Current through September 24, 2024
(1) Upon a finding
by the Board that a licensee has violated any provision of the Tennessee
Optometric Act (T.C.A. §63-8-101, 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 Censor - This is a written action
issued to a 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 - This is
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 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 - This is a formal disciplinary action which suspends a licensee's
right to practice optometry for a fixed period of time. It contemplates the
reentry of the licensee into practice under the originally issued
license.
(e) Licensure Revocation -
This is the most severe form of disciplinary action which removes a licensee
from the practice of optometry. If revoked, it relegates the violator to the
status he or she possessed prior to application for licensure. However, the
Board may in its discretion 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
was revoked shall be considered prior to the expiration of at least one (1)
year unless otherwise stated in the Board's revocation Order.
(f) Conditions - Any action deemed
appropriate by the Board required of a disciplined licensee during any period
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 (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
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 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.
(3) 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 Optometry
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 a person who is required to be licensed, certified,
permitted, or authorized by the Board, 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, and 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 as an optometrist
without a permit, license, certification, or other authorization from the Board
is one of the violations of the Optometry 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 authorized by the Board is guilty of a
violation of the Optometry Practice Act or regulations 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 the person required to be licensed, certified,
permitted, or authorized by the Board is guilty of a violation of the Optometry
Practice Act or regulations promulgated 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 nor 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
provisions of Title 4, Chapter 5, Tennessee Code Annotated.
(5) Declaratory Orders
- The Board adopts, as if fully set out herein, rule 1200-10-01-.11, of the
Division of Health Related Boards and as it may from time to time be amended,
as its rule governing the declaratory order process. All declaratory order
petitions involving statutes, rules or orders within the jurisdiction of the
Board shall be addressed by the Board pursuant to that rule and not by the
Division. Declaratory Order Petition forms can be obtained from the Board's
administrative office.
(6)
Screening Panels - The Board adopts, as if fully set out herein, rule
1200-10-01-.13, of the Division of Health Related Boards and as it may from
time to time be amended, as its rule governing the screening panel
process.
(7) Assessment of costs in
disciplinary proceedings shall be as set forth in T.C.A. §§ 63-1-144
and 63-8-120.
(8) Subpoenas
(a) Purpose - Although this rule applies to
persons and entities other than optometrists, it is the Board's intent as to
optometrists 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 proscribed. Such power shall not be used by the
division or board investigators to seek other incriminating evidence against
optometrists 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 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 the Optometry Practice
Act 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. 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 optometry 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 any optometrist's conduct, act, or omission; and
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 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 any panel 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, general description of any 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.
(v) The Presiding Officer shall do the
following:
(I) Be 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,
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) 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 issuance of
subpoenas in the matter.
(vi) 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 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 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. §§
4-5-202,
4-5-204,
4-5-217,
4-5-223,
4-5-224,
4-5-225, 63-1-122,
63-1-134, 63-1138, 63-8-112,
63-8-120, 63-8-121, and 63-8-123.
