Current through September 24, 2024
The purpose of this rule is to define disciplinary actions that
the Board may impose on licensees.
(1)
Upon a finding by the Board that a school of electrology has violated any
provision of the Tennessee Electrologists Practice Act (T.C.A.
§§63-26-101, 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 licensee 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 licensee 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 on close scrutiny for a 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 licensee's
activities during the probationary period.
(d) Licensure Suspension - This is a formal
disciplinary action which suspends an licensee's right to operate a school of
electrology for a fixed period of time. It contemplates the reentry of the
licensee into the operation under the licensure previously issued. When the
Board suspends a license, the school may not train electrology students during
the period of suspension.
(e)
Revocation for cause. This is the most severe form of disciplinary action which
removes a licensee from the operation of a school of electrology and terminates
the licensure previously issued. The Board, in its discretion, may allow
reinstatement of a revoked license upon conditions and after a period of time
it deems appropriate. No petition for reinstatement and no new application for
licensure from a person whose license was revoked shall be considered prior to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
operation of an electrology school 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.
(4) Order Modifications - This procedure is
not intended to allow anyone under a previously issued disciplinary order,
including an unlicensed operation of an electrology school 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.
(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 operating an electrology school 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 Veterinary 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 by the Board is
guilty of a violation of the Practice Act or regulations promulgated pursuant
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 a licensee 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; or
(c)
Conditioning of the individual's activities in any manner which affects his
operation of a school of electrology 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, 6326-119, 63-26-121, and 63-26-123.
