Rules & Regulations of the State of Tennessee
Title 1150 - TN Boards of Occupational and Physical Therapy
Chapter 1150-02 - General Rules Governing the Practice of Occupational Therapy
Section 1150-02-.15 - DISCIPLINARY ACTIONS, CIVIL PENALTIES, AND SCREENING PANELS
Universal Citation: TN Comp Rules and Regs 1150-02-.15
Current through September 24, 2024
(1) Upon a finding by the Board that a occupational therapist or occupational therapy assistant has violated any provision of the Tennessee Code Annotated §§63-13-101, 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 occupational therapist or occupational therapy assistant
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 occupational therapist or occupational therapy
assistant for one time and less severe violations. It is a formal disciplinary
action.
(c) Probation - This is a
formal disciplinary action which places an occupational therapist or
occupational therapy assistant 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 restricts 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 license previously
issued.
(e) Licensure Revocation -
This is the most severe form of disciplinary action which removes an individual
from the practice of the profession and terminates the license previously
issued. If revoked, it relegates the violator to the status he 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for licensure from a person whose license was revoked shall be considered prior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 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.
(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 Occupational Therapy
(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 Occupational Therapy
(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.
(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 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
as an occupational therapist or occupational therapy assistant without a
permit, license, certification, or other authorization from the Board is one of
the violations of the Occupational Therapy 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 Occupational Therapy Practice Act or regulations
promulgated pursuant thereto in such a 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 Occupational Therapy Practice Act or regulations
promulgated pursuant thereto, which are neither directly detrimental to
patients or the 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 $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 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; and,
(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.
(6) Reconsiderations and Stays - 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 1360-04-01-.18 regarding petitions for reconsiderations and stays in that case.
(7) Screening Panels - Any screening panel(s) established pursuant to Tennessee Code Annotated § 63-1-138:
(a) Shall have
concurrent authority with the Board members and any individual Occupational
Therapist or Occupational Therapist Assistant designated by the Board pursuant
to paragraph (6) of Rule 1150-02-.19, to do the acts enumerated in paragraph
(6) of Rule 1150-02-.19 subject to the conditions contained therein.
1. A screening panel(s) comprised of two (2)
or more persons shall elect a chairperson prior to convening to conduct
business.
2. A screening panel(s)
comprised of two (2) or more persons is required to conduct the informal
hearings authorized in subparagraph (b) immediately below.
(b) After completion of an investigation by
the Division, may upon request of either the state, or the licensee who is the
subject of an investigation but only with the agreement of the state, or upon
agreement of both the licensee and the state, conduct a non-binding informal
hearing and make recommendations as a result thereof as to what, if any, terms
of settlement of any potential disciplinary action are appropriate.
1. Neither the Rules of Civil Procedure, the
Rules of Evidence, nor Contested Case Procedural Rules under the Administrative
Procedures Act shall apply in informal hearings before the screening panel(s).
However, Rule 31 of the Rules of the Tennessee Supreme Court may serve as
general guidance as to the principles of mediation and alternative dispute
resolution.
(i) Evidence may be presented or
received in any manner and in whatever order agreed upon by the
parties.
(ii) In the absence of an
agreement of the parties the screening panel chairperson shall determine the
manner and order of presentation of evidence.
2. A licensee who is the subject of an
investigation being considered by a screening panel cannot be compelled to
participate in any informal hearing.
3. Proposed settlements reached as a result
of any informal hearing will not become binding and final unless they are:
(i) Approved by a majority of the members of
the screening panel which issued them; and
(ii) Agreed to by both the Department of
Health, by and through its attorney(s), and the licensee; and
(iii) Subsequently presented to and ratified
by the Board.
4. The
activities of the screening panels and any mediation or arbitration sessions
shall not be construed as meetings of an agency for purposes of the open
meetings act and shall remain confidential. The members of the screening
panels, mediators and arbitrators have a deliberative privilege and the same
immunity as provided by law for the boards, and are not subject to deposition
or subpoena to testify regarding any matter or issue raised in any contested
case, criminal prosecution or civil lawsuit which may result from or be
incident to cases processed before them.
Authority: T.C.A. §§ 4-5-105, 4-5-202, 4-5-204, 4-5-217, 4-5-223, 63-13-105, 63-13-108, 63-1-122, 63-1-134, 63-1-138, 63-13-104, 63-13-108, 63-13-201, 63-13-206, 63-13-207, 63-13-209, 63-13-210, and 63-13-216.
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