Tenn. Comp. R. & Regs. 1200-34-01-.12

Current through December 10, 2024

Section 1200-34-01-.12 - LICENSURE DISCIPLINE AND CIVIL PENALTIES

(1) Upon a finding that a pain management clinic is in violation of any provision of the Tennessee Pain Management Clinic Act (T.C.A. §§ 63-1-301, et seq.) or the rules promulgated pursuant thereto, the Commissioner may impose any of the following actions separately or in any combination which is deemed appropriate to the offense:

(a) Private Censure - This is a written action issued to the Medical Director for minor or near infractions. It is informal and advisory in nature and does not constitute a formal disciplinary action.

(b) Reprimand - This is a written action issued on a Medical Director's pain management clinic license for one time and less severe violations. It is a formal, public disciplinary action.

(c) Probation - This is a formal disciplinary action which places a Medical Director's pain management clinic license on close scrutiny for a period of time.

1. This action may be combined with any other formal disciplinary action and include conditions and requirements which must be met before probation can be lifted and/or which restrict or condition the clinic's activities during the probationary period.

2. Once ordered, probation may not be lifted unless and until the Medical Director petitions, pursuant to paragraph (2) of this rule, after the period of initial probation has run and all conditions placed on the probation have been met and the Commissioner is satisfied that a further probationary period is not warranted such that the probation may be lifted.

(d) Licensure Suspension - This is a formal disciplinary action which suspends the right of the Medical Director and his staff to operate the pain management clinic for a fixed period of time. It contemplates the reopening of the practice under the license previously issued at that location.

1. Once ordered, a suspension may not be lifted unless and until the Medical Director petitions, pursuant to paragraph (2) of this rule, after the period of initial suspension has run and:

(i) All conditions placed on the suspension have been met; and

(ii) The Commissioner is satisfied that the Medical Director and his staff are competent to return to practice and that no further period of suspension is warranted such that the suspension should be lifted.

2. The clinic must be completely closed during the period of licensure suspension. If any licensee admits or sees any new or existing patients during the suspension, that shall be considered a violation of the suspension, and the length of suspension shall toll for any time during which the practice was open in violation of the suspension.

(e) Revocation - This is a formal disciplinary action which closes a clinic and terminates the license previously issued to operate that location as a pain management clinic.

(f) Conditions - Any action deemed appropriate by the Commissioner to be required of a disciplined Medical Director and/or clinic in any of the following circumstances:

1. During any period of probation or suspension; or

2. As a prerequisite to the lifting of probation or suspension; or

3. As a stand-alone requirement(s) in any disciplinary order.

(g) Civil penalty - A monetary disciplinary action assessed by the Commissioner pursuant to paragraph (4) of this rule.

(h) Summary Suspension - This is a formal disciplinary action which immediately and entirely suspends the rights of the Medical Director and his staff to operate the pain management clinic until it is lifted or until a final disposition of the matter after a full hearing. This type of suspension may be ordered ex-parte, pursuant to the notice procedures contained in T.C.A. § 4-5-320 upon a finding that the public health, safety or welfare imperatively requires emergency action.

(i) Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A. § 63-1-144.

(j) The Commissioner, at his discretion, may convene an advisory panel of one or more to make a recommendation to the Commissioner prior to the Commissioner's determination. The Commissioner shall not be bound by the recommendation of the advisory panel.

(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 and wishes or is required to obtain an order reflecting that compliance.

(a) The Commissioner 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) only 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 is seeking to have a suspension or probation lifted.

(b) Procedures

1. The petitioner shall submit a Petition for Order of Compliance, as contained in subparagraph (c), to the 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, sworn to, and notarized statements from each individual the petitioner intends to rely upon attesting, under oath, to the petitioner's compliance. 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 administrative staff may make an initial determination on the petition before it is heard by the Commissioner and take one of the following actions:

(i) Certify compliance and have the matter scheduled for presentation to the Commissioner 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 Commissioner, the petitioner may not submit any additional documentation or testimony other than that contained in the petition as originally submitted.

4. If the Commissioner 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 Commissioner 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.

(c) Form Petition

Petition for Order of Compliance Pain Management Clinic

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 I 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.

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 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 Committee's consultant, the Disciplinary Coordinator, and legal 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 __________________________

(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 Commissioner 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 or been issued a reprimand.

(a) The Commissioner 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 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 prove 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, sworn to, and notarized statements from each 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 administrative staff may make an initial determination on the petition before the Commissioner hears it and take one of the following actions:

(i) Certify impossibility of compliance and forward the petition to the Office of General Counsel for review and presentation to the Commissioner; 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 Commissioner, 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, the Commissioner may issue a new order reflecting the authorized modifications that he deems 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 Commissioner 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.

(c) Form Petition

Petition for Order Modification Pain Management Clinic

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 paragraph 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 and 63-1-316.

(b) Schedule of Civil Penalties

1. A Type A civil penalty may be imposed whenever the Commissioner finds the medical director, an owner, or clinic staff guilty of a willful and knowing violation of Tenn. Code Ann. §§ 63-1-301, et seq., 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 client or the public or in such a manner as to impact directly on the care of patients or the public.

2. A Type B civil penalty may be imposed whenever the Commissioner finds a medical director, an owner, or clinic staff is guilty of a violation of Tenn. Code Ann. §§ 63-1-301, et seq., or regulations promulgated pursuant thereto, which are neither directly detrimental to the patients or public, nor directly impact their care.

(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.

(d) Procedures for Assessing Civil Penalties

1. The Department may initiate a civil penalty assessment by filing a Memorandum of Assessment of Civil Penalty. The Department 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 Department 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 Commissioner or his designee during consideration of any Notice of Charges. In addition, the Commissioner or his designee may, upon good cause shown, assess a type and amount of civil penalty which was not recommended by the Department.

3. In assessing the civil penalties pursuant to these rules the Commissioner or his designee 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) At the conclusion of a hearing, should the Commissioner determine to hold the case under advisement and make a recommendation as to requirements to be met by the pain management clinic in order to avoid suspension, revocation, or other discipline of a license or suspension of admissions, such recommendations shall be a public record and shall be considered formal discipline.

(a) Should the Commissioner make such a recommendation, the clinic must present proof of having met those requirements to the Commissioner for a determination regarding whether they have been satisfactorily met.

(b) Should the Commissioner determine that the recommended requirements have not been met, the Commissioner shall make a finding and record of this determination, and shall impose appropriate formal discipline.

(c) Should the clinic comply with the recommendations, the Commissioner has the authority to impose a lesser sanction as outlined in his recommendation, or no sanction at all, provided however, that both the initial recommendations and final order shall be a public record and shall be considered formal discipline.

Tenn. Comp. R. & Regs. 1200-34-01-.12

Emergency rule filed May 25, 2017 and effective through November 21, 2017. The emergency rule expired on November 22, 2017 and reverted to its previous status. Original rules filed August 28, 2017; effective 11/26/2017.

Authority: T.C.A. §§ 63-1-303, 63-1-306, and 63-1-316.