Rules & Regulations of the State of Tennessee
Title 1370 - Communication Disorders
Chapter 1370-02 - General Rules Governing Hearing Instrument Specialists
Section 1370-02-.15 - DISCIPLINARY ACTIONS, CIVIL PENALTIES, ASSESSMENT OF COSTS AND SUBPOENAS
Universal Citation: TN Comp Rules and Regs 1370-02-.15
Current through April 3, 2024
(1) Upon a finding by the Council and the Board that a hearing instrument specialist or apprentice hearing instrument specialist has violated any provision of the T.C.A. §§63-17-201, et seq., or the rules promulgated thereto, the Council may impose any of the following actions separately or in any combination which is deemed appropriate to the offense.
(a)
Reprimand - This is a written action issued to a hearing instrument specialist
or apprentice hearing instrument specialist for one time and less severe
violations. It is a formal disciplinary action.
(b) Probation - This is a formal disciplinary
action which places a hearing instrument specialist or apprentice hearing
instrument specialist 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 may restrict the individual's activities during the probationary
period.
(c) 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 re-entry of the
individual into the practice under the license previously issued.
(d) Licensure Revocation - This is a 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. No 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license was revoked shall be considered prior to the expiration of at least one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 Council's Revocation Order.
(e) Conditions - Any action deemed
appropriate by the Council 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.
(f) Civil
Penalty - A monetary disciplinary action assessed by the Council and Board
pursuant to paragraph (5) of this rule.
(2) 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 petitions, pursuant to paragraph (3) of this rule, and appears before the Council after the period of initial probation, suspension, or other conditioning has run and all conditions placed on the probation, suspension, 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 Council and 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 Council'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 Council'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 Council 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 Council 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
Council and Board the petitioner may not submit any additional documentation or
testimony other than that contained in the petition as originally
submitted.
4. If the Council and
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 Council or 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 Communications Disorders and Sciences' Council for Licensing Hearing Instrument Specialists
(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 Council and 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
Council and 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 Council'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 Council 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 Council 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 Council and 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 Council and
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
Council or 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 Communications Disorders and Sciences' Council for Licensing Hearing Instrument Specialists
(5) Civil Penalties
(a) Purpose - The purpose of this rule is to
set 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 Council finds a person who is required to be licensed, certified,
permitted, or authorized by the Council to be 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, an imminent, substantial threat to
the health, safety and welfare of an individual patient or the public. For the
purpose of this section, willfully and knowingly practicing hearing aid
dispensing without a license or certification issued by the Council and Board
is one of the violations of the Hearing Instrument Specialist Practice Act for
which a Type A civil penalty is assessable.
2. A Type B Civil Penalty may be imposed
whenever the Council finds the person required to be licensed, certified,
permitted, or authorized by the Council is guilty of a violation of the Hearing
Instrument Specialist 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 Council finds the person required to be licensed by the Council is
guilty of a violation of the Hearing Instrument Specialist Practice Act, or
regulations promulgated thereto, which are neither directly detrimental to the
patients or public, nor directly impact their care, but have only 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 or 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 Council during
consideration of any Notice of Charges. In addition, the Council 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 Council 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.
(6) The Council authorizes the member who chaired the Council 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.
(7) Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A. §§63-1-144 and 63-17-219.
(8) Subpoenas
(a) Purpose - Although this rule applies to
persons and entities other than hearing instrument specialists, it is the
Council's intent as to hearing instrument specialists 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 Council 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 hearing instrument specialists when the division or council 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
Council, or any duly appointed or elected chairperson of any panel of the
Council.
(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 Council'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 council.
I. In no event shall such subpoena be broadly
drafted to provide investigative access to hearing instrument 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
Council consideration of a hearing instrument specialist's conduct, act, or
omission.
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
Council'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 Council, or any duly appointed or elected
chairperson of the Council, to preside and determine if issuing the subpoena
should be recommended to the full Council; 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 Council'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 Council 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 Council 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 Council shall do the following:
I. By a vote of two thirds (2/3) of the
members to which the Council 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 Council.
2. The
subpoena forms may be obtained by contacting the Council'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, 63-17-105, 63-17-203, and 63-17-219.
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