:
I. Provide for the attendance of all persons
whose testimony is to be relied upon to establish probable cause; and
II. Produce and make part of the record
copies of all documents to be utilized to establish probable cause;
and
III. Obtain, complete and
provide to the Presiding Officer a subpoena which specifies the following:
A. The name and address of the person for
whom the subpoena is being sought or who has possession of the items being
subpoenaed; and
B. The location of
the materials, documents or reports for which production pursuant to the
subpoena is sought, if that location is known; and
C. A brief, particular description of any
materials, documents or items to be produced pursuant to the subpoena;
and
D. The date, time and place for
compliance with the subpoena.
IV. Provide the Presiding Officer testimony
and/or documentary evidence which in good faith the applicant believes is
sufficient to establish that probable cause exists for issuance of the subpoena
as well as sufficient proof that all other reasonably available alternative
means of securing the materials, documents or items have been
unsuccessful.
(II) The
Presiding Officer shall do the following:
I.
Have been selected only after assuring the Board's Unit Director that he or she
has no prior knowledge of or any direct or indirect interest in or relationship
with the person(s) being subpoenaed and/or the licensee who is the subject of
the investigation; and
II. Commence
the proceedings and swear all necessary witnesses; and
III. Hear and maintain the confidentiality of
the evidence, if any, presented at the proceedings and present to the full
Board only that evidence necessary for an informed decision; and
IV. Control the manner and extent of inquiry
during the proceedings and be allowed to question any witness who testifies;
and
V. Determine, based solely on
the evidence presented in the proceedings, whether probable cause exists and,
if so, make such recommendation to the full Board; and
VI. Not participate in any way in any other
proceeding whether formal or informal which involves the matters, items or
person(s) which are the subject of the subpoena. This does not preclude the
presiding officer from presiding at further proceedings for consideration of
issuance of subpoenas in the matter.
(III) The Board shall do the following:
I. By a vote of two thirds (2/3) of the Board
members, issue the subpoena for the person(s) or items specifically found to be
relevant to the inquiry, or quash or modify an existing subpoena by a majority
vote; and
II. Sign the subpoena as
ordered to be issued, quashed or modified.
2. Post-Notice of Charges
Subpoenas - If the subpoena is sought for a contested case hearing pursuant to
Title 4, Chapter 5 of the Tennessee Code Annotated, the procedure in part (c)
1. of this paragraph shall not apply and all such post-notice of charges
subpoenas should be obtained from the office of the Administrative Procedures
Division of the Office of the Secretary of State pursuant to the Uniform
Administrative Procedures Act and rules promulgated pursuant thereto.
(d) Subpoena Forms
1. All subpoenas shall be issued on forms
approved by the Board.
2. The
subpoena forms may be obtained by contacting the Board's Administrative
Office.
(e) Subpoena
Service - Any method of service of subpoenas authorized by the Tennessee Rules
of Civil Procedure or the rules of the Tennessee Department of State,
Administrative Procedures Division may be utilized to serve subpoenas pursuant
to this rule.
Authority: T.C.A. §§ 4-5-105, 4-5-202, 4-5-204, 4-5-217, 4-5-223, 4-5-224, 4-5-225, 63-1-122, 63-1134, 63-1-144, 63-5-105, 63-5-116, 63-5-124, 63-5-125, and 63-5-128.
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