(1) Upon a finding by the Board that the
Speech Language Pathologist, Audiologist, Clinical Fellow, or Speech Language
Pathology Assistant has violated any provision of the Tennessee Code Annotated
§§
63-17-101,
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 Speech Language Pathologist, Audiologist, Clinical
Fellow, or Speech Language Pathology 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 a Speech Language
Pathologist, Audiologist, Clinical Fellow, or Speech Language Pathology
Assistant for one (1) time and less severe violations. It is a formal
disciplinary action which must be accepted by the Speech Language Pathologist,
Audiologist, Clinical Fellow, or Speech Language Pathology Assistant and
ratified by the Board.
(c)
Probation - This is a formal disciplinary action which places a Speech Language
Pathologist, Audiologist, Clinical Fellow, or Speech Language Pathology
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 restrict the individual's activities during the probationary
period.
(d) Licensure, Provisional
Licensure or Registration Suspension - This is a formal disciplinary action
which suspends the right to practice for a fixed period of time. It
contemplates the re-entry into practice under the licensure, provisional
licensure, or registration previously issued.
(e) Licensure, Provisional Licensure, or
Registration Revocation - This is the most severe form of disciplinary action
which removes an individual from the practice of the profession and terminates
the license, provisional license, or registration previously issued. If
revoked, it relegates the violator to the status he possessed prior to
application for licensure, provisional licensure, or registration. Application
for reinstatement of a revoked license, provisional license, or registration
shall be treated as a new application for licensure, provisional licensure, or
registration which shall not be considered by the Board prior to the expiration
of at least one (1) year, unless otherwise stated in the Board's revocation
order.
(f) Civil Penalty - A
monetary disciplinary action assessed by the Board pursuant to paragraph (4) of
this rule.
(g) Conditions - Any
action deemed appropriate by the Board to be required of a disciplined
licensee, provisional licensee, or registrant in any of the following circums
tances:
1. During any period of probation,
suspension; or
2. During any period
of revocation after which the licensee, provisional licensee, or registrant 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, provisional license, or registration; or
4. As a stand-alone requirement(s) in any
disciplinary order.
(h)
Once ordered, probation, suspension, assessment of a civil penalty, or any
other condition of any type of disciplinary action may not be lifted unless and
until the licensee, provisional licensee, or registrant petitions, pursuant to
paragraph (2) of this rule, and appears before the Board after the period of
initial probation, suspension, or other conditioning has run and all conditions
placed on the probation or suspension 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 or unregistered
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 two (2) 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.
(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 Communications
Disorders and Sciences
Click to
view Image
(3) Order Modifications - This procedure is
not intended to allow anyone under a previously issued disciplinary order,
including an unlicensed or unregistered 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 1 20010-01-.11.
(c)
Form Petition
Petition for Order Modification Board of Communications
Disorders and Sciences
Click to
view Image
(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 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 registered
by the Board guilty of a willful and knowing violation of the Act, or
regulations 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, willfully and
knowingly practicing as a Speech Language Pathologist, Audiologist or Speech
Language Pathology Assistant without a license, registration, or an exempted
classification, constitutes a violation for which a Type A Civil Penalty shall
be assessed.
2. A Type B Civil
Penalty may be imposed whenever the Board finds a person who is required to be
licensed or registered by the Board guilty of a violation of the Act, or
regulations pursuant thereto, in such a 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 a person who is
required to be licensed or registered by the Board guilty of a violation of the
Act, or regulations pursuant thereto, which is neither directly detrimental to
the client or the public, nor directly impacts their care, but which only has
an indirect relationship to the care of clients or the public.
(c) Amount of Civil Penalties
1. Type A Civil Penalties shall be assessed
in an amount not less than $500 nor more than $1,000.
2. Type B Civil Penalties shall be assessed
in an amount not less than $100 nor more than $500.
3. Type C Civil Penalties shall be assessed
in an amount not less than $50 nor 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 the law
upon which it relies in alleging a violation, the proposed amount of 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 noncompliance; and
(v) The interest of the public.
(5)
Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A.
§§
63-1-144
and
63-17-219.
(6) Subpoenas
(a) Purpose - Although this rule applies to
persons and entities other than Speech Language Pathologists and Audiologists,
it is the Board's intent as to Speech Language Pathologists and Audiologists
that they be free to practice their profession without fear that such practice
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 council investigators to seek other incriminating evidence against
Speech Language Pathologists and Audiologists 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 Licensure Act for
Communication Disorders and Sciences 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 Speech Language Pathology or
Audiology records of other patients who are not referenced either in a
complaint received from an individual or governmental entity, or who have not
otherwise sought relief, review, or Board consideration of any Speech Language
Pathologist's or Audiologist'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 are 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.
(II) The presiding officer shall do the
following:
I. Have been 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. 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 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.
(III) 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.