Disciplinary Actions And Civil Penalties

(1) Actions - Upon a finding by the Board that any provision of the Tennessee Massage Therapist Practice Act or the rules promulgated pursuant thereto has been violated, the Board may impose any of the following actions separately or in any combination deemed appropriate to the offense. (a) Denial of an application for licensure. (b) “Letter of Warning and/or Letter of Concern.” These are a written action issued to the massage therapist for minor or near infractions. If such letter is issued by the Board’s consultant, it is informal and advisory in nature and does not constitute a formal disciplinary action. However, if such letter is issued by the Board at a contested case hearing through the issuance of a final order, it shall be considered an adverse act by the Board and reportable to the National Practitioner Databank and/or similar agency. (c) “Formal reprimand.” This is a written action. It is a formal disciplinary action. (d) “Probation.” This is a formal disciplinary action for a fixed period of time. GENERAL RULES GOVERNING LICENSED MASSAGE THERAPISTS CHAPTER 0870-01 AND ESTABLISHMENTS (e) “Licensure suspension.” This is a formal disciplinary action which suspends a licensee’s right to practice for a fixed period of time. It contemplates the re-entry of the licensee into the practice under the license previously issued. (f) “Licensure revocation.” This is a formal disciplinary action which removes a licensee from the practice of the profession and terminates the license previously issued. No new application for licensure from a person whose license was revoked shall be considered prior to the expiration of at least one (1) year unless otherwise stated in the Board’s revocation order. (g) 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; 2. As a prerequisite to the lifting of probation or suspension; or 3. As a stand-alone requirement or requirements in any disciplinary action. (h) Civil penalty - A monetary disciplinary action assessed by the Board pursuant to paragraph three (3) of this rule. (i) Once ordered, probation, suspension, assessment of a civil penalty, or any other condition(s) of any type of disciplinary action may not be lifted unless and until the 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. (2) Order of Compliance - This procedure is a necessary adjunct to each previously issued disciplinary order containing probation, suspension or other condition limiting the licensee’s ability to practice. An order of compliance is available only when a petitioner has completely complied with the conditions of a previously issued disciplinary order, including payment of civil penalties, completion of continuing education courses, or payment of administrative costs. If all conditions of the ordered discipline have been satisfied, or if no conditions have been placed on the license in addition to probation or suspension, the Board may consider a petition at its last meeting before the expiration of any such discipline. The Board, at its discretion, may require the petitioner to appear before granting such order. No discipline issued by the Board shall be lifted until the licensee petitions for and receives such order from the Board, which shall only be effective on the original date the discipline was to expire, and in no event effective earlier than the date of petition, pursuant to this paragraph. (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 (2)(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. GENERAL RULES GOVERNING LICENSED MASSAGE THERAPISTS CHAPTER 0870-01 AND ESTABLISHMENTS (b) Procedures 1. The petitioner shall submit a Petition for Order of Compliance, as contained in subparagraph (2)(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 (2)(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 Massage Licensure Board Petitioner’s Name: _________________________________ Petitioner’s Mailing Address: _________________________________ _________________________________ _________________________________ Petitioner’s E-Mail Address: _________________________________ Telephone Number: _________________________________ GENERAL RULES GOVERNING LICENSED MASSAGE THERAPISTS CHAPTER 0870-01 AND ESTABLISHMENTS 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; or 3. An order issued reflecting that compliance and reinstating a license previously revoked. 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 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, this petition. Respectfully submitted this the____ day of_______________,20___. ________________________________________ Petitioner’s Signature (3) Order Modifications - A licensee can petition the Board to modify a previously issued disciplinary order if the licensee cannot fulfill the conditions of the imposed discipline. This procedure is only available after all reconsideration and appeal rights have been either exhausted or not timely pursued. This procedure cannot be used to modify any findings of fact, conclusions of law, or the reasons for the decision contained in the order. (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 to the Board’s Office that shall contain all of the following: GENERAL RULES GOVERNING LICENSED MASSAGE THERAPISTS CHAPTER 0870-01 AND ESTABLISHMENTS (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 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 the Office of General Counsel, 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 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. 4. 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 request, in writing, to appear before the Board not less than thirty (30) days before the next regularly scheduled meeting of the Board. (4) Civil Penalties - 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. (a) Schedule and Amount of Civil Penalties 1. A Type A civil penalty may be imposed whenever the Board finds the person who is required to be licensed by the Board is guilty of a violation of T.C.A. §§ 63-18- 101, et seq. or regulations promulgated pursuant thereto, to such an extent that there is, or is likely to be a substantial threat to the health, safety and welfare of an individual client or the public. For purposes of this section, a type A penalty shall include, but not be limited to, a person who is or was practicing massage therapy without a license from the Board. Type A civil penalties shall be assessed in the amount of not less than $500 and not more than $1,000. 2. A Type B civil penalty may be imposed whenever the Board finds the person required to be licensed by the Board is guilty of a violation of T.C.A. §§ 63-18- 101, et seq. or regulations promulgated pursuant thereto in such manner as to impact directly on the care of clients or the public. Type B civil penalties may be assessed in the amount of not less than $100 and not more than $500. GENERAL RULES GOVERNING LICENSED MASSAGE THERAPISTS CHAPTER 0870-01 AND ESTABLISHMENTS 3. A Type C civil penalty may be imposed whenever the Board finds the person required to be licensed, permitted, or authorized by the Board is guilty of a violation of T.C.A. §§ 63-18-101, et seq. or regulations promulgated pursuant thereto, which is neither directly detrimental to the clients or public, nor directly impacts their care, but has only an indirect relationship to client care or the public. Type C civil penalties may be assessed in the amount of not less than $1 and not more than $100. (b) Procedures for Assessing Civil Penalties 1. During a contested case proceeding the Board may assess civil penalties in a type and amount which was not recommended by the Office of General Counsel. 2. In assessing 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. 3. All proceedings for the assessment of civil penalties shall be governed by the contested case provisions of T.C.A. Title 4, Chapter 5.