Tenn. Comp. R. & Regs. 1000-01-.04

Current through May 29, 2024

Section 1000-01-.04 - DISCIPLINE OF LICENSEES, UNAUTHORIZED PRACTICE OF PROFESSIONAL NURSING, CIVIL PENALTIES, SCREENING PANELS, SUBPOENAS, ADVISORY RULINGS, DECLARATORY ORDERS, AND ASSESSMENT OF COSTS

(1) Violations - A misdemeanor - penalties. See Nursing Acts 1967, T.C.A. §63-7-120.

(2) Exemptions - See Nursing Acts 1967, T.C.A. §63-7-102.

(a) Domestic administration of family remedies.

(b) Furnishing of assistance in the case of an emergency.

(c) Persons employed in institutions, agencies, or 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. Assisting is defined to mean helping, aiding or cooperating. Adequate supervision is defined to mean overseeing or inspecting with authority. 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. The following are tasks commonly performed by such persons:

1. Answers patients' signals, provides necessary assistance in conformance with delegated tasks, and notifies the appropriate nurse when the situation so indicates.

2. Assists with the admission, transfer and discharge of patients.

3. Assists with the dressing and undressing of patients.

4. Assists with the patients' baths.

5. Assists with the measuring of fluid intake and output of patients and the records on appropriate forms.

6. Assists with the collection of urine, stool, and sputum specimens.

7. Assists with the feeding of patients.

8. Assists with the weighing of patients.

9. Assists with the making of patients' beds.

10. Assists with the application and removal of such protective devices as side rails, footboards, and bed cradles

11. When a registered nurse undertakes to supervise other nursing tasks requiring greater skill and knowledge by such persons, the following requirements shall apply:

(i) Such persons shall assist with and undertake only those nursing tasks which they are qualified to perform.

(ii) The registered nurse shall supervise such persons.

(iii) The registered nurse shall retain professional accountability for nursing care when such persons are performing these activities.

(iv) The registered nurse shall not require assistance with or supervise nursing care activities or responsibilities by such persons contrary to the nurse practice act or rules and regulations to the detriment of patient care.

(v) Such persons shall have had proper instruction and supervised practice and shall have demonstrated competency in the procedure or activity.

(vi) There is documentation of continued competency by such persons in the performance of the procedure or activity.

(vii) There are written policies and procedures regarding the conditions under which the procedure or activity shall be performed by such persons.

(d) The practice of nursing incidental to a program of study by students enrolled in nursing education program approved by the Board is exempt from licensure; however, a student of a school of nursing shall not be employed in a capacity requiring a licensed person.

(e) Persons belonging to a recognized church or religious denomination having religious teachings and beliefs in regard to the care of the sick by prayer.

(f) Care of persons in their homes by domestic servants or aides if not initially employed in a nursing capacity.

(g) Employees of the United States government, provided they are lawfully qualified to practice nursing in another state.

(h) The practice of any currently licensed nurse of another state who is presenting educational programs or consultative services within this state for a period not to exceed fourteen (14) days in a calendar year.

(i) The practice of any currently licensed nurse of another state whose responsibilities include transporting patients into, out of, or through this state. Such exemption shall be limited to a period not to exceed forty-eight (48) hours for each transport.

(j) The practice of nursing by students who are enrolled in Board approved refresher programs or comprehensive orientation programs.

(3) Responsibility.

(a) Responsibility. Each individual is responsible for personal acts of negligence under the law. Registered nurses are liable if they perform delegated functions they are not prepared to handle by education and experience and for which supervision is not provided. In any patient care situation, the registered nurse should perform only those acts for which each has been prepared and has demonstrated ability to perform, bearing in mind the individual's personal responsibility under the law.

(b) Registered nurses, duly licensed by the State of Tennessee who practice nursing in this state are not prohibited from expanding their roles by the Nursing Practice Act. However, R.N.'s functioning in an expanded role assume personal responsibility for all of their acts. R.N.'s who manage the medical aspects of a patient's care must have written medical protocols, jointly developed by the nurse and the sponsoring physician(s). The detail of medical protocols will vary in relation to the complexity of the situations covered and the preparation of the R.N. using them.

(4) Discipline.

(a) The Board has the power to deny, revoke or suspend any certificate or license to practice nursing, as provided in the Nursing Acts 1967, T.C.A. §63-7-115.

(b) The procedure for revocation, suspension or reissuance of a license is described in the Nursing Acts 1967, T.C.A. §63-7-116.

(c) 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).

(d) 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).

(5) 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:

1. when the petitioner can persuade and demonstrate to the Board that compliance with any one (1) or more of the conditions or terms of the discipline previously ordered should not be required due to circumstances deemed compelling by the Board; or

2. 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 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 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 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 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) Form Petition

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

(6) 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 Nursing 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 purpose of this section, willfully and knowingly practicing professional nursing without a permit, license, certification, or other authorization from the Board is one of the violations of the Nursing Practice Act 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 a violation of the Nursing 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 Board finds a person who is required to be licensed, certified, permitted or authorized by the Board, guilty of a violation of the Nursing Practice Act 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.

(7) Screening Panels - Any screening panel(s) established pursuant to T.C.A. §§ 63-7-115 and 63-7-207:

(a) Shall have concurrent authority with the Board members and any individual nurse designated by the Board to do the acts enumerated therein and subject to the conditions contained therein.

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 or Contested Case Procedural Rules under the Administrative Procedures Act shall 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.

(8) 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 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 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 of 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 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, or any screening panel, and any hearing officer, arbitrator, mediator, or the Board's advisory attorney.

(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 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.

I. 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 physician'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 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 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 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, 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 Board 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

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 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.

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 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.

(9) Advisory Rulings - Any person who is affected by any matter within the jurisdiction of the Board and who holds a license issued pursuant to Chapter 7 of Title 63 of the Tennessee Code Annotated, may submit a written request for an advisory ruling. The procedures for obtaining and issuance of advisory rulings are as follows:

(a) The licensee shall submit the request to the Board Administrative Office on the form contained in subparagraph (e) providing all the necessary information; and

(b) The request, upon receipt, shall be referred to the Board's administrative staff for research, review and submission of a proposed ruling to the Board for its consideration at the next meeting after the draft ruling has been approved by the Board's Executive Director and advisory attorney; and

(c) The board shall review the proposed ruling and either make whatever revisions or substitutions it deem necessary for issuance or refer it back to the administrative staff for further research and drafting recommended by the Board; and

(d) Upon adoption by the Board the ruling shall be transmitted to the requesting licensee.

(e) Any request for an advisory ruling shall be made on the following form, a copy of which may be obtained from the Board's Administrative Office:

Click to view Image

Mail or Deliver to: Executive Director, Tennessee Board of Nursing

227 French Landing, Suite 300 Heritage Place, MetroCenter

Nashville, TN 37243

(10) 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 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 Board's administrative office.

(11) Assessment of costs in disciplinary proceedings shall be as set forth in T.C.A. §§ 63-1-144 and 63-7-115.

Tenn. Comp. R. & Regs. 1000-01-.04

Original rule certified May 10, 1974. Amendment filed May 17, 1974; effective June 17, 1974. Amendment filed October 30, 1975; effective November 30, 1975. Amendment filed February 28, 1983; effective March 30, 1983. Amendment filed February 14, 1984; effective March 15, 1984. Amendment filed September 18, 1985; effective October 18, 1985. Amendment filed December 18, 1989; effective February 1, 1990. Withdrawal to rule 1000-01-.04(6)(c) filed and effective December 4, 1999. Amendment filed October 26, 1999; effective January 9, 2000. Amendment filed April, 28, 2000; effective July 12, 2000. Amendment filed November 22, 2000; effective February 6, 2001. Amendments filed September 24, 2004; effective December 8, 2004. Amendment filed May 5, 2006; effective July 19, 2006.

Authority: T.C.A. §§ 4-5-202, 4-5-204, 4-5-217, 4-5-223, 4-5-312, 4-5-316, 4-5-317, 63-1-122, 63-1-144, 63-7-115, 63-7-116, and 63-7-207.