Discipline Of Licensees, Unauthorized Practice Of Nursing, Civil

PENALTIES, SCREENING PANELS, SUBPOENAS, DECLARATORY ORDERS, AND ASSESSMENT OF COSTS. (1) Exemptions - See Nursing Acts 1967, T.C.A. § 63-7-102. (This is not inclusive of all exemptions in statute.) (a) Domestic administration of family remedies. (b) Furnishing of assistance in the case of an emergency. (c) Persons employed in the office of a licensed physician or dentist, assisting in the nursing care of patients where adequate medical or nursing supervision or both is provided. The basic responsibility of the individual nurse who is required to supervise others is to determine which of the nursing needs can be delegated safely to others, and whether the individual to whom the duties are entrusted must be supervised personally. (d) The practice of nursing incidental to a program of study by students enrolled in a school of nursing approved by the Board is exempt from licensure; however, a student of a school of nursing may not be employed in a capacity requiring a licensed person. (2) Responsibility - Nurses are responsible for personal acts of negligence under the law. Nurses are liable if they perform delegated functions they are unprepared to handle by education and experience and for which supervision is not provided. In any patient care situation, the nurse should perform only those acts for which the nurse has been prepared and has demonstrated ability to perform, bearing in mind the individual’s personal responsibility under the law. GENERAL RULES AND REGULATIONS GOVERNING NURSING CHAPTER 1000-01 (3) Discipline (a) The Board has the power to deny, revoke or suspend any certificate or license to practice nursing, or to otherwise discipline a licensee, as provided in the Nursing Acts 1967, T.C.A. § 63-7-115. (b) The procedure for revocation, suspension, or other discipline shall be by contested case in accordance with T.C.A. §§ 4-5-301, et seq., these rules, and the Rules of the Secretary of State, Chapter 1360-04-01. 1. A respondent in a disciplinary case shall serve on the petitioner and file with the Tennessee Department of State Administrative Procedures Division a written answer to the notice of charges and to every amendment thereof. 2. The answer shall admit or deny each of the allegations in the charges or amendment thereof. If the respondent intends to deny only a part of an allegation, the respondent shall specify so much of it that is true and shall deny only the remainder. The answer shall also include any other matter, whether of law or fact, upon which respondent intends to rely for defense. 3. If the respondent fails to file an answer to the notice of charges within thirty (30) days of its service, the respondent will be deemed in default and the matter scheduled for default hearing. 4. In a case of default, the respondent shall be deemed to have: (i) Admitted all the factual allegations in the notice of charges; (ii) Waived the opportunity to show compliance with the law; (iii) Waived the opportunity for a hearing on the notice of charges; and (iv) Waived objection to any discipline requested in the notice of charges. (c) The procedure for reissuance of a license is described in the Nursing Acts 1967, T.C.A. § 63-7-116. (d) Any member of the Board may grant or deny a petition for reconsideration of a final order, as provided in Rule 1360-04-01-.18(1)(b). (e) Any member of the Board may, if adequate public notice is given, schedule a hearing on a petition for a stay, as provided in Rule 1360-04-01-.18(2). (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 GENERAL RULES AND REGULATIONS GOVERNING NURSING CHAPTER 1000-01 subparagraph (b) only when the petitioner can prove that compliance with any one (1) 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 for personal, financial, scheduling or other reasons. (b) Procedures 1. The petitioner shall submit a written and signed Petition for Order Modification in the format 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 compliance with the order as issued cannot or should not be achieved; and (iii) A copy of all documents that are relevant to meeting the provisions of subparagraph (a). If proof of the need for order modification 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 or should not be required. 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 Executive Director, or any Board member, or any Board consultant, or any Board-appointed designee to make an initial determination on the petition and take one of the following actions: (i) Confirm the petitioner’s legitimate difficulties with achieving 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 the petitioner’s difficulties with achieving compliance are not proven to be legitimate, and notify the petitioner of what 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 will 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 the Board’s Executive Director, or any Board member, or any Board consultant, or any Board-appointed designee or after presentation to the Board and the petitioner believes documentation supporting a legitimate inability to achieve 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) Petition GENERAL RULES AND REGULATIONS GOVERNING NURSING CHAPTER 1000-01 Petition for Order Modification Board of Nursing 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 cannot or should not continue to be imposed: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ 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 the need for order modification 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 or should not be required. 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 (5) Civil Penalties (a) 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 Tennessee Code, 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 purposes of this section, willfully and knowingly practicing nursing without a permit, license, certification, or other authorization from the Board is one of the violations of the Tennessee Code 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, guilty of GENERAL RULES AND REGULATIONS GOVERNING NURSING CHAPTER 1000-01 a violation of the Tennessee Code 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 Board finds a person who is required to be licensed, certified, permitted or authorized by the Board, guilty of a violation of the Tennessee Code or regulations pursuant thereto, which are neither directly detrimental to the patients or public, nor directly impact their care, but have only an indirect relationship to patient care or the public. (b) 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 nor more than $750. 3. Type C Civil Penalties may be assessed in the amount of not less than $50 nor more than $500. (c) 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; (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, T.C.A. (6) Screening Panels - Any screening panel(s) established pursuant to T.C.A. §§ 63-7-115 and 63-7-207: GENERAL RULES AND REGULATIONS GOVERNING NURSING CHAPTER 1000-01 (a) Shall have concurrent authority with the Board members and any individual nurse designated by the Board to do the acts described in this paragraph (6). 1. A screening panel(s) comprised of three (3) or more persons shall elect a chairperson prior to convening to conduct business. The screening panel(s) shall include at least one (1) but no more than three (3) licensed nurses who may be members of the Board or may serve voluntarily or through employment by or under contract with the Board. 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 review of a complaint by the Board’s consultant, or after completion of an investigation by the Division, a screening panel may upon request of either the state, or the licensee who is the subject of an investigation, 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 will apply in informal hearings before the screening panels(s). (i) Evidence may be presented or received in any manner and in whatever order agreed upon by the parties. (ii) Prior to convening the panel and in the absence of an agreement of the parties, the screening panel chairperson shall determine the manner and order of presentation of evidence. 2. Informal hearings may be conducted without the participation of the licensee who is the subject of the investigation. 3. A licensee who is the subject of an investigation being considered by a screening panel cannot be compelled to participate in any informal hearing. 4. It is not required that prior or subsequent notice of any informal hearing be given to any licensee who is the subject of an investigation being considered by a screening panel. 5. 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 or a duly constituted panel of the Board. (7) Subpoenas (a) Purpose - Although this rule applies to persons and entities other than nurses, it is the Board’s intent as to nurses that they be free to comprehensively treat and document GENERAL RULES AND REGULATIONS GOVERNING NURSING CHAPTER 1000-01 treatment of their patients without fear that the treatment 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 investigative subpoena power outlined herein shall be strictly proscribed. Such power shall not be used by the Division or Board investigators to seek other incriminating evidence against nurses 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 request for subpoena issuance is made, exists that a violation of the Nursing Practice Act 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 standard in any civil disciplinary action which may involve the person(s) or items that are the subject of the subpoena. (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 Executive 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. (III) Whether the proceedings for the issuance are to be conducted by physical appearance or electronic means; and GENERAL RULES AND REGULATIONS GOVERNING NURSING CHAPTER 1000-01 (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 Executive Director shall cause the following to take place: (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, or any screening panel, or any hearing officer, arbitrator or mediator to preside and determine if the subpoena should be issued; and (II) Establish a date, time and place for the proceedings to be conducted and notify the presiding officer and the applicant; and (III) Maintain a complete record of the proceedings including an audio recording in such a manner as to: I. Preserve a verbatim record of the proceeding; and II. Prevent the person(s) 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 involving 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 GENERAL RULES AND REGULATIONS GOVERNING NURSING CHAPTER 1000-01 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 Executive Director that the officer 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 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, issue the subpoena for the person(s) or items specifically found to be relevant to the inquiry; 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, involving the matters, items or person(s) that 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. 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, any such post-notice of charges subpoena 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) Investigative Subpoena Forms 1. All investigative subpoenas shall be issued on forms approved by the Board. 2. The investigative subpoena forms may be obtained by contacting the Board’s administrative office. (e) Service of Investigative Subpoenas - 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. (8) Declaratory Orders - The Board adopts, as if fully set out herein, Rule 1200-10-01-.11 of the Division of Health Related Boards and as it may from time to time be amended, as its rule GENERAL RULES AND REGULATIONS GOVERNING NURSING CHAPTER 1000-01 governing the declaratory order process. All declaratory order petitions involving statutes, rules or orders within the jurisdiction of the Board shall be addressed by the Board pursuant to that rule and not by the Division. Declaratory Order Petition forms can be obtained from the Secretary of State’s website. (9) Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A. §§ 63-1-144 and 63-7-115.