Licensure Discipline, Civil Penalties, Assessment Of Costs, And

SUBPOENAS. (1) Acts or omissions of or by an applicant or licensee which may, within the context of the policy statement of rule 1020-01-.16, constitute “unfitness” or “incompetence” in the practice of nursing home administration, as those terms are used in T.C.A. § 63-16-108(a)(1) for which disciplinary action and licensure or licensure renewal denial are authorized, include but are not limited to the following: (a) Failure to comply with all continuing education requirements of rule 1020-01-.12. (b) Intentionally or negligently allowing abuse or neglect of a resident or placing a resident in a situation where abuse or neglect, as those terms are defined in T.C.A. § 71-6- 102(1), is occurring or is likely to occur. (c) Habitual intoxication or personal misuse of any drugs or the use of intoxicating liquors, narcotics, controlled substances, or other drugs or stimulants in such manner as to adversely affect the person’s ability to practice nursing home administration. (d) Unauthorized use or unauthorized removal of narcotics, drugs, supplies or equipment from any health care facility or other work place location. (e) Impersonating another licensed nursing home administrator. (f) Permitting or allowing another person to use the licensee’s license for the purpose of nursing home administration. (g) Revocation or suspension or other disciplinary action taken with respect to a license to practice nursing home administration by another state or territory of the United States or any act or omission which would constitute grounds for the revocation, suspension or other disciplinary action with respect to a license in this state. GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 (h) Practicing nursing home administration in this state on a lapsed state license or beyond the period of a valid temporary license. (i) Failure to notify the appropriate licensure board of the unethical or illegal practice of any health care professional or provider of which the administrator has direct knowledge or responsibility. (j) Violation of any lawful order of the Board. (k) Making false statements or representations in obtaining a license to practice nursing home administration. (l) Willfully or repeatedly violating any of the provisions of the laws of the State of Tennessee governing licensure of nursing homes or any of the rules promulgated pursuant thereto. (2) Upon a finding by the Board that a licensee has violated any provision of the Tennessee Nursing Home Administrator Practice Act (T.C.A. §§ 63-16-101, et seq.) or the rules promulgated pursuant thereto, the Board may impose any of the following actions separately or in any combination which is deemed appropriate to the offense: (a) Private Censure. A written action issued to the licensee for minor or near infractions. It is informal and advisory in nature and does not constitute a formal disciplinary action. (b) Public Censure or Reprimand. A written action issued to a licensee for a single episode or less severe violations. It is a formal disciplinary action. (c) Probation. A formal disciplinary action which places a licensee 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 licensee’s activities during the probationary period. (d) Licensure Suspension. A formal disciplinary action which suspends a licensee’s right to practice for a fixed period of time. It contemplates the reentry of the licensee into practice under the license previously issued. (e) Licensure Revocation. The most severe form of disciplinary action which removes a licensee from practice and terminates the license previously issued. It relegates the violator to the status possessed prior to application for licensure. However, the Board may allow the reinstatement of a revoked license upon conditions and after a period of time it deems appropriate. No petition for reinstatement and no new application for licensure from a person whose license has been revoked shall be considered prior to the expiration of at least one (1) year. (f) 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; or 2. During any period of revocation after which the licensee 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; or 4. As a stand-alone requirement(s) in any disciplinary order. GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 (g) Civil penalty. A monetary disciplinary action assessed by the Board pursuant to paragraph (5) of this rule. (h) Once ordered, probation, suspension, revocation, 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 Board after the period of initial probation, suspension, revocation, or other conditioning has run and all conditions placed on the probation, suspension, revocation, 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 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 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. (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: GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 (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 Examiners for Nursing Home Administrators 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; 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 GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 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 (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 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 GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 (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 1200- 10-01-.11. (c) Form Petition Petition for Order Modification Board of Examiners for Nursing Home Administrators 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 GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 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) 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 certified by the Board guilty of a willful and knowing violation of the Practice Act, or regulations promulgated pursuant thereto, to such an extent that there is or is likely to be an imminent, substantial threat to the public. For purposes of this section willfully and knowingly practicing as a nursing home administrator without a license from the Board is one of the violations of the Nursing Home Administrators Practice Act for which a Type A Civil Penalty is assessable. 2. A Type B Civil Penalty may be imposed whenever the Board finds a person required to be licensed by the Board is guilty of a violation of the Nursing Home Administrators Practice Act or regulations promulgated 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 required to be licensed by the Board is guilty of a violation of the Nursing Home Administrators Practice Act or regulations promulgated pursuant thereto, which is neither directly detrimental to the patients or public, nor directly impacts their care, but has only an indirect relationship to patient care or the public. 4. Each day a violation continues to occur shall constitute a separate violation. (c) Amount of Civil Penalties. 1. Type A Civil Penalties may be assessed in the amount of not less than $500 nor more than $1,000. 2. Type B Civil Penalties may be assessed in the amount of not less than $100 nor more than $500. 3. Type C Civil Penalties may be assessed in the amount of not less than $50 nor more than $100. (d) Procedure for Assessing Civil Penalties. 1. The Division 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. GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 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. (6) All proceedings for the assessment of civil penalties shall be governed by the contested case provisions of the Administrative Procedures Act, T.C.A. §§ 4-5-301, et seq. (7) The Board authorizes the member who chaired the Board for a contested case to be the agency member to make the decisions authorized pursuant to rule 1360-04-01-.18 regarding petitions for reconsiderations and stays in that case. (8) Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A. §§ 63-1-144 and 63-16-115. (9) Subpoenas (a) Purpose – Although this rule applies to persons and entities other than nursing home administrators, it is the Board’s intent as to nursing home administrators that they be free to comprehensively treat and document treatment of their residents 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 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 nursing home administrators 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 GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 that a violation of nursing home administrator statutes 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. In no event shall such subpoena be broadly drafted to provide investigative access to medical 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 board consideration of a nursing home administrators conduct, act, or omission. (III) Whether the proceedings for the issuance is 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 the board, to preside and determine if issuing the subpoena should be recommended to the full Board; and GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 (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 Boards’ 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 GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01 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 members to which the board 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 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. GENERAL RULES GOVERNING NURSING HOME ADMINISTRATORS CHAPTER 1020-01