Current through September 24, 2024
The purpose of this paragraph is to define disciplinary actions
that the Board may impose on licensees.
(1) Upon a finding by the Board that an
electrologist or electrology instructor has violated any provision of the
Tennessee Electrologists Practice Act (T.C.A. §§ 3-26-101,
et. seq.) or the rules promulgated pursuant 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 electrologist 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 an electrologist for one time
and less severe violations. It is a formal disciplinary action.
(c) Probation - This is a formal disciplinary
action which places an electrologist on close scrutiny for a fixed period of
time determined by the Board. 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) 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 licensure previously issued. When the Board suspends a
license, the person may not practice electrology during the period of
suspension.
(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 certification
or licensure previously issued. The Board, in its discretion, may allow
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application for certification or licensure from a person whose license was
revoked shall be considered prior to the expiration of at least one year unless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 - These include any action
deemed appropriate by the Board to be required of an individual disciplined
during any period of probation or suspension or as a prerequisite to the
lifting of probation or suspension or the reinstatement of a revoked
license.
(g) Civil penalty - A
monetary disciplinary action assessed by the Board pursuant to paragraph (5) of
this rule.
(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
1200-10-01-.11.
(c) Form
Petition
Petition for Order of Compliance
Board of Electrolysis Examiners
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, as substantiated by the
attached documentation, that all provisions of the attached disciplinary 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 compliance and lifting a previously ordered suspension or
probation; or
3. An order issued
reflecting that compliance and reinstating a license previously revoked.
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 compliance is the testimony of any individual, including
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 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, this petition.
Respectfully submitted this the____day of_________________,
20___.
__________________________
Petitioner's Signature
(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
1200-10-01-.11.
(c) Form
Petition
Petition for Order Modification
Board of Electrolysis Examiners
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
(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 Board finds the person who is required to be licensed by the Board
is guilty of a willful and knowing violation of the 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 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 an electrologist without a license from the
Board.
2. A Type B civil penalty
may be imposed whenever the Board finds the person required to be licensed by
the Board is guilty of a violation of the Practice Act or regulations
promulgated 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 Electrology Practice Act or regulations promulgated thereto, which are
neither directly detrimental to clients or the 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 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.
(6) Informal Settlements - The Board
consultant is authorized to enter into informal settlement agreements pursuant
to Rule 0540-01-.19 under which a complaint against an individual may be closed
without any disciplinary action. Any matter proposed for informal settlement
must be subsequently ratified by the full Board before it will become
effective. 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.
Authority: T.C.A. §§
4-5-101,
4-5-202,
4-5-204,
4-5-217, 4-5-223, 63-1-122,
63-1-134, 63-26-108, 63-26121, and 63-26-123.
