Current through April 3, 2024
(1) Acts or omissions of or by an applicant
or licensee which may, within the context of the policy statement of rule
1020-01-.16, constitute "unfitness" or "incompetence" in the practice of
nursing home administration, as those terms are used in T.C.A. §
63-16-108(a)(1)
for which disciplinary action and licensure or licensure renewal denial are
authorized, include but are not limited to the following:
(a) Failure to comply with all continuing
education requirements of rule 1020-01-.12.
(b) Intentionally or negligently allowing
abuse or neglect of a resident or placing a resident in a situation where abuse
or neglect, as those terms are defined in T.C.A. §
71-6-102(1), is
occurring or is likely to occur.
(c) Habitual intoxication or personal misuse
of any drugs or the use of intoxicating liquors, narcotics, controlled
substances, or other drugs or stimulants in such manner as to adversely affect
the person's ability to practice nursing home administration.
(d) Unauthorized use or unauthorized removal
of narcotics, drugs, supplies or equipment from any health care facility or
other work place location.
(e)
Impersonating another licensed nursing home administrator.
(f) Permitting or allowing another person to
use the licensee's license for the purpose of nursing home
administration.
(g) Revocation or
suspension or other disciplinary action taken with respect to a license to
practice nursing home administration by another state or territory of the
United States or any act or omission which would constitute grounds for the
revocation, suspension or other disciplinary action with respect to a license
in this state.
(h) Practicing
nursing home administration in this state on a lapsed state license or beyond
the period of a valid temporary license.
(i) Failure to notify the appropriate
licensure board of the unethical or illegal practice of any health care
professional or provider of which the administrator has direct knowledge or
responsibility.
(j) Violation of
any lawful order of the Board.
(k)
Making false statements or representations in obtaining a license to practice
nursing home administration.
(l)
Willfully or repeatedly violating any of the provisions of the laws of the
State of Tennessee governing licensure of nursing homes or any of the rules
promulgated pursuant thereto.
(2) Upon a finding by the Board that a
licensee has violated any provision of the Tennessee Nursing Home Administrator
Practice Act (T.C.A. §§
63-16-101, 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. 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)
Public Censure or Reprimand. A written action issued to a licensee for a single
episode or less severe violations. lt is a formal disciplinary
action.
(c) Probation. A formal
disciplinary action which places a licensee 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 licensee's activities
during the probationary period.
(d)
Licensure Suspension. A formal disciplinary action which suspends a licensee's
right to practice for a fixed period of time. lt contemplates the reentry of
the licensee into practice under the license previously issued.
(e) Licensure Revocation. The most severe
form of disciplinary action which removes a licensee from practice and
terminates the license previously issued. lt relegates the violator to the
status possessed prior to application for licensure. However, the Board may
allow the 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 has been revoked shall be
considered prior to the expiration of at least one (1) year.
(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 (5) 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
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
1200-10-1-.11.
(c) Form
Petition
Petition for Order of Compliance Board of Examiners for Nursing
Home Administrators
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 l 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. lf 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. lt 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 of Examiners for Nursing
Home Administrators
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. lf 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) 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 a person who is required to be licensed or certified
by the Board 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 public. For purposes of
this section willfully and knowingly practicing as a nursing home administrator
without a license from the Board is one of the violations of the Nursing Home
Administrators Practice Act for which a Type A Civil Penalty is
assessable.
2. A Type B Civil
Penalty may be imposed whenever the Board finds a person required to be
licensed by the Board is guilty of a violation of the Nursing Home
Administrators 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 may be imposed
whenever the Board finds a person required to be licensed by the Board is
guilty of a violation of the Nursing Home Administrators Practice Act or
regulations promulgated pursuant thereto, which is neither directly detrimental
to the patients or public, nor directly impacts their care, but has only an
indirect relationship to patient care or the public.
4. Each day a violation continues to occur
shall constitute a separate violation.
(c) Amount of Civil Penalties.
1. Type A Civil Penalties may 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 nor more than $500.
3. Type C Civil Penalties may be assessed in
the amount of not less than $50 nor more than $100.
(d) Procedure for Assessing Civil Penalties.
1. The Division 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.
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.
(6) All
proceedings for the assessment of civil penalties shall be governed by the
contested case provisions of the Administrative Procedures Act, T.C.A.
§§
4-5-301, et
seq.
(7)
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.
(8) Assessment of costs in
disciplinary proceedings shall be as set forth in T.C.A. §§
63-1-144 and
63-16-115.
(9) Subpoenas
(a) Purpose - Although this rule applies to
persons and entities other than nursing home administrators, it is the Board's
intent as to nursing home administrators that they be free to comprehensively
treat and document treatment of their residents 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.
lt is the intent of the Board that the subpoena power outlined
herein shall be strictly proscribed. Such power shall not be used by the
division or board investigators to seek other incriminating evidence against
nursing home administrators 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, then 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 lnvestigative 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 nursing home administrator
statutes or rules promulgated pursuant thereto has occurred or is occurring and
that it is more probable than not that the person(s), or items 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 items that are the subject of the
subpoena.
2. Presiding
Officer - For investigative subpoenas shall mean any elected officer of the
board, or any duly appointed or elected chairperson of any panel of the
board.
(c) Procedures
1. lnvestigative 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.
In no event shall such subpoena be broadly drafted to provide
investigative access to medical 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
nursing home administrators conduct, act, or omission.
(III) Whether the proceedings for the
issuance is 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 either an elected officer of the board, or any
duly appointed or elected chairperson 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 and/or signing the subpoena 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 Boards' 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,
if any, of the evidence 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. Sign the subpoena as ordered to be
issued; and
VII. Not participate in
any way in any other proceeding whether formal or informal which involves the
matters, items or per - son(s) which are the subject of the subpoena. This does
not preclude the presiding officer from presiding at further proceedings for
issuance of subpoenas in the matter.
(III) The Board shall do the following:
I. By a vote of two thirds (2/3) of the
members to which the board is entitled, 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 being heard with an Administrative Law
Judge from the Secretary of State's office presiding, this definition 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 subpoena 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. §§
4-5-202,
4-5-204, 63-16-103, and
63-16-108.
